Scottish Court of Session Decisions

Opinion of Lord President reserved. The Public Health (Scotland) Act 1897 (60 and 61 Vict. cap. 38), enacts, section 103—“The local authority shall have power to construct within their district, and also when necessary for the purpose of outfall or distribution, or disposal or treatment of sewage, without their district, such sewers as they may think necessary for keeping their district properly cleansed and drained, and may carry such sewers through, across, or under any public or other road, or any street or place, or under any cellar or vault which may be under the foot-pavement or carriageway of any street or road, and after reasonable notice in writing—if upon the report of a surveyor it should appear to be necessary—into, through, or under any lands whatsoever…”

Section 109—“In case it shall become necessary to enter, examine, or lay open any lands or premises for the purpose of making plans, surveying, measuring, taking levels, examining works, ascertaining the course of sewers or drains, making or repairing, altering or enlarging sewers or rains, or other purposes ancillary to the powers herein given as to sewers and drains, and the owner or occupier of premises refuses or withholds access and leave to perform the said operations, the local authority may, after written notice to such owner and occupier, apply to the sheriff, who, if no sufficient cause be shown to the contrary, shall grant warrant to the local authority, their officers and others thereby authorised, to enter and do all or any of the works or operations foresaid at all reasonable times in the daytime.”

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), enacts, section 219—“The commissioners shall from time to time, subject to the restrictions herein contained as to notice to be given and the plans and estimates to be prepared, cause to be made, under the streets or elsewhere, such mains and other sewers as shall be necessary for the effectual draining of the burgh.…”

Section 220—“Twenty-eight days at the least before making any new sewer where none previously existed, or altering the course or level of or abandoning or stopping any sewer, the commissioners shall give notice of their intention, by posting a notice in a conspicuous place at each end of every such street through or in which such work is to be undertaken, which notice shall set forth the names of the streets and places through or near which it is intended that the new sewer shall pass, or the existing sewer be altered or stopped up, and also the places at the beginning and the end thereof, and shall refer to the plans of such intended work, and shall specify a place where such plans may be seen, and a time when and place where all persons interested in such intended work may be heard thereupon.”

Section 221—“The commissioners shall meet at the time and place mentioned in the said notice, to consider, in the presence of the surveyor of the commissioners, any objections made against such intended work, and all persons interested therein, or likely to be aggrieved thereby, shall be entitled to be heard before the commissioners at such meeting, and thereupon the commissioners may, at their discretion, abandon or make such alterations in the said intended work as they judge fit, and no such work to which any objection is made at such meeting shall be executed unless the burgh surveyor, after the person making such objection, or his agent, has been heard, shall certify that the work ought to be executed, nor shall such work be begun until the end of seven days after an order for the execution thereof has been duly made by the commissioners, and entered in their books.”

This was a note of suspension and interdict at the instance of Mrs Janet Brown, widow, 22 Leven Street, Pollokshields, and Elizabeth Jane Stark, 57 St Mary Street, Kirkcudbright, against the Provost, Magistrates, and Councillors of the burgh of Kirkcudbright, as Local Authority thereof, under the Public Health (Scotland) Act 1897, and John Gibson, town clerk of Kirkcudbright, as clerk to said Local Authority.

The complainers sought suspension of certain proceedings complained of, and also craved the Court to interdict the respondents, or those acting by their authority, from entering upon and interfering in any way with certain lands belonging to them in the burgh of Kirkcudbright, and from constructing a sewer therein; and further, to interdict the respondents or their servants from acting upon or carrying into execution (first) certain resolutions of the Town Council of Kirkcudbright with regard to the construction of the said sewer; (second) the

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intention expressed in certain notices following upon these resolutions and served upon the complainers; and (third) the warrant granted by the Sheriff-Substitute authorising the respondents to construct the sewer.

