Scottish Court of Session Decisions

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Cite as: [1897] ScotLR 34_471, [1897] SLR 34_471

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

[Glasgow Dean of Guild Court.

Thursday, March 4. 1897.

34 SLR 471

Whyte

v.

Dixon's Trustees.

Subject_1Police
Subject_2Street
Subject_3Petition for Declaration that a Street is Public
Subject_4Jurisdiction of Dean of Guild — Glasgow Police Act 1866 (29 and 30 Vict. c. cclxxiii.), secs. 286 and 290.
Facts:

Section 286 Of the Glasgow Police Act 1866 enables a proprietor to have a private street declared public by applying to the Dean of Guild along with the master of works. Section 290 provides that the Police Commissioners if satisfied with a street whose construction has been authorised by the Dean of Guild, may declare it public without application to him.

A petitioner obtained a warrant from the Dean of Guild under section 290 to form a street as a public street. Having made the street, he applied to the Police Commissioners, under that section, to have the street taken over as public, but they refused to take it over on the ground that it was not lighted or fenced. He subsequently applied to the Dean of Guild to declare the street public.

Held that the Dean of Guild had no power under section 290 to declare the street public, and that this could only be done with the concurrence of the Police Commissioners in one of the methods provided by sections 286 and 290.

Headnote:

Section 286 of the Glasgow Police Act 1866 provides—“The Master of Works, by direction of the Board (now the Police Commissioners), jointly with the proprietor of any land or heritage adjoining to and having a right of access by any private street or court of which the solum does not belong to the Trustees of the Clyde Navigation
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or any canal company, may apply at any time to the Dean of Guild to declare the said street or court or any part thereof to be a public street; and the Dean of Guild shall thereupon grant warrant to cite the remaining proprietor or proprietors of lands and heritages adjoining to and having a similar right of access by such street or court, and shall inquire into and decide the question raised in such application, and may direct the registrar to enter such private street or court in the Register of Public Streets, and may award expenses to or against any of the parties; but no private street shall be declared to be a public street unless it appears in the course of the said inquiry, and be found by the Dean of Guild, that the proprietor or proprietors who make the said application, or who subsequently enter appearance in the case and by a minute formally approve of the said application, possess lands and heritages which have a greater frontage to the said street or court, and are valued in the last completed valuation roll at the date of the application at a greater annual amount than the lands and heritages of any dissenting or non-concurring proprietor or proprietors.”

Section 290 provides that “Every proprietor who intends to lay out or form any street shall make application to the Dean of Guild for a warrant to do so, and every proprietor who has already laid out or formed any street on which no building has been erected shall make application to the Dean of Guild for a warrant to sanction such street, and in either case the proprietor shall state in his application whether such street is intended to be a public street or a private street, and what is the maximum height above its level of the buildings intended to be erected, and shall produce along with such application a plan and longitudinal section of such street, and a plan, with cross sections at right angles to such street, of the lands adjoining the same; And the Dean of Guild shall cause the Master of Works, and any other persons whom he considers interested, to be cited, and allow them time to examine the said plans and sections, and lodge answers or be heard with respect to the application: Provided that where any proprietor shall satisfy the Board (now the Police Commissioners) as to the level and the suitability for drainage of any such street, it shall be lawful for the Board, if such street is not less than 40 feet in breadth, to dispense with an application to the Dean of Guild, and if such street be intended to be a public street, and will lead from a turnpike road or public street to either a turnpike road or public street, to issue a warrant under their common seal endorsed by such proprietor as concurring therein, declaring such street to be a public street, and directing the registrar to enter the same in the register of public streets, subject to such conditions, if any, as may be agreed on; but it shall not be lawful for the proprietor of any land or heritage adjoining any street which is laid out or formed, without an application to the Dean of Guild, to erect thereon any dwelling-house the front walls of which shall exceed in height the width of such street, nor without the express authority of the Dean of Guild to erect thereon any other building the front walls of which shall exceed in height the width of such street by more than one-fourth part thereof.”

The trustees of the late William Smith Dixon of Govanhill on 20th February 1896 obtained warrant from the Dean of Guild “to form the intended street running off Aitkenhead Road, as coloured red on said plan, which is signed as relative thereto, as a public street of 60 feet in width; lines the boundaries of the same according to said amended plan; this authority being granted always subject to the condition that the front walls of the buildings on each side of said street shall not exceed the space between the front walls.”

