Scottish Court of Session Decisions

The Edinburgh Municipal and Police Act 1879 (42 and 43 Vict. cap. cxxxii), sec. 5, defines “court” as including “any court or passage used solely for foot-passengers, and open and accessible to the public from a street or private street and forming a common access to lands and heritages separately occupied.”

The Edinburgh Municipal and Police Amendment Act 1891 (54 and 55 Vict. cap. cxxxvi), sec. 40, provides—“Every person who proposes to lay out or make any new street or court, or part of a street or court, shall give notice of such proposal to the Magistrates and Council, and shall … submit plans and sections thereof for the approval of the Magistrates and Council, and such plans shall show the levels and widths thereof, its intended position in relation to the streets nearest thereto, the intended lines of drainage, and the intended size, depth, and inclination of each drain, and the details of the arrangements proposed to be adopted for the ventilation of the drains…” .

Section 50, as amended by section 34, sub-section 7, of the Edinburgh Improvement and Municipal and Police (Amendment) Act 1893 (56 and 57 Vict. cap. cliv), and by section 80 of the Edinburgh Corporation Act 1900 (63 and 64 Vict. cap. cxxxiii), provides—“Every new house and any building altered for the purpose of being used as a house, shall have in the rear thereof or directly attached thereto, and pertaining to and used exclusively in connection with such new house or building altered for the purpose of being used as a house, an open space at least equal to three-fourths of the area to be occupied by the intended house where such house is not of greater height than three storeys … Provided always that, in any case where the thorough ventilation and light of any house or building is in the opinion of the Dean of Guild Court otherwise secured, or under other special circumstances, the said court may in their discretion allow the open space to be reduced … Provided, further, that from and after the passing of this Act (1891 Act) all existing houses having any open space adjacent thereto shall as regards such open space be subject to the foregoing provisions of this section applicable to new houses to the extent to which such open space is available: Provided always that in the case of houses in tenements intended to be occupied or used as flats or separate dwellings having an open space or plot in front thereof, such open space or plot shall not be reckoned as part of the open space required to be provided as aforesaid.”

Alexander M'Arthur, painter, proprietor of a house 34 Tower Street, Portobello, presented a petition in the Dean of Guild Court, Edinburgh, in which he called as respondents amongst others the Lord Provost, Magistrates and Council of the City of Edinburgh, and craved warrant to build a small tenement on the garden ground behind his house with cement footpath and court thereto. No. 34 Tower Street had two storeys, and formed one-half of a block of two semi-detached villas. The other half was still occupied as a semi-detached villa, but No. 34 had by a horizontal partition been converted into two dwelling-houses, the one on the ground floor, the other on the floor above. Each had its separate entrance, the ground floor house retaining the old entrance, the upper floor having its entrance by an outside stair at the back. In front of the house there was a garden plot, and at the side of the house there was a passage leading from Tower Street to a considerable area of ground behind the house; this all belonged to the petitioner. The proposed tenement, which was to consist of four dwellings, was to be built on the back part of the ground to the back of No. 34. The only access was to be through the side passage, and thence through No. 34's back-green, the proposed court. Both the front plot and also the ground or court at the back which would remain after the erection of the new tenement, extended to more than three-quarters of the area of No. 34.

The Lord Provost, Magistrates and Council appeared as respondents, and stated amongst others objections to the following effect:—(1) That the petitioner proposed to form a ‘court’ within the meaning of section 5 of the Act of 1879 in front of the proposed tenement, and that plans and sections of this court required to be submitted to and approved of by the Magistrates and Council as provided

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by section 40 of the Edinburgh Municipal and Police Amendment Act 1891, but that this had not been done; and (2) that if the tenement was put up as proposed, the open space required to be left for the existing house, No. 34 Tower Street, would be curtailed below the area required by the Edinburgh Municipal and Police Acts.

The Dean of Guild ( wilson) on 22nd February 1906 refused to grant the warrant craved and sustained the latter objection of the Magistrates.

