Scottish Court of Session Decisions

The Edinburgh Municipal and Police I (Amendment) Act 1891, sec, 44, provides:—

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“Houses or buildings in any existing street or court shall not, without the sanction of the Magistrates and Council, he increased in height above the height of one and a-quarter times the width of the street or court in which such houses or buildings are situate, measuring from the level of the pavement to the ceiling of the highest habitable room; provided always that any existing house or building in any existing street if taken down may be rebuilt to its existing height.”

The Edinburgh Improvement and Municipal and Police (Amendment) Act 1893, section 34 (5), provides:—“Sections 42 and 44 of the Act of 1891 are hereby amended as follows:—… Sections 42 and 44 shall be read as if the word ‘habitable’ occurring therein respectively were omitted therefrom, and as if the following proviso were added to each of those sections respectively:—‘Provided further that the height of houses or buildings which are in or which abut on any lane or side or back street shall not to the extent of 40 feet backward from such lane or side or back street, measured from the face of the wall of such houses or buildings, exceed the height of one and a-half times the width of the lane or side or back street, unless otherwise sanctioned by the Magistrates and Council.’”

The Edinburgh Improvement and Tramways Act 1896, section 87 (7), provides:—“Section 44 of the Act of 1891 shall from and after the passing of the Act be read as if the words ‘but in no case shall any house or building be erected, raised, or increased to a greater maximum height than 60 feet, measured from the level of the pavement to the ceiling of the highest room, without the consent of the Magistrates and Council,’ had been inserted after the word ‘room’ first occurring in the said section.”

The Edinburgh Corporation Act 1900, section 80, inter alia, enacts:—“Section 44 of the Act of 1891 shall be read as if the words ‘above the height of one and a-quarter times’ occurring in the said section were omitted and the word ‘beyond’ inserted in lieu of the words so omitted, unless in the case of a house or building in an existing street which may be made of the same height as the adjoining houses, but not exceeding one and a-quarter times the width of the said street.”

William Adamson Ireland, proprietor of the premises No. 11 Elliot Street, Edinburgh, presented a petition in the Edinburgh Dean of Guild Court, in which he called as respondents, amongst others, the Lord Provost, Magistrates, and Council of the City of Edinburgh, and craved “warrant to remove part of the present building at No. 11 Elliot Street, Edinburgh, and erect a four-storey building with attic floor.”

The height of these proposed buildings was originally to be 64 feet, but the petitioner, with the leave of the Dean of Guild, amended his petition by deleting the words “with attic floor” and lodged amended plans, which showed buildings of a height of 50 feet, being one and a-quarter times the width of Elliot Street. The petitioner's property was situated at the end of Elliot Street, which formed a cul de sac, being 40 feet in width, and about 120 feet in length. This cul de sac ran off the south side of Albert Street, the width of which was about 60 feet. The Lord Provost, Magistrates, and Council appeared as respondents, and notwithstanding the amendment made, opposed the granting of the warrant; they maintained that their sanction (which they refused to give) was necessary.

The petitioner maintained that their sanction was not necessary for the amended proposal.

The Dean of Guild was of opinion that section 44 of the 1891 Act, as amended by the subsequent Acts above quoted, should read as follows—“Houses or buildings in any existing street or court shall not, without the sanction of the Magistrates and Council, be increased in height beyond the width of the street or court in which such houses or buildings are situate, measuring from the level of the pavement to the ceiling of the highest room, but in no case shall any house or building be erected, raised, or increased to a greater maximum height than 60 feet measured from the level of the pavement to the ceiling of the highest room, without the consent of the Magistrates and Council; provided always that any existing house or building in any existing street if taken down may be rebuilt to its existing height; provided further that the height of houses or buildings which are in or which abut on any lane or side or back street shall not to the extent of 40 feet backward from such lane or side or back street, measured from the face of the wall of such houses or buildings, exceed the height of one and a-half times the width of the lane or side or back street, unless otherwise sanctioned by the Magistrates and Council.”

The Dean of Guild granted warrant to the petitioner in terms of the prayer of the petition as amended.

The respondents appealed to the Second Division of the Court of Session.

The respondents and appellants argued—They accepted the effect of the amending statutes above quoted as being to make section 44 of the Edinburgh Municipal and Police (Amendment) Act 1891 read as held by the Dean of Guild. The proviso added to section 44 of the said Act by section 34, sub-section 5, of the Edinburgh Improvement and Municipal and Police (Amendment) Act 1893, was inapplicable to Elliot Street. The proviso was intended and had been framed to meet such a case as occurred in the case of Pitman and Others v. Burnett's Trustees (January 26, 1882, 9 R. 444, 19 S.L.R. 411), where a building extended from a main street through to “a lane or side or back street.” Though Elliot Street was a cul de sac it was not a side street in the sense of said proviso, which meant and should be interpreted as if it read “provided further that the height of houses or buildings parts of which,” &c. The proviso was worded as a restriction, and was so intended, but the petitioner's interpretation made it a relaxation, for by

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it a building if in a side street exceeding 40 feet in width might without consent of Magistrates and Council be built above the height of 60 feet, and that, though in streets not being “lane or side or back streets,” i.e., in more important streets, buildings might not without consent exceed 60 feet in height.

The petitioner (respondent) argued—The amendments to section 44 of the Edinburgh Municipal and Police (Amendment) Act 1891, which were effected by the Edinburgh Improvement and Tramways Act 1806, section 87 (7), and by section 80 of the Edinburgh Corporation Act 1900, left untouched the proviso adjected to section 44, by section 34 (5), of the Edinburgh Improvement and Municipal and Police (Amendment) Act 1893. The amendment made by the Corporation Act of 1900 was somewhat unintelligible and its effect was doubtful, but assuming the Dean of Guild's reading of section 44 as amended was correct, Elliot Street being only 120 feet in length and being a cul de sac was a side street and fell under the said proviso, and the proposed height of 50 feet was less than one and a half times its width, which was about 40 feet. The contention of the appellants that a side street would be in a more favourable position than a larger street only applied to side streets exceeding 40 feet in width, and possibly streets exceeding this width would not be side streets, but in any event statutes in restraint of private rights were to be read strictly and against the framers, whose intentions were immaterial. Alternatively in the event of Elliot Street being held to be not a side street, the respondents pleaded—The Edinburgh Corporation Act of 1900 did not substitute the word “beyond” for the words “above the height of one and a quarter times” in the case of a building in an existing street. Elliot Street was an existing street, and the proposed building was within the limit of one and a quarter times its width.

At advising—