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[Dean of Guild Court, Paisley.
Facts:
The Burgh Police Act 1892, sec. 152, enacts that “it shall not be lawful to form or lay out any new street or part thereof, or court, within the burgh, unless the same shall … be at least 36 feet wide.” Section 153 enacts that “every person who shall … form or lay out … any new street or court, or any part thereof, or who shall build, raise, or add to any house or premises … contrary to the provisions of this Act, unless the same shall have been formally sanctioned by the commissioners on a consideration of the special circumstances of the case, which sanction they are hereby empowered to give, shall forfeit and pay a sum not exceeding £20.”
The owners of certain property presented a petition in the Dean of Guild Court, in which they craved warrant for the erection of certain buildings thereon, and the formation of an “improved entrance” to an adjacent street. Objection was taken by the Master of works that the petitioners' proposed operations constituted the forming of a “new street” within the meaning of the Burgh Police Act 1892, and that the proposed new street was not at least 36 feet wide as required by that act. the petitioners thereafter applied to the Commissioners, who, “on a consideration of the special circumstances of the case,” sanctioned the formation of the proposed improved entrance of a width varying from 30 feet to 32 feet 3 inches.
The Dean of Guild Court held that the Commissioners' sanction was not binding upon them, and refused to grant the warrant craved by the petitioners, on the ground that as the proposed street was a new street, and was less than 36 feet wide, they had no option but to refuse the lining.
Held that the Commissioners had power under section 153, “on a consideration of the special circumstances of the case,” to sanction the formation of a new street of less width than 36 feet, and that as they had given their sanction the Dean of Guild Court was not entitled to refuse the warrant craved upon the ground that the proposed new street was less than 36 feet in width.
Observations on the jurisdiction of the Dean of Guild Court in such matters.
Hugh Barrand James Barr, builders, Paisley, in November 1899 presented a petition in the Dean of Guild Court, Paisley, for warrant to erect certain tenements upon the petitioners’ property at Wellmeadow. The petitioners averred—“(Cond. 2) The petitioners propose to erect on their said property four tenements of four storeys, with cellars, to be occupied as shops and houses, and one building of one storey and cellars, to be occupied as shops, with relative offices, and which buildings are to front Well-meadow Street; and an improved entrance to be formed from Wellmeadow to Walker Street, all as shown in and conform to plans, sections, and elevations thereof, made out by William Randall Quinton, architect, Paisley, and herewith produced.” James Lee, Master of Works for the Burgh of Paisley, lodged objections, in which he opposed the petitioners’ application. He averred—“(Stat. 2) The said ‘improved entrance’ from Well-meadow Street to Walker Street has not yet been formed or laid out as a new street within the meaning of the Burgh Police (Scotland) Act 1892, sections 146 to 153 inclusive, but the proposed operations of the petitioners
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for which they crave the warrant of the Court, will have the effect of forming or laying out a new street, or part thereof, within the meaning of said sections. … (Stat. 3) The proposed operations of the petitioners having the effect of forming or laying out a new street within the meaning of said Act, the levels and gradients thereof must be fixed by the Commissioners of the Burgh of Paisley, as required by section 147 of said Act.” The petitioners in their answers admitted that the said improved entrance from Well-meadow Street to Walker Street had not been formed as a new street within the meaning of the Burgh Police Act 1892, and averred that it did not require to be formed as a new street in respect that it was an existing street or court formed previous to the application of the said Act, and as defined thereby.
The petitioners pleaded—“(1) The proposed operations of the petitioners not having the effect of forming or laying out a new street within the meaning of the said Burgh Police Act, and the fixing by the Commissioners of the levels and gradients of the proposed ‘improved entrance’ not being therefore necessary, the lining requested by the petitioners should be granted as craved.”
The objector James Lee pleaded—“(1) The proposed operations of the petitioners having the effect of forming or laying out a new street within the meaning of the said Burgh Police Act, the lining craved by the petitioners should not be granted until the levels and gradients of said new street have been fixed by the said Commissioners. (2) The said new street not being at least 36 feet wide as required by the said Act, and it not having been proved to the satisfaction of the Commissioners that it was an existing street or court, agreed to or formed previous to the application of said Act, the application for a lining should be refused.”
It appeared that the petitioners had in July 1899 made application to the Police Commissioners of the burgh, requesting them to fix the levels and gradients of the said improved entrance, but that the Commissioners had refused to do so in respect that it was not 36 feet wide as required by section 152 of the Burgh Police Act 1892 in the case of new streets. In December 1899 the petitioners renewed their request to the Commissioners, pointing out that the entrance in question was an existing street within the meaning of the Act, and fell to be dealt with under section 153 thereof. The Commissioners adhered to their former deliverance, and the proceedings in the petition, which had meanwhile been sisted, were resumed.
