Scottish Court of Session Decisions

By the Local Government (Scotland) Act 1889, sec. 11, sub-secs. 1, 2, and 4, there were transferred to and vested in the council of each county the whole powers and duties, including the powers of assessment formerly held by (1) the Commissioners of Supply (save as mentioned in the Act); (2) the County Road Trustees; and (3) the local authorities under the Public Health Acts of parishes so far as within the county (excluding burghs and police burghs).

The Act was passed on 26th August 1889, but under sec. 110 the day appointed (unless otherwise ordered by the Secretary for Scotland) for its coming into operation was 15th May 1890.

In order to meet the expenditure which they may lawfully incur the County Council is empowered by section 26 (4) to levy rates, referred to in the Act as the owners consolidated rate, and the occupiers consolidated rate, and together as the consolidated rates.

Section 27 (3) enacts—“The consolidated rates shall be imposed upon lands and heritages according to the annual value thereof as appearing on the valuation roll, but subject always to the provisions of the Public Health (Scotland) Act 1867, in regard to all assessments leviable under that Act.”

By section 5 of the Public Health Act 1867, it is, inter alia, provided as follows—“Provided always that where any parish shall be partly within and partly beyond the jurisdiction of a town council, and of police commissioners or trustees, and of a parochial board or of any two or more of such bodies, the board' (that is, the Board of Supervision), “if application be made to them by any of the bodies, or by any person having interest, may, if they see fit, determine which of the said several bodies shall be the local authority within the whole limits, or within any portion of such parish, and the board may, from time to time, recall or vary such determination.”

Section 94 provides, inter alia—“With respect to burghs having a population of less than 10,000 according to the census last taken, and not having a local Act for police purposes, and with respect to parishes (exclusive of any parts of such parishes as are situated within the district of any local authority other than the parochial boards of such parishes”), … “all charges and expenses incurred by the local authority in executing this Act or any of the Acts hereby repealed, and not recovered as hereinbefore or after provided, may be defrayed out of an assessment to

Page: 158↓

be levied by the local authority along with, but as a separate assessment from, any one of the assessments hereinafter mentioned in this section, that is to say, the said assessment shall be assessed, levied, and recovered in like manner and under like powers (which powers are hereby given, and are declared to extend over the whole and every part of the district of the local authority) as—the prison assessment or police assessment, as the local authority shall resolve, where the local authority is a town council, or police commissioners, or trustees acting as police commissioners, or if there be no prison or police assessment an assessment levied in like manner as is hereinafter authorised where the local authority is a parochial board. The assessment for the relief of the poor, where the local authority is a parochial board, or where there is no such assessment, by an assessment levied in such manner as an assessment might have been levied for the relief of the poor: Provided always that where the local authority is a town council, or police commissioners, or trustees acting as police commissioners, or where a parochial board is the local authority in a district including as well as the landward part of a parish a burgh or town having a town council, or police commissioners, or trustees acting as police commissioners, the annual value of the following lands or premises shall, for the whole assessments under this Act, be held to be the nearest aggregate sum of pounds sterling to one-fourth of the annual value thereof, entered in the valuation roll, made up and completed in terms of the Acts in force for the valuation of lands and heritages in Scotland, viz.— … All the underground water or gas pipes or underground works of any water or gas company.”

Section 95 makes similar provisions with respect to burghs having a population of 10,000 or upwards, or having a local Act for police purposes, and contains a similar provision as to the value upon which underground water and gas-pipes are to be assessed for public health purposes.

After the Local Government Act came into operation the County Council elected for the county of Renfrew levied the consolidated rates authorised by the Act, and they imposed these rates for the year 1891–2 upon, inter alia, certain reservoirs, tunnels, and underground works belonging to the Water Trust of Greenock, and situated in the parish of Kilmalcolm and the landward portions of the parishes of Inverkip and Greenock, in the lower district of the county of Renfrew.

All the assessments thus levied, with exception of those under the Public Health Act, were imposed upon the lands and heritages according to the annual value thereof, as appearing on the valuation roll for the year from 15th May 1891 to 15th May 1892. The public health assessments were levied on that value after allowing the same deductions therefrom in each parish as are given by the parochial board when assessing for poor rates.

