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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Thomas [1887] ScotLR 24_596 (17 June 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0596.html
Cite as: [1887] SLR 24_596, [1887] ScotLR 24_596
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SCOTTISH_SLR_Court_of_Session
Page: 596↓
Court of Session Inner House Second Division.
[Dean of Guild Court, Govanhill.
v.
Facts:
A petition for a lining was presented in a Dean of Guild Court, and the burgh surveyor for the public interest lodged objections stating that the alterations proposed were of such a nature that they would be a nuisance, that they would cause annoyance and discomfort to the neighbours, danger to the public health, and danger from fire. The respondent also averred that the alterations were in contravention of the Public Health (Scotland) Act 1867, sec. 16, and the General Police Act 1862, sec. 177. The petitioner pleaded that the Dean of Guild Court had no jurisdiction to entertain these objections. The respondent was allowed a proof of his averments. The petitioner then appealed to the Court of Session under the 36th section of the Act 50 Geo. III. cap. 112, which allows appeals from interlocutory judgments of inferior courts, upon the ground, inter alia, of incompetency, including defect of jurisdiction. The Court ( diss. Lord Rutherfurd Clark) dismissed the appeal, holding that as the objections, or some of them, did not upon the face of them include matters which were beyond the
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jurisdiction of the Dean of Guild Court, the inquiry should proceed.
Robert Robertson, carriage hirer, Westmoreland Street, Govanhill, presented a petition to the Magistrates of Govanhill as a Dean of Guild Court, and prayed the Court to line the ground described in the condescendence annexed to the petition, and approve of the proposed alterations thereon, conform to plans and sections produced, and to authorise the petitioner to use such portion of Westmoreland Street as might be necessary for the purpose of depositing materials and making the alterations.
Moses Thomas, Burgh Surveyor, Govanhill. lodged objections to the petition. He stated—“(1) The proposed buildings will be the cause of very disagreeable smells, which will be prejudicial to the public health by vitiation of the air. (2) There will be continuous and great noise arising from the large business of stable-keeping proposed to be carried on by the petitioner. (3) The presence of the large number of horses to which the proposed buildings will give accommodation (between thirty and forty) may be the cause of epidemic disease of a serious kind in the neighbourhood. (4) The proposed buildings will greatly vitiate the air by the emission of the large quantity of smoke that must necessarily arise in the preparation of the food for so many horses, and otherwise in connection therewith. (5) The stables will give rise to the presence of large numbers of rats in the neighbouring houses, to the annoyance and danger of the inhabitants. (6) The risk of fire in the neighbourhood will be much increased by the existence of the proposed buildings. (7) This respondent's objections are accentuated by the fact that the proposed buildings will be in the centre of what is almost already, and will soon be entirely, a hollow square (that is, a square built on all four sides), the area of which is little more than an acre in extent, through which there is no provision for a current of pure air or for ready access in case of fire or otherwise, and dwelling round which there is already a population of about 500, which will be increased when the square is entirely built, to 700 or 800. (8) The proposed buildings are in contravention of section 16 of sub-section (c) of the Public Health (Scotland) Act 1867, and section 177 of the General Police and Improvement (Scotland) Act 1862.”
The petitioner pleaded—“(3) No jurisdiction relative to objections.”
The respondent pleaded—“(2) The proposed buildings being of a nature to cause serious annoyance and discomfort to the neighbours, and danger to the public health, the petition should be refused. (3) The proposed buildings being a nuisance both at common law and by statute, should not be sanctioned.”
On 16th May the Dean of Guild Court pronounced this interlocutor:—“Having heard parties' procurators, and made avizandum, Repels the preliminary pleas stated for the respondent Moses Thomas against the petitioner's title to sue, and quoad ultra allows the respondent Moses Thomas a proof of the averments in his objections, and to the petitioner a conjunct probation.
“ Note.—In the opinion of one of the magistrates, and also of the assessor, the averments of the respondent Moses Thomas are irrelevan and incompetent, and the pleas stated by him should be repelled. The majority of the magistrates, however, are of opinion that the respondent's averments should be admitted to probation.”