In the statement of facts annexed to the note the complainers stated that they were respectively the proprietors of adjoining premises situated at 58 and 55 St Mary Street, Kircudbright; that in September 1904, the respondents instructed the Burgh Surveyor of Kirkcudbright, a retired sea captain, to prepare a plan with a report showing how the area in which the complainers' property was situated could be rained by means of sewers in the public streets; and that the said report referred to a sewer which could be laid through the complainers' property, but contained no recommendation thereanent. They averred—“The surveyor's report did not bear that it was either necessary or advisable to lay the sewer through the complainers' property, and no report to that effect was ever presented to the respondents by the said surveyor or any skilled adviser. At said meeting” (held on January 25) “the respondents decided to abandon the proposal to lay the main sewer in the public streets, and passed a resolution to lay it and a tributary sewer through the premises of the complainers. They instructed the surveyor to prepare a plan giving effect to their resolution and also a specification of work. Said plan, …and relative specification, were presented to the meeting of the respondents, held on 22nd February 1905, and approved, and the respondents decided to proceed with the work in accordance with their said resolution of 25th January 1905. Following on said approval, John Gibson, town clerk, on behalf of the respondents, served notices on the complainers, dated 6th March 1905, and intimating that the respondents, in terms of section 108 of the Public Health (Scotland) Act 1897, proposed to lay down a sewer from Millburn Street to St Mary Street, which would run through art of the complainers' property…aid resolutions did not proceed upon the report of a surveyor, as required by section 103 of the Public Health Act… Denied that the said Burgh Surveyor considered what was the best course in which to lay the new sewer, or decided in favour of the course complained of, or presented a report as stated in answer hereto. The respondents made the resolutions complained of without any such report, and the said surveyor merely carried out their instructions in the whole matter.”

In answer the respondents stated—“Before preparing his report the Burgh Surveyor took levels of various routes for the new sewer, and after submitting it to the respondents he explained fully to a. committee of their number upon the ground on January 24, 1905, the reasons which had led him to report as he had done, and his reasons for adopting the route now objected to by the complainers. Thereafter, at a meeting held upon 22nd February, the respondents again considered the question, and resolved to proceed with the new sewer along the line as laid down upon the plan by the surveyor, being of opinion, after full consideration, that that line would be the best in the interests of the public, least likely to cause inconvenience to private individuals, and necessary for keeping the district properly drained. Before reaching this conclusion the respondents considered an alternative scheme for draining the houses towards a main sewer to be laid in the street, but were satisfied that this would be impracticable and undesirable…”

The complainers further stated that they had objected to the operations proposed, but thereafter on 22nd March 1905 the respondents had presented a petition to the Sheriff-Substitute at Kirkcudbright craving power to enter the complainers' remises and construct the sewer without aving sent the reasonable written notice required by section 109 of the Public Health (Scotland) Act 1897; that the respondents had failed to conform to the procedure laid down in sections 220 and 221 of the Burgh Police (Scotland) Act 1892, with the result that the complainers had. had no opportunity of stating and proving their objections to the proposed operastions; that after the complainers' answers to the petition had been lodged, the respondents had lodged in process a report by the Burgh Surveyor relating to the said operations, which report was undated, and was believed and averred to have been obtained by the respondents after their meeting on 22nd February 1905.

The complainers further averred—“(Stat. 9) … The Burgh Surveyor of Kirkcudbright is not a trained and qualified surveyor in the sense of the statute. Moreover, his report does not bear that the sewage scheme of the respondents, including that part affecting the complainers' property, is necessary. This question was never submitted to him by the respondents or considered by him, and he was never asked by the respondents to advise them in regard to the drainage of the area in question or to recommend any scheme to them. Averred that it is usual and necessary for a local authority which wishes to exercise the powers conferred upon them by section 103 of the Public Health Act 1897, to get the report of a duly qualified surveyor to the effect that the proposed works are necessary.… (Stat. 10)

… The said scheme of the respondents is neither necessary nor advisable. The existing track of the sewer is the one best fitted for the drainage of the district and would cause the least inconvenience and damage to private individuals. Moreover, the proposed track along the public streets is superior to the scheme now supported. The operations on the complainers' property are very prejudicial to their rights and interests.…” [The complainers specified in detail the injuries which they alleged, and objected that the respondents had failed to comply with the provisions of sections 145 of the Public Health (Scotland) Act 1897, and 57 of the Burgh Police

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(Scotland) Act 1903, in regard to the acquisition of premises otherwise than by agreement.]

In answer the respondents averred that on 6th March 1905 notice was duly served on the complainers; that the respondents had all along proceeded under the powers conferred upon them by the Public Health (Scotland) Act 1897; that they were not bound to conform to the regulations referred to by the complainers; and that the complainers were entitled to full compensation for any damage which they might have sustained.

In regard to the procedure before the Sheriff-Substitute when the warrant was granted, and what had followed on the warrant being granted, the complainers averred as follows—“(Stat. 11) … The Sheriff-Substitute refused to reject the said surveyor's report or to allow the complainers a proof in regard to the said scheme and the unnecessary invasion of the complainer's rights, although required to hear evidence by the said statute [the Public Health Act], and decided the petition adversely to the complainers on the one-sided report of the respondents’ surveyor, which the complainers never had an opportunity of answering or rebutting by evidence, as they were by law entitled to do. Reference is made to sections 154 and 155 of said Public Health (Scotland) Act 1897. (Stat. 12) On 3rd April 1905 the Sheriff-Substitute at Kirkcudbright granted warrant in terms of the respondents' petition.… Since said date the respondents have begun their operations in connection with the construction of the said sewer. By said operations the complainers ‘property will be irreparably and unnecessarily damaged. Denied that the operations in connection with said sewer are completed… The respondents have made no offer of compensation for the injury proposed to be done to the complainers’ property; nor have they offered to buy wayleave or property, as they are bound to do. The present note of suspension and interdict has thus been rendered necessary. Reference is made to section 219 of the Burgh Police (Scotland) Act 1892, and section 164 of the Public Health (Scotland) Act 1897.”

