Scottish Court of Session Decisions

Robert Wallace Forsyth, warehouseman, 1 Renfield Street, Glasgow, presented a petition to the Dean of Guild Court at Glasgow for a lining of his property and for authority and warrant for proposed additions conform to plans produced.

The petitioner was proprietor of a piece of ground bounded on the south by Gordon Street, on the east by Renfield Street, on the north by the property of Mr Stuart Cranston along the centre of Renfield Lane, and on the west by the property of Messrs J. & W. Mackillop. On this piece of ground there was a warehouse occupied by the petitioner, and the plans showed that the petitioner proposed to make alterations

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on this warehouse and to enlarge the basement flat by digging out the sub-soil and building under the surface of Renfield Lane up to its centre. Further, the petitioner, with the concurrence of Stuart Cranston, the adjoining proprietor on the opposite site of the lane, proposed to erect a mutual wall under the centre of the lane ex adverso of their respective properties.

Thomas Nisbet, Master of Works, lodged objections, and craved the Court to refuse the petition.

It appeared from the admissions of the parties that Renfield Lane was a private street within the meaning of the Glasgow Police Act 1866 and the Glasgow Building Regulations Act 1900; that the petitioner's building was of the warehouse class within the meaning of the Glasgow Building Regulations Act 1900; that the cubical content of the building as it stood was 690,000 cubic feet or thereby, and that the proposed operations would have the effect of adding 6700 cubic feet or thereby to the building, giving it a total cubical content of about 696,700 cubic feet; that the building was not divided by party walls into divisions not exceeding 350,000 cubic feet each, and that the consent of the Corporation had not been obtained to the operations or to the cubical content of the building being increased in the manner proposed.

The respondent averred, and the petitioner denied, that the consent of the Corporation was necessary to the operations or to the cubical content of the building being increased as proposed.

The respondent averred—“The proposed building operations include aproposal to enclose and use for private purposes in connection with said property one-half of the width of said lane so far as ex adverso of said property, while the other half would be now or ultimately sought to be made available for similar use by the said Stuart Cranston. The portions of said private street so proposed to be appropriated are at present occupied for street purposes by a common sewer, and gas, water, and other pipes.”

This averment was denied by the petitioner, who explained that the mutual wall was under the lane; that a space was left in the centre of the lane for gas and water pipes, and that the drains were not to be altered; that the proposed operations would not interfere with the use of the lane for street purposes; that the lane was used as a back entrance for the loading and unloading of goods; that any sewers and pipes in the lane were for the use of the owners fronting the lane, who did not oppose the petition, and that there was already a basement flat extending under the lane.

The petitioner pleaded, inter alia—“(2) The petitioner being proprietor of one-half of said private street, and the proposed operations not interfering with the use of the said street for street purposes, and the consent of the Corporation not being required, the lining should be granted as craved and the objector found liable in expenses.”

On August 7th 1902 the Dean of Guild ( Gourlay) pronounced the following interlocutor:—“Finds in fact ( first) that the petitioner is proprietor of a plot or steading of ground situated at the northwest corner of Gordon Street and Renfield Street, Glasgow, the said plot or steading being bounded on the south by Gordon Street, on the east by Renfield Street, on the north by the centre of Renfield Lane, and on the west by the property of Messrs J. & W. M'Killop; ( Second) that on the said plot or steading of ground there has been erected a warehouse in which the petitioner carries on his business of warehouseman; ( Third) that the petitioner proposes to make alterations on said warehouse, and to enlarge the basement flat thereof, all as shown on the plans and sections produced: Finds in law that the petitioner is entitled to make the said alterations and enlargement as proposed: Therefore repels the objections stated for the Master of Works, and grants warrant to the petitioner to make the alterations and enlargement specified in the petition and as delineated on the plans signed as relative hereto, but under the condition that the proposed alterations are executed in a tradesmanlike manner: Finds the Master of Works liable to the petitioner in expenses: Allows an account thereof to be given in, and remits the same when lodged to the Clerk of Court, qua Auditor, to tax and report, and decerns,” &c.

Nisbet appealed.

Argued for the appellant—(1) “Structures” in section 20 of the Glasgow Building Regulations Act 1900, included subterranean structures such as those proposed. Under the provisions of the Glasgow Police Acts the owners even in a private street had not an uncontrolled right to the solum under the street. The dedication of the street to the public for street purposes included the right to carry sewers, as well as gas and water pipes along the street under the surface. The rights of the Magistrates under the Police Acts to the subsoil below the surface of a street to such depth as was necessary for the purpose of constructing sewers and laying gas and water pipes were recognised by Lord President Inglis in Glasgow Coal Exchange Company, Limited v. Glasgow City and District Railway Company, July 20, 1883, 10 R. 1283, at p. 1291, 20 S.L.R. 855; cf. Scott v. Legg, 1882, 10 Q.B.D. 236. In this respect there was no distinction between a public and private street. The words “any street” in section 20 included both. The proposed operations would thus contravene section 20 by preventing the street from being wholly dedicated to street purposes. (2) It was admitted that the petitioner's building was of the warehouse class dealt with in section 65 of the Glasgow Building Regulations Act 1900, and that the present cubical content of the building was 690,000 feet, and that the proposed operation would add 6700 cubic feet to the building. That being so the provision of section 65 applied. The natural reading of section 65 was that

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“such building” meant the building with the addition. If effect were given to the contention of the respondent, that existing buildings already above the limit were excluded, the purpose of the restrictions in the section would be defeated.

Argued for the respondent—(1) What was dedicated to public use was the surface of the street only—per Lord Watson in Magistrates of Glasgow v. Glasgow and South-Western Railway Company, May 13, 1895, 22 R. (H.L.) 29, at p. 31, 32 S.L.R. 733. The words of section 20 shewed that the intention was merely to prevent the erection of structures “upon” the street, and so prevent interference with the public use of the surface. Section 20 could not be read as setting apart for public use an indefinite space under the surface of the street, simply because it was convenient to lay sewers and pipes in streets. The proposed cellars under the street would not interfere with the public use of the surface, and it would be unreasonable to construe section 20 as precluding an owner in a private street from putting his property to an ordinary use. A provision in a private Act of Parliamentary was to be construed strictly when it involved the infringement of private rights, and it was never contemplated when this Act was passed that the power of an owner to erect cellars in his property under the street should cease. (2) Section 65 of the Act did not apply to additions to existing buildings which were already above the 350,000 cubic feet limit, but only to new structures. The words “shall be erected” shewed the intention to be to make a rule for the future merely. Also the words “so that” in the second sentence of section 65 indicated that where the building already existing, without the addition, exceeded the limit the provision had no application. The intention of the Act was to diminish the risk of fires, but if there already existed a large building, the risk was not materially increased by such a small addition as was here proposed.

At advising—