Having completed the street they presented a petition to the Dean of Guild craving him “to appoint a copy of this petition, and of the deliverance to follow hereon, to be served upon John Whyte, Master of Works for the City of Glasgow, for the public interest, and ordain him to appear and answer in Court first Court-day; and upon advising hereof to declare that the street laid off by the petitioners leading southward from Aitkenhead Road 112 yards or thereby (now known as Robson Street), conform to warrant of your Lordship's Court dated 20th February 1896, is a public street, and to direct the Registrar of Public Streets to enter said street in the Register of Public Streets.”

Answers were lodged by the Master of Works, who stated that the petitioners had applied to the Corporation to have the street taken over as public, and that the Master of Works had reported that while the street was sewered and formed under his inspection, it was neither lighted nor fenced, and that the Corporation for this reason declined to entertain the application. He maintained that the street was at present a private one, that under section 290 the Dean of Guild was authorised to grant authority for the forming and laying off of what may be intended to be either a public or private street, and that the Corporation if satisfied might dispense with an application to the Dean of Guild and declare the street public. He maintained further that the only remaining provision for having the street declared public was under section 286, and that that section provided as a condition-precedent that the Master of Works and the proprietor should make a joint application. He accordingly pleaded that the petition was incompetent.

The Dean of Guild on 22nd December pronounced the following interlocutor:—“Finds that the petition is competent, and that no relevant objections have been stated to the granting of the prayer thereof: Therefore repels the objections, and grants the prayer of the petition: Declares Robson Street, as delineated on the plan lodged with the original application, to be a public
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street, and directs the registrar to enter the same in the Register of Public Streets, in terms of the Glasgow Police Act 1866.”

Note.—“On 20th February 1896 it is admitted that the petitioners obtained warrant from the Dean of Guild to form a street (now known as Robson Street), as a public street 60 feet in width. The street has now been formed, and in this petition they ask the Dean of Guild to declare it a public street, and to direct the Registrar of Public Streets to enter it in the register. The Master of Works objects that the street at present is a private street (by which he means that as yet it has not been declared public, nor entered in the register as a public street), and that it can only be declared public by the Dean of Guild in an application presented under section 286 of the Glasgow Police Act 1866, by the Master of Works by direction of the Commissioners jointly with the petitioners. This is certainly a startling contention, for it comes to this, that under section 290 and 291 of the statute a proprietor can never get a street which the Dean of Guild has sanctioned as a public street entered on the Register of Public Streets without the concurrence of the Commissioners, who may make what conditions they please. According to this view an application to the Dean of Guild to sanction a street as a public street under section 290 must necessarily result in its first being sanctioned as as a private street, though such sanction as in this case has neither been asked nor granted, and then if the Police Commissioners so direct an application may be presented by the Master of Works to have the private street declared public under section 286. The Dean of Guild thinks this contention untenable, and thinks that an application under section 286 would have been quite incompetent in the present case, even if the petitioners could have obtained the necessary concurrence, because Robson Street has never been sanctioned by the Dean of Guild as a private street, and without such sanction it cannot be a private street, and therefore cannot be the subject of an application under section 286. The real difference between the Master of Works and the Commissioners on the one hand, and the petitioners on the other, relates apparently to the burden of lighting and fencing the street, and the Dean of Guild expresses no opinion on the merits of this dispute. The only question raised before the Dean of Guild was whether the Commissioners alone have the power of declaring a street public and putting it on the register, making what conditions they please on giving their warrant under section 290, or otherwise, whether the application must originate with them under section 286. The Dean of Guild thinks, on the contrary, that any proprietor proposing to form a public street may apply to the Dean of Guild, under section 290, to sanction it, and that not only the Dean of Guild may give authority to form the street, but also after its formation may declare it public, and direct it to be entered on the register. Indeed, section 282 seems to recognise his power to do so. Application to the Board of Police Commissioners is doubtless also authorised in the proviso appended to the section, but only in certain circumstances and subject to certain conditions— e.g., that the street is a thoroughfare between public streets or turnpike roads, which does not seem to have been the case here when the application was first presented—and it does not appear that the Commissioners, under section 290, have any power to deal with public streets in regard to which application has been made to the Dean of Guild. No doubt the petitioners applied to the Corporation to have this street declared public, but this error on their part—as the Dean of Guild considers it—cannot prejudice them in now applying to the Dean of Guild. The original petition might fittingly have contained also the prayer of the present petition, and, indeed, that is the more appropriate procedure, and would have made this mistake impossible.”

