Scottish Court of Session Decisions

By section 11 of the Burgh Police (Scotland) Act 1892 the Sheriff is authorised, on the application of the commissioners or council of any burgh, and on such notice and inquiry as there specified, and 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.… 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.”

By section 12 of the Act it is enacted—“Where in any burgh the police boundary is wholly or partly within the municipal boundary or royalty, or within the parliamentary boundary, it shall be lawful for the commissioners, at a meeting specially called for the purpose, of which a month's previous notice shall be given, to resolve to extend such police boundary to the municipal boundary, or the royalty or the parliamentary boundary respectively, for police purposes, including the right to vote for commissioners, but so as not to encroach on the boundaries of any other burgh, and to fix the date, not being less than fourteen days from the date of the said resolution, when such resolution shall come into operation. Upon any such resolution being adopted, the council or the commissioners of the burgh may present a petition to the sheriff praying him to confirm the same; and the sheriff, after such intimation and service as he thinks proper, and after hearing all parties interested, shall dispose of the application, and upon any final judgment confirming the resolution being pronounced, it shall be recorded in the Sheriff Court books, and such resolution shall come into force from the date of such recording, or such later date or dates as may be specified in the resolution, and any Act of Parliament conferring police jurisdiction or any other authority within such extended boundary shall, in so far as it is inconsistent with the provisions of this section, be repealed.”

On 22nd January 1896 the Magistrates and Councillors of the burgh of Rutherglen, as such, and as Commissioners under the Burgh Police (Scotland) Act 1892, at a meeting specially called for the purpose, of which a month's previous notice had been given, passed the following resolution unanimously—“Resolved that the police boundary of the burgh be extended to the parliamentary boundary thereof for police purposes, including the right to vote for commissioners under the Burgh Police (Scotland) Act 1892.” This extension included two areas—area No. 1 extending to about 126 acres, lying at the north-west corner of the parliamentary boundary, and area No. 2 extending to about 36 acres, at the north-east corner of the parliamentary boundary.

In April 1896 a petition was presented by the Magistrates and Councillors to the Sheriff of Lanarkshire praying him to confirm their resolution.

Objections to confirmation of the resolution were lodged by Messrs John & James White, chemical manufacturers, Glasgow, the trustees of the deceased William Dixon, ironmaster, Glasgow, and other proprietors and tenants of the subjects within the area No. 1 sought to be annexed; by Messrs James Menzies & Company, iron tube manufacturers, Dalmarnock Bridge, and other proprietors and tenants of the subjects within area No. 2; by the County Council of the County of Lanark; and by the Landward Committee of the Parish Council of the Parish of Rutherglen.

On 23rd October 1896 the Sheriff ( Berry) pronounced the following interlocutor:—“Having heard counsel for the parties, visited the district in question, and considered the whole process and productions, confirms the resolution of the Magistrates and Councillors of the royal burgh of Rutherglen, of date 22nd January 1894, to the following effect—‘That the police boundary of the burgh be extended to the parliamentary boundary thereof for police purposes, including the right to vote for commissioners under the Burgh Police (Scotland) Act 1892.’”

Note.—“Objections to the petition have been lodged on the part of a number of persons who are owners or occupiers of land or premises within the area proposed to be added, and also on the part of the County Council of Lanark and of the Landward Committee of the Parish Council of Rutherglen. The petitioners and objectors were heard by counsel or agents before me on 13th July. I had previously, in presence of representatives of all the parties who wished to attend, made an inspection of the district.

„ In considering the application it is proper to have in view the position occupied by the petitioners at the time when it was presented. By the General Police Act of

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1862, now superseded by the Act of 1892, it was provided that the boundaries of such royal burghs as contribute to send a member to Parliament (which includes Rutherglen) should for the purposes of the Act include the whole limits of the burgh, as these were defined by or referred to in the Act 3 and 4 Will. IV., c. 76, i.e., the whole area included in the parliamentary boundaries, unless it should be resolved, in adopting the Act, that its operations should be limited to such portion of the burgh, i.e., the royal burgh, as was comprehended within the parliamentary boundaries.

