Scottish Court of Session Decisions

John Lindsay and William Miller, builders, Partick, applied to the Dean of Guild Court of that burgh for a lining for four houses which they proposed to build on ground belonging to them there. In pursuance of the application they produced a plan of the proposed buildings.

John Bryce, Burgh Surveyor of Partick, lodged answers, in which he objected to the proposed lining on the ground that the plan showed that the proposed buildings did not satisfy the provisions of section 170 of the Burgh Police (Scotland) Act 1892 (quoted in rubric).

The nature of the proposed buildings as shown by the plan is stated in the following extract from the opinion of the Lord President—“The ground upon which the respondents ask authority to erect the buildings forms part of a block of 7210 square yards to which the respondent Mr Lindsay has right under a minute of agreement between the Dowanhill Estate Company Limited and him, although he has not completed a feudal title to it. That block of ground is bounded by Albion Street on the north, Dowanhill Street on the west, Highbury Road on the south, and Albert Street on the east. It has already been built upon by the respondents along its frontage to Albion Street, where five self-contained lodgings, each two storeys high, and a tenement three storeys high have been erected. A three storey tenement has also been erected on the west side of the block fronting Dowanhill Street, and the authority now craved is to erect three three-storey tenements and one four-storey tenement so as to complete the building of the frontage to Dowanhill Street. The four-storey tenement will also front Highbury

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Road. The block plan shows the back-greens proposed to be provided for the four tenements for which a lining is now sought, and it also appears that it is intended to make a lane somewhat to the west of the middle of the block from Highbury Street northwards towards the back ground of the two-storey self-contained lodgings and the three-storey tenement already erected along the north side of the block fronting Albion Street. Apparently the lane is not and will not be open to the public, as it has no public terminus at the north end—in other words it seems to be merely a service-lane for the back premises of the buildings which have already been and will hereafter be built upon the block of ground. The part of the block to the east of the lane has not as yet been built upon or lined, but the block plan shows that it is intended to erect upon it tenements fronting Albert Street and Highbury Road, with back greens extending westward to the lane.”

It was admitted that if only the back-green behind the tenements and the lane above-mentioned were included the amount of free space would not satisfy the requirements of section 170, and on the other hand, that if the ground beyond the lane and extending to the opposite row of houses were included, these requirements would be fully satisfied.

On 11th October 1901 the Magistrates pronounced an interlocutor by which they repelled the objections stated for the Burgh Surveyor, and granted the lining as craved.

Note.—[ After stating the facts]—“The real question in this case is whether the back space required by section 170 of the Burgh Police (Scotland) Act 1892 has been provided by the petitioners. The terms of that section are—‘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 w.cs., ash-pits, coal—houses, or other conveniences, all which conveniences shall, as to height, position, and dimensions, be erected subject to the consent and approval of the Commissioners: Provided also, that in cases of conversion of a house into a building for business premises the Commissioners may sanction the erection of saloons upon such open space of such height and construction as to them shall seem proper, such saloons to continue so long only as such building is so used for business purposes only.’

The construction of the section has given rise in the Court of Session, as well as in local Dean of Guild Courts in Burghs, and particularly in this Court, to questions of considerable difficulty, such as whether the words ‘every building’ in the section mean each separate tenement or building, or each block of buildings embraced in any one lining, in what sense such space may be said to be directly attached to a building, and in what shape it could be regarded as effectually providing the free space and ventilation required, and also whether one space which might be sufficient for a building (whether in the sense of one tenement or building or of a block embraced in one lining) can be made available for another tenement or building or another block of buildings, whether belonging to the same owner or to a different owner or owners.

