Scottish Court of Session Decisions

The Eglinton Chemical Company sought to suspend two convictions obtained against them by W. D. M'Jannet, the Procurator-Fiscal of the Dean of Guild Court of the burgh of Irvine, for having on two separate occasions built a tannery and a cart-shed within the burgh without the warrant of the Dean of Guild.

Under a charter of Robert II. there is conferred upon the burgh of Irvine “the liberty of Guild as other burghs and burgesses of our kingdom have and were wont to have that liberty, and that they may appoint Guild brethren in the said burgh of Irvine, who shall enjoy, and shall be reckoned to enjoy, every liberty of Guild that others whatsoever burgesses of our kingdom hitherto have enjoyed.”

By section 53 of the Irvine Burgh Act 1881 (44 and 45 Vict.) it is enacted—“The Dean of Guild shall, subject to the provisions of this Act, have and exercise within the extended burgh all the jurisdiction, powers, and privileges possessed or exercised by Deans of Guild in any royal burgh in Scotland, and all the jurisdiction, powers, and privileges conferred on him by this Act.

By section 54 of the said Act it is provided that all proceedings under the General Police Act as modified by the Irvine Burgh Act with respect to improving streets, removing obstructions, public sewers, &c., may be taken either before the Magistrates or before the Dean of Guild. Section 59 provides for the procedure before the Dean of Guild.

By section 65 of the said Act it is provided that the Dean of Guild may from time to time frame rules for the procedure before his Court, and byelaws for the enforcement of these rules by penalty or otherwise, provided always that none of these rules or byelaws shall have any force until approved of by the Corporation and the Sheriff of the county. In terms of this section the Dean of Guild framed byelaws, rules, regulations, and forms of the procedure, which were approved by the Corporation on 4th May, and by the Sheriff on 2nd July 1886. The second rule provides—“No building operations of any kind shall be allowed to be erected, added to, or altered within the burgh unless plans thereof have previously been submitted to and approved of by the Dean of Guild's Court of the burgh.

In November 1888 the complainers resolved to erect a tannery on a piece of ground belonging to them, and on which their works are built, extending to about 100 acres, all lying within the burgh of Irvine. Various tradesmen gave in specifications for the work, among them being the Dean of Guild of the burgh. His offer, however, was not accepted. The erection of the tannery was proceeded with, and completed on 20th December 1888. When completed the new erection measured 55 feet in length. The height of the front wall was 17 feet 6 inches, and the height from floor to ridge was 31 feet. In addition to this building there was a lean-to shed, extending 40 feet further in length. The tannery was at the nearest point 65 feet distant from the nearest boundary of the complainer's property. This boundary was a road which had not been taken over by the Police Commissioners of the burgh, but which was used by feuars and by the workpeople employed in the complainers' and neighbouring works. The complainers' works employed a large number of the townspeople of Irvine.

On 13th December 1888 the respondent presented a petition to the Dean of Guild Court charging the complainers with a contravention of the bye-laws and rules and regulations and forms of procedure for the Court made and approved of in terms of the Irvine Burgh Act 1881, in so far as they were in process of erecting the tannery without plans thereof having been previously submitted and approved of by the Court, or without having applied for or obtained the sanction of the Court to the said operations, and praying the Court, inter alia, to fine the complainers £5, or such other sum as the Court

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might deem just for the alleged contravention. This petition was served on the complainers, but no answers were lodged by them. At a Court held on 27th December 1888 the Dean of Guild, on the ground of no appearance having been made for the complainers, and on the motion of the respondent, convicted the complainers of the contravention charged and fined them £5, and granted warrant in default of payment within seven days to poind and sell the complainers' effects. The complainers having declined to pay the fine, the respondent on 13th February 1889 caused a poinding to be executed of certain goods and effects belonging to the complainers in their chemical works. Thereupon the complainers raised an action of suspension and interdict against the respondent in the Court of Session, praying the Court to suspend the conviction of the Dean of Guild, and to interdict the respondent from selling any effects belonging to the complainers by virtue of the poinding.