“The royalty of Rutherglen includes a considerable area outside of the police burgh, as well as outside of the parliamentary boundary; and with that outside area belonging to the royalty we are not now concerned. The resolution of which confirmation is asked applies to two areas included within the parliamentary burgh, which lie respectively to the north-west and north-east of the police burgh, but are not within the royalty. The Act of 1862 was adopted by the Magistrates and Council of Rutherglen in 1863 as applicable to the whole of the royal burgh without limitation, and under section 20 of the Act the Sheriff thereupon found and declared that the Act should apply to the whole limits of the royal burgh accordingly. As the Act, however, did not authorise its application to any part of the royal burgh which was outside the parliamentary boundary, the effect of these proceedings was to limit the application to that part of the royal burgh which lay within the parliamentary boundary. There thus remained outside the police burgh both a portion of the royalty and also the district within the parliamentary boundary, but situated beyond the royalty to which this petition relates.

The Act of 1862 contained a provision in section 11 enabling the magistrates and council of any royal burgh which had adopted the Act to take steps for having the boundaries extended to the parliamentary boundaries of the burgh. Application was to be made to the sheriff, right of objection (section 12) was given to any seven or more householders who were beyond the limits of the royal burgh and within the parliamentary boundaries, and the application was to be disposed of as the Act provided.

The conditions of an application for extension under the Act of 1892 are different. Sections 7 to 14 relate to the subject of boundaries, and of these, sections 11 and 12 deal with the revision or extension of boundaries. By the 11th section the sheriff is authorised, on application of the commissioners or council of any burgh, and on such notice and inquiry as there specified, and after hearing all parties interested, ‘to revise, alter, extend, or contract the boundaries,’ but not so as to encroach on the boundaries of any other burgh. The 11th section directs that in revising the boundaries of a burgh the sheriff ‘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 and ought to form part of the burgh, and should in his opinion be included therein;'’ The present application is not made under the 11th section, but under the 12th, which is directed to the case of a burgh having different boundaries for different purposes, as where the police boundary is wholly or partly within the municipal boundary or the royalty or the parliamentary boundary. It provides that it shall be lawful for the commissioners, i.e., the Magistrates and Council in the present case, at a meeting specially called after a month's notice, ‘to resolve to extend such police boundary to the municipal boundary or the royalty or parliamentary boundary respectively, for police purposes, including the right to vote for commissioners, but so as not to encroach on the boundaries of any other burgh, and to fix the date, not being less than fourteen days from the date of the said resolution, when such resolution shall come into operation.’ On such a resolution being adopted, provision is made for a petition being presented to the sheriff praying him to confirm it, and the sheriff, ‘after such intimation and service as he thinks proper, and after hearing all parties interested,’ is to dispose of the application; and upon a final judgment confirming the same being pronounced, it is to be recorded in the Sheriff-Court books, and to come into force from the date of such recording, or such later date or dates as may be specified in the resolution. No provision is contained in this section to indicate the considerations which should weigh with the sheriff in acting under it, and no reference is made to the particular considerations, viz., the number of dwelling-houses and the density of the population, to which he is required to have regard in revising the boundaries of a burgh under the 11th section. The functions of the sheriff in the two cases are different. In dealing with an application under the 11th section it is open to him to grant it in part and to refuse it in part. He is called upon himself to fix the proper boundaries, and has to exercise a discretion as to the limits to which the boundary should be extended, or, it may be, restricted. Under section 12 he has no such discretion, where, for example, as here, application is made by the commissioners of a burgh for confirmation of a resolution passed by them that the police boundary be extended to the parliamentary boundary, he must either grant or refuse the application altogether. He has no discretion in the way of adjusting a boundary as under section 11. In the present case there are two separate areas to which the resolution applies, referred to as areas 1 and 2 respectively; and it may be that the grounds for including one of these are stronger than those for including the other; but the two cannot be separated in disposing of the case. Both are required to bring the extension up to the parliamentary boundary, and confirmation must be

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granted as to both it it is to be granted at all.

