Scottish Court of Session Decisions

A. Wilson Smart & Son, C.A., 64 Bath Street, Glasgow, presented a note of appeal under section 339 of the Burgh Police Act 1892 praying the Court to quash certain proceedings by the Commissioners of Police of the Burgh of Partick, and James Reid, sanitary inspector to the Commissioners.

The appeal set forth that the appellants factored a four-storey tenement of dwelling-houses situated at No. 1 Wood Street, Partick, and that they had been served with a notice, dated December 10, 1902, by the respondent James Reid, sanitary inspector, ordaining them “in terms of the Burgh Police (Scotland) Act 1892, and of Rule (17) of Schedule IV. appended thereto, and of the bye-law for the paving of private courts, common passages, and common areas (other than bleaching-greens) made and enacted by the Town Council of the Burgh of Partick on 12th March 1900, under the powers conferred by the said Act, particularly section 316 B (8) thereof and said Rule, and which bye-law was confirmed by the Local Government Board on 20th November 1900, and by the Secretary for Scotland on 28th November 1900, to pave or cause to be paved the private court or common area behind or attached to No. 1 Wood Street, in the burgh of Partick, with asphalt to the extent shown on a plan or sketch annexed, and to provide the said private court or common area with proper and sufficient means for taking off the surface water within the period of one month from and after the date of the notice.”

The bye-law referred to in this notice is quoted in the rubric.

The appellants maintained that the bye-law was ultra vires, and further stated as follows:—“The plot of ground referred to in said notice is situated behind the said tenement, and is provided by the appellants' principals for the use of their tenants as a bleaching or drying-green, and it is

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used as such by said tenants. The washhouse and ash-pit accommodation for said tenants adjoins said bleaching or drying-green, and the passage thereto from the back entrance to the close which gives access to the dwelling-houses is paved with asphalt. The appellants maintain that that plot of ground is neither a private court nor a common area, but is a bleaching-green within the meaning of the said Burgh Police (Scotland) Act 1892.”

The ground in question was, it was stated, now covered with engine ashes.

The Provost, Magistrates, and Councillors of Partick lodged answers, in which they stated that in virtue of the provisions contained in the Burgh Police Act 1892, Sched. IV., rule 17 and sec. 316, the Town Council of Partick on March 12, 1900, ‘enacted bye-laws, of which the bye-law in question was one, for general and sanitary purposes, and took the necessary steps to have them duly confirmed by the Local Government Board and the Secretary for Scotland. Objections were lodged by certain owners and house factors in Glasgow, and by the Partick Landlords and House Factors Association (of which the appellants were members), and observations upon these objections on behalf of the Town Council having been received, parties were heard upon the whole matter. The Local Government Board repelled the objections and confirmed the bye-laws, and the Secretary for Scotland thereafter, on 28th November 1900, also confirmed them. The practice was for the sanitary inspector to submit a list of back courts needing to be paved to the sanitary committee. A sub-committee personally inspected the back courts on the list and reported to the committee, and the recommendation of the committee was submitted to the Town Council. If they approve, the sanitary inspector is instructed to serve notice on the owners. The appellants were required to pave the Court with asphalt, but they laid only a portion with asphalt, the remainder being covered with engine ashes.

The ground in question was described by the respondents as a private court, common passage, and common area, which in the judgment of the Town Council and sanitary inspector was urgently in need of being paved with some hard material. They averred that it was not a bleaching-green, and was not used or capable of being used as such.

The Burgh Police (Scotland) Act 1892, Sched. IV., Rule 17, enacts—“All private courts, common passages, and common areas (other than bleaching-greens) shall be paved with natural or artificial stone, or such other material as the commissioners shall approve, and be provided with proper and sufficient means for taking off the surface water.”

Section 316 (B) gives power to the commissioners from time to time to make bye-laws as they think fit for the purposes aftermentioned. … “(8) … for paving courts, common passages, and common areas, other than bleaching-greens.”

Sec. 4, sub-sec. 10, enacts—“‘Court,’ where by the context it applies to a space contiguous to buildings, shall mean a court or recess or area forming a common access to lands and premises separately occupied, including any common passage or entrance thereto.”

Argued for the appellants—(1) The bye-law was invalid. Rule 17 of Schedule IV. of the Burgh Police Act applied only to new buildings, but this bye-law extended the provisions of the Act to all buildings. The bye-law, in order to be properly applicable to the case of the property in question, should have been made under section 316 B, sub-section 8, of the Burgh Police Act, which provided “for paving private courts, common passages, and common areas other than bleaching-greens.” (2) The bye-law was not applicable to this piece of ground. It did not fall under any of the denominations of ground to which the Act and relative bye-law applied. The word Court was defined in the Act (sec. 4, sub-sec. 10) as ground “forming a common access” to separate buildings. The words of the definition were not “having” a common access, but forming, i.e., being a common access. If the word “having” had been used this ground might have been within the definition, but it certainly could not be said to “form” a common access to buildings. The words “common areas” had a definite and well-known meaning, and could not cover a back-green such as this. If this ground fell within the description of the bye-law it also fell within the exception of “bleaching-greens.” The term did not necessarily imply that grass grew on the ground. The real question was the purpose for which the ground was being used. A proof should be allowed.

Argued for the respondents—The bye-law was perfectly valid in view of the provisions of sec. 316 B (8), sec. 322, and Sched. IV., Rule 17, of the Burgh Police Act. All the requirements of sec. 322 as to comfirmation and publication had been observed. The bye-laws had been considered and parties heard before the Local Government Board, and the Secretary for Scotland confirmed the bye-laws. In these circumstances the Court had no power to review the bye-laws; they had the power of statute— Crichton v. Forfar County Road Trustees, July 20, 1886, 13 R. (J.C.) 99, 23 S.L.R. 840. In interpreting the bye-law regard must be had to its purpose and intention. This piece of ground was precisely of a character and in a condition to be liable to the mischiefs which it was the intention of these provisions of the Burgh Police Act to remedy. These provisions were necessary for public health, and both these provisions and the relative bye-law were to be construed liberally. This ground was not in fact used as a bleaching-green, and therefore could not come under the exception. No grass did or could grow on it, and it would be as much a bleaching-green after it was paved with asphalt as it was now. The word “bleaching-green” in the bye-law must be taken in its natural sense as a place where grass grew.