Scottish Court of Session Decisions

Benjamin William Hoy presented a petition to the Dean of Guild Court of Portobello for warrant to pull down certain buildings on ground facing the Promenade, Portobello, and to erect tenements of shops and dwelling-houses thereon facing the Promenade and Straiton Place.

The following statement of the facts is taken from the note to the interlocutor of the Dean of Guild:—“The petitioner is proprietor of buildings fronting the Promenade on the sea-beach occupied as a temperance hotel and baths, with vacant ground at the side and back thereof. He proposes to pull down and remove the buildings so as to have an area of vacant ground on which to erect certain tenements of shops and dwelling-houses. This area is bounded on the north partly by the Promenade and partly by a two-storey building belonging to and occupied by John Grant, publican; on the west partly by said building and partly by Bath Street; on the south by Straiton Place, and on the east by a lane running from Straiton Place to the Promenade. The petitioner claims warrant to build upon the Promenade frontage two tenements of shops and dwelling-houses, three storeys in height above the shops, with attics, containing sixteen separate dwellings, and one tenement of dwelling-houses, four storeys in height, with attics containing ten separate dwellings, and upon the Straiton Place frontage, four tenements of dwelling-houses, three storeys in height, with attics containing thirty-seven separate dwellings. The tenements facing the Promenade and those facing Straiton Place will be built on parallel lines with a vacant piece of ground between them. This ground is not of sufficient size to allow of appropriating to the Promenade tenements a space of three-fourths of the area to be occupied by them, and also of a like space for the Straiton Place tenements although it is much more than sufficient for either of them. The full measurement necessary to meet both of these requirements would be 1,489 square yards or thereby, while the superficial area of the ground in question is only 1072 square yards. The proposed tenements are shown on the block plan to be each 45 feet deep from the street fronts, and the space between the back walls measures 53 feet across. The width of Straiton Place is 30 feet, including footpaths.”

Page: 764↓

On 3rd July 1896 the Dean of Guild pronounced the following interlocutor:—“Find that the petitioner has not in the preparation of his plans made proper and sufficient provisions for complying with the requirement of section 170 of the Burgh Police (Scotland) Act 1892, to have all the rooms of his intended buildings sufficiently lighted and ventilated from an adjoining street or other open space directly attached thereto equal to at least three-fourths of the area to be occupied by the intended buildings: Therefore refuse to grant the warrant craved.”

Note.—[ After stating the facts]—“It was contended for the petitioner that, being proprietor of the ground behind both lines of tenements, he was entitled to reckon the whole space as directly attached to each line instead of one-half thereof to each, and that thereby he had made proper provision for complying with the requirement of section 170 of the Police Act. The Court cannot adopt this view, but must find that there should be an open space directly attached to each tenement equal to at least three-fourths of the area thereof. Although the buildings and ground will at first belong to one proprietor, the tenements are being built for the purpose of sale, and may soon be divided among many owners.”

The petitioners appealed, and argued—The Dean of Guild had misinterpreted the statute. In calculating the free open space behind each of the tenements, the petitioner was entitled to measure the whole area between the tenements, and not merely half of that area, just as in the case of a street he was entitled to take into account the whole breadth of the street, and not merely its breadth up to the medium filum. The section of the Act was satisfied if all the rooms were ventilated either from a street or from an open space of the requisite area.

Argued for the respondents, the Magistrates and Council of Portobello—Each tenement of dwelling-houses must have a back-green of the area specified in the statute. The private area behind was not in the same position as a public street, for the street in terms of the statute was to “adjoin” the property, while the private area was to be “directly attached” to the tenement, which showed that the private area must appertain solely to one tenement of dwelling-houses.