Scottish Court of Session Decisions

By the Glasgow Building Regulation Act 1892, section 72, it is provided that the Commissioners—that is, the Glasgow Police Commissioners, now, by section 4 of the Glasgow Corporation and Police Act 1895, the Corporation of the City of Glasgow— may from time to time make bye-laws with respect to, inter alia, the following matters: … “ Third, the materials to be used in the construction of buildings, the protection of columns, beams, and other supports of buildings, projections over streets and courts, recesses in walls, openings in party and cross walls, and the erection and removal of hoardings and platforms.

Among the bye-laws which were on the 21st of November 1892 made by the said Commissioners under and by virtue of the above-mentioned section of the said Glasgow Building Regulations Act, and which were on the 18th of April 1893 confirmed by the Secretary of State for Scotland, the 21st provides as follows, viz.— “Every wall, dwarf wall, and partition wall of a building, if built of stone, brick, or concrete, and resting on the ground, shall have a damp course throughout its entire thickness, and such damp-course shall be of durable material impervious to moisture. The damp-course shall be beneath the level of the underside of the joists of the lowest floor, and not under the level of the surface of the ground, and such damp-course may be of sheet lead weighing four pounds to the square foot, or rock asphalt, or Caithness flags square cut and laid in cement. The damp-course in dwarf walls may be of large squared slates laid in cement. Where necessary, the damp course shall be stepped to suit different levels in the lowest floor.”

The Callender's Cable and Construction Company, Limited, proprietors of a damp-course known as Callender's Pure Bitumen Damp Course, brought an action of declarator against the Corporation of Glasgow and John Whyte, master of works there, to have it declared that a damp-course, known as Callender's Pure Bitumen Damp Course, of which the pursuers are the manufacturers, is a damp course which is in conformity with, and which satisfies the provisions of bye-law 21, made on the 21st day of November 1892, under and in virtue of

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the 72nd section of the Glasgow Building Regulations Act 1892, by the Glasgow Police Commissioners, whose powers and liabilities are now vested in and transferred to the defenders, the Corporation of the City of Glasgow, and confirmed by our Secretary of State for Scotland on the 18th day of April 1893.

The pursuers made the following averments:—“(Cond. 3) The damp-course manufactured by the pursuers, which is of uniform character and quality, is of durable material, impervious to moisture, and is in conformity with and satisfies the provisions of the bye-law set forth in the preceding article. It consists of pure bitumen, the jute which serves as a wrapping being merely employed for convenience in laying the course, and the efficiency of the damp-course is not affected in the slightest, even if the jute wrapping in course of time should disappear. It is in extensive use throughout the United Kingdom in the construction not only of ordinary houses and tenements, but also of public buildings and railway bridges, and in all cases it has proved itself as possessing in an eminent degree the above-mentioned qualities of durability and imperviousness. Notwithstanding, however, the defenders, the said Corporation, through the other defender the said John Whyte, have repeatedly intimated to builders erecting buildings in Glasgow, or at least have given them to understand, that the said damp-course is not in conformity with said bye-law, and that the use by them of the said damp course will not meet with approval. Among others of such builders are the following: T. & W. Anderson, 64 Douglas Street; Wm. Anderson, 49 Bellfield Street; Wm. Waddell, 94 Ledard Road; J. & A. Mitchell, 27 Whitevale Street; Alex. W. Dougall, 45 Bellfield Street. Hence builders in Glasgow, who would otherwise use it, are prevented from using it. Knowing the views which the defender Mr Whyte has expressed as to the pursuer's damp-course, builders who would otherwise be prepared to adopt it do not even propose its use for buildings which they erect in Glasgow, they having no sufficient interest to promote its adoption, and being desirous of avoiding any conflict with Mr Whyte. Moreover, builders have not appealed, and will not appeal, to the Dean of Guild against Mr Whyte's decision, for the reasons above mentioned and also because such an appeal would involve such a delay in proceeding with their building of possibly several months, which no builders would expose themselves to even if they had to adopt a more expensive and less satisfactory damp-course than that of the pursuers in order to avoid it. The large and important market of Glasgow is thus practically closed to the pursuers for their damp-course entirely because of Mr Whyte's actings. The defender Mr Whyte has admitted to the pursuers, in writing, that their damp-course is impervious to moisture. The opinion with regard to its durability, on which he has acted, has been formed without due consideration and proper investigation.”

In their answer the Corporation of Glasgow averred, inter alia:—“The Master of Works, as a statutory officer, is to be called as a party to applications for lining, and to have large powers of inspection, &c., of the material, &c., used in buildings, and the duty of seeing to the enforcement of compliance with the Acts and bye-laws is also laid upon him. All disputed questions or requisitions by him are under the Acts, &c., settled by the Dean of Guild in his judicial capacity, These defenders have no right to and do not interfere with or control the procedure so taken. With regard to the damp-course mentioned in the condescendence, these defenders have never taken any action in regard thereto, and they have no knowledge or duty with respect to the same.”

Mr White averred—“With regard to the damp-course mentioned in the article of the condescendence, the defender has on only one occasion had such material brought under his notice as material proposed for certain buildings, and prior to that occasion a complaint had been made to this defender that part of a wall in which the pursuers' damp-course had been used was damp, a complaint which on investigation by this defender was discovered by him to be well founded. The material, which was composed of hemp impregnated with bitumen, appeared to the defender on the occasion on which it was proposed to use it to be quite unsuitable and insufficient for the purpose of a damp-course either in point of durability or imperviousness. On his indicating his view to this effect, a proper damp course was at once put in, and no proceedings were required. On future occasions the defender will also use his best judgment on the materials proposed in the particular circumstances, and if this view be not acquiesced in will issue any requisite orders and make the requisite compearances before the Dean of Guild Court, and abide by the determination arrived at.”

The pursuers pleaded—“(1) The damp-course of which the pursuers are the manufacturers being constructed of durable material impervious to moisture, and being thus in conformity with and satisfying the requirements of the bye-law condescended on, the pursuers are entitled to decree of declarator as craved.” (2) In respect of the injury which the pursuers have suffered through the actings of the defenders condescended on, the present action was necessary for the protection of their rights.”

The defenders pleaded, inter alia—“The action is incompetent.”

On 4th July 1899 the Lord Ordinary (Low) dismissed the action.

The pursuer reclaimed, and argued—The decree asked for was necessary to place this damp-course on an equal footing with others. It would not prevent the Master of Works or Dean of Guild from exercising his judgment in any particular instance. The case must be taken at its present stage on the pursuers' averments, and they averred that the Master of Works had unfairly intimated to Glasgow builders that he would not even consider their damp-course. Unless this declarator was granted the pursuers had no remedy, because it was not at present worth while for any builder to try their damp-course and appeal against the decision of the Master of Works. In answer to the objection that their damp-course

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might alter or be badly produced, they were prepared to prove that from its nature it must be always the same.

The defenders' arguments are stated in the opinions of the Judges.