The circumstances which gave rise to the cart-shed case were as follows — In the autumn of 1888 a cart-shed erected on a piece of ground extending to about an acre belonging to the complainers, and lying within the burgh of Irvine, was blown down. This cart-shed was situated a few feet from a gateway leading to a street under the charge of the Police Commissioners of the burgh, and adjoining the properties of neighbouring proprietors. On 22nd December 1888 the complainers lodged a petition with the Dean of Guild Clerk asking a warrant for the re-erection of the cart-shed blown down. Along with the petition plans were also lodged showing the proposed operations. Intimation was made to the complainers that some one would require to appear before the Dean of Guild Court to support the petition. As no appearance was made, the Dean of Guild on 5th February 1890 dismissed the complainers' petition. The complainers nevertheless proceeded to re-erect the cart-shed in accordance with the plans lodged. Thereupon on 22nd February 1889 the respondent presented a petition to the Dean of Guild Court alleging that the complainers had been guilty of a contravention of the byelaws of the Court in putting up the cartshed without the Dean of Guild's warrant, and praying the Court to interdict the complainers from proceeding with the building, and to fine them £5. On the same date the Dean of Guild granted warrant for serving the petition on the complainers, and interdicted them proceeding with the building. Service was made on the complainers, but no answers were lodged by them. A proof was thereafter allowed by the Dean of Guild, and was taken on 12th March 1889, the complainers not being represented. A fine of £5 was imposed on the complainers, and as the cart-shed was then completed the interdict was withdrawn. The complainers having refused to pay the fine, the respondent, on 23rd March 1889, carried out a poinding of certain of their effects. Thereupon the complainers raised an action of suspension and interdict against the respondent in the Court of Session, praying the Court to suspend the proceedings complained of, and interdict the respondent from selling any of the effects belonging to the complainers.

In both actions the complainers pleaded—“(1) The said Court having no jurisdiction over the complainers in reference to the buildings in question, the said decree was ultra vires, and the complainers are therefore entitled to suspension and interdict as prayed for.”

The respondent pleaded—“(3) The proceedings in the Dean of Guild Court having been regular, and within its jurisdiction and power, the note should be refused with expenses. (4) The complainers are barred by their own actings from objecting to the jurisdiction of the said Court in the proceedings complained of in the tannery case.”

On 10th April 1890 the Lord Ordinary ( Wellwood) pronounced the following interlocutor:—“Having considered the debate, together with the proof and whole process, sustains the third plea-in-law for the respondent: Repels the reasons of suspension: Finds the charge orderly proceeded, and decerns: Finds the respondent entitled to expenses, &c.

“ Opinion.—… The present process of suspension is brought by the complainers, the Eglinton Chemical Company, Limited, for the purpose of having set aside a conviction or judgment pronounced by the Dean of Guild of the burgh of Irvine on the 27th December 1888, by which the Dean of Guild convicted the complainers of having contravened the rule just quoted, in so far as they erected a tannery or other building without plans thereof having been previously submitted to and approved of by the Dean of Guild Court of the said burgh, or having applied for or obtained the sanction of the Dean of Guild of the said royal burgh of Irvine to the said operations, and accordingly fined the complainers in the sum of £5 sterling of penalty.

“It was represented to me that the suspension was intended to raise a question of general interest and importance, viz., Whether the Dean of Guild's jurisdiction extends to buildings erected or to be erected wholly within the property of the complainers, and at a considerable distance from the verge of their property? and accordingly the proof and arguments were limited to that question.

“The parties at first lodged a minute of admissions with a view of obviating the necessity for proof, but I thought it desirable that there should be some parole evidence in explanation of the plans produced. From the plans and from the parole evidence we now know precisely the character and position of the tannery.

“It appears that in 1888 the complainers, who have large chemical works within the burgh of Irvine, were desirous of making an addition to them in the shape of a tannery. This involved the alteration of an existing building which had previously been used as a store, and the erection of a new building in continuation of it. The main part of the

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new building as subsequently erected is 55 feet in length, 17 feet 6 inches to the top of the walls, and 31 feet from the floor to the ridge of the roof. In addition to this building there is what is called a lean-to, extending 40 feet further in length. In addition to the erection of the new building, the walls of an old building against which it was erected had to be underbuilt to a certain extent, an operation requiring some care. The new building is at the nearest point 65 feet distant from the nearest boundary of the complainers' property. The total cost of erecting and fitting up the tannery amounted to £405. The roof of the tannery is a distinct ridge from the roofs covering the other buildings shown on the plan. It will thus be seen that the building operations contemplated and carried out were considerable, and during the argument I did not understand it to be disputed that if those building operations had been conducted on the verge of the complainers' property the complainers would have required to obtain the sanction of the Dean of Guild. But they maintain that his sanction was not required in the circumstances, in respect that the buildings erected were not only entirely within their own property, but at such a distance from the boundaries that they could not possibly be regarded as encroaching upon the properties of neighbouring proprietors, or as threatening danger to the public—that is to say, the outside public as distinguished from the workmen employed in the complainers' works.

