Scottish Court of Session Decisions

On July 24, 1903, a petition was presented to the Sheriff of Ayrshire ( Brand) under section 9 of the Burgh Police (Scotland) Act 1892 by Alexander M'Gregor, iron-founder, Ardeer Foundry, Stevenston, and others, for the purpose of having the village of Stevenston and an adjoining area formed into a police burgh. This petition was opposed, but after a proof the Sheriff on 16th March 1904 issued a deliverance whereby he found and declared that the area within the boundaries described in the petition, with certain additions thereto, was in substance a town, and was suitable for being formed into a police burgh, and ordained the petitioners to include the additional portions of ground, and to lodge an amended plan and description. Upon the 16th March 1904 he issued another deliverance, whereby he gave effect to his previous one and defined the boundaries.

The note to his deliverance of 22nd February was—“This is an application under the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), section 9, to have the town of Stevenston made a burgh. It was hardly disputed that the petitioner's main contention must receive effect, but strenuous opposition was offered to the area proposed. No fewer than four different sets of respondents have appeared against the petitioners, viz.—(1) The Glengarnock Iron and Steel Company, Limited, (2) Patrick Warner, Esq., of Ardeer, (3) Captain Cuninghame, of Auchenharvie, and (4) the County Council of the County of Ayr, and the Northern District Committee of the said County Council, who oppose to a more limited extent.

“Stevenston is a town of upwards of 7000 inhabitants. It is said, and no doubt correctly, to have in twenty years increased its population by 84 per cent., and within the last ten years by 53½ per cent. It is larger than any of the twelve police burghs in Ayrshire except Saltcoats. At present there is no local authority other than the county authority, and there are plain indications in the evidence that it is greatly in need of being placed under burghal or municipal control. It is said, and not contradicted, that the streets of the town are often in a very bad state. At present there is a water supply district formed in 1881, of which district there have been six extensions. There is also a drainage district formed in 1893, and a lighting and cleansing district formed in 1895. I observe the late Sheriff-Substitute Anderson in the appeal Patrick Warner, Esq., of Ardeer, and Others v. The Parochial Board of the Parish of Stevenston, as local authority under the Public Health (Scotland) Act 1867, by his interlocutor of 9th November 1881 included within the special water supply district the whole town of Stevenston, as also the mansion-houses of Mr Warner of Ardeer and of Mr Cuninghame of Auchenharvie. He also included the Ardeer Iron and Chemical Works, and says—‘From what the Sheriff-Substitute saw himself and ascertained by inquiry on the spot he is satisfied these works should be included. The present water supply is manifestly deficient in quantity and regularity.’

I further observe that the late Sheriff-Substitute Hall, in the case of The Glengarnock Iron and Steel Company v. The Northern District Committee of the County Council of Ayr, by a note to his interlocutor of 15th March 1893, says in dealing with the matter of drainage—‘As regards the proposed district, it substantially corresponds with the water supply district formed some years ago, in so far as the latter is not comprised within the burgh of Saltcoats. It is certainly not too large, and to exclude from it the properties of the appellants the Glengarnock Iron and Steel Company because they or some of them, happen to be sufficiently drained already would in my opinion be highly inexpedient.’

I attach much weight to these judicial deliverances. They have a direct bearing on the present application. It is not without significance that some of the respondents who now appear and oppose are not for the first time antagonistic towards efforts undoubtedly meant for the benefit of the county in the locality in question.

One of the petitioners’ witnesses, viz., Mr M'Gregor, chairman of the Parish Council, states distinctly the footing on which the applicants proceeded in their petition. He says—‘(Q) what would you say has been their (the petitioners’) guiding principle in framing these boundaries?—(A) To take in the water and drainage districts. (Q) Have they made it an endeavour to take in as much as they could grasp or otherwise?—(A) They took a reasonable view of the whole thing. They took in the water, drainage, and lighting districts, and very little beyond it. The promoters regard it as essential and expedient that these districts should be all under one local authority. I know these districts very well. I do not think these districts embrace anything that is not

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fairly part of the town and belonging to the community of Stevenston.’ With this view I entirely agree. The area included appears to me to have been marked of with care and discrimination; and when the small additional portions mentioned in the above interlocutor are included within the delimited area, that area will include all that is needed.