But for the decisions in the Court of Session, to which reference will be made, the Magistrates, in view of the object of the statute being to secure a certain minimum back space for light and ventilation—a matter which is of the greatest importance in dealing with tenements of considerable height, and often with a large number of separate occupancies in each flat—would have been inclined to take the view that the section of the Act required that each tenement or building, or at least each block, required its own statutory extent of free space, and that such space was not available for or could be reckoned in the space required for another building. Further, they would not have adopted the view that an extent of free space insufficient for two blocks of buildings being erected at one time by one petitioner fronting different streets and having the same open space between the buildings, could be made sufficient by taking each block of building separately, and treating the whole back ground as available for each block. It appears, however, from the case of Hoy v. Magistrates of Portobello, July 15, 1896, 23 R. 1039, that a different construction of the section has been adopted by the Court of Session. In that case a proprietor proposed to erect two rows of dwelling-houses parallel to each other, both facing public streets, and with unbuilt-on ground separating them behind. This back ground was less than one and a-half times the extent of the combined areas to be occupied by the two rows of houses, but it was greater than three-fourths of the area to be occupied by each row of buildings taken separately.

The Court of Session held, reversing the judgment of the local Dean of Guild Court, that the whole of the back ground was open space directly attached to each of the rows of houses in the sense of section 170, and consequently that the statutory requirement of that section was satisfied.

It does not appear from the report of this case whether the buildings formed (as will be the case here, when the other buildings are erected) a complete square, but it would rather appear that this was not so, and that there were no buildings at the ends of the parallel streets.

Neither is it stated that the back space in Hoy's case formed one undivided whole, or was (as will be the case here) split up into small plots for the use of each of the tenements separately, while the lane will have a wall on each side of it.

In the case of Brown v. Knox, December 7, 1894, 2 S.L.T. 353, a decree of lining

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had been granted by the Dean of Guild Court in Paisley for the erection by the defenders of a tenement of dwelling-houses at the corner of Niddrie Street and Abercorn Street there. The pursuer, a coterminous proprietor, had been called to the lining, and had opposed it on the ground that the building would injure the light and ventilation of his property, but his objections had been repelled and he had not appealed against the decree of lining. An action was raised to have the decree reduced on the ground that it was ultra vires and illegal, because it contravened section 170 of the Burgh Police Act 1892. The case is reported very shortly, but from a perusal of the copy record and the interlocutor of Lord Stormonth Darling it appears that the area to be built on was 1772 1 4 square feet; that behind this and extending beyond it in the shape of the letter L was an open space belonging to the defender measuring 2456 square feet, but the part of this space directly opposite the area to be built on was only 554 square feet. The pursuer contended that this latter part was the only part which could be reckoned in the sense of the Act as open space directly attached to the area of the intended buildings. The Lord Ordinary, rejecting the pursuer's view, held that the open space did not require to be precisely ex adverso of the intended building, but might run continuously and in any configuration from one or more of its sides so as to afford light and ventilation to the building itself, the Dean of Guild Court being the judge of the sufficiency of such light and ventilation, and he expressed the opinion that it was nothing to the purpose to say that a portion of the open space lay opposite to another building belonging to the defender, because the same space might quite well afford light and air to a number of tenements, and the Act could never mean that each individual tenement in a burgh was to have an open space of the prescribed dimensions all to itself. It does not appear to be clear what the Lord Ordinary meant by this latter expression of opinion—whether it was enough if the free space for a number of tenements extended to three-fourths of the total area of building and did not require to be divided off and specially allocated to each tenement, or whether the same open space might be made available and be reckoned for a number of tenements though the area of it was equal only to three-fourths of the area of building of any one of such tenements. This question did not arise for determination in this case. because the lining was only for one tenement, and the open space was undoubtedly in excess of the statutory requirement if it complied with the Act in the sense of being directly attached to the building.

