Scottish Court of Session Decisions

Thomas M'Lelland, writer in Glasgow, presented a petition to the Dean of Guild Court of the burgh of Paisley for a lining and warrant to erect several tenements intended to be occupied as dwelling-houses and shops on the ground possessed by him at 40 and 41 High Street.

The ground was bounded on the north by the High Street, and on the south by a piece of ground used as a bowling-green, and belonging to the Priorscroft Bowling Club. The proposed entrances to the tenements were to be, on the north from the High Street, on the west from a proposed new street to be formed by the petitioner running north and south between High Street and the bowling-green, and on the south from an open space belonging to the petitioner lying between the tenements and the bowling-green. This space was connected by a gate for foot-passengers with the proposed new street, and the main entrances of two of the proposed buildings abutted on the open space. The plans lodged by the petitioner showed that the open space proposed to be left between the tenements and the bowling-green measured 15 feet in width, while the width of the buildings abutting thereon was 41 feet. The bowling—green was unbuilt on and was separated from the open space by a parapet wall and railing.

John William Moncur, Master of Works of the burgh of Paisley, acting in the public interest, objected to the granting of the lining on the ground (1) that the open space running along the southern boundary of petitioner's property was a “new street or part thereof or court” within the meaning of section 152 of the Act, and as such required to be at least 36 feet in width, and (2) that the rooms facing the south would not be sufficiently lighted and ventilated from an adjoining street or open space directly attached thereto equal to at least three-fourths of the area to be occupied by the intended buildings, as required by section 170.

On 4th August 1897 the Dean of Guild pronounced the following interlocutor:—“For the reasons stated in the subjoined note, refuse to grant the warrant and authority craved by the petitioner, and decern.”

Note.— … “With regard, again, to the objection founded on the provisions of sections 152 and 170, and the sub-sections 10 and 31 of section 4, it appears from the plans that whether the open space on the southern boundary of the petitioner's property is taken to be ‘a new street or part thereof, or court,’ the requirements of section 172 for 36 feet of width, and the restricted height of dwelling-houses therein have not been complied with.

Then, again, the rooms facing the south in the building abutting on the last-mentioned open space of 15 feet wide will not, according to the plans, ‘be 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 building,’ as required by section 170.

For the reasons above stated the Magistrates sustain the second objection made by the respondent Moncur, and refuse to grant the lining craved.”

The petitioner appealed, and argued—The open space in question was not a new street, or part thereof, or court in terms of sec. 152. It was shut off by a gate from the proposed new street, and was a “private court,” as defined by sec. 4, sub-sec. 27 of the Act. As regards sec. 170, the bowling-green was still unbuilt upon, and therefore there was at present directly attached to the building an open space equal to three-fourths of the area of the buildings. If it was held that the open space was a “new street, or part thereof, or court” within the meaning of section 152, the petitioner was willing to put back his buildings 3 feet, leaving 18 feet, which would be half of the required space. When the opposite proprietor came to build on his ground he would be bound to provide the remaining 18 feet in order that the street might attain the required width of 36 feet.

Argued for the respondent Moncur—The judgment of the Dean of Guild was right. The open space was a new street, or part thereof, or court” under sec. 152 of the Act, and its proposed width contravened that section. It would not do for the petitioner to provide only 15 or 18 feet of the necessary width of 36 feet. If a man lays out a new street or court with buildings entered therefrom, he must provide for the whole width of the street. Sec. 170 was also contravened by the petitioner's plans. The bowling-green proprietors might at any time place a building on the edge of the property with no windows looking to the north. Such a building would destroy the light and ventilation of the petitioner's tenements if these latter were permitted to be built on land laid down on the plan. A person building dwelling-houses on his property must take such precautions as to make it impossible for the light and ventilation of the rooms being afterwards blocked out by operations on his neighbour's property. This could only be done by his providing sufficient open space on his ground or building beside links or a common on which buildings could not in future be erected.

At advising—