Scottish Court of Session Decisions

James Russell, builder, Aberdeen, raised an action against the Lord Provost, Magistrates, and Town Council of the city and royal burgh of Aberdeen, to have it declared that the pursuer was entitled to erect dwelling-houses or other buildings (above seven feet high), all as shown on a plan thereof lodged by the pursuer with the defenders, on a piece of ground extending along the north side of a street called Broomhill Road, Aberdeen, provided always that the said dwelling-houses or other buildings should not be nearer the present centre of Broomhill Road than 18 feet, or alternatively to erect dwelling-houses or other buildings (above seven feet high) as aforesaid on the said piece of ground to within 25 feet from the present centre of the said street called Broomhill Road.

The facts of the case, the contentions of the parties, and the statutes they founded on, are fully set forth in the opinions of the Lord Ordinary (Low) and the Inner House Judges.

On 18th October 1898 the Lord Ordinary pronounced the following interlocutor:—“Finds that the pursuer is entitled to erect dwelling-houses or other buildings (above 7 feet high) upon the ground described in the summons, up to but not within the distance of 25 feet from the present centre of Broomhill Road: Therefore to that extent and effect finds, decerns, and declares in terms of the alternative declaratory conclusion of the summons, and assoilzies the defenders from the first conclusion thereof, and decerns.” …

Note.—“The pursuer is proprietor of certain lands adjoining Broomhill Road Aberdeen, upon which he proposes to erect buildings. The road is 42 feet 6 inches wide, and the pursuer's original intention was to build up to the edge of the road. The defenders, however, refused to sanction the plans unless the buildings were kept back to a distance of 25 feet from the centre of the road. To this the pursuer assented, although he disputed the defenders' right to prevent him from building up to the edge of the road. It then appeared that the defenders proposed to measure the 25 feet, not from the centre of the road as it at present exists, but from what was formerly the centre of the road. That point being considerably nearer the pursuer's ground than the present centre of the road, the defenders' proposal would have necessitated the pursuer keeping his buildings still further back from the road. To this the pursuer would not agree, and he accordingly raised the present action.

The defenders now admit that the cent re of the existing road is the point which must be taken, but they still contend that they are entitled to insist that the buildings shall not be erected nearer to that point than 25 feet. The pursuer, on the other hand, now takes his stand upon what he conceives to be his legal right—namely, to build up to the edge of the road.

The defenders maintain that they are vested with the power given to road trustees under the 93rd section of the Aberdeenshire Road Act of 1800, to prevent the erection of buildings within a distance of 28 feet from the middle of a road within two miles of the town of Aberdeen. They also maintain that they are vested with the power given to road trustees under the 91st section of the General Turnpike Act 1831 to prevent the erection of buildings within the distance of 25 feet from the middle of any road.

The pursuer's contention is that Broomhill Road being a street within the city of Aberdeen, the only limitation applicable to it is that contained in the 133rd section of the Aberdeen Municipality Extension Act 1871, which enacts that it shall not be lawful to erect any building more than 7 feet high within 18 feet of the centre line of any street.

The road in question is now within the municipality of Aberdeen. It only became so, however, in 1891. Prior to that date it was outside the municipality, but inside the parliamentary boundaries of Aberdeen, and it was only by the Aberdeen Corporation Act 1891 that the municipal boundaries were extended so as to coincide with the parliamentary boundaries. There are a number of Acts of Parliament which apply to the area within the parliamentary boundaries, and it is not easy to discover what are the powers of the defenders in regard to the distance which they are entitled to require that buildings shall be kept back from the central line of the road in question. I shall, however, state the conclusion at which I have arrived upon the best consideration which I have been able to give to the matter.

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The first statute falling to be construed is the Aberdeenshire Roads Act 1865.

By that Act two bodies of road trustees were created, namely, the County Road Trustees, who were given the management of all the roads in the county outside the parliamentary boundaries; and the Burgh of Aberdeen Road Trustees, to whom the roads within the parliamentary boundaries were entrusted.

The scheme of the Act appears to be this—up to and including the 48th section it deals entirely with the county roads and the County Road Trustees, and by the 49th, 50th, and 51st sections the Burgh Road Trustees are appointed and their powers and duties defined. These powers and duties are defined partly by express provision and partly by a somewhat vague reference to the previous provisions of the Act in regard to the County Trustees.

By the 2nd section the Aberdeenshire Road Act of 1800 is repealed ‘subject to the provisions of this Act,” and by the 4th section certain clauses of the General Turnpike Act 1831 (including section 91) are incorporated with the Act, but only as regards the county roads.

The defenders, however, contend that by the 49th section the Burgh Trustees were given all the powers conferred upon road trustees by the Act of 1800, including the power to prevent houses being built within 28 feet of the centre of the road. They also contend that by the 50th section the Burgh Trustees were given the same powers which were conferred upon the County Trustees to enforce the incorporated clauses of the Act of 1831.

Now, I think that it was essential that the Burgh Trustees should be given some of the general powers contained both in the Act of 1800 and in that of 1831, because otherwise they would have had no power to take material required for the repair of roads, nor would they have had any authority to regulate the distance from a road within which buildings could be erected. It is more difficult, however, to see why the Burgh Trustees should have been given the powers conferred both by the Act of 1800 and by that of 1831, and yet I have difficulty in reading the 49th and 50th sections otherwise than as giving the powers conferred by both of these Acts. By the 49th section there are transferred to and vested in the Burgh Trustees ‘all arrears of assessments, monies, property and effects, rights of action, claims and demands, powers, immunities, and privileges whatsoever, vested in, possessed by, or belonging to the Trustees under the firstly recited Act’ (that of 1800) ‘within the parliamentary boundaries of the said burgh of Aberdeen.’ It was in the end conceded that that provision carried to the Burgh Trustees the power conferred by the 93rd section of the Act of 1800.

