Scottish Court of Session Decisions

William Brown, baker, Coatbridge, presented a petition in the Dean of Guild Court of the burgh of Coatbridge, whereby, inter alia, he craved warrant to add one storey to the back buildings then existing upon certain ground belonging to him, and to erect a block and a-half of dwelling-houses two storeys in height adjoining same, with the necessary conveniences. To this part of the petitioner's craving Mr Christopher Young, Master of Works, Coatbridge, objected upon various grounds, and, inter alia, because the plans did not make provision for the proposed new buildings being sufficiently lighted and ventilated as required by the Burgh Police (Scotland) Act 1892. He also alleged that if the warrant were granted the petitioner's ground would become congested and the operations would be calculated to create a nuisance.

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), section 170, enacts as follows—“Every building erected for the purpose of being used as a dwelling-house, or any building not previously used as a dwelling-house when the same is altered for the purpose of being so used, shall have all the rooms sufficiently lighted and ventilated from an adjoining street or other open space directly attached thereto, equal to at least three-fourths of the area to be occupied by the intended building; and such space shall be free from any erections thereon other than water-closets, ash-pits, coal-houses, or other conveniences, all which conveniences shall, as to height, positions, and dimensions, be erected subject to the consent and approval of the Commissioners.”

The objector alleged that the buildings proposed to be erected by the petitioner along the eastern and southern boundaries of his property were designed to contain two houses of two apartments and thirteen of one apartment, and were proposed to be lighted by windows in the back wall thereof; that the petitioner had no servitude of light or air on the adjoining proprietors' ground on the north, south, or east of his property, and could not prevent them from building so as to shut out the light and stop the through ventilation of the petitioner's buildings. The petitioner admitted that he had no servitude of light or air over the adjoining proprietors' ground, and that he had built up to within between 2 and 4 feet of his eastern boundary, but he explained that each separate dwelling-house in the buildings proposed to be erected had a window in the front wall, which front windows were sufficient to light the houses, and with the doors and chimneys were sufficient to ventilate them to the extent required by the Burgh Police (Scotland) Act 1892, section 170. The front windows referred to opened upon a court which was the property of the petitioner, and contained an open space free of erections other than offices of an area considerably greater than three-fourths of the area now proposed to be built upon. Other buildings belonging to the petitioner were erected upon the west side, and upon part of the north side of this court. These buildings contained shops and houses of one and two apartments. The petitioner's property was a plot of ground about 205 feet in length from north to south, and about 140 feet in breadth from east to west. The Court was about 165 feet in length, and about 90 feet in breadth. The Master of Works averred that if the buildings were completed as proposed there would be accommodation for fifty -six families upon the petitioner's property. He further alleged that the adjoining proprietor on the south had also erected buildings at the back of his feu; that the offices connected therewith had been erected close to the petitioner's southern boundary; and that if the petitioner's craving were granted it would have the effect of causing congestion and rendering the buildings insanitary, and more particularly those proposed to be erected on the southern boundary.

On 3rd October 1899 the Dean of Guild ( Wilson) issued the following interlocutor:—[ After granting part of the petitioner's craving which was not objected to]—“As regards the prayer of the petition asking warrant to add one storey to ‘the existing back buildings and erect a block and a-half of dwelling-houses two storeys in height adjoining same, with the necessary conveniences,’ in respect that from the character of the proposed buildings, which are on the margin of the petitioner's own property, it is impossible that the provisions of section 170 of the Burgh Police (Scotland) Act 1892, which enacts that ‘Every building erected for the purpose of being used as a dwelling-house shall have all the rooms sufficiently lighted and ventilated from an adjoining street or other open space directly attached thereto,’ can he complied with, as the ground to the east and south of the petitioner's property does not belong to him, nor is a common which no-one can hereafter build upon, but belongs to other parties who might hereafter build upon the same at any time; and in respect further that privies and ash-pits are built close to the south wall of the two-storey tenements which the petitioner proposes to build along the south side of his property, and which would be overlooked by the back windows in said tenements, Refuses to grant lining for the additions to existing buildings and the erection of the new buildings which is craved: Finds the petitioner liable in expenses, and decerns.”

The petitioner appealed.

It was found to be impossible to light all the rooms in the part of the proposed buildings which was situated at the south-east corner of the petitioner's property, and he ultimately abandoned the prayer of his petition in so far as this part of the proposed buildings was concerned. The effect of this modification was that every apartment

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in the proposed buildings had a window which opened on to the court.

Argued for the petitioner and appellant—The case of M'Lelland v. Moncur, December 2, 1897, 25 R. 238, did not apply, because here there was open ground of the required area, which was all the property of the petitioner. The space in the court was amply sufficient to satisfy the Act —See Hoy v. Magistrates of Portobello, July 15, 1896, 23 R. 1039. Section 170 did not require that each apartment should be lit and ventilated on both sides. The ground of refusal here was that there was no free space to the east and south, but that was not necessary.

Argued for the respondent—The primary requirement of the section was that the houses should have all the rooms sufficiently lighted and ventilated. It did not merely provide that there must be a certain minimum open space. The Dean of Guild was entitled and bound to see that the lighting and ventilation were sufficient. It must be conceded that if there was an open space equal to three-fourths of the area proposed to be built upon, then prima facie that was enough; but it was not conclusive. The question whether the light and ventilation provided were sufficient was a matter primarily within the discretion of the Dean of Guild, and his judgment upon such a subject ought not to be readily interfered with— Mitchell v. Dean of Guild of Edinburgh, March 18, 1885, 12 R. 844. If in any case there was the minimum open space, but it was so situated as not to effect the light and ventilation of the proposed building, that was not sufficient. Here there was a large number of one-room houses which the petitioner proposed to light and ventilate solely from one small common court. The Dean of Guild was entitled to say, “These houses will not be sufficiently lighted and ventilated by the arrangements proposed.” In determining whether the lighting and ventilation were sufficient he was bound, or at least entitled, to have regard to the situation, the character of the houses, the nature of the air to be expected, and the class of tenants to be anticipated in such a locality. Taking all these elements into account here, the Dean of Guild's judgment was justified by the circumstances, and should not be interfered with by the Court.