Scottish Court of Session Decisions

The Burgh Police (Scotland) Act 1892, in addition to the enactment in section 145, cited supra, provides by section 152 as follows:—“From and after the date when this Act comes into force within the burgh, it shall not be lawful to form or lay out any new street, or part thereof, or court within the burgh, unless the same shall (measuring from the buildings, or intended buildings therein, at the level of the surface of the boundary of such street) be at least 36 feet wide for the carriageway and foot-pavements.”

The estate of Westonlee, situated on the east side of a road leading along the east and north sides of a part of the common lands of the burgh of Dumbarton, known as the Meadow Park, was laid out for feuing. Andrew Mair feued a piece of ground 60 feet long by 54 feet broad, forming part of said estate. He proposed to erect thereon a double cottage with the necessary offices fronting the said road, but standing back from it 10 feet or thereby, and having access from said road by openings in a wall or fence bounding the road, and steps going up therefrom. He presented a petition to the Dean of Guild Court of Dumbarton, in which he craved a lining, and submitted plans of the proposed buildings. These plans showed that the feuing plan of the Westonlee estate had been departed from in the present application. To his application the respondents, the Commissioners of Police of the Burgh of Dumbarton, objected, and pleaded that the proposed operations of the petitioner would have the effect of forming the road upon which his property fronted or abutted into a “new street,” within the meaning of the Burgh Police (Scotland) Act 1892, and that as he had failed to comply with the requirements of section 146 of that Act, and said road was not of the statutory width required by section 152. the petition should be dismissed. The Magistrates and Town Council of the Burgh of Dumbarton were also objectors. They pleaded that the road in question was their private property, and the petitioner had no right of access to his ground thereby; and the said road being the only access shown on the plans, the petition should be dismissed. To the objections of the Commissioners of Police the petitioner replied that he did not intend to form or lay out any new street within the meaning of the Burgh Police Act, and was therefore not affected by the provisions of sections 146 and 152.

The nature and character of the road in question is set forth in the following article of a minute of admissions lodged by the parties:—“The road in question runs alongside the Meadow Park, a part of the common lands of the burgh presently used chiefly for recreative purposes. It has existed as a right-of-way from time immemorial, and is regularly used for traffic by foot-passengers, horses, carriages, carts, vans, &c. Subject to this right-of-way, it is vested in the Magistrates and Town Council as the custodiers of the common good of the burgh. About twelve or thirteen years ago the Magistrates and Town Council, in order to give employment, and also to improve and protect the amenity of the Meadow Park, caused a portion of said common lands to be thrown into the then existing right-of-way, and for a portion of the way erected a railing to protect the trees planted in the said Meadow Park. They also caused a portion of the road to be macadamised, and in order to protect a sewer which at a point comes close to the surface on the east side, a footpath with kerb was formed on the top of it, The road is irregular in width, and for a considerable distance at the west end is not defined further than as the result of traffic. It is maintained by the Magistrates and Town Council. Prior to said road being made as here stated, it was an unenclosed track, and was not repaired or maintained by the Magistrates and Town Council, or other public body. Previous to the Broad Meadow being reclaimed, as authorised by the Dumbarton Waterworks Reclamation and Municipal Extension Act 1857, portions of the road in question were frequently covered with water at high tide. The road has never been taken over by the Commissioners of the burgh under any formal resolution.”

A plan of the road was lodged which showed part of the road or right-of-way leading northwards from Bonhill Road 600 yards along the common to the golf course. The part of the road which had been macadamised extended for about 450 yards from Bonhill Road. Into this road or right-of-way several roads entered at right angles, dividing the land to the east of the right-of-way, so far as shown on the plan, into three nearly equal parts. On the most southern of these three parts the petitioner's feu was situated, and his house was the first proposed to be built on this part. On the middle part a row of houses, consisting of two storeys and attics, named Poindfauld Terrace, had been built for about 80 feet fronting the said right-of-way. On the remaining or northern part, a row of houses consisting of two storeys and attics, named Park Crescent, had been built for about 250 feet fronting the said right-of-way. The nearest house on the same side of the road as the proposed cottage of the petitioner was in Poindfauld Terrace, and was over 150 yards off across another road.