With the assessments so levied the Water Trust were dissatisfied, and accordingly the present case, to which the County Council were the first parties and the Water Trust the second parties, was presented to obtain the opinion of the Court on the following questions:—“Whether the first parties, in levying the consolidated rates payable by the second parties, under the Acts above quoted, in respect of the said subjects, so far as consisting of underground water-pipes or underground works belonging to the second parties, and situated in the parishes of Kilmalcolm, Inverkip (landward), and Greenock (landward), are entitled to assess these subjects in the manner maintained by them, viz., according to the annual value thereof as appearing on the valuation roll in the case of all the consolidated rates except those levied under the Public Health Act, and in the case of those levied under the Public Health Act according to the annual value thereof as appearing on the valuation roll after giving effect to the deductions allowed by the parochial boards in the respective parishes when assessing for poor-rates under the Poor Law Act 1845? or Whether the first parties, in levying the said rates, or any part thereof, are entitled only to assess the said subjects, so far as consisting of underground water-pipes or underground works, at the nearest aggregate sum of pounds sterling to one-fourth of the value thereof as entered in the valuation roll?”

The following statements were made in the case:—“(12) At the date of the passing of the Local Government (Scotland) Act 1889, the parochial boards of the parishes of Kilmalcolm and Inverkip were the respective local authorities for the administration of the Public Health Acts in those parishes, and the Police Commissioners of the burgh of Greenock were the local authority in the landward portion of the parish of Greenock in accordance with a determination by the Board of Supervision in terms of section 5 of the Public Health (Scotland) Act 1867, that parish being partly within and partly beyond the jurisdiction of the Police Commissioners of Greenock.… (14) Having regard to the provisions of the Local Government (Scotland) Act 1889, that on and after the appointed day there should be transferred to and vested in the council of each county ‘the whole powers and duties of the local authorities under the Public Health Acts of parishes so far as within the county (excluding burghs and police burghs)’ the Board of Supervision, between the passing of said Local Government Act on 26th August 1889 and said 15th May 1890, when the said Act came into operation, recalled their determination above referred to, with the result that when the Local Government Act came into operation the administration of the Public Health Acts was restored to the body which would have been the local authority if no determination had been made by the board. In this way the Parochial Board of the parish of Greenock was the local authority under the Public Health Act in the landward portion of that parish, and the Police Commissioners of

Page: 159↓

the burgh of Greenock had ceased to be such local authority when the Local Government Act 1889 came into operation.”

Argued for the County Council—The meaning of the provision contained in section 27 (3) of the Local Government Act was that all the consolidated rates, with the single exception of the rate for public health purposes, should be imposed on the annual value of lands and heritages as appearing in the valuation roll. The qualification in subsection (3) of section 27—“subject to the provisions of the Public Health Act”—only applied to assessments leviable under the Public Health Act. Otherwise the last clause of that subsection was meaningless. With regard to the public health rates in the landward portion of the parish of Greenock, the Water Trust were not entitled to be assessed only on one-fourth of the value of their underground works situated therein. The provisions of section 94 of the Public Health Act did not confer that privilege where the local authority was a parochial board unless the district over which such parochial board had jurisdiction included a burgh or town having a town council, but when the Local Government Act came into operation the parochial board was the local authority in the landward portion of the parish of Greenock, and the district over which it had jurisdiction did not include any burgh or town having a town council. No doubt at the passing of the Local Government Act matters were different, for at that time, in accordance with a resolution of the Board of Supervision, the Town Council of Greenock were the local authority in the landward portion of the parish of Greenock, which entitled the Water Trust, under section 95 of the Public Health Act, to the privilege of being assessed on only one-fourth of the value of their underground works. That privilege had, however, been withdrawn by the Board of Supervision recalling their determination before the Local Government Act came into operation, and the Board of Supervision having acted in accordance with the powers conferred on them their act must receive effect.

Argued for the Water Trust—The effect of section 27, subsection (3), of the Local Government Act was that the consolidated rates imposed by a county council must be levied subject to the rule laid down in sections 94 and 95 of the Public Health Act as to assessments under that Act, namely, that the underground works of a water or gas company must be assessed only on one-fourth of their annual value. In levying the consolidated rates the first parties were therefore only entitled to assess the underground works of the second parties on one-fourth of their annual value. At all events, the second parties were entitled to this privilege as regarded the public health rate levied on the landward portion of the parish of Greenock, as the Police Commissioners of Greenock were, at the passing of the Local Government Act, the local authority in that district in accordance with the determination of the Board of Supervision. In subsequently recalling that determination the Board of Supervision merely anticipated what would have been effected by the operation of the Local Government Act, and their action being of no effect in other respects could not be held effectual to alter the mode of assessment which was in force when the Local Government Act was passed.

At advising—