On 26th May 1900 the Dean of Guild Court pronounced an interlocutor in which they found that before the lining craved could be granted it would be necessary to have it determined that the proposed improved entrance from Wellmeadow to Walker Street was an existing street formed previous to the application of the Burgh Police Act 1892, and in respect that
it was outwith the jurisdiction of the Dean of Guild Court to determine that question, sisted the petition in hoe statu. The petitioners thereupon again made application to the Police Commissioners. They ultimately offered to make the proposed improved entrance at Wellmeadow 30 feet wide, widening gradually to 32 feet 3 inches at Walker Street. The Commissioners, by minute of meeting dated 10th September 1900, resolved that it had not been proved to their satisfaction that the proposed improved entrance was an existing street formed previous to the application of the Act, but “on a consideration of the special circumstances of the case,” agreed to sanction said improved entrance to be formed and laid out as a new street according to the proposal submitted by the petitioners. The petitioners thereafter lodged in the Dean of Guild Court a minute and amended plan, which showed the proposed entrance of the width above mentioned, and the levels and gradients as fixed by the Commissioners, and craved the Court to grant warrant for the erection of the buildings specified in the petition.
The Burgh Police (Scotland) Act 1892, sec. 146, enacts—“Every person who intends to form or lay out any new street shall give notice thereof to the commissioners, and along with such notice he shall lodge a plan of the proposed street, with longitudinal and cross sections, showing the proposed levels and means of drain age thereof, in order that the levels of such street may be fixed by the commissioners.” …
Section 147 enacts—“The level and gradient of every such new street shall be fixed by the commissioners within one month after the delivery of such notice, and the level and gradient so fixed shall be kept thereafter by every person erecting any house or other building in such street.”
Section 152 enacts—“From and after the date when this Act comes into force within the burgh it shall not be lawful to form or lay out any new street, or parts thereof, or court, within the burgh, unless the same shall … be at least 36 feet wide for the carriageway and foot-pavements; and no dwelling-house shall be built in any such street or court which shall exceed in height … one and a quarter times the width of such street … Provided always, that where any road or street fronts any links or common, or other open area, or in other exceptional circumstances, the commissioners may allow buildings of greater height; and provided also, that for the purposes of this enactment a street shall not include a mews or other lane which may be made 12
feet wide, or such other width according to the use to be made thereof, of which the commissioners shall judge, and shall fix the width accordingly.” … 1 2 Section 153 enacts—“Every person who shall, from and after the date when this Act shall come into operation in the burgh, form or lay out, or permit or suffer to be formed or laid out, any new street or court, or any part thereof, or who shall build, raise,
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or add to any house or premises, or permit or suffer the same to be done, contrary to the provisions of this Act, unless the same shall have been formally sanctioned by the commissioners on a consideration of the special circumstances of the case, which sanction they are hereby empowered to give, shall forfeit and pay a sum not exceeding £20 … provided always that the provisions of this Act relating to the width and construction of streets or courts shall not extend or apply to any existing streets or courts, which shall be proved, to the satisfaction of the commissioners to have been agreed to, or to have been formed previous to the application of this Act.” Section 201 enacts—“In burghs where there is a Dean of Guild Court at the commencement of this Act, or where such court shall be established as hereinafter provided, the Dean of Guild Court shall come in room and place of the commissioners for carrying out the provisions of this Act, in so far as they apply to new buildings or alteration of existing buildings, ventilation, and precautions during the construction, alteration, or repair of buildings and streets, and to old and ruinous buildings, and to the setting up of hoardings; and in that case all the powers and duties of the commissioners in reference to these provisions, and also in reference to the inspection of buildings in process of construction or alteration, or any work connected therewith, and the surveying and certifying of buildings before occupation, shall devolve on and be carried out by the Dean of Guild Court and the officers thereof, as herein provided for, but nothing herein contained shall be taken to restrict or prejudice the jurisdiction or to alter the constitution of any Dean of Guild Court as existing at the commencement of this Act.”
On 2nd November 1900 the Dean of Guild Court pronounced an interlocutor refusing the prayer of the petition.
Note.—“When this case was previously before us we sisted it to enable the petitioners to have it determined whether the proposed improved entrance running from Wellmeadow to Walker Street was an existing street or court agreed to or formed previous to the application of the Burgh Police (Scotland) Act 1892. This we indicated could be done in two ways—(1) by proving to the satisfaction of the Commissioners that it was a street prior to the application of the Police Act, as provided for in section 153 of that Act, or (2) by procuring a declarator in any competent court. The petitioners evidently chose the former method, and from the excerpt minute of meeting of the Commissioners lodged in process, it appears that they have failed to prove to the satisfaction of the Commissioners that the said improved entrance was an existing street prior to the application of the Police Act. The Commissioners, however, have accepted a compromise, whereby they agree to the said improved entrance being formed 30 feet wide at Wellmeadow Street and 32 feet 3 inches wide at Walker Street; and it also appears that they have fixed the levels and gradients of said improved entrance on that basis. This compromise seems to have been made by the Commissioners in virtue of section 153 of the Police Act. It appears to us to be very doubtful whether the Commissioners have power to make such a compromise, but in any case we do not think that it is in any way binding on this Court. It is the peculiar jurisdiction of this Court to line the streets, and for that purpose to carry out the provisions of any Acts of Parliament relating to the width thereof. The compromise made by the Commissioners can, we think, only bind themselves and put it out of their power to exact the penalties provided in the foresaid section of the Police Act.
