Scottish Court of Session Decisions

On 30th May 1906 the Corporation of Greenock Electricity Department presented a petition in the Dean of Guild Court of the burgh craving a lining for electricity generating works proposed to be erected “on ground at Dellingburn Square, Greenock, of which the petitioners are proprietors, bounded on the east by property belonging to Malcolm Campbell, 25 Regent Street, Greenock, on the west by reservoir belonging to Alexander Hogg & Company, 60 Virginia Street, Glasgow, on the south by property of Ardgowan Distillery Company, Baker Street, Greenock, Rankin & Blackmore, Baker Street, Greenock, and James M. Brodie & Company, 73 Princes Street, Port-Glasgow (for Port-Glasgow Heritable Company, Limited), and on the north by property of P. M'Callum & Sons, iron-founders, Regent Street, Greenock, John Harkness, blacksmith, Dellingburn Street, and the Corporation of Greenock Water Trust.” And in June the Provost, Magistrates, and Councillors of Greenock presented a petition in which lining was craved for the erection of a refuse destructor on the same piece of ground. Objection was taken to the linings being granted by, inter alios, Alexander Hogg & Company, records were made up, and on 5th July the petitions were conjoined. The objectors pleaded that (1) the petitioners' operations being in contravention of their titles and of the Shaws Water Company's Act of 1825 lining should be refused; and (2) the petitioners' operations being a nuisance lining should be refused. On 12th July the Dean of Guild pronounced an interlocutor in which he “… finds in fact that (1) the petitioners are the proprietors of ground in Dellingburn Street, Greenock, formerly feued by the Shaws Water Joint Stock Company to Messrs Mackenzie & Walker, millers, on which ground the petitioners propose to erect electricity generating works combined with a destructor for consuming the town's refuse; (2) the objectors Alexander Hogg & Company are neighbouring proprietors holding their title from Sir Michael Shaw Stewart and not from the Shaws Water Joint Stock Company: Finds in law that the objectors have no title or interest to object to the petitioners' erections; therefore repels the objections stated by the said Alexander Hogg & Company and grants warrant to the petitioners to erect their buildings as craved according to the plans docquetted and subscribed as relative hereto….”

The Dean of Guild's note, which gives the facts of the case, was as follows:—“Two petitions have been presented to the Dean of Guild Court in this case—one from the Corporation of Greenock Electricity Department for the erection of electricity generating works, and the other from the Provost, Magistrates, and Councillors of the burgh (Cleansing Department) for the erection of a refuse destructor. The two works are part of one scheme to be installed on the same plot of ground, and the petitioners are the same body, viz., the Corporation. The site for these works, known as Millstead No. 2, formerly belonged to the Shaws Water Joint-Stock Company, which was a company incorporated by the Act of 6 Geo. IV, c. 106, and said site was feued by the company in 1832 to Messrs Mackenzie & Walker, grain merchants and millers, who built a grain mill there.

In the year 1866 the Shaws Water undertaking was acquired by purchase by the Police Board of the town of Greenock, and was vested by Act of Parliament in a public trust called the Water Trust of Greenock.

Since the passing of the Town Councils (Scotland) Act 1900 the Corporation of Greenock are vested with the rights and duties of the Water Trust, and are thus the successors of the Old Shaws Water Joint-Stock Company.

In 1901 the Water Trust purchased Millstead No. 2, which is situated at Dellingburn Street, Greenock, from the judicial factor on the estate of the firm of Mackenzie & Walker.

The objectors Messrs Alexander Hogg & Company of Glasgow, sometime sugar refiners in Greenock, are neighbouring proprietors. They own a reservoir and ground adjoining the site of the intended destructor on the north-west thereof. They also own a plot of ground in Dellingburn Street, situated about 100 yards to the north of Millstead No. 2, on which plot they have a sugar refinery and store.

Their titles to the reservoir and ground and refinery and store are from Sir Michael Shaw Stewart, but by a contract and

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mutual conveyance in 1832 between the Shaws Water Company and Tasker, Young, & Company they have the privilege of the water fall on Millstead No. 1 for the benefit of their sugar refinery, and by their mutual conveyance a lien is granted upon the property of Messrs Tasker, Young, & Company in favour of the Shaws Water Company.

Messrs Hogg's objections to the petitioners' proposed buildings are—(1st) That the petitioners' operations are in contravention of their titles and of the Shaws Water Company's Act of 1825; and (2nd) that said operations are a nuisance.

In support of their first objection the objectors aver that the only buildings which can competently be erected on the petitioners' feu are limited in terms of the Company's Act of 1825 to mills or manufactories containing machinery driven by water, and that the intended buildings are not of the class permitted by petitioners' titles or by the Company's Act or by the objectors' titles, which are founded on the same statute. Upon an examination of the statute I am of opinion that this objection cannot be entertained. The statute gave the old company the widest possible powers in connection with their lands and undertaking, and in no way restricted them to feu lands only for mills and manufactories containing machinery driven by water as is alleged. A reference to the Acts conferring powers on the company shows that the company had full power to contract for and to purchase lands and others, and again dispose of these if they should see cause, to hold any lands and heritages so purchased, to enter into and make contracts, bargains, and agreements touching or in any wise concerning the undertaking as they should think proper, and were generally given full power to direct and manage their affairs and business, and to execute and perform all acts and things concerning their undertaking.

