Scottish Court of Session Decisions

Robert Davidson Waddell, sausagemaker, Glasgow, applied to the Dean of Guild Court of that city for warrant and decree of lining for the erection of business premises in the place of certain existing buildings on the west side of Napiershall Street and north side of North Woodside Road.

John Whyte, Master of Works of the city of Glasgow, lodged objections, in which, after citing section 290 of the Glasgow Police Act 1866, he averred that the petitioner's authors had in 1872 obtained warrant from the Dean of Guild to lay out certain streets, including Napiershall Street; that Napiershall Street was lined as a public street 60 feet in width; that in the petition presented by the petitioner's authors it was stated that the maximum height of the buildings intended to be erected on the line of Napiershall Street was 60 feet; and that the buildings proposed to be erected by the present petitioner were shown on his plans as 70 feet in height. He accordingly maintained “that it is not in the power of the Dean of Guild to grant warrant for the erection of buildings higher than those authorised in the original lining of said streets,” and that the petition should be dismissed.

The petitioner in answer referred to the statute, averred that the buildings for which warrant was granted in 1872 were dwelling-houses, whereas the building proposed to be erected by him was not a dwelling-house, and maintained that the objections were irrelevant.

The Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii.), sec. 290, enacts—“Every proprietor who intends to lay out or to 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 person 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.” There follows a proviso that the magistrates may issue a warrant declaring such street to be a public street, “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

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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 the fourth part thereof.”

Section 291—“If the application to the Dean of Guild relates to an intended public street, and is granted by him, the proprietor making such application shall acquiesce in and fulfil any conditions which he may impose with reference to the following matters, namely—with reference to the width of the street relatively to the height of the buildings, or the height of the buildings relatively to the width of the street, so as to secure as far as possible that the maximum height of the front walls of such buildings on each side thereof shall not exceed the space between such front walls, except in the case of public buildings, the height of which shall be in the discretion of the Dean of Guild … and every such condition shall be enforceable and carried into effect by the Master of Works.”

Section 364—“Every person who intends to erect any building within the city or to alter any such building … in a manner which will affect the exterior dimensions thereof … shall make application to the Dean of Guild for a warrant to do so.”

On 24th December 1896 the Dean of Guild pronounced an interlocutor, in which, after certain findings in fact, he found “that it is not incompetent for the Dean of Guild to grant warrant for the erection of buildings of the description proposed;” therefore repelled the objections and granted warrant as craved.

Note.—“It appears clearly from the last portion of section 290 of the Glasgow Police Act 1866 that the Legislature considered it contrary to the public interest that the front walls of dwelling—houses should exceed in height the width of the street. But it is equally clear that the Legislature did not consider it contrary to the public interest that the front walls of buildings other than dwelling-houses should exceed in height the width of the street by not more than one-fourth in case of streets above forty feet wide. Taking the view of the Legislature as expressed in this part of section 290, the petitioner's proposed buildings not being dwelling-houses, and not exceeding by one-fourth the width of the street, are not open to objection. But this part of section 290 only applies in its terms to streets declared public by the Police Commissioners, not to streets sanctioned as public by the Dean of Guild. There is no reason at all why Napiershall Street should not have been made a public street by the Police Commissioners instead of by the Dean of Guild, and it cannot affect the public interest in the height of the buildings whether it has been made a public street in the one way or the other. But certainly the terms of section 291 relating to streets sanctioned as public fay the Dean of Guild create considerable difficulty, and Napiershall Street is in this position. The Dean of Guild may impose conditions so as to secure as far as possible that the maximum height of the front walls of ‘buildings’ shall not exceed the space between the front walls ( i.e., the width of the street), except in case of ‘public buildings,’ the height of which is in the discretion of the Dean of Guild. No definition is given of ‘public buildings,’ but it can scarcely be made to include every building other than a dwelling-house, to follow the phraseology of section 290. But the Dean of Guild is given in section 291 a certain discretion as to imposing conditions in regard to the height of buildings relative to the street, and he can hardly be wrong in exercising this discretion to sanction buildings of a height that the Legislature considers in section 290 unobjectionable except in cases of dwelling-houses. As the Dean of Guild thinks the lining should be granted, it is not necessary to consider whether the conditions as to height referred to in section 291 have been made operative by the proceedings in the lining of the street, or if not, whether they can be made operative in this lining.”

The Master of Works appealed, and argued—It was ultra vires of the Dean of Guild to grant warrant. It had been determined for all time coming in the Dean of Guild Court in 1872 what the height of the buildings and the breadth of the street were to be, and the petitioner was not entitled to go beyond that decision. If that were not the effect of a lining granted under secs. 290 and 291 of the statute, no one who bought property in a street would have any assurance that the amenity and salubrity of the street would not be interfered with by the erection of buildings much higher than those erected at the original laying out of the street.

The respondent's argument sufficiently appears from the opinions of the Lord President and Lord M'Laren.