Scottish Court of Session Decisions

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), provides, sec. 11—“Upon the application of the commissioners or of the council of any burgh, … it shall be lawful for the sheriff, after hearing all parties interested, from time to time to revise, alter, extend, or contract the boundaries of such burgh for the purposes of this Act, but so as not to encroach on the boundaries of any other burgh, and such deliverance, unless appealed against in manner hereinafter provided, shall be final. … Where the burgh and the lands proposed to be included in any application for an extension of boundary lie in more than one county, the application shall be made to and disposed of by the sheriff of all the counties concerned. The sheriff or sheriffs in revising the boundaries of a burgh shall take into account the number of dwelling-houses within the area proposed to be included, the density of the population, and all the circumstances of the case, whether it properly belongs to or ought to form part of the burgh, and should in their judgment be included therein.” …

Dunoon was constituted a burgh in the year 1868 under the General Police and Improvement (Scotland) Act 1862.

In October 1894 the Commissioners of the burgh presented a petition in the Sheriff Court of Argyllshire under the Burgh Police (Scotland) Act 1892, sec. 11, to have the boundaries of the burgh extended to certain limits which they described. The boundary proposed by the petitioners extended seawards at two points to a distance of 300 yards below low water-mark, and ran parallel with low water-mark between these points, the object of the petitioners in proposing this boundary being to have Hunter's Quay and the piers of Kirn and Dunoon, which were partly situated below low water-mark, included within the burgh.

The trustees of the late William Frederick Hunter of Hafton, as proprietors of the piers of Dunoon and Hunter's Quay, which were built out into the Clyde from points within the boundaries of the burgh of Dunoon, and the Kirn Pier Company, Limited, as proprietors of the Kirn pier, and adjoining slipway, as well as of the foreshore and alveus of the Firth of Clyde on which they were situated, lodged objections. Inter alia, they objected to the proposal to extend the boundaries of the burgh below low water-mark, on the grounds that the sea area proposed to be included was within the jurisdiction of the Board of Trade and of the Clyde Pilot Board, or the Clyde Navigation Trustees, or both; and (2) that the section of the Act founded on did not authorise the extension of the boundaries so as to include the sea below the low water-mark.

The Cowal District Committee of the County Council of Argyll also lodged objections to the petition, wherein they referred to and adopted the objections lodged by the previous objectors, and further averred that “such extended area cannot participate in any advantages or derive any benefit from the Police Acts.”

Upon January 4th 1895 the Sheriff ( M'Kechnie) pronounced a deliverance extending the boundaries of the burgh landward according to a detailed description, but carried the boundary seaward only so far as low water-mark.

“ Note.—… The Commissioners proposed to have a boundary in the sea at a considerable distance from low water-mark of ordinary spring tides, and running parallel with low water-mark at a distance of 300 yards or thereby. I could not see my way to grant this boundary, because it was an attempt to get in a very indirect way a question of the right to assess the piers of Hunter's Quay, Kirn, and Dunoon conferred upon the burgh of Dunoon. The transfer of this right of assessment from the county to the burgh appeared to me to contradict the judgment of my predecessor, who defined the burgh boundary at this part as low water-mark of ordinary spring tides. Further, I do not think in this case that I had jurisdiction to do so, because under the Statute 2 George IV. And 1 William IV., cap. 69, sec. 24, the jurisdiction of the Sheriff of Argyllshire is not privative in the matter, but is only cumulative with the jurisdiction of other sheriffs whose territories come up to the estuary of the Clyde. I asked for any authority upon this point and was supplied with none. It does not appear to me that the Statute of 1892 contemplates the creation of ideal boundaries in the sea.” …

In January 1895 the Commissioners of the burgh of Dunoon and eight persons, owners or occupiers of premises within the old or extended boundaries of the burgh, presented a petition to the Court of Session, under section 13 of the Burgh Police Act, to recal the deliverance of the Sheriff, and to appoint the boundaries to be fixed in a manner stated in the prayer. They averred that they were satisfied with the landward boundaries as fixed by the Sheriff, and had repeated them in the prayer of the petition, but they objected to his deliverance in so far as it excluded the area below low water-mark, or at any rate in so far as it excluded the parts of the piers which stretched below low water-mark.

The Hafton Trustees and the Kirn Pier Company, Limited, objected to the petition on the ground that it was incompetent for the Commissioners of the burgh, not being aggrieved persons within the provisions of 13th section of the Burgh Police (Scotland) Act 1892, to present the present petition. They repeated their objection to the original application that it was incompetent to ask the Sheriff to extend the boundaries of the burgh below low water-mark. The County Council of the County of Argyll also objected to the petition as being incompetent.

In the course of the discussion before the Court of Session the petitioners limited their claim for inclusion of the area below low water-level to the parts of the piers below low water-mark, and counsel for the

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Board of Trade intimated that the Board raised no objection to the claim so limited.

The petitioners argued—The petitioners were owners or occupiers of property within the burgh, and therefore were entitled to appeal against the deliverance of the Sheriff under section 13 of the Burgh Police Act 1892. The real question was whether the Sheriff had jurisdiction to include or exclude the part of the piers below low water-mark within the burgh of Dunoon. The petitioners were of opinion that he had such jurisdiction, and the question was really foreclosed by authority— Gardiner v. Leith Dock Commissioners, June 17, 1861, 2 Macph. 1234; Forth Bridge Case, &c. v. Assessor of Railways and Canals, September 30, 1890, 1 Poor Law Mag. 1890, 147. As the petition was now before the Court it should be dealt with as a regular appeal under the Act, and remitted to a Lord Ordinary for further procedure.

The respondents, the proprietors of the piers, argued—An appeal in this form was incompetent by the commissioners of a burgh, as the right of appeal under the 13th section of the Act was only conferred upon owners or occupiers who considered themselves aggrieved by their property being included within the extended boundaries of the burgh. As regarded the second question the first ground of objection stated by the Sheriff to his jurisdiction in this matter was not pressed. The second ground stated by him, however, was sound. It was admitted that the piers in question were within the county of Argyll, and the Sheriff had within the exercise of his proper jurisdiction included the portions of the piers above low water-mark within the extended boundaries of the burgh, but it was not within the scope of the Act for him to include the portions below low water-mark. The whole purpose of the Act was to enable the boundaries of a burgh to be extended so as to include portions of the adjacent county which had been built over and become populous, so that it was necessary to include them within the burgh for proper administration. The wording of the Act showed this. There were also provisions in the Act which related to the foreshore, and which plainly never contemplated that the shore below low water-mark should be included in the burgh. As regarded the cases quoted, it had been decided in England that the foreshore was not necessarily within the limits of a burgh— Blackpool Pier Company, &c. v. The Assessment Committee of the Fylde Union, January 29, 1877, 46 L. J.M.C. 189.

At advising—