The Act 50 Geo. III. cap. 112, sec. 36, provides—“And be it enacted, that bills of advocation from the Sheriffs and other inferior judges in Scotland against interlocutory judgments shall be allowed only upon the following grounds—First, of incompetency including defect of jurisdiction, personal objection to the judge, and privilege of party; secondly, of contingency; thirdly, of legal objection with respect to the mode of proof, or with respect to some change of possession, or to an interim decree for a partial payment, provided that in the cases specified under the third head leave is given by the inferior judge.”
The petitioner appealed to the Court of Session, and argued—This appeal was competent. It was admitted that the appeal was under the Act of 50 Geo. III. cap. 112, but the 36th section of that Act allowed appeals from the interlocutory judgments of inferior courts, where these judgments were beyond the competency of the court pronouncing them. Here it was plain that all the objections urged against the plans for which a lining had been sought, were objections against the use to which the proposed buildings were to be put, and not objections to any structural deficiency. It had, however, been held, and was settled law, that the Dean of Guild Court had no jurisdiction to inquire into any nuisance that might arise from the use proposed to be made of any building, but could only deal with objections to the structure and formation of the building. If any nuisance was caused by the use of the building, the proper remedy was by interdict in the Sheriff Court, and not by objections to the proposed structure in the Dean of Guild Court. As the Dean of Guild Court had no power to deal with the objections that had been raised by the burgh surveyor, it was incompetent for the magistrates to order an inquiry to be made into them. The Dean of Guild Court had power to say that these objections could not be entertained in that Court against a petition properly brought there, but had no power to order an inquiry into objections which plainly dealt with questions relating solely to the use to which the proposed buildings were to be put, and not to their structure. The appeal was therefore competently brought under the Act of 50 Geo. III. c. 112, and the present case was analogous to cases in which questions of heritable right arise in the Dean of Guild Court. The Dean of Guild might competently consider a petition as to a proposed building, but if a question of heritable right arose upon the competing claims of two proprietors, the Dean of Guild could not determine it, although he might hold that there was no real competition of title and proceed with the case. As regarded the objections in the respondent's eighth statement, these were objections under public statutes. In both of the statutes founded on, machinery was provided for carrying them out, and for punishing persons who transgressed their provisions. It must be taken that the public authorities in Govanhill were quite competent to carry out the provisions of the statutes
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in the way provided, and did not require to proceed by way of objections in the Dean of Guild Court.— Forrest v. Manson, June 14, 1887, 24 S.L.R. 578; Colville v. Carrick, July 19, 1883, 10 R. 1241, 20 S.L.R. 839; Lang v. Bruce, February 5, 1873, 11 Macph. 377; Miller v. Crawford, January 15, 1881, 8 R. 385; Pitman, &c. v. Burnet's Trustees, July 7, 1881, 8 R. 914; Donaldson v. Pattison and Others, November 14, 1834, 13 S. 27. The respondent argued—The appeal was incompetent. The only statute under which appeals could be taken from inferior courts other than the Sheriff Court was the Act 50 Geo. III. cap. 112, and that allowed appeals only against interlocutors dealing with the merits of the case, and not against interlocutory judgments. This petition had been competently presented in the Dean of Guild Court, the objections had been competently lodged by the burgh surveyor in the public interest, and the Court had the right to examine into the circumstances which the objections disclosed, in order to say whether the Court should deal with them or not. All the circumstances stated in the objections showed that there was here a state of affairs in which it was only right that the Dean of Guild Court should have jurisdiction. It was alleged that disease and danger might be caused by the proposed alterations, and if that were connected with the structure of the buildings, then the Dean of Guild had power to deal with the matter. But it was impossible to know the facts without inquiry and therefore the inquiry ought to be allowed to go on— Lamont v. Cumming, June 11, 1075, 2 R. 785; Buchanan v. Bell, November 15, 1774, M. 13, 178; Proprietors of Carrubbers Close, February 26, 1762, M. 13, 175; Thomson, November 21, 1776, M. 13, 182; Vary, July 2, 1805, Diet. voce Pub. Police Appx. p. 4; Blakeney v. Rattray's Trustees, July 10, 1886, 13 R. 1151; Glass v. Glasgow Master of Works, March 5, 1887, 14 R. 567; Arrol v. Inches, January 27, 1887, 24 S.L.R. 287, and 14 R. 394; Moffat v. Denham, June 26, 1829, 7 S. 781; Alison v. Balmain, October 25, 1882, 10 R. (J. C.) 12.
