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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brown and Another v. Magistrates And Council Of Leith [1896] ScotLR 33_475 (17 March 1896)
URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0475.html
Cite as: [1896] ScotLR 33_475, [1896] SLR 33_475
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SCOTTISH_SLR_Court_of_Session
Page: 475↓
Court of Session Inner House First Division.
Magistrates and Council of Leith.
v.
Facts:
Where the owner of property abutting on a private street appealed on legal grounds to the magistrates and council of a burgh, under section 368 of
Page: 476↓
the Burgh Police Act 1892, against an assessment imposed upon him for “private improvement expenditure,” and the council sustained the assessment— held incompetent for the owner to appeal to the Court of Session under section 339 of that Act against the decision of the council, in respect section 368 enacts that “the decision of the commissioners upon all such appeals shall be final.”
Facts:
Held competent, under section 54 of the Burgh Police Act 1892, for the magistrates and council of a burgh to delegate the function of hearing and deciding appeals against assessments under section 368 of that Act to a committee of their number.
The appellants in this case, Robert Ainslie Brown, S.S.C., and Miss Isabella Aitchison Brown, proprietors of certain subjects in Mayville Gardens, Leith, received a notice from the Town Clerk of Leith, dated 28th February 1895, intimating a resolution of the Magistrates and Council of the burgh “to cause the above-named street (being a ‘private street’ as defined by the said [Burgh Police (Scotland) 1892] Act, in which houses or permanent buildings have been erected on one-fourth of the ground fronting the same), and the footways, to be freed from obstructions, and to be properly levelled, paved, and causewayed, and flagged and channelled, the carriageway to be of macadam [and the footways of ] and the same to be otherwise completed in terms of said Act.” The words “and the footways of” were deleted in the notice.
They received a second notice dated 24th July 1895, bearing to supersede that of 28th February, and in precisely the same terms, with the exception that the words “cement concrete” were substituted for the word “macadam.” The words “and the footways of” were deleted in the second notice as in the first.
To both notices was appended a note to the effect that “the whole of the costs, charges, and expenses incurred by the Magistrates and Council (who are to execute the work) in respect of said works are recoverable from the owners of the premises liable therefor, in terms more especially of clauses 137, 138, and 139 of said Act; and for any appeals as regards said works, reference is made to clauses 143 and 339 of said Act.”
The appellants took no action, and the work was completed about the end of October 1895, the share of the expense allocated on the appellants being £74.
On 24th October 1895 the Treasurer's Committee of the Town Council of Leith approved the allocations, and, as their minute bears, “agreed to recommend the Council to impose the sums therein set forth upon the parties therein named, respectively;” further, to fix a specified day on which such sums should be payable, and a day for lodging appeals, and another on which appeals “shall be heard by the committee, for which purpose the committee crave a remit, with powers to act for the whole Council, in hearing and disposing of appeals.”
At a meeting held on 8th November 1895 the Magistrates and Council, as their minute bears, “approved of the foregoing minute of the Treasurer's Committee, and resolved accordingly, and specially … approved of the allocation of private improvement expenses therein mentioned, and imposed, and hereby impose, the sums set forth in the said allocation upon the parties therein named respectively; and appointed, and hereby appoint, the days specified in the said article for the payment of the said expenses, and the lodging and the hearing of appeals, and further remitted to the committee, with powers as craved, to act for the Council in the hearing and disposing of appeals.”
The appellants received notice, dated 20th November 1895, from the Collector of the burgh, intimating “that the Magistrates and Council, on 24th October 1895, imposed and charged you in respect of premises of which you are owner … with ’private improvement expenses,’ amounting as per allocation to £74 for levelling and paving of carriageway, re-laying channel and kerb, and repairing footway, and that the Council have appointed” certain days for the lodging and hearing of appeals.
On 18th December 1895 the appellants lodged an appeal against the charge of £74. The grounds of appeal were (1) want of proper notice before the work was begun, (2) that the work had been done in concrete instead of macadam, and (3) that part of the charge was excessive. On 26th December, the Treasurer's Committee, after hearing Mr Brown in support thereof, dismissed the appeal. This decision was confirmed at a full meeting of the Magistrates and Council on 7th January 1896.
Mr and Miss Brown thereupon appealed to the Court of Session.
The grounds of appeal, as well as the contentions of the respondents, the Magistrates and Council of Leith, appear sufficiently from the arguments below.
The Burgh Police (Scotland) Act 1892 (55 and 56 Viet. cap. 55) enacts—Section 54—“The commissioners shall have power to form committees of their number … and to delegate to such committees the powers competent to the commissioners under this Act.”