Let me now endeavour to deal with certain points referred to in the course of the inquiry. It is provided by the Irvine and District Water Board Order 1903 (3 Ed. VII., Session 1903, sec. 63 (4)) that in the event of the whole area of the special water supply district of Stevenston as now existing being embraced within a burgh to be formed under the Burgh Police (Scotland) Act 1892, the contributions thereinbefore made payable by the County Council in respect of the special water supply district included within such burgh shall thenceforth be payable by the town council of such burgh. Then such town council are authorised to raise the necessary water assessment and to pay the same to the Board constituted under the said Irvine and District Water Board Order. This provision does not appear to me to raise any difficulty whatever. Clearly the said Order of 1903 proceeded on the assumption that one day Stevenston would be a burgh, and it provides accordingly. Much was said as to the applicants desiring to extend their jurisdiction down to the margin of the sea. As we have it proved that notice was given to the Crown, and the Crown has not objected, it is not easy to see what locus standi the other respondents have in the matter. To my thinking, it is of the utmost importance that such jurisdiction should exist, both in respect of the large sewer which has recently been led into the sea and for other obvious reasons. I am ready to assume that the authorities will not seek to interfere with any reasonable and legitimate use of the sea-shore.

The evidence shews that some portions of the roads in or near Stevenston are in a condition which, to put it mildly, leaves much to be desired. Some of them are not on the list of highways, and are not in point of fact under anyone's care. Accordingly, they are neither watched nor lighted as they ought to be. It is out of the question that roads between such populous places as Saltcoats and Stevenston should not be properly watched and lighted throughout their entire course.

With regard to the estates of Ardeer and Auchenharvie, I am clearly of opinion that they ought both to be included in the burgh as proposed. They are near the town, and would derive benefit from Stevenston being made a burgh and placed under proper management and control.

Twenty acres of the Auchenharvie estate are already included in the burgh of Saltcoats, and it is not unreasonable that the remaining 47 acres should form part of the burgh of Stevenston… .

Mr William Allan, a witness for Captain Cuninghame, said that he would not object to the inclusion of the Auchenharvie policies in Saltcoats burgh; but if so, why object to their being included in Stevenston burgh. The proprietor of Auchenharvie forgets that this estate has a considerable frontage to the highway.

A good deal was said in the course of the inquiry as to the character of certain parts of the lands included as suitable for feuing, but it must be remembered that in an enterprising town like Stevenston, as the need for new dwellings and, in a word, for more elbow-room increases, buildings will come to be erected on ground not perhaps ideally suitable but as suitable as can be got within a reasonable distance, and I must not forget that Stevenston muir has been proved to have been built upon within the last five years. Mr Hugh Thomson, a witness called for the respondent Cuninghame, says—‘(Q) Is it correct to state, as has been stated by the other side, that feuing has been going on rapidly on the high road from Stevenston to Ardrossan?—(A) Yes, I would say that there is some truth in it.’ Then the same witness further says he hopes that feuing may advance nearer still to Saltcoats burgh, and adds—‘There is nothing unlikely about that. The ground is suitable for feuing,’—and there are other passages in the evidence to a similar effect. When it is remembered that Thomson is a respondents' witness such evidence comes with much force.

It was admitted that thirty of the Ardeer workmen and a hundred and fifty-six of the Auchenharvie workmen live at Stevenston, and of course travel daily. It were easy to imagine circumstances in which very many more had to reside in Stevenston.

A connection of this sort lends additional support to the proposal to have the limits as proposed.

In conclusion, it is in the petitioners’ favour that the burgh of Saltcoats takes no objection, and the Northern District Committee of the County Council of Ayr only say in the words of their witness David Andrews that ‘they wish the whole of the special district included in the burgh or no burgh at all.’

This attitude, as it seems to me, is not unreasonable. Upon the whole matter I have arrived at the conclusion given effect to in the above interlocutor without hesitation.