The defender appealed, and argued—Both the Dean of Guild and the Corporation must concur in order to make a street public, in one of the ways provided by sections 286 and 290, the former being concerned with what was above ground, and the latter with the stability of the street and what was below ground. The definition clause showed that what was not a public street was a private one, but the Dean of Guild had gone on the assumption that it could not be a private street till he sanctioned it, and that accordingly an application under section 286 was incompetent. Till some further procedure was taken the first interlocutor of the Dean of Guild had no effect in making the street public. This was clearly laid down by Lord Kinnear in an unreported case of Neilson v. Lang, January 15, 1886. The Dean of Guild in fact had no power to sanction the making of a street “as a public street.” A petitioner must subsequently obtain the sanction of the magistrates in one or other of the ways provided by statute. The Corporation were not asking anything unreasonable in requiring the petitioners to fence and light. They were unable to insist on this before the Dean of Guild, and the petitioners had endeavoured to evade their obligation in this way. The Buildings Act of 1892 really did away with the necessity for a petitioner for leave to make a street under section 290 to state whether it was to be public or private, as the same conditions were now required both for public and private streets, and that took away the force of the petitioners' argument as to such notice.

Argued for respondents—Section 290, which gave the Dean of Guild power to sanction a public street being made, must by implication give him power to declare it public when made. At the time when the first petition was presented, the Master of Works was called, and he should, on hearing there was a public street going to
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be formed, have objected then, and made conditions. Section 286 had no application here, because this street never was sanctioned as a private street, and that section only applied to private streets. The definition clause was not applicable to such streets as this, an intended public street being already formed. There were not the same considerations for joint application in the case of a public street sanctioned under section 290 as in that of a private street. Accordingly the defender to succeed must show that the conditions imposed by the Dean of Guild had not been complied with.

Judgment:

Lord President—I think the judgment of the Dean of Guild is wrong. I think that this is not a competent proceeding under the 290th section of the Glasgow Police Act of 1866. The application craves the Dean of Guild to declare that the street in question is a public street, and to direct the registrar of public streets to enter the street in the Register of Public Streets. Now, the question is, whether section 290 warrants that application. There is this to be observed, in the first place, that the words of the prayer seeking for a declaration that the street is a public street, and to have it entered in the register, are manifestly intended to apply to section 282, because the register therein provided is to contain those streets which have been declared by the Dean of Guild to be public streets. The real question in this case is, whether a declaration in that sense is obtainable under section 290, or whether it is only obtainable under section 286. Now, I think that the argument in support of the judgment proceeds upon this mistake; it assumes that the jurisdiction of the Dean of Guild under section 290 is a jurisdiction, first, to authorise the construction of something as a public street, and then, on that being done, to declare it a public street. To my thinking section 290 has the much more limited effect which is contended for by the Corporation of Glasgow. The main and substantive enactment in section 290 is that anybody who intends to lay out or form a new street shall not be entitled to do so within the town of Glasgow until he gets the authority of the Dean of Guild for that physical operation. And accordingly, disregarding in the meantime the additional or parenthetical parts of the section, the case purported to be dealt with is a case of some-one who, having vacant ground, intends to make a street on it. He cannot do that within burgh unless he gets the authority of the Dean of Guild. But then quite incidentally to that the Act says, or rather said—because all this turns out to be abandoned and superseded by subsequent legislation—“You must in your petition say whether such street is intended to be a public street or a private street.” It does not carry that out by saying that the Dean of Guild shall authorise a public street or a private street, as the case may be, but it merely says—“We mention that in order to enable the Dean of Guild at this early stage—even at the initial stage—of physically forming a street, to require in the one case that there shall be one set of conditions, and in the other another set of conditions.” Now, as I have said, that is done away with by the subsequent Buildings Act of 1892, because the same conditions are applicable to the one case as to the other. But it is not the less clear what is the reason for the introduction of the subject of public or private streets. It is to save the useless expenditure of money in the case of what is contemplated as ultimately destined for use as a public street and to prevent the complications which might arise from proprietors expending their money on less effective streets, so to speak, than would ultimately be accepted by the town.