“Now, the proceedings of the complainers were undoubtedly in the teeth of the letter of the rules and regulations framed by the Dean of Guild, and approved of by the Corporation and by the Sheriff, and it may be doubted whether these rules and regulations can be challenged while standing unreduced. But assuming that the complainers could, without bringing a reduction of the rules and regulations, impugn them as being ultra vires of the Dean of Guild, they would have to show clearly and conclusively that it was not within the powers of the Dean of Guild of any royal burgh to insist that in the case of new buildings plans must be lodged and approved by him. This, I think, they have failed to do.

“The limits of the common law jurisdiction of the Dean of Guild of a royal burgh are not exhaustively defined by authority or decision. The statements of the institutional writers on the subject are scant, and the decisions of the law courts are comparatively few. Moreover, some of the later decisions are difficult of application, because they turn upon the construction of local statutes, under which no doubt to a certain extent the Dean of Guild's jurisdiction at common law is declared and defined, but which also contain supplementary provisions conferring powers which he does not possess at common law, and in some cases the questions raised were complicated by the Dean of Guild's powers and duties being divided between the Dean of Guild and Police Commissioners.

“Dealing with the authorities as they stansd, I do not find grounds sufficient to support the complainers' contention. The tendency of decision has no doubt been to confine the Dean of Guild's jurisdiction to matters strictly within his own province. For instance, it has been held that he has no jurisdiction at common law in regard to obstructions in public streets or simple questions of nuisance. But the regulation of all buildings within burgh, both as to their erection and their maintenance, is peculiarly his function. I know of no authority for the contention that his sanction is not required for the erection of new buildings within burgh wherever situated. No dictum or decision to that effect was cited to me. According to general understanding the Dean of Guild has prima facie jurisdiction in regard to all buildings within burgh, and if any grounds for restricting his powers as to them had been supposed to exist I should have expected to have found some traces of the question having at least been raised before this.

“The complainers founded strongly upon those cases in which it was decided that the Dean of Guild's sanction is not required for internal operations, and they argued that if such operations, however dangerous, might be carried on without his sanction new buildings erected at a distance from the boundaries of a property should equally be regarded as internal operations, and as such exempted from his supervision. There is a good deal of force in this argument, because there is no doubt that alterations upon the internal structure of a house may be attended with as much danger as the erection of a new house, but I think that the complainers' contention carries them too far. It was not disputed in the cases referred to that if instead of altering existing buildings the proprietor had been erecting them for the first time he would have required the sanction of the Dean of Guild, although the erection of new buildings might not be so dangerous as the proposed alteration of existing buildings. And this, I think, shows the reason why the Dean of Guild's sanction is not required in the case of internal alterations is because the original building having presumably been erected with his sanction, and on lines approved by him, internal alterations are considered to be subsidiary matters with which it would be unnecessary and vexatious for him to interfere in ordinary circumstances.

“The passage from Bankton (iv. 20, 2) quoted by the complainers does not appear to me to assist them much. No doubt the main reasons given for the interference of the Dean of Guild are the prevention of encroachments on neighbouring properties, danger to the public, or the preservation of the amenity of the burgh. But I think that if the whole of the section is read, it will be seen that there is no limitation as to the character or position of the buildings with which he is empowered to interfere; and his powers are certainly not expressly confined to buildings erected on the verge of a property. For instance—‘This Court has likewise the sole jurisdiction in regulating

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buildings within borows, whether in repairing or taking down and rebuilding old buildings or erecting new ones.’ And again—‘Without their warrant, obtained upon citation of all parties having interest, no houses within borow can be built or demolished in whole or in part.’

“It must be kept in view that the question to be here decided is not whether the Dean of Guild would have been justified in refusing to sanction the erection of the building in question after seeing the plans proposed, but simply whether he was entitled as a preliminary to insist on having the plans submitted to him. Now, unless plans are submitted in the case of all new buildings proposed to be erected, it cannot be seen whether their erection will or will not result in encroachment on the property of the neighbours or danger to the lieges. The danger of a new building to the neighbours or to the public is a question of degree. A building erected 50 feet from the boundary might be safe in so far as neighbours or passers-by were concerned, while a building erected only at a distance of 20 feet might be dangerous. Much, again, would depend upon the height of the building, or, in the case of manufactories, on the height of the chimney. Now, all those things cannot be judged of properly without the production of plans, and I think it would seriously impair the utility of the Dean of Guild's Court if in each case a proprietor intending to build were allowed to judge for himself whether he should be required to lodge plans or not. As a matter of regulation and procedure it is right that such a Court should have power to order plans to be lodged in all such cases.

