Scottish Court of Session Decisions

The Public Health (Scotland) Act 1897 (60 and 61 Vict. c. 38), sec. 32, which is headed “Offensive Trades,” enacts—“(1) If any person after the commencement of this Act establishes, without the sanction of the local authority, the following businesses, or any of them, … or any other business which the local authority may declare, by order confirmed by the Board,” i.e., the Local Government Board for Scotland, “and published in the Edinburgh Gazette, to be an offensive business, he shall be liable to a fine not exceeding … (2) The local authority shall give their sanction by order, but at least fourteen days before making any such order shall make public the application for it, by advertisement in one or more local newspapers or by the posting of handbills in the locality setting forth the time and place at which they will be willing to hear all persons objecting to the order, and they shall consider any objections made at that time and place, and shall grant or withhold their sanction as they think expedient; and where the local authority grants or withholds such sanction, any person aggrieved may appeal to the Board, whose decision shall be final, but in the case of a district other than a burgh the appeal to the Board shall only arise after the county council has given its determination on the matter; and a local authority may appeal to the Board against the determination of the county council. (3) The local authority may make bye-laws for regulating the conduct of any businesses within the meaning of this section … which are for the time being lawfully carried on in their district, and the structure of the premises in which any such business is being carried on, in order to prevent or dimmish the noxious or injurious effect thereof, and the mode in which the said application is to be made.”

By section 185 bye-laws made by a local authority under the Act do not take effect unless and until they have been submitted to and confirmed by the Local Government Board.

In April 1903 the Calder District Committee of the County Council of Midlothian, as local authority for the Calder District of that county, issued an order, in virtue of the powers to that effect conferred on them by section 32 (1) of the Public Health (Scotland) Act 1897, declaring “that the business of glue manufacturing should be an offensive business under and within the meaning of” section 32 (1) of the said Act. This order was confirmed by the Local Government Board.

On 10th July 1903 John Darney & Son made application to the District Committee for sanction to commence the manufacture of glue and gelatine in premises erected and equipped by them at Kinauld, near Currie, Midlothian. This application was not immediately dealt with pending the preparation by the District Committee of bye-laws as to the manufacture of glue and the confirmation of these by the Local Government Board. On 6th January 1904 the bye-laws proposed by the District Committee were confirmed by the Local Government Board. The bye-laws contained regulations as to the manufacture of glue, but contained no regulation restricting the material to be used in said manufacture to hide clippings.

On 9th February 1904 the District Committee issued the following order:—“In terms of section 32 of The Public Health (Scotland) Act 1897, we, the Local Authority of the Calder District of the County of Midlothian, by this our order, sanction, under the condition that the products of the business are manufactured from hide clippings only, the establishment of the business of glue, gelatine, or size manufacture in the premises situated at Kinauld, near Currie, as shown on the plans submitted along with the application of Messrs John Darney & Son, glue manufacturers, Kinghorn, dated 10th July 1903.”

On 2nd March 1904 Darney & Son raised an action against the District Committee in which they sought (1) reduction of the resolution of the District Committee to issue the order of 9th February 1904, and the order itself, in so far as they or either of them imposed a condition not authorised by the Public Health (Scotland) Act 1897, and not in conformity with the bye-laws for glue manufacture enacted by the District Committee; and (2) declarator that the said “resolution and order granted to the pursuers shall be valid and effectual to the pursuers in all time coming, and that as if the said condition, whereby the pursuers are required to manufacture their products from hide clippings only, had not been inserted in the said order.”

The pursuers averred that the condition attached to the sanction would seriously prejudice them in the prosecution of their business, and that the imposition of such a condition was ultra vires of the defenders as Local Authority.

The defenders pleaded, inter alia, that the action was incompetent.

Page: 184↓

On 30th June 1904 the Lord Ordinary ( Low) issued an interlocutor sustaining this plea of the defenders.

Opinion—[ After narrating the facts]—“The pursuers aver that the condition attached to the order will seriously prejudice them in their business, and that it was ultra vires of the defenders to impose such a condition. The pursuers argued that under the Act the defenders were bound either to grant or withhold their sanction to an offensive business, and that although they were empowered to make bye-laws for regulating such businesses, they were not entitled to qualify an order sanctioning a business with a condition not appearing in the bye-laws. The defenders had in fact made bye-laws dealing, inter alia, with the manufacture of glue, in which there was no such condition as that appearing in the order sanctioning the pursuer's business.