But those conditions, which may have a very substantial convenience, cannot at all affect the enacting words of the section, which only authorise an application to the Dean of Guild for the purpose of authorising any street to be formed. It is sought, however, to rear up the jurisdiction now invoked by saying, But then why has the Master of Works been sisted a party in these proceedings if this has no effect on the ultimate question of a private or a public street? The answer seems to be very simple. The Master of Works is the proper official to consider questions of public safety and convenience, which are equally applicable to private and to public streets. Therefore it is well that he should be there in order to see—whether it is going to be ultimately a private or a public street—that it is a safe street and a convenient street. And it must be remembered that the town. whether it be a private or a public street, has an interest in the construction of any street, because it is the police who look after the street, although the town does not in the case of a private street maintain it. But then this leads one to consider what is the relation of sec. 290 to sec. 286. It seems to me that section 290 stops short with the mere warrant to construct a street. Then comes the question, Who is in the end to maintain it? Now, section 286 is the only section in the Act which in terms authorises the Dean of Guild to pronounce a declaration such as will warrant the registrar to proceed under section 282. And the only objection to the application of section 286 to the case in hand is that this street was authorised ab ante as a public street, and therefore cannot be a private street. Now, if my view of the limited operation of section 290 be correct, it involves this, that I think the Dean of Guild in the original proceeding went too far when he in his interlocutor granted warrant to form the intended street as a public street. I do not think that was within his province. I think his duty was merely to authorise the street to be constructed. He might well take note of the fact that as it had been offered to him as intended to be a public street, he had had regard to the conditions applicable to intended public streets. But then when we turn to the definition clause we find that “private street” has so wide and exhaustive a construction put upon it that it includes everything

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which has not been declared a public street in the sense of the Act. And if I am right in saying that section 290 does not warrant the Dean of Guild in declaring a street a public street, then it follows that a street authorised under section 290 when it comes to be constructed is a private street in the sense of section 286. Upon these grounds I hold that no declaration that a street is a public street can be competent except on the condition and at the instance set out in section 286.

I am of opinion therefore that the judgment of the Dean of Guild must be recalled, and that the petition should be dismissed.

Lord Adam—I am of the same opinion. If the judgment of the Dean of Guild is right, the Act would seem to put the duty, as far as certain streets are concerned, upon him to declare that they should be maintained by the community, and not by the private individual. I should not have thought that that was a duty likely to be confided to the Dean of Guild in such matters, because it is obviously more a duty lying upon the Magistrates of the city to say which of the streets of the city shall be maintained at the public expense, and which shall be maintained at private expense. It does not look like a duty which is likely to be imposed on or given to the Dean of Guild, or any officer of that kind, who has more to do with buildings. But no doubt if this interlocutor or judgment is right, then in the case of all new streets it would be in the power of the Dean of Guild to declare, as he has done in this case, that they shall be public streets, and be maintained by the community—a very large power to give. But, with your Lordship, I do not think that that was really intended. In section 290, under which this application is made, power is given to any proprietor who intends to lay out a street, to make application to the Dean of Guild for a warrant to do so; and that proprietor may make application to the Dean of Guild for a warrant to sanction such street; and in that application he shall state whether it is intended to be a public street or a private street, and the height of the houses, and so on. That is all he has power to arrange. Now, it is clear to me that that has more reference to the locality of the street than to anything else. It is an intended street. It is not a street in rerum natura as yet. I can quite understand that in the laying out of an estate it is right that the whole thoroughfares or intended thoroughfares shall be laid out at the direction and under the instructions of the Dean of Guild, and accordingly I think this is a regulation for that purpose. It authorises a proprietor to go to the Dean of Guild and to say, “I am going to form a street here; I intend that it shall be a public street; give me authority and warrant to lay out the street.” Power is given to the Dean of Guild to do that, but there it stops. I see no authority given to the Dean of Guild except to grant a warrant to lay out or form a street in a particular line. He no doubt is entitled to lay down conditions under which that street shall be formed, and during its formation to act as your Lordship has said, because the formation of a street may occupy a very considerable time. During that time it may be partially open to the public. Accordingly provision is made for that state of matters by the Dean of Guild laying down certain conditions, and authority is given to the Master of Works to enforce these conditions. Authority is also given to the Dean to make conditions as to the interim maintenance of a street by the proprietor. Now what does interim maintenance of a street mean? Clearly its maintenance until the street is in a condition of formation to be declared to be a public or a private street. If it is a private street, no application would be necessary; but if it is meant to be a public street, then after all that has been done, after all those conditions are complied with, the maker of the street is in a condition to go to the Dean of Guild, with the consent of the Magistrates, and ask to have this street declared to be a public street, and the Magistrates being parties to that application, no doubt it would be granted, and the street declared public. But I do not think that under this section 290 the Dean of Guild had power to do anything else than grant warrant to form a street under certain conditions. Having done that, I think his powers ceased, and therefore I agree with your Lordship.