Whenever an amended plan and description are lodged I can give a final deliverance.”

Under section 13 of the Burgh Police (Scotland) Act 1892 petitions were presented to the Court of Session against the deliverance of the Sheriff by (1) the Glengarnock Iron and Steel Company, Limited; and (2) Captain Cuninghame of Auchenharvie. Alexander M'Gregor and others, the petitioners in the Sheriff Court, appeared as respondents, as did also the County Council of the county of Ayr and its Northern District Committee. The position adopted by the County Council

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and District Committee was that they desired the whole of the water and other districts included if there was to be a burgh at all.

The Glengarnock Iron and Steel Company, Limited, petitioned against the inclusion within the proposed burgh of the following areas, viz., (1) an area which lay between the boundaries of the lighting and cleansing district and the proposed eastern boundary of the burgh, and stretched from a railway in the middle of the proposed eastern boundary southwards up to the company's works, and which included one or two scattered houses, a crescent called Ardoch Crescent, and close to the works a square of workmen's houses called Ardeer Square; (2) a large area chiefly of waste land, but including the company's works and a row of sixteen workmen's cottages called Chemical Row, which lay to the south of area (1), and stretched south to the sea; (3) the foreshore ex adverso of area (2), and an extension below low-water mark; and (4) a large area of waste land to the west of area (2) adjoining but divided by the Stevenston Burn from the Auchenharvie Moorlands to the inclusion of which Captain Cuninghame was objecting. The company were the owners of the surface and tenants of the minerals, and stated the following grounds of objection:—“(1) The Ardeer Ironworks and adjuncts are not part of the area, which is in substance a town, but are disjoined therefrom and form a separate and self-contained area. The natural boundaries of the proposed burgh would coincide, or nearly coincide, at this part of the boundary with the existing lighting and scavenging district formed in 1895. The said works lie outside the said lighting and scavenging district. The absence of public roads upon the area in question, and the general unsuitability of the ground for building purposes are circumstances against its inclusion in a burgh. (2) The town of Stevenston has not been dependent upon or aided by the existence of the said Ardeer Ironworks, but has resulted in the main from the proximity of the works of the Nobels Explosives Company, Limited. No benefit will result to the Ardeer Ironworks by reason of their inclusion in the proposed burgh. It is, moreover, unfair, except in the case of absolute necessity or manifest convenience, to impose the restrictions which come with burghal administration and are proper to a residential area upon an area devoted to public works. (3) The portion of the Auchenharvie Moorlands to the south of said Lanarkshire and Ayrshire Railway should be omitted from the proposed burgh as consisting chiefly of waste ground unsuitable for building purposes, which can take no benefit from a system of urban administration. (4) It is contrary to public expediency and unfair that owners and lessees of minerals should be assessed for burgh rates when no benefit is given in exchange. The areas of waste ground are in the same position, and those both on the Auchenharvie side and Ardeer side should accordingly be excluded from the proposed burgh, and the Auchenharvie Colliery upon the waste ground of Auchenharvie, included by the Sheriff at his own hand, should not be included. No notice of the inclusion of this colliery was given, nor were parties heard with reference thereto. (5) The whole of the undersea minerals should be excluded from the proposed burgh for the same reason. Further, the protection of the foreshore by the burgh authority is amply provided for by statute without the inclusion of the foreshore within the burgh, and the foreshore in question should be excluded from the proposed burgh for the above reason. (6) The inclusion of the petitioners the Glengarnock Iron and Steel Company, Limited's works and property is sought for the sole purpose of obtaining the valuation of the same for assessment purposes. (7) The boundaries of the proposed burgh should be so fixed as to include what is in substance a town, and that without reference to the boundaries of other districts, such as the drainage or water districts. The Local Government Acts provide adequate machinery for the management of water or drainage districts which may lie partly within a burgh. Moreover, in the present instance there is special legislation in regard to water in the Irvine District Water Order 1903, whereby a joint board is formed to administer the water supply within, inter alia, the parish of Stevenston. No change of the constituent authority under that Order would be operated by reason of the formation of the town of Stevenston into a burgh.”

