Scottish Court of Session Decisions

William Daniel Macgregor, the proprietor of certain tenements in Leith, presented a petition to the Magistrates of that burgh in their Dean of Guild Jurisdiction for warrant “to improve the lighting, ventilation, and sanitary arrangements of the premises” by executing certain alterations, such as enlarging windows, taking down partitions, providing a new bathroom, &c.

On 26th April 1897 the Master of Works, after examining the plans lodged with the petition, reported as follows—“The alterations to be made on the windows shown on the plan may improve in a slight degree the light of the respective rooms. It may be further stated for the information of the Court, with respect to the buildings, that

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they are situated in a badly ventilated and badly lighted place. They are, besides, low in the ceilings, the height of the apartments being in most instances under eight feet. The apartments on the ground and first floors are very badly lighted and ventilated. It appears to the Master of Works that any alterations short of entire reconstruction of the premises on sanitary principles can never make the premises thoroughly healthful and suitable for the housing of people of the working classes. It is, indeed, even doubtful whether it would not, in the long run, be more profitable for the proprietor to clear away the buildings entirely, and leave the space presently occupied by it open for light and ventilation and the improvement generally of his remaining houses, and making them suitable and healthful for those who may occupy them.”

The assistant to the Master of Works, the Medical Officer of Health, and the Sanitary Inspector reported as follows—“The plans submitted show a slight improvement in the means of lighting the premises; but the ‘free space’ adjoining the altered building is less than that required by the provisions of the Burgh Police (Scotland) Act 1892, section 170, and accordingly we are of opinion that the plans do not provide suitably for light and ventilation.”

In obedience to a further remit by the Court, the Medical Officer of Health and the Sanitary Inspector again reported in the following terms—“( a) Lighting.—The plans show a slight improvement in the means of lighting the premises. On the south side the stair window has been enlarged, and on the north side the number of windows has been increased. But more than half the boarding-house is closely surrounded by other buildings. To the north side of the house the only free space consists of a passage—marked “passage” on plans—seven feet wide, and the buildings facing the boarding-house are three storey high. These buildings, which are let in houses of one and two rooms, at present accommodate nearly eighty persons in a total of twenty—eight rooms. The boarding-house accommodates about forty-seven persons, and the proposed alterations may lead to an increase of lodgers. Into the ‘passage’ very little direct sunlight enters. Consequently from the north side the ground floor and first floor rooms are badly lighted. Again, to the south side of the boardinghouse the space between buildings is only two feet wide, and the wall on the opposite side of this space rises to the second floor of the boarding-house. Consequently on the south side the sunlight is shut out almost entirely. Prom the standpoint of public health, no living or sleeping room can be considered ‘suitably’ lighted unless it is so situated that at some period of the day sunlight may have direct access to it. It is proper to add that the dining-room and top floor are well lighted from the south side. ( b) Ventilation.—For the purposes of ventilation the space to the south side is of little or no value. This space is liable to become foul; on one occasion it has had to be cleaned out by the Local Authority, and it will itself from time to time require both ventilation and cleaning. Again, the ‘passage’ being bounded on the north side by densely-occupied high buildings, is not in our opinion sufficient for the ventilation of a lodging-house in so crowded a locality. It may be added that by this passage about one hundred and twenty-six persons have ingress and egress. In these circumstances we do not consider it necessary to offer any more detailed criticism of the plans. On these grounds we base our opinion that the plans do not ‘provide suitably’ for lighting and ventilation.” They added that, so far as shown on the plans, the drainage system was satisfactory.

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 166, enacts that every person who proposes to erect any house or building, or to alter the structure of and to use for human habitation any existing house or building which had not been previously used for that purpose, or to alter the mode of occupancy of any existing house in such a manner as to increase the number of houses or occupants, shall lodge with the clerk of the commissioners a petition for warrant to do so,… and also plans, sections, elevations, and such detailed drawings as are necessary to show the height and mode of structure and arrangement of the intended house or building or alteration.

Section 167—“The clerk of the commissioners shall, at their first meeting, after receiving such petition, give notice thereof to the commissioners, who may decline to grant warrant for the erection of any new house or building, or for the alteration of the structure of any existing house or building, until satisfied that the plans provide suitably for stability, light, ventilation, and other sanitary requirements.”

On 6th May 1897 the Magistrates pronounced an interlocutor finding “that the plans do not provide suitably for light and ventilation in terms of clause 167 of the Burgh Police (Scotland) Act 1892,” and therefore declining to grant the warrant craved.

Note.—“Section 201 of the Burgh Police (Scotland) Act 1892 provides that in burghs where there is a Dean of Guild Court, the Court shall come in room and place of the commissioners for carrying out the provisions of the Act, in so far as they apply to, inter alia, the alteration of existing buildings.

In Leith there is a Dean of Guild Court, and therefore the jurisdiction in these matters falls to be exercised in that Court.

The Court has satisfied itself, both by inspection of the premises, and the reports of the medical officer of health and the sanitary inspector, that the plans do not provide suitably for light and ventilation, and therefore it has no alternative than to decline the warrant craved.

This decision was arrived at by a majority of three to two of the Court.”

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The petitioner reclaimed, and argued—The interlocutor was ultra vires of the Dean of Guild Court. It was admitted that the petitioner's proposed alterations were in themselves improvements on the existing building, but the Dean of Guild Court instead of confining their attention to the alterations, which they were bound to do under section 167, had considered the state of the existing building, and on the principle that the better was the enemy of the good had refused warrant. The consequences of such a method of procedure would be most serious for owners of property. They might be precluded from improving existing structures until they became uninhabitable.

Argued for the Magistrates of Leith—The Dean of Guild Court had not exceeded its powers. It was authorised to refuse to grant warrant for the alteration of an existing house. The proposed alterations would probably increase the number of lodgers in the house; and section 169 forbade any alteration which would have that effect to be made without a warrant. The increased number of lodgers was a consideration embraced in the “other sanitary requirements” mentioned in section 167, provision for which must be made in the plans; and that phrase must be taken as alternative to light and ventilation.

At advising—