Scottish Court of Session Decisions

On 24th March 1886 Thomas Samuel Blakeney, warehouseman, Dundee, presented a petition to the Dean of Guild of that burgh for warrant to erect a tenement to consist of a shop and dwelling-houses, and of a saloon and accessories thereto, upon a piece of ground at the north-west corner of Whitehall Street, which he had feued from the Police Commissioners as local authority of the burgh. The petition was served, inter alios, upon Gray Bisset, solicitor, Dundee, and Miss Agnes Rattray, residing at 3 Osborne Place, Dundee, trustees acting under the trust-disposition and settlement of the late James Rattray, jeweller, Dundee, and on Mrs Rattray as an individual, as conterminous proprietors. They lodged objections to the petition. A record was made up.

The defenders averred that the saloon behind their (defenders') building which the petitioner proposed to erect was not according to law, in respect (1) that the level of the ceiling of the proposed saloon would exceed in height the level of the ceiling of the shop on the ground-floor of the petitioner's intended building, and that this was contrary to the provisions of the Dundee Police and Improvement Consolidation Act 1882, sec. 130, quoted infra; (2) That the erection of the saloon to the height contemplated would have a prejudicial effect upon the light of their (defenders') property.

The petitioner maintained, inter alia, (1) that it was jus tertii of the defenders to object to the height of the saloon, they having no right of servitude or other right over the subjects in which the saloon was proposed to be erected; (2) that the Dean of Guild had no jurisdiction to review the Police Commissioners’ deliverance as regarded the height of the saloon. He also averred that no damage would be done to the respondents' property, and that as regarded that he was willing to execute the work to the satisfaction of anyone appointed by the Court. The feu-contract under which the petitioner had feued the land on which he was desirous of building the tenement provided that the buildings should be conform to elevations provided by the Police Commissioners, and to plans to be approved by them, and “without prejudice to what is before written, it is also hereby specially provided and declared, that buildings consisting of shops and flats above, of not more, including said shops, than four storeys in height, with saloons of one storey behind, shall be alone erected.”

On 14th April 1886 the Lord Dean of Guild having heard parties, and visited the premises, issued an interlocutor by which he repelled the objections and defences of the respondents, granted warrant to the petitioner to erect the tenement of a shop, and dwelling-houses, and saloon and accessories, mentioned in the petition, as craved, but appointed the work so far as adjoining the respondents' property, to be executed at the sight and to the satisfaction of Alexander Duncan, builder in Dundee.

“ Note.—.. . The remaining objection applies solely to the saloon, the respondents contending that its height was in contravention of section 130 of the Dundee Police and Improvement Consolidation Act 1882. That section provides, inter alia, ‘that if in any new building the ground-floor is designed for and to be occupied as shops or business offices, the Commissioners shall, notwithstanding that the building otherwise is intended to be used as a dwelling-house or for dwelling-houses, permit the erection of saloons or warerooms in connection with such shops or offices, and immediately behind the same, …. but the level of the ceiling of such saloons or warerooms shall in no case exceed in height the level of the ceiling of such shops and offices.’

Now, on referring to the plans in process, which bear to be approved of by the commissioners, it will be seen that the petitioner in his building intends to occupy the lower portion, consisting of two sections, as a shop, and the upper portion consisting of three distinct flats, as dwelling-houses, and that the level of the ceiling of the saloon does not in point of fact exceed the level of the ceiling of the portion of the building designed for and to be occupied as a shop.

But it was urged, notwithstanding, that the proviso applied to a shop or office solely and exclusively on the ground floor, and that as in this instance the shop though internally one was divided according to the plans into two floors, the height of the ceiling of the saloon fell to be restricted to the height of the level of the ceiling of the lower floor.

The question thus raised is not unattended with difficulty, but as every proprietor at common law is unrestricted in the height of his building, any restraint falls to be strictly construed, and to be effectual must in its terms be express and unequivocal. Applying this canon of interpretation, and having in view the declared object of the statute to secure an open space behind new buildings, or portions of new buildings, occupied as dwelling-houses, for ventilation and other purposes, it appears to the Dean that the interpretation urged is too rigid, and that the sound construction

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is that the level of the ceiling of the saloon must not exceed in height the level of the ceiling of the shop, whether that consists of one or more floors, so long as it is in fact only one shop. In other words, the open space required, and which must be unbuilt on by the Act, is opposite that portion of the building designed for dwelling-houses, the object in view being to secure free air and thorough ventilation for the dwellings.

The plea that the height of the saloon would be prejudicial to the lights of the respondent's property is clearly untenable, as under the provisions of the Act the open space or area has reference solely and directly to the protection of light and air for the benefit of the dwelling-houses in ‘new buildings ‘without regard to the neighbouring properties.

As the Dean is of opinion that the respondents were justified in appearing in order that the part of the operations in which they were interested might be carried out under supervision, and as various pleas have been advanced that have not been sustained, it has to some extent been a case of mixed success, and therefore expenses have not been awarded.”

The defenders appealed to the Court of Session, and argued—The Act contemplated only that the ground floor was to be used as a shop and offices, and any saloon erected behind that part must be of the height of the ceiling of the ground floor only. If any division was made internally, then the saloon must be only of the height of the division. The provision was intended for the benefit not only of the persons living above the shop but also to secure ventilation for the houses round about. Here the saloon was meant to be the height of two floors, and therefore was against the provisions of the Police Act.

The petitioner's counsel was not called upon.