Captain Cuninghame petitioned against the inclusion of the following areas lying on the proposed western boundary, viz.—(1) toward the north an area containing the mansion-house, offices, and part of the policies of the entailed estate of Auchenharvie, of which he was heir of entail in possession, and (2) towards the south a large tract of waste land, part of the Auchenharvie Moorlands, which adjoined area (4), objected to by the Glengarnock Company. That company supported Captain Cuninghame's objection to the inclusion of the Auchenharvie Moorlands as the tenants of the minerals Captain Cuninghame's grounds of objection were as follows:—“(1) That the said mansion-house and policies cannot from their position and circumstances receive the benefits intended to be conferred under the said Burgh Police (Scotland) Act 1892. (2) That the Sheriff, in defining the boundaries of the proposed burgh, did not conform to the conditions of said Police Act of 1892 as regards density of population and otherwise. (3) That the mansion-house and policies are not urban in character, and ought not, on a fair construction of the said Act, to be included in any burgh boundary. (4) That the petitioner has already all the advantages which burgh administration can offer, and inclusion in the proposed burgh will result in an increase of assessment without benefit. (5) That the said proposed boundaries have been fixed solely with a view to obtain for

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the new burgh a valuable rating area.”

The remaining facts as admitted or proved are given in the judgment of the Court and the note of the Sheriff.

The Burgh Police (Scotland) Act 1892, sec. 9, after providing for inquiry, &c., enacts that the Sheriff shall “determine whether the area included in the application, or any part thereof, considering the number of dwelling-houses within it and the density of the population, and all the circumstances of the case, is in substance a town and is suitable for being formed into a police burgh, and if the sheriff or sheriffs are satisfied on these points he or they shall define, in a written deliverance on such application, the boundaries of such populous place. … In defining the boundaries of a populous place it shall be lawful for the sheriff or sheriffs to include the whole area which in their judgment properly belongs to and forms part of the same town, with a reasonable margin for extension, if they think proper.” …

Section 13 enacts—“In any proceeding for fixing … the boundaries of a burgh or populous place … it shall be lawful for any owner or occupier within the boundaries as fixed by the sheriff or sheriffs who considers himself aggrieved by the deliverance of the sheriff or sheriffs … within fourteen days of the date thereof, to present a petition against the deliverance of the sheriff or sheriffs to the Court of Session setting forth the grounds on which they object to such deliverance, and the Court of Session may thereupon order answers, and after answers have been lodged may either pronounce a final order or” …

Argued for the petitioners—The sheriff had erred, inasmuch as he had not taken into account the considerations which the statute set forth, viz., number of dwelling-houses, density of population, and what properly belonged to the town, and had taken account of others which ought not to have been considered, e.g., what was rightly included in a water district. None of the areas, the inclusion of which was objected to, answered the requirements of the statute— White v. Magistrates of Rutherglen, January 28, 1897, 24 R. 446, 34 S.L.R. 387; County Council of Dumbartonshire v. Clydebank Burgh Commissioners, November 14, 1901, 4 F. 111, 39 S.L.R. 57, and it could not be said they were required for future extension, for without them the burgh would have sufficient room for extension, and Auchenharvie mansion-house and policies was not available, being entailed property, and the other areas were not available owing to the nature of the ground. Works would not be included even if surrounded by the town unless they really formed part of it or the site was likely to be used shortly for extension ( Rutherglen case, cit. sup.) The foreshore, &c., could not be included, for the burgh would have power to regulate its use without inclusion under section 303, and inclusion would subject the under-sea minerals to heavy rating.

Argued for the respondents—The Court should not interfere with the decision of the Sheriff, who had not erred, as in the cases cited, in some essential consideration — County Council of Lanarkshire v. Govan Burgh Commissioners, January 28, 1902, 4 F. 479. He had only included what naturally formed part of the town and was required for its good government and reasonable extension. The inclusion of the foreshore was necessary to give full power over it under section 304, for section 303 only gave a very limited power over ex adverso foreshore.

At advising, the judgment of the Court (the Lord President, Lord Adam, Lord M'Laren, and Lord Kinnear) was read by