Turning now to the 50th section, it is provided that ‘the provisions contained in this Act relative to meetings of Trustees, and to the proceedings and powers of the Trustees and the District Trustees respectively shall, so far as applicable and not herein otherwise provided for, extend and apply to the Burgh of Aberdeen Road Trustees.’

Now, sections 15 to 27 of the Act contain provisions for meetings of Trustees, and for regulating the proceedings at these meetings; sections 28 and 29 are the vesting clauses as regards the County Trustees, and section 30 declares what are the general powers of the Trustees. It provides that ‘they shall exercise the whole powers, rights, and privileges conferred on turnpike trustees by the thirdly recited Act,’ that is, the Act of 1831. Now, prima facie, these are among the powers which by the 50th section are given by reference to the Burgh Trustees, and I think that the only ground upon which it could be held that that was not so would be, that these powers are ‘herein otherwise provided for,’ by the conferring of the powers of the Act of 1800 upon the Burgh Trustees by the 49th section. There may, on the other hand, have been reasons of which I am not aware for giving to the Burgh Trustees the powers both of the Act of 1800 and of 1831. In these circumstances I think that it is important to observe that a subsequent Act—the Aberdeen County and Burgh Roads Act 1883—proceeds, in section 23, upon the assumption that the Burgh Trustees did possess the powers conferred by the Act of 1831. Of course, that would not confer these powers unless they had been actually given by the Act of 1865; but if the 50th section of the latter Act is fairly open (as I think it is) to the construction that by reference back to the 30th section it gives to the Burgh Trustees the powers of the Act of 1831, that construction is to be preferred, otherwise a discrepancy would be introduced between the Acts of 1865 and 1883.

Upon the whole, therefore, I am of opinion that the Burgh Trustees were given the power to enforce the 28 feet building limit of the Act of 1800 in the case of roads to which that limit was applicable, and also the powers conferred by the incorporated sections of the Act of 1831.

I think, however, that the provisions of the Act of 1800 are not now in force, because that Act was repealed by the Local Government Act 1889.

Before the passing of the latter Act the municipal boundaries of Aberdeen had been considerably enlarged beyond what they were in 1865, but there was still a strip of land outside the municipal boundaries and inside the parliamentary boundaries. The road in question, or at all events the part where the pursuer's property is situated, was within that strip. Now, by the Local Government Act all the roads outside the municipal boundaries were vested in the County Council, and it is therefore necessary to see what powers were conferred upon them. These are to be found in section 16 of the Act. By that section, subsection (1), it is provided that all local Acts of Parliament, in so far as they relate to highways in any county in which the Roads and Bridges (Scotland) Act 1878 has not previously taken effect shall be repealed. That provision applied to the county of

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Aberdeen, because it was one of the counties in which the Roads and Bridges Act had not been adopted, and therefore the Act of 1800 was repealed. I think that the Act of 1865, being a local Act, was also repealed; but that does not affect the result, because the County Council were by the Local Government Act given the powers of the 91st section of the Act of 1831.

By sub-section (2) of section 16 of the Local Government Act it is provided that ‘from and after the appointed day the Roads and Bridges (Scotland) Act 1878 shall have effect in every county,’ subject to certain modifications which do not affect this case. By section 123 of the Roads and Bridges Act, certain sections of the Act of 1831 and among them the 91st section, are incorporated. The County Council therefore had, as regarded the road in question, power to prevent buildings being erected within 25 feet of the centre line.

By the Act of 1891, as I have already said, the municipal boundaries were extended so as to coincide with the parliamentary boundaries, and the defenders became, in place of the County Council, administrators of all roads within the parliamentary boundaries, and all powers of the County Council were transferred to the defenders. The defenders therefore have power to put in force the 91st section of the Act of 1831.

The provision upon which the pursuer founds is contained in the 133rd section of the Aberdeen Municipality Extension Act 1871.

I think that it is clear enough that the defenders have power to enforce the provisions of that section, but a difficulty arises from the fact that the statutes do not in express terms distinguish between streets, to which that section is applicable, and roads to which the 91st section of the Act of 1831 is applicable, the word ‘street’ in the Act of 1871 being defined so as to include every kind of road. The pursuer founded upon that fact, and argued that it could not have been intended to make both limitations applicable to the same roads and streets, and that, the whole area within the parliamentary boundaries being now included within the city of Aberdeen, the 133rd section of the Act of 1871, being the provision applicable to the streets in the city, could alone be regarded as in force.

I quite recognise the difficulty; but I am unable to read the statutes otherwise than as giving the defenders power to enforce both the 133rd section of the Act of 1871 and the 91st section of the Act of 1831. It would have been well if the Acts had defined more precisely the application of these two sections respectively, but I do not think that there should be much practical difficulty in applying them, because the provisions of the 133rd section of the Act of 1871 are appropriate to streets in a town, and not to roads of the nature of country roads, or which were originally country roads, although they have come to be within the municipal boundaries. In regard to the road in question, it was until recently a country road, and I do not think that it is doubtful that it is a road to which the provisions of the Act of 1831 are appropriate.

Upon the whole matter, I am of opinion that the defenders are entitled to require the pursuer to keep back his buildings to a distance of 25 feet from the central line of the road.”

Against this interlocutor the pursuer reclaimed.

At advising—