Lord M'Laren—I must confess that I began the hearing of this case with an impression very favourable to the interlocutor under review, but my opinion has been completely changed, partly by the very clear and able argument addressed to us by Mr Lees, and partly by considerations depending on the peculiarity of the construction of local Acts of Parliament as distinguised from public Acts. I do not refer of course to the want of symmetry which is sometimes apparent in the clauses of local bills, but I mean this, that local Acts of Parliament are largely concerned with questions of property and private right, while public Acts deal rather with those relations of the citizen to the State which are independent of proprietory right. Now, in an Act of Parliament dealing with rights of property, as those Burgh Police Acts do to a large extent, one has to consider what are the rights of the parties independently of statute, and how far it is evident on the face of the Act, or probable, that such rights were intended to be interfered with. I am not sure that it has ever been directly determined what is the nature of the right which the public has in a private street, and I should not wish to express more than a provisional view on the subject for the purposes of the present case. But it seems to me that when a landowner forms a private street through his property, then, apart from the effect of statutes, he would not lose his right to that street, or give the public a perpetual right-of-way over it, unless by actual dedication or appropriation to public uses,

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or by suffering the public for time immemorial to use the street. Slight evidence of dedication might be sufficient in the case of a street in a town which was open without restriction to every one, and which had no gates or marks of private property annexed to it. But in the absence of any such dedication, and in the absence of prescriptive use by the public—or as I should say, “immemorial” use—then the proprietor retains the property of the street. He may pull down the adjacent buildings, and cover the area of the street with buildings upon a new design. It would therefore seem to be proper that before a private street is declared public the matter should be brought under the cognisance of some judicial authority, the Dean of Guild being obviously a very suitable judge in a question of that kind. It does not appear to me that in such a case one would expect either the consent of both parties or a reference to a local judge. But again, a private owner may attach very little importance to the right which he has in the solum of a street, and which he perhaps never intends to alter; and it may be an object to him to throw the burden of maintaining the street upon the public. Therefore it seems quite proper that the assent of the representatives of the community should also be required, or failing joint-consent, that the matter should be determined by some neutral authority. Now, I am unable to sustain the view that under section 290 we are to read into the section by implication an interference with the powers of the Corporation in regard to the streets, or an authority to the Dean of Guild to compel them to maintain a given street as a public street independently of agreement. That might be done by Act of Parliament without shocking our sense of propriety; but unless the power were expressly given, I should not assume it from the mere fact that, in the authority to present an application for a different purpose, it is said that the petition shall state whether the street is intended to be a public or a private street. I think those words are satisfied, as your Lordship has pointed out, by the necessity of stating the proprietor's intention in regard to the future, so that the Dean of Guild shall see that the street was properly made, and the drains properly arranged, and everything done upon the system which had been established for the regulation of public streets. It by no means follows that a street is to be declared a public street in such an application. On the contrary, we are referred to a different section, 286, where that may be done with different safeguards and under different conditions.

I agree with your Lordships who have spoken, in holding that the Dean of Guild was in error in sustaining the application by a proprietor not assented to by the Master of Works on the part of the Corporation.

Lord Kinnear concurred.

The Court recalled the interlocutor of the Dean of Guild and dismissed the petition.

Counsel:

Counsel for the Petitioners— Macphail— Mackenzie. Agents— Melville & Lindesay, W.S.

Counsel for the Respondent— Lees— Maclaren. Agents— Campbell & Smith, S.S.C.
1897