Section 133—“Where any private street in which houses or permanent buildings have been erected, on one-fourth of the ground fronting the same, or part of such street, as has not, together with the footways thereof, been sufficiently levelled, paved, or causewayed and flagged to the satisfaction of the commissioners, it shall be lawful for the commissioners to cause any such street or part thereof, and the footways, to be freed from obstructions, and to be properly levelled, paved, or causewayed, and flagged
Page: 477↓
and channelled in such way and with such materials as to them shall seem most expedient.” … Section 134—“If any private street shall at any time be made, paved, or causewayed and flagged … and put in good order and condition to the satisfaction of the commissioners, then … it shall be lawful for the commissioners to declare, and if such street has been paved and put in order on their requisition, as hereinbefore provided, they shall declare the same to be vested in the commissioners.” …
By section 137 the whole of the costs, charges, and expenses incurred by the commissioners in respect of private streets are to be paid and reimbursed to them by the owners of the lands or premises fronting or abutting on each street, and shall be recoverable as private improvement expenses. Sections 138 and 139 provide for cases where owners are to be liable only for a proportion of such expenses.
Section 143—“As regards the making, altering, paving or causewaying, and maintaining streets and foot-pavements, it shall be lawful for any person whose property may be affected, and who thinks himself thereby aggrieved, to appeal to the Sheriff in manner hereinafter provided.”
Section 339—“Any person liable to pay or to contribute towards the expense of any work ordered or required by the commissioners under this Act, and any person whose property may be affected, or who thinks himself aggrieved, by any order, or resolution, or deliverance, or act of the commissioners, made or done under any of the provisions herein contained, may, unless otherwise in this Act specially provided, appeal either to the Sheriff or to the Court of Session.” …
Section 365 provides that private improvement expenses may be recovered in the same manner as any assessment under this Act.
Section 368—“The said …. private improvement expenses may be imposed and levied yearly, half-yearly, or at such other periods as the commissioners may think fit, … and at the meeting imposing the same the commissioners shall appoint a day upon which such rates and expenses shall be payable, and another day upon which appeals by any parties complaining that they have been improperly rated or charged may be lodged with the clerk or collector, and another day or days on which appeals in reference to such rates or expenses shall be heard by the commissioners …. and the decision of the commissioners upon all such appeals shall be final.” …
It was admitted by the parties at the bar that the Treasurer's Committee of the Council consisted of the whole Council, sitting in private, with the Treasurer instead of the Provost in the chair.
Argued for the appellants—(1) The notice given to the appellants was insufficient. Before the magistrates could execute such work themselves, they were bound to present a formal requision to owners calling upon them to do it. Though this was not expressly laid down in sec. 133, it was clearly implied in sec. 134, and the implication was confirmed by secs. 141, 327, and 365. (2) Assuming that the notice of 24th July could be taken to be a requisition, it was much too vague, and was much less specific, for example, than that intimating the assessment. The appellants might quite well have assumed that the footway was not to be repaired. The notice was therefore insufficient, as not specifying the kind of work to be done— Magistrates of Edinburgh v. Paterson, December 3, 1880, 8 R. 197; Campbell v. Magistrates of Edinburgh, November 24, 1891, 19 R. 159. (3) The assessment having been imposed, not by the Council as sec. 368 required, but by the Treasurer's Committee, was invalid. Further, the appeal having been heard by the Treasurer's Committee and not by the Council, the approval of the assessment was invalid. The power to delegate conferred on the Council by sec. 54 did not apply to the power to impose or to confirm assessments— Thomas v. Elgin, July 4, 1856, 18 D. 1204. (4) The assessment having been imposed, if at all, by the Council on 8th November, and the notice of assessment bearing that it was imposed on 24th October, the assessment was invalid. (5) The present appeal was competent under sec. 339.
Argued for the respondents—(1) Neither requisition nor notice was necessary under the statute. There was nothing in sec. 133, which regulated the matter, as to calling upon an owner to carry out the improvements. (2) At all events, the notice sent was sufficiently specific. (3) The assessment was only recommended, not imposed, by the Treasurer's Committee, the Council afterwards approving of the recommendation and imposing the assessment. Even if it had been imposed by the Treasurer's Committee, that committee had had power delegated to it for the purpose, and the delegation was good under sec. 54. (4) The error in date was of no consequence. It occurred in a notice issued after the assessment had been validly imposed, and caused no hardship to the appellants. (5) The appeal was incompetent, being precluded by sec. 368. The right of appeal applied only to work not yet done. At a previous stage the appellant might competently have appealed (sec. 143), but he was too late now that the Council had, on his invitation, finally disposed of the matter. His only remedy was interdict.