Looking to these large statutory powers I am unable to accept the contention of the objectors that the Act of 1825 expressly limits any buildings which the petitioners intend to erect on Millstead No. 2 to mills or manufactories containing machinery driven by water.

In reference to the averments that it is not the intention of the petitioners to use water power for driving machinery in their buildings, this is a matter which only affects the Corporation as the successors of the old Water Company, and one with which the objectors have no concern at all. The obligation relates to the sale of the water, and is solely in the interest of the Corporation. But assuming that the Shaws Water Company were so restricted in the character of their buildings, I am unable to find that the objectors have any title to object. They have not produced any writ which either expressly or by implication gives them, as the successors of the original feuars, the right to control the nature and character of the buildings to be erected on the petitioners' ground.

The second objection is that the petitioners intend to remove house and street refuse to their said premises, to collect the same there, and treat and dispose of it there, and it is averred that such operations cannot be carried on without being most offensive to the neighbourhood and a nuisance under the Public Health Act and at common law, and would greatly depreciate the value of the objectors' property.

These averments are denied by the petitioners, who state that they do not intend to collect and treat the refuse at their works, but simply to destroy such refuse by combustion. This should not necessarily result in any nuisance, but if any nuisance should arise the objectors have a legal remedy. It is clear according to the recent decisions that the Dean of Guild Court is not the appropriate tribunal for the trial of such a question.”

The objectors appealed, and on October 25, before the hearing, amended the record by adding the following plea-in-law—“(3) The erection of the proposed buildings being illegal and ultra vires, and in violation of the Greenock and Shaws Water Transfer Act 1866, the lining should be refused.”

The following objection and answer were also added:—“(Obj. 4A) The heritable subjects upon which the petitioners propose to erect a refuse destructor and an electricity generating station form part of the assets of the Water Trust of Greenock incorporated by the Greenock and Shaws Water Transfer Act 1866 (29 and 30 Vict. cap. cccviii, sec. 8). The said subjects were originally acquired by the Shaws Water Joint Stock Company, incorporated by 6 Geo. IV, cap. cvi, and were subsequently in terms of section 48 of that statute feued out by them to Messrs Mackenzie & Walker for the erection of a mill containing machinery driven by water conform to feu-contract dated 20th and 21st March 1832, upon which the feuars were infeft by instrument of sasine recorded in the Particular Register of Sasines for Renfrewshire, &c., at Glasgow on 26th April 1832. The superiority of the said subjects was transferred to and vested in the said Water Trust of Greenock by the said Act of 1866. The dominium utile of the said subjects was acquired by the said Water Trust of Greenock conform to disposition by the judicial factor on the estate of Mackenzie & Walker dated 11th and 13th and recorded 19th July 1901. … By the Greenock Burgh Extension Act 1882, sec. 32 (45 and 46 Vict. c. cliv), the Provost of Greenock ex officio and twelve members of the Town Council to be elected by the Council were appointed to be the Water Trust of Greenock. In virtue of section 8 of the Town Councils (Scotland) Act 1900 it is believed that the said subjects are now vested in the Town Council of Greenock but the assets of the said Water Trust being separately administered at the commencement of the said Act were not thereby amalgamated. The said assets remain subject to the trusts and purposes set forth in the said Act of 1866. The said

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purposes do not include the erection of a refuse destructor and electricity generating station. The present application is an illegal attempt on the part of the Corporation of Greenock to utilise the assets of the said Water Trust for general municipal purposes. The objectors' properties are situated within the limits of compulsory supply specified in the said Act of 1866, and they are liable under the said statute to be rated, and they are rated, for the purposes of the undertaking of the said Water Trust. (Ans. 4A) The statutes and deeds mentioned are referred to for their terms. Admitted that the objectors' properties are within the limits of compulsory water supply specified in the said Act of 1866, and are rateable accordingly. Quoad ultra denied. Explained that the Shaws Water Joint Stock Company's Acts were repealed by the said Act of 1866, and the company's undertaking with its whole property, powers, rights, and privileges of every kind and description transferred to the Water Trust of Greenock. Thereafter by section 92 of the Greenock Corporation Order 1901, confirmed by the Greenock Corporation Order Confirmation Act 1901, the Water Trust of Greenock was dissolved and its whole rights, powers, authorities, duties, and liabilities, and its whole lands, works, and other assets, were transferred to and vested in the petitioners. The property on which the said buildings are proposed to be erected became part of the petitioners' property, and by resolution of the petitioners was sold to the Electricity Department of the Corporation as at Whitsunday 1906, at the price of £1200, subject to payment by the Electricity Department to the Water Department of the water rent and feu-duties exigible from the subjects. The erection of an electricity generating station and a refuse destructor on the subjects in question is clearly competent under the terms of the transfer thereof to the Electricity Department. By the Greenock Electric Lighting Order 1883, under which the petitioners are the local authority to supply electricity within the burgh of Greenock, the petitioners were specially authorised to acquire 10 acres of land, and the extent of land held by them for the purposes of their electrical undertaking including the subjects now in question does not amount to 10 acres in all.”

