Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lindsay v. Duke and Others [1898] ScotLR 35_689 (14 May 1898)
URL: http://www.bailii.org/scot/cases/ScotCS/1898/35SLR0689.html
Cite as: [1898] ScotLR 35_689, [1898] SLR 35_689

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 689↓

Court of Session Inner House First Division.

[Kilmarnock Dean of Guild Court.

Saturday, May 14. 1898.

35 SLR 689

Lindsay

v.

Duke and Others.

Subject_1Dean of Guild
Subject_2Petition for Lining Refused without Stating Reasons.

Facts:

Where the Dean of Guild refuses a petition for lining, upon statutory grounds, it is proper for him to explain the precise nature of the objections to the petitioner's proposals.

The Dean of Guild having refused to grant a lining, without assigning any reasons for doing so, except that he “was not satisfied that the plans provide for the buildings being suitably lighted and ventilated,” the petitioner appealed, and no appearance was made to oppose the appeal.

The Court recalled the interlocutor appealed against, and remitted to the Dean of Guild for further procedure.

Page: 690↓

Headnote:

Mr Hugh Lindsay, grocer, Boyd Street, Kilmarnock, applied to the Dean of Guild Court there for a warrant to erect dwelling-houses on a piece of ground in Boyd Street and Morris Lane.

On the 31st January 1898 the Court appointed service to be made upon the adjoining proprietors and the burgh surveyor, Mr Robert Blackwood, and allowed the master of works to see the plans of the proposed buildings and to report thereon.

None of the adjoining proprietors appeared to oppose.

The Master of Worlds presented a report in which he made certain objections, and he also appeared in Court and made a verbal statement in support of them.

On 7th March the Court pronounced the following interlocutor—“Unanimously decline to grant warrant for the erection of the buildings specified in the petition, in respect they are not satisfied that the plans provide for the buildings being suitably lighted and ventilated.”

The petitioner appealed.

No appearance was made by any party to oppose the appeal.

Argued for appellant-The procedure in the Dean of Guild Court had been overhasty, and the Dean of Guild had refused the petition without specifying the points in which the proposals did not fulfil the statutory requirements. This put the petitioner at a grave disadvantage, for it would prevent him from either showing that the objections were unfounded, or meeting them by modifying his schemes. If the Magistrates had appeared to oppose the appeal, the Court would have ordered them to lodge answers and remitted the case to the Dean of Guild. No appearance had been made, and the inference was that they knew the judgment was unsound. Accordingly the Court ought to recal the interlocutor and remit to the Dean of Guild to grant the lining. Failing that, the interlocutor should be recalled and the case remitted for further procedure— Saltoun v. Magistrates of Edinburgh, July 3, 1896, 23 R. 956; Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 167, et seq.

Judgment:

Lord President—We must be cautious in dealing with this appeal not to supersede or prevent the application of the discretion of the Dean of Guild to plans submitted to him. I own I think it is to be regretted that the Master of Works has not thought fit to appear and give an account of the somewhat rapid way in which this petition was refused. It seems to me, after the statement which has been made, we cannot allow this final refusal of sanction to stand, and should allow matters to be reconsidered. I propose, therefore, that we should sustain the appeal, recal the interlocutor, and remit to the Dean of Guild to proceed as may be just. The Dean of Guild Court is, I am sure, very willing to give due effect to the rights of persons desirous of altering buildings on their properties, and also to the enforcement of the obligations of the statute; but experience in this Court shows that where objections to plans before the Court are sustained on statutory grounds their precise nature should be put definitely before the petitioner, so that he may judge of their legal validity, and if satisfied of their validity obviate them by modifying his plans. And the Court will not be prepared to sustain a refusal in general terms of plans when the party has not had an opportunity of considering and canvassing the legal validity of the objections on the statute, or if he thinks fit of getting rid of the objections by altering his plans. I hope the consideration now referred to will be kept in view in the Dean of Guild Court, and that the case may thus be brought to a satisfactory conclusion.

Lord Adam and Lord M'Laren concurred.

Lord Kinnear was absent.

Counsel for petitioner moved for expenses and referred to the case of Saltoun, supra.

The Court sustained the appeal, recalled the interlocutor of the Dean of Guild dated 7th March 1898, and found the respondent Robert Blackwood liable to the appellant in the expenses of the appeal.

Counsel:

Counsel for Petitioner— Salvesen— M'Clure. Agents— Simpson & Marwick, W.S.
1898