Scottish Court of Session Decisions

(The sections of the Act are quoted in the immediately preceding case.)

This was an appeal from the Dean of Guild Court at Glasgow at the instance of Messrs J. & D. Hamilton, oil refiners, &c., 118 Queen Street, Glasgow, and others, in a petition by Messrs Hamilton for authority to erect certain buildings at Port Dundas Road, Glasgow.

Objections to the petition were lodged by Thomas Nisbet, Master of Works, Glasgow, on the ground, inter alia, “that the said buildings might be found to be nearer the centre of Port Dundas Road than one half of the width thereof as the same might be fixed by the Master of Works, and would in that event be contrary to the Glasgow Building Regulations Act 1900, sec. 20.”

On 8th April 1904 the Master of Works issued the following determination as to the centre of Port Dundas Road:—“In accordance with the powers granted to me

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by section 20 of the Glasgow Building Regulations Act 1900 I hereby fix the width of Port Dundas Road at 72 feet ex adverso of the property of Messrs J. & D. Hamilton, Nos. 117 to 125 of said road, and with reference to the application made to the Dean of Guild by Messrs J. & D. Hamilton for a lining to erect a building in Port Dundas Road, which application is at present pending in the Dean of Guild Court, I also hereby define the position of the centre of said street as a line of 36 feet to the east of and parallel to the face of the front wall of the building belonging to Messrs J. & D. Hamilton, said face of said front wall being in range of the front of a cotton mill formerly existing to the south of Messrs Hamilton's property and referred to in various titles of properties fronting Port Dundas Road, all as shown on the plan prepared and signed by me as relative hereto.”

Against this deliverance Messrs Hamilton and others appealed to the Dean of Guild.

In their appeal Messrs Hamilton stated “(1) The present width of Port Dundas Road opposite the property shown on the plan prepared by the Master of Works is 60 feet or thereby, and the Master of Works has no power under section 20 of the Glasgow Building Regulations Act 1900 to determine that the road shall be of greater width than it at present is. Separatim, he has failed to fix the present width of the road; (5) the adoption of the Master of Works' determination to widen said Port Dundas Road by the addition of 12 feet on the west side of it would involve the confiscation of private property, and would have the effect of shutting up the lights of Messrs J. & D. Hamilton's buildings, which lights were authorised to be made by a decree of the Dean of Guild Court granted on 10th December 1903; (6) the Dean of Guild Court is authorised to fix the width of streets under section 21 of the Glasgow Building Regulations Act of 1900 to 50 feet. This road is already 60 feet, and more than meets the whole requirements of the said Act, and the appellants respectfully submit the width of said road should be fixed as it at present exists. Port Dundas Road is already on the existing register of public streets kept under the Act of 1866. The averments and statements of the Master of Works, so far as inconsistent with the appellants' statements, are denied.”

On 4th August 1904 the Dean of Guild sustained the determination of the Master of Works and dismissed the appeals.

In the course of his note the Dean said—“The powers of the Master of Works, whatever they are, extend to any and every street. What then are his powers? If power ‘to confiscate,’ as it is called, is not to be presumed, is it to be supposed that the legislature would provide for a formal appeal from the Master of Works to the Dean of Guild, if all that the Master of Works could do under section 20 was to measure with a tape the de facto width of a street? An appeal on this view would be ridiculous, and the suggestion that the Dean on the appeal is simply to check the measurements of the Master of Works is simply idle. It seems to the Dean that it must be taken that sections 20 and 21 vested in the Master of Works some discretionary powers, and the provision in the latter section that the Dean in fixing the width is to have regard to certain provisions applicable to the laying out of new streets, confirms this. Taking the next branch of the argument, it is true that under section 24 the corporation may by purchase acquire ground to widen streets, but it does not necessarily follow that that is the only way in which a public improvement can be effected. No provision of the Turnpike Acts is better known than that by which new buildings are prevented from being erected within a certain distance from the centre of the road, the practical effect of the provision being that in many cases the road was widened without payment. It seems to the Dean that sections 20 and 24 apply to widening of streets in different circumstances; the former, like the provision in the Turnpike Acts referred to, but with the important addition of the requirement to clear the street of all structures, applying to those streets where building or rebuilding is going on; the latter to those streets where the proprietors are not moving and no public improvement could be effected without the corporation taking the initiative. The argument upon the definition of ‘width’ and with reference to section 9 does not create difficulty. The definition of width holds only where the context does not otherwise require. But the view the Dean takes of the powers which sections 20 and 21 must be held to have vested involves his holding that the context does otherwise require. Again, the Dean is not sure whether width in section 9 must and can only mean the de facto width. But whether that be so or not the section does not make the insertion of the actual width obligatory, nor does it bear on any powers conferred by sections 20 and 21.”

Messrs Hamilton and others appealed to the First Division, and on 16th March 1905 the Court appointed the case to be argued before Seven Judges.

At the hearing, counsel for the parties stated that they adopted, hinc inde, the arguments of the parties in the preceding case ( The Caledonian Railway Company v. The Corporation of Glasgow). In addition the following argument was stated:—

Argued for the appellants—The Dean of Guild and Master of Works had fixed the width of this street in 1903 at 60 feet and they could not now fix it of new at 72 feet. As regarded the case of M'Dougall v. Nisbet ( cited infra), section 9 did not appear to have been considered, and that was the important section here. If the register had reached Port-Dundas Road, then under section 9 the “width” to be inserted would have been the de facto width. Similarly, coming to section 20, “width” meant actual width. The case of M'Dougall v. Nisbet proceeded on a different ratio and was not in point. Moreover, what was under consideration there was a new street (see opinion of Lord M'Laren in that case). Similarly in the case of Neilson v. Wilson & Co.,

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November 17, 1904, 7 F. 60, 42 S.L.R. 111, the street in question there was in course of being laid out.

Argued for the respondents—The case of M'Dougall v. Nisbet, November 17, 1004, 7 F. 55, 42 S.L.R. 108, was exactly in point. The Master of Works had a discretion to fix the width of this street. That was clearly the meaning by sections 0, 20, and 21, read in connection with section 18, and his decision being given in conformity with the statute was conclusive— Plumstead Board of Works v. Spackman (1884), L.R. 13 Q.B.D. 878, aff (1885) L.R., 10 A.C. 220. The width depended on the facts and circumstances of each case. What the Master of Works had to do was, as he had done, to make a generalisation. He had not acted capriciously and fixed any width he liked. The present appeal was premature, as the Sheriff was the final judge on this question of width, and it should therefore be dismissed.

At advising—