On 30th September the Dean of Guild Court pronounced the following interlocutor:—“Having heard parties' procurators on their pleadings, the plans, and the minute of admissions, and having visited the site of the double cottage proposed to be erected by the petitioner, and having inspected the road upon which it is proposed the petitioner's buildings should front, and having considered the reports of the Master of Works, Find that the road upon which the petitioner's property fronts or abuts has never been taken over or maintained by the Commissioners of Police of the Burgh of Dumbarton as the road authority of said burgh: Find that the

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erection of buildings, in terms of the petition and relative plans, would have the effect of forming that part of the road upon which the lands of Westonlee and the ground of the petitioner front or abut into a new street within the meaning of the Burgh Police (Scotland) Act 1892: Find that the said road, on the erection of buildings in terms of the petition and plans (measuring from said buildings at the level of the surface of the boundary of said road), would be less than 36 feet wide for the carriageway and foot-pavements: Therefore refuse to line the petitioner's property, and dismiss the petition.”

Note.—“The road in question in this case had existed as a right-of-way far beyond the prescriptive period prior to the reclamation of the Broad Meadow, under the powers conferred upon the Town Council by their Act of 1857. It was frequently covered with water at high tide, and up to about thirteen years ago, when the Town Council railed off a portion of the Meadow Park, it was an unenclosed track of irregular width, and it was not maintained or repaired by the Town Council or other public body. It is at the present time still irregular in width, and for a considerable distance at the west end, and ex adverso of Park Crescent, it is not defined further than as the result of traffic. Subject to the right-of-way before referred to, it is the property of the Magistrates and Town Council as the custodiers of the common good of the burgh; it is maintained by the Town Council, and although built upon in two places on one side, its level has never been fixed by the Commissioners of Police, and it has never been taken over by such Commissioners under any formal resolution. Looking to the nature and character of the road, the operations of the petitioner would, in the view of the Court, have the effect of forming the road into a ‘new street,’ within the meaning of section 146 of the Burgh Police (Scotland) Act 1892. Now, that Act, as already indicated, specifies certain procedure which must be observed before the formation of a new street, or any part thereof, is begun, and it specifies a minimum width of 36 feet. The petitioner has not observed that procedure, and, looking to the fact that the road, on the erection of the proposed cottage, would be of less than the statutory width, the Court refuses the prayer of the petition.”

The petitioner appealed, and argued—The question to be decided was, whether by his proposed operations he was laying out a new street in terms of sec. 146 of the Act. That question was one of fact to be decided by the Court on a full view of the circumstances. It was for the respondent to show that the appellant intended to form a new street. All that the appellant proposed was to build a cottage on a small feu 10 feet back from a road hitherto unbuilt upon. It was impossible to deduce from such proceedings any intention to form a new street. Indeed, in the circumstances he could not form a new street even if he had any desire to do so. On the authorities the isolated act of a single proprietor building a single house on an unbuilt on locality could not be held to be laying out a new street—Opinion of Lord Chelmsford in Galloway v. Mayor of London, 1866, L.R., 1 E. & I. App. 55; Pound v. Plumstead Board of Works, 1871, L.R., 7 Q.B. 183; Williams v. Powning, 1883, 48 L.T. (N.S.) 672; Vestry of St Giles, Camberwell v. Crystal Palace Company [1892], 2 Q.B. 33. The argument of the magistrates that the petitioner was not entitled to step from his property on to the right-of-way was preposterous.

Argued for the respondents—Whenever a person proposed to build a house facing a road within a burgh, he commenced the formation of a new street, and must build in accordance with the provisions of the Act relating to new streets. Otherwise the Act would be unworkable, as no new street would be formed until some erections had gone up, and it had become impossible to have a street of the uniform breadth of 36 feet. The provisions of the Act applied to the commencement of the formation of the new street. The judgment of the Dean of Guild Court was sound— Robinson v. Local Board for Barton, 1882, 21 Ch. Div. 621. The magistrates being the owners of the solum of the right-of-way were entitled to object to the applicant using it as an access to property. A right-of-way entitled a member of the public to proceed along it from one public place to another, but gave him no right to use it as an access to private property— Blair v. Strachan, March 14, 1894, 21 R. 661.