At advising—
The petition was presented in the Dean of Guild Court of Govanhill at the instance of Robert Robertson, a carriage-hirer there, andprays the Dean of Guild “to line the ground described in the said condescendence, and approve of the proposed alterations thereon, conform to the plans and sections herewith produced, and to authorise the petitioner to use such portion of Westmoreland Street as may be necessary for the purpose of depositing materials and making the alterations referred to.” Now, the Burgh Surveyor of Govanhill makes these statements in objection to the alterations— first, that the proposed buildings will be the cause of disagreeable smells, which will be prejudicial to the public health by the vitiation of the air; second, that there will be a great noise; third, that the presence in the proposed buildings of a large number of horses will be the cause of epidemic disease; fourth, that the emission of smoke in the course of preparing food for so many horses will cause vitiation of the air; fifth, the presence of rats; and sixth, the risk of fire. Then the seventh and eighth statements substantially embody all the previous objections, and in these the surveyor says—[ His Lordship here read the seventh and eighth statements, quoted above].
Now, the Dean of Guild before disposing of the objections allowed the respondent a proof of his averments, and the petitioner has appealed to this Court on the ground that the objections taken are beyond the cognisance and jurisdiction of the Dean of Guild Court. To the competency of this appeal it is objected that the judgment in the Inferior Court is merely an interlocutory judgment. In maintaining its competency the petitioner has argued that an allowance of proof of these objections is an excess of the jurisdiction of the Dean of Guild Court. Now, if I were satisfied on the face of these objections that they included matters beyond the jurisdiction of the Dean of Guild Court, I would give effect without difficulty to the appellant's argument. But I do not think that this is the nature of the present case. Apparently the facts are that this stable stands in the centre of a square, and that the premises are to be enlarged. Now, although the Dean of Guild is not a judge in a simple case of nuisance, unconnected with the structure of the building sought to be erected, still the result of the proof may be that he will find that the structure and the nuisance are connected. I am clearly of opinion that there are cases of nuisance arising from the use of buildings which cannot come under the jurisdiction of the Dean of Guild, because they are not connected with the structure of the buildings. But on the other hand it is no answer to say what the appellant says here if the nuisance is connected with the structure of the building, and the use is the use of that building. It may well be that a thing which is innocuous in one place may be a nuisance in another, and that may be the condition of affairs in regard to this stable. I think that that is the outcome of the cases quoted to us, and that there is no case in which the objection was one taken to a building in regard to its particular locality and surroundings in which it has been held there was no case for inquiry. If I were to take some of these objections by themselves I might be inclined to say that they are not within the jurisdiction of the Dean of Guild, but I do not think we ought at this stage to limit the inquiry. I think that the Dean of Guild is entitled to make the proposed inquiry. The result may be to bring out that the matters put forward as objections are outside of his jurisdiction, but I do not think-we can say so as yet.
The view of the Dean of Guild is that he is not, without inquiry, able to say that all the objections stated are such as to be outside his jurisdiction, although in the end of the day it may turn out that all the objections are beyond his jurisdiction. I am not satisfied that all these objections are outside his jurisdiction, and I
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The Court dismissed the appeal, and affirmed the judgment of the Dean of Guild appealed against.
Counsel for Appellant— Darling— Watt. Agent— Andrew Urquhart, S.S.C.
Counsel for Respondent— Dickson— Law. Agents— Macpherson & Mackay, W.S.