At advising—
Lord President—The provisions upon the construction of which this appeal depends, occur in an Act of Parliament. Accordingly, I shall most decorously express my first remark upon them by saying that, doubtless for good reasons, their coherence and relation have not been made too plainly manifest.
The practical conclusion which I have come to is that this is an incompetent appeal. The present appellants, as I think, by their own act submitted the question whether they had got to pay for this street to the Commissioners, and the Commissioners
Page: 478↓
In order to judge of the matter, it is best to begin with the position in which the appellants stood when they appealed to the Commissioners. They had been formally notified that they had got to pay £74 for making a road, about which they had been previously informed that it was going to be made. Well now, to take the first of the objections to this liability which they now state, they were perfectly aware that they had not first been asked to do the work themselves. They say that the Commissioners had no right to make the road at their expense without first giving them the opportunity of doing the work themselves. Of the merits of this objection more need not be said than that in this instance the statute, not having done something, talks afterwards as if it had, and the suggestion is that it is to be taken at its word. Such as it is, however, this objection is legal in its quality; and I think that it might have grounded an unsuccessful appeal to the Court of Session or the Sheriff under the 339th section. The appellants, however, did not avail themselves of this remedy.
The other objection to the notice of 20th November, now stated by the appellants, is that a wrong date was named as that on which the assessment was laid on. By the time the notice was given, the assessment had been imposed by the Commissioners, but the date mentioned in the notice was that of a committee recommending the rate, and not that on which the recommendation was acted on by the Commissioners. Now, I can quite understand that here again there was a question which might have been tried, although a somewhat technical one. But instead of looking round and seeing whether there were any such points capable of being tried in a court of law, the appellants appealed to the Commissioners themselves under section 368.
That section is a very curious one. It is now founded on, and I think rightly, as conferring a right of appeal against the rate or expense now in question. In most statutes a right of appeal would be conferred by substantive enactment. In this Act it is conferred by telling the Commissioners that among other things which they are to notify, they shall notify the day on which appeals will be heard.
The way in which the case of the appellants comes within, or at least may be held to come within the section at all, is also singular enough. The money which they are rated for is the cost of making up a private street. By way of simplifying matters the statute says that this cost is to be recoverable as a private improvement expense. When the reader searches for this presumably special method of recovery, he finds that the manner in which private improvement expense is to be recovered is defined in section 365 as being the same manner as that in which any other rate is recoverable.
Now, the 368th section purports expressly to apply to private improvement expense, and I suppose that, at least in this Act, it may be held to treat of the process of recovery. Under this section then, the appellants appealed to the Commissioners, and their appeal was refused. I shall, in the meantime, assume that the Committee had power to dispose of the appeal; and I ask, what was the statutory result? The section says that the decision of the Commissioners is final. I cannot get over this. The 339th section gives an appeal wherever it is not otherwise specially provided. I think that this 368th section is such a special provision. As already indicated, I consider that the appellants, being persons who were liable to pay or contribute towards the expense of work required by the Commissioners, had right to come to the Court by appeal under section 339; but if they chose to go to the Commissioners they submitted to a final decision.
The only remaining question is, did the Commissioners decide? Now, I take this question upon the footing that the body which heard and decided it was a committee, and certainly the attempts of the Commissioners to validate the proceedings by deciding a case which ( ex hypothesi) the Commissioners themselves had not heard, cannot be regarded as successful. Nor do I feel sure that it would be safe to say that a committee of the whole Council would be equivalent to the whole Council in matters in which the Commissioners alone had jurisdiction, especially when we know that the Committee had appointed to it a different chairman from the statutory chairman of the Commissioners, and that it sat with closed doors. But then section 54 satisfies me that it was competent to the Commissioners to delegate this matter to a committee. The terms of that section are quite general. I see, and highly appreciate, the reasons why the Act might well have distinguished between what are, constitutionally speaking, such comparatively high matters as assessment on the one hand, and the execution of details on the other. This, however, is for legislators and not for courts of law; and while I do not wish to say anything against the case of Thomas, which was a decision on another statute, I cannot read into the statute now before us a distinction which the Legislature might have drawn and has not drawn, and which is not implied, as far as I am aware, in any established principle of statutory construction.
Had this last objection been good, I should have held the appeal competent, as the import of the objection is that the Commissioners did not exercise their jurisdiction under section 368. As it is bad, I am for refusing the appeal as incompetent.
The Court dismissed the appeal.
Page: 479↓
Counsel for the Respondents— Salvesen. Agents— Irons, Roberts, & Company, S.S.C.