The following were the minutes dealing with the transfer of the property from the one department to the other:—1. Extract from minute of meeting of Water Committee held on 8th March 1906—“The sub-committee on erection of a destructor and generating station submitted a report to the effect that they had met on 5th instant and had agreed to approach the Water Committee with the view of acquiring Millstead No. 2 for these erections at a sum of £1100, plus feu-duty on the site for last five years, with entry at Whitsunday next, and possession to be given then. The Provost moved that the subjects referred to be taken over at the sum of £1200, plus the annual feu-duty of £18, 19s. 10d., and the water rent of £172, 16s. per annum. Bailie Steel moved as an amendment that £1500 be the price for the property referred to. After consideration the committee divided, when there voted for the motion—Provost Denholm, Treasurer Brown, Councillors M'Innes, M'Neill, Buchanan, Taylor, and Swan (7); and for the amendment—Bailie Steel and Councillor Mitchell (2). Councillor Hume Chalmers declined to vote. The motion was declared carried, and the Town Clerk authorised to carry the transfer through as between the two departments at Whitsunday next.”

2. Extract from minute of meeting of Greenock Corporation held 20th March 1906—“The minute of the Water Committee of date 8th March was submitted, and the Provost moved and Bailie J. W. Bailey seconded its adoption. Councillor Mitchell referred to the paragraph relating to the acquisition of Millstead No. 2 for the site of proposed refuse destructor at £1200, and moved as an amendment that the price for the millstead be fixed at £1500, which was seconded by Bailie Steel. On a division there voted for the motion — Provost Denholm, Bailies M'Callum and Forbes, Treasurer Brown, Dean Bennett, Councillors M'Innes, M'Neill, Lemmon, MacOnie, Buchanan, A. M. Chalmers, T. Baxter, Robinson, Taylor, Smith, Shearer, Swan, and Cowan Shankland (18); and for the amendment—Bailie Steel, Councillors M'Millan, Hume Chalmers, and Mitchell (4); Bailies Alex. Andrew and J. W. Bailey declined to vote. The Provost declared the motion carried, and the minutes accordingly approved of, on the understanding that the transfer would be carried through at Whitsunday next.”

Argued for the objectors and appellants—The agreement to sell the site in question contained in the minutes was (1) a breach of trust; (2) an illegal sale as being by the Corporation of Greenock in their statutory capacity of Water Committee to themselves in other statutory capacities as the Electricity Department and as Public Health Department. Now a corporation holding as a statutory body could not sell to itself as a statutory body constituted for other purposes. Land held for statutory purposes must be kept separate for those purposes— Attorney-General v. Pontypridd Urban Council, L.R. [1906], 2 Ch. 257, Collins (M.R.) at p. 264, and Romer (L.J.) at 267. Moreover, this sale was an amalgamation of assets, and by the Town Councils (Scotland) Act 1900 (63 and 64 Vict. cap. 49), sec. 8, which vested the property of the previously existing Water Trust in the Corporation, such amalgamation was expressly forbidden when such assets had been separately administered at the commencement of the Act. Further, the sale was in truth a fictitious one, being by the parties to themselves though in another capacity, and was null as being a trafficking by trustees in property of the trust— Magistrates of Aberdeen v. University of Aberdeen, March 23, 1877, 4 R. (H.L.) 48, 14 S.L.R. 490. The objectors had an interest

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to object as neighbours and as ratepayers if the Corporation dissipated its assets. Their objection was that a practical prohibition of selling to the Electricity Department existed in the Corporation's title to this asset. The objections should be sustained or a sist granted.

Argued for the petitioners and respondents—The case propounded by the objectors did not exist on record, which was based on the objector's position as a neighbour, not on that of a ratepayer. Nor was the question at issue one suitable for the Dean of Guild Court, since it was one concerning title. The statutes and titles under which the Corporation held the lands in question put no restriction on their selling unnecessary land but rather empowered them to do so, and they were only operating in suo, and the sale was for an adequate price. The case of the Attorney-General v. Pontypridd Urban Council, ut supra, was distinguishable from the present case, as there the local authority had obtained funds for one purpose and was using them for another, and land had been acquired for a precise purpose which it was proposed to dedicate to one totally different. The validity of the transference of the lands in question had not been successfully challenged.

At advising—