In the case of M'Lelland v. Moncur, December 2, 1897, 25 Rettie 238, an application was made to the Dean of Guild Court of Paisley for warrant to erect tenements of dwelling-houses and shops belonging to the petitioner. The lining was opposed on the ground, amongst others, that the open space required by section 170 of the Act was not provided. The petitioner pled that a bowling-green immediately contiguous to the open space belonging to the petitioner must be taken into account in calculating the space, and that together the two were more than sufficient in extent to comply with the section. The bowling-green did not belong to the petitioner. The Court, affirming the decision of the local Dean of Guild Court, held that the space allocated to the buildings in terms of section 170 must either belong wholly to the petitioner or consist in whole or in part of a public street or other ground, such as a links or a common, which no one could afterwards build upon, and they refused the lining.

In the case of Brown v. Young, February 21, 1900, 2 Fraser 647, an application was made to the Dean of Guild Court, Coatbridge, for warrant to add a storey to an existing back building, and erect a block and a-half of dwelling-houses two storeys in height adjoining same. The lining was objected to by the Master of Works of the burgh, on the ground that the proposed alterations and erections would not comply with section 170 of the Act of 1892. The lining was refused by the local Court, in respect that from the character of the proposed buildings it was impossible that the provisions of the section could be complied with, as the ground to the east and south of the petitioner's property did not belong to him, nor was it a common which no one thereafter could build upon, but belonged to other parties, who might afterwards build upon it at any time. An appeal was taken to the Court of Session, and at the hearing the petitioner admitted that he could not light all the rooms of a proposed corner tenement by means of windows looking into the interior court, and he abandoned his petition so far as that tenement was concerned. On the other hand, the Master of Works did not dispute that each of the rooms of the remaining proposed buildings would have a window looking into the court. It was argued for the appellant that the Dean of Guild had proceeded on the view that there should be an open space of the specified area not only in front of the proposed buildings but also behind, and that the section of the Act only required that there should be an open space directly attached to the buildings belonging to the petitioner, and there was such a space provided. The Master of Works contended that the purpose of section 170 was to secure that houses should have all their rooms sufficiently lighted and ventilated, and the area of free space specified in the section was prima facie enough, but was not conclusively so, and the Dean of Guild Court had power to say whether or not the ventilation and lighting, or the free space, although of the statutory extent, was sufficient. The Court held that if the statutory extent of space was provided the Dean of Guild Court had no discretion, and that the objection was not well founded, and sustained the appeal. Lord Adam, who sat in the Second Division in that case, stated that he thought the provision in section 170 specified a minimum, and that

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no building could be erected unless it had at least a certain amount of space around it, but he could quite understand the Dean of Guild Court saying that, looking to the situation of these buildings; looking, it might be, to the height of the buildings around them; looking to the character of the tenements, viz.—single-room tenements—the minimum area specified by the Act was not sufficient, and there should be a larger area around the building to afford proper means of ventilating and lighting, but the Dean of Guild had not said so, and had put his judgment so as to raise the question of law whether, even supposing the adjoining ground to be built on close up to the margin of the petitioner's property, there would still be the statutory area, and it was not disputed that there would be that area. Lord Trayner expressed the opinion that if there was the prescribed open space adjoining the proposed tenements the statutory requirement was satisfied and the Dean of Guild Court had no right to require more; and the Lord Justice-Clerk appeared to be of the same opinion.

The petitioners in the present case found upon the decision in the case of Hoy v. Magistrates of Portobello. The Magistrates feel bound by the judgment of the superior Court in that case, and are therefore reluctantly compelled to grant the present lining. In view, however, of the importance of the question, and the far-reaching results, they would respectfully point out that, if the principle laid down in Hoy's case is to be followed, an open space which is only sufficient for one tenement in a square block to be erected by one builder may, if only a lining for one tenement is applied for at a time, be made available and reckoned for each of the other tenements erected by the same owner, with the result that when the whole square has been built the only back space is the small part in the centre, and of an extent sufficient for one separate tenement. On the other hand, if any part of the square belongs to a different owner, the Court would be bound by the judgment in M'Lelland v. Moncur to hold that the space was not available as the ground did not belong to him. Again, if only one lining were presented for the whole of such a square, the Magistrates assume (though Hoy's case may be regarded as an authority to the contrary) that they would be entitled to refuse the application if the total free space did not extend to three-fourths of the full building area. The curious result, therefore, would appear to follow, that, while in the one case the space would be sufficient, in the other the same space would be insufficient. In effect, the sufficiency or insufficiency of the space would depend, not on its extent in relation to the area of building and the necessity for light and ventilation, but on the mere accident of the ownership of the open space, or on the question whether the lining embraced the whole buildings in a square in one petition, or was dealt with under separate petitions. It respectfully appears to the Magistrates that such a view of the Act will lead to most unsatisfactory results from a public health point of view, but, as the judgments stand the Magistrates do not see how these results can be avoided.