In answer the respondents stated—“Explained that under section 157 of the said Act of 1897 the said interlocutor is final, that the sewer has been completed without injuring the fabric of the complainers ’properties, and that the present note is incompetent. Delay in putting in the new sewer would have been prejudicial to the public health, and the respondents completed the work so as to permit of the new drainage system being in working order before the summer commenced.”

The report by the Burgh Surveyor was in the following terms:—“I beg to report that I now produce a plan showing depths and levels for a new main and tributary sewer to Saint Mary Street through between Miss Gourlay's and Miss Stark's close or properties, and, as far as my experience goes, it seems the best and most practical way of taking it, with the tributary sewer, through the lane connecting the main at a certain point, to take all private, drains within the area. To carry out this plan it is necessary that the sewer be carried through the above close. This way is a great saving of expense, as it leaves most of the existing private drains to remain the same. All the work must be carried out in accordance with the Burgh Police (Scotland) Act 1892, or any other Act in force.—Yours truly,

“R. E. M'Cleare, Burgh Surveyor.”

The notice served on Mrs Brown was as follows:—“ Town Clerk's Office.

“Kirkcudbright, 6th March 1905.

“Madam,—I am directed to intimate that the Provost, Magistrates, and Councillors of this burgh, in terms of section 103 of the Public Health (Scotland) Act 1897, propose to lay down a sewer from Millburn Street to St Mary Street, which will run through part of your property in St Mary Street occupied by Miss Gourlay. The plan and specification of the sewer can be seen at my office. The work will be proceeded with on the expiry of ten days from this date. The Town Council will make good any damage done to your property through their operations.

“I will be glad to hear that you have no objections to this work being carried out.—Yours truly, john gibson, Town Clerk.”

The interlocutor granting the warrant was in. the following terms:— “Kirkcudbright, 3rd April 1905.—The Sheriff-Substitute … finds that the answers lodged by the defenders do not contain any relevant defence to the petition, therefore grants warrant in terms of the prayer thereof, &c. lawrence t. napier.”

The complainers pleaded, inter alia—“(1) The said proceedings ought to be suspended, in respect that (a) the said statutory enactments were not observed; (b) the said warrant of the Sheriff-Substitute proceeded on said ex parte report, but upon no evidence, as required by the said statute; (c) the prayer of said petition and warrant following thereon are not sufficiently specific. … (4) No report of a surveyor havingbeen obtained in accordance with the requirements of the Public Health (Scotland) Act 1897, sec. 103, the complainers are entitled to interdict, with expenses. (5) The respondents having failed to comply with the provisions of the Burgh Police (Scotland) Act 1892, secs. 220 and 221, et separatim, of the Public Health (Scotland) Act 1897, sec. 109, interdict should be pronounced in terms of the prayer.”

The respondents pleaded—“(2) The complainers’ averments being irrelevant, the note should be refused. (3) The note should be refused in respect (a) that the whole proceedings have been regular and proper, and (6) that under section 157 of the Public Health Act 1897 the warrant of the Sheriff-Substitute is not subject to review.”

On 8th April 1905 the Lord Ordinary officiating on the Bills ( kincairney) granted interim interdict. Thereafter on 25th April 1905 the Lord Ordinary on the Bills ( stormonth darling) passed the note and recalled the interim interdict.

On 25th October 1905 the Lord Ordinary

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( Salvesen) pronounced this interlocutor—“Before answer, allows to the parties a proof of their respective averments on the closed record, and to the complainers a conjunct probation, to proceed on a day to be afterwards fixed, and reserves the question of expenses.”

Opinion.—“The complainers in this case are owners of premises situated at Nos. 53, 55, and 57 St Mary Street, Kirkcudbright, and they seek to interdict the respondents from acting on, or carrying into execution certain resolutions of the Town Council of Kirkcudbright with reference to the construction of a sewer through their property, and a warrant granted by the Sheriff-Substitute of Kirkcudbright, dated 3rd April 1905, authorising the respondents to construct a sewer through their land. The interim interdict originally granted was recalled on 25th April 1905 after a hearing, and it appears that the sewer has now been constructed. This, however, does not relieve me from deciding the questions which have been raised in the present suspension.