It seems to me that the Act places the proceedings under the 11th and 12th sections on different footings; and it would have materially assisted the Sheriff in acting under section 12 if some indication had been given as to the considerations which should weigh with him in acting under it. It is contended for the objectors that he must, equally under section 12 as under section 11, take into account the particular considerations specified in the eleventh section to which I have referred.

If, however, that had been the intention of the Legislature, it might have been expected that, if not repeated in section 12, they would at all events have been referred to as set forth in section 11. We find that the language of section 11 on this subject is carefully repeated verbatim from section 9, where it is used for the guidance of the Sheriff in proceedings for the original formation of a burgh. Why, if it had been intended that the same considerations should govern an application under section 12, should a similar repetition of the language, or at least a reference to it, have been omitted? Further, if the same considerations were to apply equally to a confirmation by the Sheriff of a resolution of the magistrates under section 12 as to an application for a revision of the boundaries under section 11, it is difficult to see any necessity for such an enactment as we find in section 12. Without any such enactment it would be competent for the commissioners of a burgh to apply, under section 11, for an extension to the parliamentary boundary, and in dealing with such an application the Sheriff, while he would be vested with all the discretion given to him by that section as to the proper limits of extension, would, on the other hand, be bound to have careful regard to the particular considerations specified in the section. I am induced to think that in regard to the question whether or not effect should be given to a resolution of the commissioners of a burgh under section 12, such special considerations as the number of dwelling-houses, and the density of the population are not to be treated as of the same importance as they would be were the proceedings under section 11. On the other hand, I am not prepared to accept the argument of the burgh authorities, that in acting under section 12, the functions of the Sheriff are purely ministerial. The language of the statute is not consistent with such a view. It seems to me that the case must be governed by considerations of general expediency, regard being had to the manifest intention of the Legislature, that an extension of the police to the parliamentary boundary should be dealt with in a different way, and treated on a distinct footing from a revision of the bounderies under section 11.

In dealing with the present case, I think some weight may fairly be given to the fact, that we have a unanimous resolution on the part of the Magistrates and Council that the police boundary should be extended to the parliamentary boundary. Apart, however, from such weight as may be due to that consideration, I am of opinion that the extension on which the burgh authorities have resolved has reasonable grounds to support it. With regard to area No. 1, it is averred by the objectors on record, and it is not denied, that ‘it consists to a large extent of coalfields still unwrought, or in course of excavation, which renders it unsuitable for building purposes.’ To what extent the minerals may be still unwrought I am not aware. No inquiry was asked under this head, and on the part of Messrs Dixon and other objectors, on whose behalf the averment is made, it was stated, when I asked if inquiry was wished, that the admission on record was considered sufficient. But however unsuitable for building purposes a portion of area No. 1 may be at present, we have on that area large and important industrial works, and in particular those of Messrs White, chemical manufacturers, who are among the opponents of the petition. These works, although not at present within the police boundary, are within the parliamentary boundary, and in close proximity to the burgh, which has a large and increasing residential population. It appears from the statements of these objectors, that ‘changes and renewals of buildings within chemical works are frequently necessary,’ although they say that these ‘in no way affect the public, and need no Dean of Guild supervision.’ The petitioners, on the other hand, rely on the importance of a power of supervision on the part of a Dean of Guild Court under the Act in support of their case; and I think that in that view they are right. There may also be other advantages in the possession by burgh authorities of a certain right of interference with large industrial works in their immediate vicinity, with the view, for example, of preventing or lessening possible nuisances to the inhabitants. It is suggested that the action of the burgh comissioners is prompted solely by a desire to profit by the inclusion within their area of valuable rateable subjects. That is denied by them, and although no doubt the proprietors of the subjects in question would prefer to remain free from liability to the burgh rates, it must be kept in view that by section 373 (3) of the Act, the commissioners are empowered to grant exemption or restriction of assessment in favour of any portion of the burgh where sufficient reason exists for such a course. It may be expected that the commissioners will exercise the power so given to them in a spirit of equity.