“Further, although this question is attended with greater difficulty, I am not prepared to assent to the proposition that where it is proposed within burgh to erect large public works, in which, as here, hundreds of the inhabitants will be employed, the Dean of Guild has no jurisdiction or right and duty of supervision in the interests and for the protection of the workmen employed. If the complainers' argument is to be carried to its logical conclusion, they would have been entitled to erect the whole of their works, excepting in so far as they abut upon neighbouring properties or public streets, without the sanction of the Dean of Guild.

“In the present case, so far as I can judge from the evidence, the tannery in question seems to have been properly and safely erected, and no danger to the public is to be anticipated; but this is judging ex post facto, and I do not think that this consideration affects the question which I have to decide.

“So far I have spoken solely of the Dean of Guild's powers at common law. But it is not immaterial to note that by the imported sections of the General Police Act he is given powers which might not be held to belong to him at common law.

“Another matter was referred to by the respondent in the course of the discussion as giving the Dean of Guild an interest and right to call for plans, viz.—the drainage of the new tannery. The complainers contended that that was a matter with which the Dean of Guild had nothing to do. Now, it is quite true that at common law the Dean of Guild is not entitled to interfere on the ground of nuisance alone. But I am disposed to think, in the first place, that where new buildings are to be erected it is a customary part of the Dean of Guild's duties and powers to satisfy himself as to the mode in which it is proposed to drain such buildings. In the present case it is not disputed that the drain from the tannery ultimately joins one of the public drains of the burgh; and this being so, the Dean of Guild might, in the interest of the public, be entitled to insist upon seeing the mode in which the tannery was to be drained, and in insisting that notice should be given to any of the inhabitants who might be injuriously affected by the discharges.

“Further, under the 54th section of the Irvine Burgh Act the Dean of Guild possesses wider powers than those which he possesses at common law in regard to such matters. See in particular sections 190–194 of the General Police Act 1862; and the 8th of the Rules and Regulations contains directions upon this very point.

“On the whole matter, I am of opinion that the reasons of supension are not well founded, and that the note must be refused.”

In the cart-shed case on the same date the Lord Ordinary pronounced a similar interlocutor, and appended to it the following note:—

“ Opinion.—In this case, as in the tannery case decided to-day, the complainers object to the jurisdiction of the Dean of Guild.

“I repel that plea on two grounds— First, The complainers are, in my opinion, barred from insisting in it by their own actings. They submitted themselves to the Dean of Guild's jurisdiction in the most practical way, by lodging a petition for decree of lining and plans, and asking for service on parties interested. But when the Dean of Guild issued repeated orders that the complainers, or some representative, should attend the Court and explain the plans lodged, the complainers constituted themselves the judges of what was required, and deliberately refused to attend. On the petition being refused in respect of their failure to appear they defied the Court by building without leave. I think the objection to jurisdiction comes too late.

“But, secondly, for the reasons assigned in my opinion in the tannery case, I think the Dean of Guild had jurisdiction. This indeed is a stronger case. The cart-shed, which replaces one which was blown down, is within a few feet of the-gateway leading to Peter Street, and on the complainers' own showing its erection might have affected some of the neighbouring proprietors.”

The complainers reclaimed against the interlocutors in both cases. The tannery case alone was argued in the Inner House, both parties agreeing that the cart-shed

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case was based on similar arguments.

Argued for the complainers—The jurisdiction of the Dean of Guild only applied where the interests of private persons or the public were endangered. No such interests were affected here, the buildings being 65 feet back from the complainers' boundary. What was done was similar to internal alterations within the walls of a house. The Dean of Guild's decree was called a decree of lining, because he was only concerned with encroachments on public or private property. The byelaw on which the proceedings of the Dean of Guild were founded was invalid. The proposition of the respondents that no man could build in any circumstances within burgh without consent of the Dean of Guild was absurd—Erskine, i. 4, 24; Bankton, iv. 20, 2; Speed v. Philip, March 16, 1883, 10 R. 795; Somerville v. M'Gregor, November 7, 1889, 17 R. 46.

Argued for respondents—The byelaw is simply a publication of the common law. The cases quoted on the other side refer to non-structural alterations within the walls of a house. No good reason has been shown for the suspension. The Dean of Guild has to deal with the risk of fire and the question of nuisance as well as structural safety of the building—Bankton, iv. 20, 2; Edinburgh and Glasgow Railway Company v. Dymock, November 27, 1847, 10 D. 162, per Lord Justice-Clerk; More v. Bradford, November 22, 1873, 1 R. 208; Paisley Provident Co-operative Society (Limited) v. Buchanan, November 12, 1889, 17 R. 66.

At advising—