If an application for lining for the tenements to front Albert Street is presented by a different owner, or if the present buildings, or any of them, are sold before the petitioners ask a lining, a difficulty will arise that the whole back ground does not belong to the same owners, and the petitioners cannot therefore provide the necessary back space,

It has been urged on the Magistrates that if this question had arisen in Glasgow, the back space would be regarded as sufficient, and the case of Allan v. White, 20th December 1890, 18 R. 332, is relied on in support of that view. It may be pointed out that the terms of the Glasgow Police Act of 1866 are different from the provisions of the Act of 1892. Under the Glasgow Act it is provided, section 370, that ‘except as after-mentioned, it shall not be lawful for any proprietor to let, or for any person to take in lease, or to use, or suffer to be used, for the purpose of sleeping in, any apartment, unless one-third at least of its height is above the level of the turnpike road or public or private street or court adjoining, or near to it, and unless there be in front of at least one-third of every window in such apartment, including any turnpike road or public or private street or court, a free space equal to at least three-fourths of the height of the wall in which it is placed, measuring such space in a straight line from and at right angles to the plane of the window, and measuring such wall from the floor of the apartment to where the roof of the building rests upon such wall.’

A comparison of this clause with section 170 of the Police Act will at once show the great difference between the provisions of the two sections.

In Allan's case the Dean of Guild Court refused the lining in respect the petitioners had not the free space behind their proposed building required by the Act to entitle them to occupy a room or kitchen marked on the plans as a sleeping apartment. The petitioner appealed to the Court of Session. It was admitted that the petitioners had not upon their own ground the free space required by the Act to entitle them to occupy the room as a sleeping apartment, but there was free space over ground belonging to a different proprietor ex adverso of their tenement which added to the amount of free space upon their ground gave more than the Act required, and they maintained that they were entitled to reckon this free space. The Court gave effect to this view, but the Lord President made it plain that the Glasgow Act only required that at the time when the room was being used as a sleeping apartment it should have a certain free space behind or adjoining it, and that the moment that free ground came to be built upon, if it was ever built upon, there would arise the question whether there was sufficient free space, and it would

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be the duty of the Dean of Guild Court, on the application of the Procurator-Fiscal, to prohibit its use as a sleeping apartment, but, until that occurred, he did not see how the statute could be enforced. Lord M'Laren also gave expression to a similar view, and further indicated that, if there were depending at the same time an application from the proprietor of the unoccupied ground for authority to build on this ground, or if it was brought to the knowledge of the Dean of Guild Court that it was in immediate contemplation to build on such ground, these were circumstances which would be taken into account in disposing of the application, and it would certainly not be proper to grant a warrant for the use of the apartment as a sleeping place in the knowledge that the ground shown on the plan as air space was about to be built upon.

Under the Act of 1892 there appears to be no power on the part of the Court or Local Authority to prohibit the use of any sleeping apartment which has been deprived subsequent to the lining being granted of the required free space, and no penalty is attached to the use of such apartments.”

The Burgh Surveyor appealed to the Court of Session.

The arguments sufficiently appear from the opinion of the Lord President, infra.

At advising—