“The respondents asked that the note should be refused as incompetent, and they also argued that the complainers' averments were irrelevant. I heard a full and interesting debate, which has satisfied me in the end that it would not be desirable to decide this case without inquiry; and accordingly I refrain from expressing any opinion as to the points on the construction of the statute, or as to whether the procedure prescribed by section 220 of the Burgh Police Act applies where advantage is taken of the powers conferred by section 103 of the Public Health (Scotland) Act 1897. It is sufficient to say at present that the power to carry sewers through private property, which is conferred by section 103, is subject to two conditions—(1) that reasonable notice in writing shall have been given, and (2) that it shall appear, on the report of a surveyor, to be necessary to carry the sewers through such property. The complainers offer to prove that no such invasion of their property is in fact necessary, and that no surveyor has so reported. There is a good deal of argument in the pleadings as to the construction to be put on a report which has been produced by the respondents, but the report is undated, and I think it would be premature to pronounce any opinion as to its true construction until its history has been ascertained. It follows that if there is a relevant averment of a failure to comply with the conditions prescribed by the statute, as I think there is, the Sheriff-Substitute's warrant, although declared to be final and not subject to review, is not a bar to the present suspension. I shall accordingly allow a proof before answer.”

The respondents reclaimed, and argued—Proof was unnecessary. The complainers' statements were irrelevant. Esto that the procedure set forth in the Burgh Police Act had not been followed, the local authority was entitled to act on the Public Health Act alone. A local authority had ample powers under the Public Health Act 1897 and the Burgh Sewerage and Drainage Act 1901. The terms of section 103 of the Act of 1897 were very wide. “Lands” included “buildings” (section 3). There was no appeal except in certain specified cases (section 157), of which this was not one. The Act provided for compensation (section 104), so that the complainers were not without a remedy. Under section 103 a local authority had power to make sewers where it pleased, and section 109 provided for the Sheriff's sanction being obtained. The Burgh Sewerage and Drainage Act 1901 extended the powers given by the Act of 1897. The Act of 1897 was meant to be drastic, otherwise the exemptions allowed by section 107 (railways, canals, &c.) would have been unnecessary. The Burgh Surveyor had duly reported, and the report was considered before the warrant was granted. That being so, the Court would not interfere— Lewis v. Weston-Super-Mare Local Board, August 8, 1888, L.R., 40 C.D. 55. It would have been impossible to proceed both under the Act of 1892 and the Act of 1897. These Acts were in many respects antagonistic, and did not form one code, as was maintained by the complainers. Reasonable notice was all that was required under the Act of 1897, and that had been given. There was nothing in the Act to eclare that the report must be got before the declare authority resolved to make a sewer. Appeal by way of suspension was incompetent without averments of a departure from the statutory forms. There was no appeal on the merits, for the decision of the Sheriff was final.

Argued for the complainers—The regulations laid down for the complainers’ protection had not been complied with. The provisions of the Act of 1897 were not inconsistent with those of the Act of 1892, and therefore they fell to be read together. Section 5 of the Burgh Sewerage and Drainage Act of 1901 modified the provisions of the Act of 1897 so as to meet those of the Act of 1892—that showed that these statutes were to be read together. They were really one code, the essential provisions of which had not been followed. Further, the provisions of the Act of 1897 itself had not been duly complied with, e.g., those of section 103. A report from a surveyor was essential before any resolution to make a sewer through private property could be effectual. No such report had been obtained here. What was acted upon here was not a report in the sense of the Act. What the Magistrates did was first to pass a resolution to make a sewer and then to get a report from the surveyor as to how it should be made. That was not in accordance with the procedure laid down in the Act. The case of Lewis v. Weston-Super-Mare Local Board, cit. supra, was different, the subject in question there being vacant ground. There was no “necessity” in the sense of the Act. The question of “necessity” was considered in Hayward v. Lowndes, February 16, 1859, 28 L.J., Ch. 400. The surveyor here was not a qualified surveyor in the sense of the Public Health Act. The notice required by section 109 had not been given. It

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was not enough merely to give notice of the resolution to make the sewer, notice of intention to take proceedings was also necessary— Campbell v. Leith Police Commissioners, June 21, 1866, 4 Macph. 853, 2 S.L.R. 150, rev. February 28, 1870, 8 Macph. (H.L.) 31, 7 S.L.R. 441; Taylor v.Corporation of Oldham (1876), L.R., 4 C.D. 395. Section 157 was not final and did not exclude appeal— Phillips v. Dunoon Police Commissioners, November 21, 1884, 12 R. 159, 22 S.L.R. 127.

At advising—