Scottish Court of Session Decisions

Section 4, sub-section 31, of the Burgh Police Act 1892 provides that “‘street’ shall include any road, highway, bridge, quay, lane, square, court, alley, close, wynd, vennel, thoroughfare, and public passage or other place within the burgh used either by carts or foot-passengers, and not being or forming part of any harbour, railway or canal station, depot, wharf, towing-path, or bank.”

Section 142 provides that “It shall be lawful for the commissioners to resolve, at a meeting specially called for the purpose, to undertake the maintenance and repair of all the footways of the burgh. When the commissioners shall undertake the maintenance and repair of the foot-pavements in the burgh, they shall call upon all owners to have their foot-pavements before their properties put in a sufficient state of repair, and failing their doing so within six weeks, the commissioners may cause the same to be done at the expense of such owners, and thereafter the said foot-pavements shall be maintained by the commissioners: Provided that nothing contained in this section shall apply to the footways of private streets.”

This was an appeal presented under section 339 of the Burgh Police Act 1892 by Laurence Laurenson, draper, Law Lane, Lerwick, against an order of the Police Commissioners of the burgh, on the ground that the said order was ultra vires of the Commissioners, and illegal. The notice served on the appellant, and containing the order complained of, intimated a resolution of the Commissioners in terms of the Burgh Police Act 1892, section 142, to undertake the maintenance and repair of all the footways in the burgh: “And they therefore now call upon you, in terms of the foresaid section of said recited Act, to have the foot-pavement before your property … to a width extending outwards from the boundary of your property half the breadth of said street … put in a sufficient state of repair.”

Notice was further given that in the event of the appellant failing to do so the

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work would be executed by the Commissioners at his expense.

The appellant averred—“(2) The said Law Lane is a public street within the meaning of the foresaid Act, and is one of the leading thoroughfares from Hillhead to Commercial Street, which is the principal street in the town of Lerwick. The foresaid lane or street, like all the old streets in Lerwick, including Commercial Street, is paved over its whole surface. It is without footpath, kerb, or gutter, and said street forms the only available way for traffic of all kinds. The said lane or street is so narrow that no proper footpaths could be constructed along its sides, and it is used for all kinds of traffic across its whole breadth. (3) The maintenance of the said lane or street as one of the public streets of the burgh is imposed on the respondents by the foresaid Act. Section 142 of the Act under which the said notice professes to be given applies only to the foot-pavements along the sides of streets, and it does not apply to carriageways, or to such streets as Law Lane, which are used for all sorts of traffic across their whole breadth, and in which it is impossible, or at least impracticable, as in some parts of Commercial Street, to form foot-pavements along the sides.”

Answers were lodged by the respondents. They averred—“(2) Admitted that Law Lane is a thoroughfare from Hillhead to Commercial Street, and that it is paved over its whole surface. Explained that Law Lane is a narrow lane through which the only kind of traffic possible is that of foot-passengers, and in the middle of it there is a flight of steps, so that even if the lane were wide enough no vehicular traffic is possible. The lane has been paved for the last fifty years, and was so paved by the adjoining proprietors. Ever since the paving clauses of the respective Police Acts have been in operation in the burgh the pavement of the lane has been maintained by the adjoining proprietors under the orders of the Police Commissioners.”

The respondents having objected to the competency of the appeal, the Court on November 10th 1896 repelled the objection ( ante, vol. 34, p. 75).

An order for proof was made, but on a joint motion by the parties the Court discharged the order and appointed a Commissioner to take the whole evidence in regard to the matters at issue at Lerwick.

Evidence was led as to the traffic in Law Lane, and also as to that on certain other streets in Lerwick.

The purport of the former evidence is sufficiently indicated in the opinion of the Lord President, while it is unnecessary for the purposes of the case to refer to the latter.

Argued for the appellant—This was not a foot-pavement in the sense of section 142 of the 1892 Act, having been for all purposes used as a street. It was public as regards use, and under section 129 the Commissioners were bound to maintain it, the repair of streets and of pavements being kept separate. Moreover, the 142nd section applied only to foot-pavements laid down beside carriageways. The “footway” itself cannot constitute the street—there must be something beside it. But according to the contention of the respondents, the appellant would be bound to pave up to the medium filum of the whole street, or, in other words, his so-called “foot-pavement” was equivalent to half of the street. All the group of sections in the Act relating to the forbidding of the committal of certain acts upon the foot-pavement were based upon the assumption that there was another portion of the street upon which certain of these acts might be lawfully done, and this fact confirmed the theory that there were two distinct entities, “footpath” and “street,” and that section 142 only applied to the former when laid down beside the latter— section 381.

Argued for respondents—The very nature of the lane, blocked as it was at one end by a flight of steps, and at the other by the foot-pavement of another street, indicated that it was only a footway, and the evidence as to use for other purposes was not sufficient to overrule this indication. If it had been used at all for carting, it had been merely for access to a house, and not in the sense of a public street. There was nothing in the Act to indicate that a footpath can only exist side by side with a carriageway, and by section 142 the commissioners were given the management of “all footways.”

At advising—