Note.—“…. The first objection put forward by the Magistrates and Council depends upon the interpretation of section 5 of the Edinburgh Municipal and Police Act 1879, in which the word ‘court’ is defined as including ‘any court or passage used solely for foot-passengers, and open and accessible to the public from a street or private street, and forming a common access to lands and heritages separately occupied.’ There is no dispute that the petitioner proposes to form a court in front of the proposed tenement, but there is a dispute as to whether such court would be a court within the meaning above given. If it is a court within that meaning, it is certain that by section 40 of the 1891 Act the petitioner is bound to submit a plan of it to the Magistrates and Council, and to get their approval. The Dean of Guild is unable to take the view that the court to be formed by the petitioner is one within the meaning of the Edinburgh Acts, which requires the approval of the Magistrates and Council. The court to be formed by the petitioner will undoubtedly be solely for foot-passengers, it will be open from a street, and it will form a common access to lands and heritages separately occupied, but it will not be accessible to the public. The petitioner would be entitled to put up a gate upon the passage from the street to the area behind the existing house, No. 34 Tower Street, and the inhabitants of the proposed new tenement would be entitled to exclude the public from what the respondents say will be a court which requires their approval before it can be formed. It therefore appears to the Dean of Guild that the court proposed to be formed by the petitioner is not a court for which the petitioner requires to get the approval of the Magistrates and Council.

“The second objection insisted in by the Magistrates and Council … is that if the proposed tenement is erected on the site now proposed, the area attached to and in rear of the existing house, 34 Tower Street, will be curtailed below what is required as open space under the provisions of section 50 of the Edinburgh Municipal and Police Amendment Act 1891, as amended by section 34, sub-section 7, of the Edinburgh Improvement and Municipal and Police Amendment Act 1893, and by section 80 of the Edinburgh Corporation Act 1900. The objection really amounts to this, that although, if the proposed tenement were erected, there would be sufficient area of open space in rear of the existing house to comply with the requirements of the Acts, that area will not be ‘used exclusively’ in connection with that house, as it will form part of the court for the proposed tenement. It appeared, however, to the Dean of Guild that the passage from the street could be continued up to the proposed new tenement by putting up a fence in continuation of the side wall of 34 Tower Street, and the ground immediately in rear of 34 Tower Street would then not be used as part of the court of the proposed new tenement, but would be used exclusively in connection with 34 Tower Street. The area thus used exclusively in connection with 34 Tower Street would satisfy the requirements of the Acts. The Dean of Guild, therefore, gave the petitioner an opportunity of amending his plans by showing a fence which would separate the passage to the new tenement from the ground to be used exclusively by 34 Tower Street. The petitioner, however, refused to amend his plans, and on the plans as now before the Court the petitioner proposes to utilise, in connection with the new building, land which under the Municipal Statutes must be used exclusively in connection with the old. The Dean of Guild is therefore obliged to sustain this objection to the petitioner's plans.…”

On 8th March 1906 the petitioner appealed to the Court of Session, and argued—(1) No. 34 Tower Street was not a tenement in the ordinary sense of the word, which implied a number of dwellings with a common entrance; it must be taken in this sense, for there was no definition in the Municipal Statutes. That this was the meaning of “tenement” was confirmed by the references in the Municipal Acts to the duties of persons living in tenements, e.g., Edinburgh Municipal Act 1891, section 52, and Building Buies in Schedule annexed; Edinburgh Corporation Act 1900, section 80. There were only two dwellings in No. 34, and each had its separate entrance. If it were not a tenement the plot in front could be reckoned, and was sufficient to fulfil the requirements of the Acts as to open space. (2) In any event the ground at the back fulfilled the statutory requirements. “Used exclusively in connection with” meant that more than one house could not have the same “open space.” The new tenement would admittedly have sufficient open space elsewhere. The erection of a fence was not necessary and would not give more light or ventilation. The statute must be read reasonably, and in view of its object to provide sufficient light and ventilation. Counsel for the petitioner was not called upon to reply to the objection that although a “court” would be formed, plans had not been submitted and approved.

Argued for the respondents—(1) No. 34 Tower Street was a “house in tenements” even although the flats had separate entrances— Couyer v. Surveyor of Maryhill, March 6, 1891, 18 B. 642 (the Lord Justice-Clerk at p. 644–5), 28 S.L.B. 454. The open space in front could therefore not be considered. (2) No. 34 would no longer, if the tenement were built, have its

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back-green “pertaining to and used exclusively” by itself, for the petitioner had declined to erect the necessary fence; its back-green would be used as much or more by the new tenement as by itself. (3) The back-green of No. 34 would by the erection of the new tenement be made into a “court” within the meaning of section 5 of the Act of 1879; plans of it should therefore have been submitted to the Magistrates. The Dean of Guild was wrong in holding it would not be “accessible to the public.” Any member of the public would be able to walk in; the phrase implied lack of physical obstruction, not right of access; that would give the words, which applied to courts opening off private streets and courts on private ground ( Couper, cit. supra), no meaning.