“If that view of the law is the correct one, it is incumbent upon us as a Dean of Guild Court to consider this application for a lining (as modified by the amended plan) on its merits, leaving out of account the fact that the street, as shown in the amended plan, has been approved by the Commissioners. If we do so, we are at once met by the fact that the proposed improved entrance from Wellmeadow to Walker Street is a new street within the meaning of the Police Act. This seems to follow from the findings of the Commissioners, and also from the fact that the petitioners by entering into the compromise with the Commissioners have apparently abandoned their original contention that it was a street prior to the Police Act, and now found their case on the fact that though it is a new street we are bound to line the buildings, because it has been approved of by the Commissioners, and the levels and gradients have been fixed by them. We cannot, however, agree with this contention. Being a new street, and being less than 36 feet wide, as required by the Police Act, we feel we have no option but to refuse the lining.
The petitioners appealed to the Court of Session, and argued—The Dean of Guild Court had no jurisdiction to refuse the warrant craved by the petitioners. Under the Burgh Police Act 1892, from which alone the Dean of Guild Court derived its authority, the Police Commissioners, and not the Dean of Guild Court, had jurisdiction regarding the width of streets. While section 152 provided that no new street should be of less width than 36 feet, section 153 declared that the Police Commissioners might in exceptional circumstances authorise the construction of a street of less than the statutory width. That was a matter wholly within the discretion of the Commissioners, and as they had exercised that discretion in favour of the appellants, the Dean of Guild Court had no right to disregard their determination. The Dean of Guild Court had misapprehended the scope of its powers. That Court had no concern with the width of streets. Its jurisdiction was confined to the regulation of buildings, to prevent their encroachment on the line of a street already laid down, to regulate their height, and to control
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matters affecting their construction and sanitation. Argued for the objector and respondent—It was within the jurisdiction of the Dean of Guild Court to grant or refuse the warrant craved by the appellants. The prohibition in section 152 against laying down a new street less than 36 feet in width was absolute, and was not qualified by section 153. The discretion given to the Commissioners in the last-named section had reference only to the words immediately preceding, i.e., to the discretion already committed to them by section 152, viz., with respect to mews lanes, or to the height of buildings fronting an open space, and did not empower them to authorise the making of a street less than 36 feet wide. The jurisdiction of the Commissioners was restricted to the fixing of the levels and gradients of a new street, as set forth in sections 146 and 147. By section 201 all the powers of the Commissioners with regard to new buildings were transferred to the Dean of Guild Court; it was therefore within the power of that Court, and was its duty, to refuse warrant for erection of a building which would encroach upon the minimum width of street fixed by the Act.
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at the beginning of the 152nd section, to the effect that it shall not be lawful to form or lay out any new street in any burgh unless the same shall be at least 36 feet wide, is an imperative and inflexible enactment, and one which it is not within the power of the Commissioners or the Dean of Guild Court to relax. That would be a sound proposition if the enactment was not modified by a subsequent section. But I think it has been modified by the follow—ing words in the 153rd section—“Unless the same shall have been formally sanctioned by the Commissioners on a consideration of the special circumstances of the case.” It is said that these words do not apply to the width of streets, but only to the building, raising, or adding to buildings contrary to the Act. I think the section will not bear that limited construction. If these words, “unless the same shall have been formally sanctioned,” had come before the words “contrary to this Act,” there might have been some ground for the argument; but they do not, and the fact that the words “contrary to the provisions of this Act “occur between the provisions about the width of streets and the building or raising of houses and the proviso “unless the same shall be sanctioned by the Commissioners,” shows that the latter proviso overrides all that precedes it. I only further add, that it is quite plain that this 153rd section applies to the whole of the previous sections of this group of clauses from 142 down to 153. That is well illustrated by the words with which it concludes—“Provided always, that the provisions of this Act relating to the width and construction of streets or courts shall not extend or apply to any existing streets or courts which shall be proved to the satisfaction of the Commissioners to have been agreed to or to have been formed previous to the application of this Act.” That is a proviso which qualifies all the preceding sections in the group. I am satisfied that the Commissioners' sanction to a departure from the statutory width of the street was lawfully given by them under the powers conferred upon them by the 153rd section.
The Court recalled the interlocutor appealed against, repelled the pleas-in—law for the objector, and remitted to the Dean of Guild Court to proceed.
Counsel for the Petitioners and Appellants— Rankine, K.C.— Clyde. Agent— James Campbell Irons, S.S.C.
Counsel for the Respondent— Jameson, K.C.— Cook. Agent— F. J. Martin, W.S.