Scottish Court of Session Decisions

This was a petition and complaint under the 97th section of the Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101), at the instance of the Board of Supervision against the Police Commissioners of the royal burgh of Lochmaben, as the local authority charged with the execution of the Public Health Act within the burgh.

Section 97 provides—“In case any local authority shall refuse or neglect to do what is herein or otherwise by law required of them, or in case any obstruction shall arise in the execution of this Act, it shall be lawful for the Board, with the approval of the Lord Advocate, to apply by summary petition to either Division of the Court of Session, or during vacation or recess to the Lord Ordinary on the Bills, which Division or Lord Ordinary are hereby authorised and directed to do therein, and to dispose of the expenses of the proceedings as to the said Division or Lord Ordinary shall appear to be just.”

The petitioners stated—“The whole sanitary arrangements of the said burgh are in such a state as to be most injurious to the health of the inhabitants. The water supply is most defective, and is deficient both in quantity and quality. It is derived entirely from private and public wells sunk in a soil of porous sand and gravel. These wells are all of them so situated as to be liable to be contaminated with sewage from houses and middens, surface water from cultivated ground within the burgh, and with other organic matter to such an extent as to render the water unfit for domestic use, and liable to produce or promote epidemic and contagious disease. Many, if not all the wells are, in point of fact, so contaminated. There is no public supply of water suitable for the sanitary and other public purposes in the burgh. That at present there is no system of drainage in the said burgh. In some cases the sewage from the houses is conducted into cesspools which are not kept properly cleaned, and of which the connecting pipes are in most cases very defective and dangerous, as their joints are not closed with cement. In other cases there are midden heaps at the backs of and in close proximity to the houses, and on these much of the liquid and solid excreta of human beings and of domestic animals kept within the burgh is deposited. The want of any system of drainage is not only in itself exceedingly dangerous to the health of the inhabitants, but further, these middens, as well as the privies throughout the burgh, are placed on the bare earth, and are frequently in such proximity to the wells from which the whole domestic supply of water for the burgh is taken, that the drainage from them must, owing to the porous nature of the soil and the natural gravitation of the sewage, contaminate the water supply. Many of the wells are thus, in point of fact, rendered unfit for domestic use.”

In support of these averments the petitioners referred to adverse reports on the sanitary condition of the burgh by Mr Barclay, their inspecting officer, dated 17th September 1892, and by Dr Chalmers of the Glasgow Public Health Department, who was selected by the respondents to make an independent investigation and recorded the conclusion he arrived at in these terms—“A review of the foregoing leads irresistibly to the conviction that the present condition of Lochmaben is such as to create the gravest anxiety amongst those who have the best interests of the burgh at heart.” On 18th November 1892 Dr Stevenson Macadam, Edinburgh, reported as the result of an analysis of samples of water taken from Lochmaben public wells, that all the waters were impure and unfit for drinking, cooking, and other dietetic purposes, and that he would strongly recommend that other and purer water be used instead, as all such contaminated waters might any day assume positively unwholesome and dangerous properties.

The petitioners also referred to correspondence passing between the parties between the months of July and December 1892, from which it appeared that the petitioners on 29th September called upon the respondents to submit to them a scheme of water supply and drainage for the burgh. On 11th October the respondents replied that they had had a scheme under consideration for some time and that they desired an extension of time in order to mature the scheme. On 15th October the petitioners intimated that they would grant an extension of time for one month. On 14th November the clerk to the Police Commissioners wrote to the petitioners stating that “at the recent municipal election the ratepayers elected candidates (with one exception) who were opposed to the policy carried out by a majority of the old Commission,” and that now only two members “are in favour of a forward policy; the remaining seven members prefer to allow matters to remain in statu quo, in accordance with the wishes of the great majority of the ratepayers, or at least they are not inclined to concur in a water or drainage scheme until they are satisfied on independent evidence that there are strong grounds for doing so.”

The petitioners accordingly averred as their belief that the local authority had now no intention of proceeding with any plan in order to introduce a proper water supply and system of drainage into the burgh, and they craved the Court after such inquiry (if any) as might seem fit, to find “that the said local authority have refused or neglected to do what is required of them in the said Act, or otherwise by law, by refusing or delaying to introduce … a supply of water … and to carry out a proper system of drainage … and that their said refusal or delay is an obstruction in the execution of the Act; and further, to ordain the said local authority forthwith to take such steps and execute such works as shall be necessary to secure a sufficient and suitable supply of water … and to effect the adequate drainage of the said burgh, and that at the sight and to the satisfaction of some person” to be named by the Court.

The respondents did not lodge answers

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to the petition, and made no appearance.

Maconochie, for the petitioners, stated in answer to the Court that in all the previous cases of a petition and complaint under the 97th section of the Public Health Act the respondents had lodged answers— Local Authority of Montrose, December 3, 1872, 11 Macph. 170; Local Authority of Pittenweem, July 8, 1874, 1 R. 1124; Local Authority of Galashiels, December 5, 1874, 12 S.L.R. 111. Though in the present case there were no answers, and there was no precedent as to how the Court should proceed in these circumstances, he submitted that the correspondence with the respondents and the reports of the men of skill produced by the petitioners were prima facie evidence of a neglect of duty on the part of the respondents.