“In these circumstances the pursuers seek in this action to have the order reduced in so far as it imposes the condition, and also a decree declaring that the order ‘shall be valid and effectual to the pursuers in all time coming, and that as if the said condition, whereby the pursuers are required to manufacture their products from hide clippings only had not been inserted in said order.’

“What therefore the pursuers ask the Court to do is to convert a conditional order of the defenders into an absolute order unfettered by any condition.

“The first question is, whether the Court has power to do any such thing, and that depends upon the provisions of sub-section 2 of section 32 of the Act. The sub-section provides that the local authority shall give their sanction to the establishment of a business falling within the category of ‘offensive,’ by order, but that before making such order they shall, after advertisement of the application, hear and consider any objections which may be made to the granting of the order, and shall then ‘grant or withhold their sanction as they think expedient; and where the local authority grants or withholds such sanction, any person aggrieved may appeal to the Board, whose decision shall be final.’

“These provisions make it plain that the granting or withholding of sanction to establish an offensive business is a matter with which this Court has nothing to do, and therefore it seems to me to be quite incompetent to ask the Court to declare that a conditional sanction which was given by the Local Authority falls to be regarded and acted on as if it had been an absolute and unconditional sanction.

“The pursuers argued, however, that they could not appeal to the Local Government Board against the order which had been made, because the Act only allowed an appeal ‘where the local authority grants or withholds such sanction,’ and here it could not be said that the Local Authority had done either the one or the other.

“Now, if the pursuers had simply sought to have the order set aside altogether, so as to leave it to the defenders to issue a new order, either unconditionally granting or withholding sanction to the business, there would have been something to be said in favour of that being done. What the pursuers ask, however, is only a partial reduction, and I doubt whether under the summons as framed it would be competent to pronounce a decree reducing the order in toto.

“Further, I am not impressed by the argument that, looking to the form of the order, the pursuers might not be entitled to appeal. I think that it is clear that the pursuers have right to appeal to the Local Government Board against the order. The criticism upon the way in which the order is framed is very technical. The defenders were not prepared to sanction the establishment by the pursuers of a glue manufactory in which all the materials from which glue may be made might be used, but only of a manufactory in which hide clippings alone were used. If the order had sanctioned the establishment of a business of glue manufacturer from hide clippings only, it would, I think, have been unobjectionable in point of form, but the order which the defenders granted was in substance precisely to the same effect.

“I shall therefore dismiss the action as being incompetent.”

The pursuers reclaimed, and argued—The Local Authority was limited under section 32 (2) of the Public Health (Scotland) Act 1897 to granting or withholding its sanction and had no power to add to a sanction a condition not contained in the bye-laws. By adding the condition the defenders had deprived the pursuer of his remedy under the Act of appealing to the County Council and the Local Government Board, for that was only available where the sanction was either granted or withheld. Here it was neither granted nor withheld, and the pursuers were consequently driven to seek redress in the present action— Cameron v. Magistrates of Glasgow, February 20, 1903, 5 F. 490, 40 S.L.R. 577. The Local Authority had acted ultra vires in imposing this restrictive condition, which was unwarranted by any statute, and could only have been properly imposed by a bye-law duly confirmed. A sanction might be freed by the Court from such a restrictive condition— Ashley v. Magistrates of Rothesay, June 20, 1873, 11 Macph. 708, 10 S.L.R. 513, 1 R. (H.L.) 14, 11 S.L.R. 487; Rossi v. Magistrates of Edinburgh, February 20, 1903, 5 F. 480, 40 S.L.R. 375, 42 S.L.R. 79.

Argued for the respondents—The Local Authority had sanctioned only a particular kind of glue factory, viz., such as used hide clippings only, and it was incompetent to ask the Court to convert this particular sanction into a general sanction. To give decree as asked would be to make the Local Authority sanction for all time an offensive business such as it had not sanctioned. The case of Ashley had reference to a certificate granted under the Public House Acts, at variance with the provisions of these Acts, and further, the condition there was quite separable from the certificate, while here it was not so. In Rossi no licence had yet

Page: 185↓

been issued, so that case was not in point. Further, the statute had provided a proper mode of appeal, viz., to the County Council and the Local Government Board. The pursuers ought to have sought their remedy in that way if they had a grievance.