Scottish Court of Session Decisions

Lord Adam—The question which we have to answer in this case is whether it was competent under the Burgh Police (Scotland) Act 1892, sec. 157, for the respondents to pass the resolution set forth in the stated case.

That resolution is in the following terms.— [His Lordship read the resolution.]

By section 339 of the Burgh Police (Scotland) Act 1892 an appeal is allowed to any person whose property may be affected, or who thinks himself aggrieved by any resolution of the commissioners made or done under any of the provisions of the Act, either to the Sheriff or Court of Session, who should make such order thereon either confirming, quashing, varying, or reducing the order, resolution, or act appealed against as the Sheriff or Court should think fit, and it was provided that the judgment of the Sheriff-Substitute should be subject to review by the Sheriff, and, subject to this appeal, should be final. This section, however, of the Act was amended by the 104th section of the Burgh Police (Scotland) Act 1903, which provided that any party dissatisfied with the judgment of the Sheriff, as erroneous in point of law, might appeal thereagainst to the Court of Session in terms and subject to the provisions of the Summary Prosecutions Appeal (Scotland) Act 1875.

The appellants in this case appealed first to the Sheriff-Substitute, who refused the appeal and confirmed the resolution of the respondents. They then appealed to the Sheriff, who adhered to the judgment of the Sheriff-Substitute with a variation, and they have now appealed to us on the question of law stated in the case. We have not, therefore, to consider whether the resolution is well founded on its merits—whether, for example, it would constitute a public improvement or would unduly interfere with the amenity or value of the appellant's property or otherwise, all such questions having been finally disposed of by the Sheriff. The only question we have to consider is whether the resolution in question was competent under the 157th section of the Police Act of 1892. [ His Lordship read the section quoted in rubric.]

It is clear from the phraseology of the section that it is intended to apply to what no doubt is the common case of a third party, the proprietor of a building, applying to the commissioners for leave to put forward his building to a particular line, and that, if there is nothing in the circumstances to make it incompetent, they have power to do so. But if they have power to do so in the case of a third party, I do not see how it can be disputed that they have power to allow themselves, as proprietors of buildings, to put forward buildings to a particular line. I think, accordingly, that the case is to be treated exactly as if it had been the case of a third party to whom leave had been granted to put forward his buildings, and that the question is whether there are, as the appellants maintain, such circumstances in the case as to render it incompetent for the respondents to have granted such leave.

Now, clearly to understand the resolution, and what is proposed to be affected thereby, it is necessary to look at the plan therein referred to.

It appears, accordingly, that the appellants are the owners of property having buildings thereon fronting Main Street on the north, and that the respondents are the owners of the property adjoining these buildings on the west. The respondents' property is bounded on the west by King Street Lane, which runs from north to south till it meets certain property in Main Street, also the property of the respondents, when it turns eastwards and runs along between the respondents' buildings on the north and south for between 30 and 40 feet, when it passes into Main Street. It thus appears that the buildings which the respondents propose to set forward are at present bounded on the west by King Street Lane, and on the south, for about one-third of their length, also by King Street Lane, and for the remaining distance by Main Street. There is also shown on the plan a line coloured red and blue, which shows the line to which the respondents propose to put forward their buildings. Now, it is sufficiently clear that if the respondents' buildings were put forward to the new line of the street as proposed, the effect would be that King Street Lane, so far as it runs east and west, would be entirely built over, and King Street Lane, we are told by the Sheriff, is a public street.

It is the fact that the resolution thus allows a public street to be entirely built over, which constitutes the main, if not the only, objection to its competency. Now, if we were tied down to consider only what appears on the face of the resolution, I think that would be a formidable objection to its competency. But I agree with the Sheriff that we are entitled to consider the whole scheme of improvement of the respondents, of which the putting forward of the buildings mentioned in the resolution only forms a part. And we are told by the Sheriff that it is the intention of the respondents to remove the property belonging to them in Main Street occupied by Robert Anderson, and which now forms the southern side of King Street Lane, where it runs east and west, and to open up a new entrance to the said lane by Main Street. If that building were removed, the effect would be that King Street Lane would practically cease to exist as a separate lane and become merged in Main Street, and that the whole buildings on the respondents' property would then front Main Street.

That is a state of matters which the respondents have in their power to produce at any time by simply removing the building in question. Had they done so before passing the resolution I should have thought it quite unobjectionable.

In these circumstances I am not disposed to find that the resolution in question is incompetent. I think we should pronounce an interlocutor to the effect, that as it is stated by the respondents that it is part of their scheme for the improvement of the line of Main Street, that the house in Main Street presently occupied by Robert Anderson should be removed. On that footing and condition answer the question in the case in the affirmative.

Lord Kinnear—I am of the same opinion. We have nothing to do with any question of expediency or amenity which may have been considered by the Sheriff, but are required to consider only the question of law stated in the case, whether the resolution in question is competent. Now, it is to be observed that the resolution in question is not an operative order of any kind, but is simply an allowance or sanction of certain things being done which may form the foundation of an application to the Dean of Guild Court. What the resolution allows to be done is, that for improving the line of main street the buildings situated on the north may be set forward, and the other buildings described in the resolution set backwards, such buildings being set forward or set backwards as the case may be so as to conform to the new proposed line of the street. Now, the objection to the competency, at least the only formidable objection to the competency of the resolution, was that under colour of improving the building line of Main Street the Corporation proposed to cover over with buildings, and so shut up another public street in Rutherglen called King Street Lane; and if they proposed to do nothing else but set forward their buildings to the north so as to encroach upon what is now King Street Lane, there is no doubt that the effect would be to shut up that lane, because when the buildings to the north are set forward they are met by the existing buildings to the south. But then it is perfectly clear, as I take it, upon the construction of the resolution with reference to the plan, that that is not the scheme of the Corporation at all. Their scheme is that when they put forward their buildings to the north they should take down and remove the existing buildings to the south so as to furnish a sufficient line of street fronting the new line of buildings. I think all parties interested are sufficiently safe-guarded against any departure from that scheme of building, because, as I have said, the resolution will only enable an application to be presented to the Dean of Guild Court, in which all just and necessary conditions of building may be imposed. That objection, therefore, seems to me to fall to the ground. But then it was said that even although the roadway is left as a sufficient access, the street called King Street Lane will still be obliterated, because the new line of roadway will not be King Street Lane but Main Street. I think that is a mere question of words and names that has no practical force or significance at all. I think that while we are confined for the determining facts to the statement of the case, we may legitimately look at the Sheriff's judgment for the ground of his decision in law, and I agree with the way in which he has dealt with this particular point, because he says—“The critical contention that the statute does not authorise the setting forward of a building over the whole of the street which was once and may still perhaps be strictly called King Street Lane, is in my opinion too technical. We must

look at things as they are, and doing so we find that the real question relates to the improvement of the line of Main Street at the point where the properties of the parties meet.” That being the real question, and the objection to the encroachment upon one part of the street being met by the condition that the buildings to the south are to be removed, I see no objection to the competency of the resolution. I may add that I quite agree in Lord Adam's view that it is well to make it quite clear what the condition upon which the Court answers the question in the affirmative really is by inserting in the interlocutor the words which he proposes.

Lord M'Laren—I concur.

The Lord President was not present.