What I have said as to the importance of a certain power of control over buildings and works situated on the outskirts of the present police burgh has a bearing on the case in relation not only to area No. 1, but also to area No. 2. On that area there are various industrial works, and at the date of my visit to the locality additional works were in course of being erected. Besides works, there are on area No. 2 a considerable

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number of dwelling-houses; and in my judgment this area (to borrow the language of section 11) properly belongs to, and ought to form part of, the burgh, and should be included therein. It is unfortunate that the parliamentary boundary intersects certain tenements of houses on this area, and is not therefore such a boundary as one would have fixed had the boundary been open for adjustment. But such an awkwardness of boundary does not affect the question whether the area within it ought to be included in the burgh, as in my opinion it ought to be. If this area No. 2 is included, it is impossible to leave out area No. 1, the circumstances of which, if considered by itself, might give rise to greater question.

The fortunes of the two areas are indissolubly bound up together.

I have been pressed with the argument that the bulk of the residents in the district proposed to be annexed are opposed to the application. Their objections are founded mainly in apprehension of increased rating; but these are not, in my opinion, sufficient to overcome other considerations of expediency and convenience of administration. I have already referred to the power of granting exemption or a restriction of assessment possessed by the commissioners under the Act. The special provision contained in section 12 points to the conclusion that an assimilation of the police to the parliamentary boundary is regarded by the legislature as in itself generally expedient, and after consideration I think that in the present case the circumstances are sufficient to justify it.

I have satisfaction in referring to the expression of opinion on the part of the Glasgow Boundaries Commissioners of 1886, which is quoted in the petition, and which favours my conclusion that the resolution of the Magistrates and Council of the burgh should be confirmed. The circumstances of the two areas of ground to which this application relates were specially brought to the notice of those Commissioners; and in their report they say—‘Our attention was called to two small portions of ground lying between the royal burgh of Rutherglen and the Clyde. They are within the parliamentary, but beyond the municipal, boundary of that burgh. It seems to us that the proper course would be to annex them to Rutherglen and not to Glasgow.’

This judgment does not affect any claim of compensation, should such there be, on behalf of any of the parties who have appeared in the case.”

Against the deliverance of the Sheriff the objectors presented a petition, in terms of section 13 of the Burgh Police Act 1892, to the Second Division of the Court of Session, for the recal of the Sheriff's interlocutor, and argued—(1) The Sheriff's note showed that he had not given due consideration in arriving at his decision to such important facts as the number of houses, the density of population, and other circumstances of the case. He had looked more at considerations of general expediency. He had thus failed in his duty because he was bound to consider all reasonable grounds put forward by the objectors against the resolution of the magistrates. The statute having been misconstrued by him, the conclusion at which he had arrived could not stand. (2) The Sheriff had also erred in holding that confirmation must be granted in whole or not at all. The Sheriff could refuse to confirm the resolution in whole or in part. The statute prescribes the maximum to which the police boundary may be extended, but it does not require that the whole power to extend should be exercised at one time.

Argued for respondents, the Magistrates and Councillors of Rutherglen—(1) The note attached to the Sheriff's interlocutor showed that he had taken all the facts into consideration. He had visited the ground and was the best judge as to whether the petition for confirmation should be granted. (2) The Sheriff had no alternative under the 12th section of the statute but to confirm or refuse to confirm the resolution. No middle course was open to him.

At advising (on Friday 11th December 1896)—