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Court of Session Inner House First Division.

[Glasgow Dean of Guild Court.

Friday, July 12. 1907.

44 SLR 854

Summerlee Iron Company, Limited

v.

Lindsay and Others.

Subject_1Burgh
Subject_2Dean of Guild
Subject_3Building Regulations
Subject_4Height of Building — Building Abutting on Two Streets Parallel to One Another, and of Different Widths — The Glasgow Building Regulations Act 1900 (63 and 64 Vict. cap. cl), secs. 60 and 62.

Burgh — Dean of Guild — Building Regulations — Title to Appear — Height of Building — Right of Neighbouring Proprietors to Object to Proposed Buildings — The Glasgow Building Regulations Act 1900 (63 and 64 Vict. cap. cl), secs. 60 and 62.
Facts:

The Glasgow Building Regulations Act 1900, section 60, provides that no building, “except with the consent of the Corporation, be erected in, on, or adjoining any street” above a certain height, viz., the width of the street and half as much again, but not to exceed 100 feet. Section 62 provides that, where any building is intended to be erected “so as to front or abut upon more than one street,” the height is to be regulated by the widest street, “not only so far as such building … will abut upon such widest street, but also, so far as it … will abut upon the narrowest of such streets to a distance of 50 feet from the side of such widest street.”

Held (1) ( diss. Lord Johnston) that section 62 applied to a proposed building which would abut on a street in front, and would run back therefrom to and abut on a lane (or street) at the back parallel to the front street; (2) that section 62 only supplied the street whereby the height was to be calculated, section 60 enacting the restriction which must be read together with the power given in that section to the Corporation to dispense therewith; and consequently (3) that the corporation had power to dispense with the restriction in the case of the building proposed, and the proprietors', with the consent of the Corporation, right to build irrespective of the restriction.

Opinion ( per Lord Johnston, diss.) that section 62 did not apply to the proposed building, but only to buildings on a corner stance, and consequently that the proposed building must be regulated by section 60 alone.

The Glasgow Building Regulations Act 1900, sections 60 and 62, impose restrictions on the height to which buildings may be erected without the consent of the Corporation having been obtained.

Held that neighbouring proprietors, inasmuch as they had an interest, had a right to see enforced the provisions of the Act, and were entitled to lodge objections in a petition for lining for a proposed building which did not observe the restrictions.

Headnote:

The Glasgow Building Regulations Act 1900 (63 and 64 Vict. cap. cl), section 60 (1), enacts—“After the passing of this Act no building other than a church shall, except with the consent of the Corporation, be erected in, or on, or adjoining, any street, of a greater height than the distance between the building lines of such street and one half more of such distance; and in no case except with such consent of the Corporation shall such height exceed one hundred feet.”

Section 60 (3)—“Whenever the Corporation consent to the erection of any building
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of a greater height than that prescribed by this Act, notice of such consent shall, within one week after such consent has been given, be published in such manner as the Corporation may direct, and such consent shall not be acted on till twenty-one days after such publication; and the owner or lessee of any lands and heritages within one hundred yards of the site of any intended building who may deem himself aggrieved by the grant of such consent may, within twenty-one days of such publication, appeal to the Dean of Guild, who shall have power to deal with the case as shall seem to him just.”

Section 62—“Where any building is erected, or intended to be erected, so as to front or abut upon more than one street, the height of the building shall be regulated by the widest of such streets, not only so far as such building abuts or will abut upon such widest street, but also so far as it abuts or will abut upon the narrowest of such streets to a distance of 50 feet from the side of such widest street. Provided that where the whole of the ground upon which any building of the warehouse class is erected, or intended to be erected, belongs at the passing of this Act to one owner, nothing in this section shall prevent such building from being carried over the whole area to the height determined by the widest of such streets.”

Archibald M'Laren Lindsay, Robert Meldrum, and John Lumsden Oatts, solicitors in Glasgow, and proprietors of ground in West Regent Street, Glasgow, running back to West Regent Street Lane, brought two appeals against interlocutors pronounced by the Dean of Guild in Glasgow in connection with a petition for lining presented by the Summerlee Iron Company, Limited, 172 West George Street, there, craving a lining for a proposed building on the plot of ground, 172/176 West George Street and running back to West Regent Street Lane.

The nature of the appeals and the facts are given in the following narrative taken from the opinion of the Lord President:—“These are two appeals from the Dean of Guild of Glasgow. The one is an appeal from a pronouncement of his upon a decree of lining; the other is an appeal against a pronouncement of his in respect of the special jurisdiction that is given him as the reviewing authority of the discretion of the Corporation under the provisions of sub-section 3 of section 60 of the Glasgow Building Regulations Act. That is the technical position of the two appeals. The subject-matter with which they deal is inextricably mixed up, and in order to make the matter clear I think it is necessary to state exactly what the proceedings were.

“The parties applicant were the Summerlee Iron Company, Limited, and they possessed a stance of ground the front of which faced to West George Street, Glasgow, and the rear of which faced to West Regent Street Lane—West Regent Street Lane being a lane paralled to West George Street. Now, the applicants proposed to put up a high building extending over the whole of their property, that is to say, with its front making an elevation in West George Street, and its back making an elevation in West Regent Street Lane. In order to do that they had to make the ordinary application for a decree of lining. But they obviously were affected by the regulations as to height which are contained in the Glasgow Building Regulations Act. Now, the Glasgow Building Regulations Act deals with the matter of height particularly in two sections, in section 60 and section 62. Section 60 provides, by the first sub-section, that no building other than a church shall, except with the consent of the Corporation, be erected in, on, or adjoining any street of a greater height than the distance between the building lines of such street and one-half more of such distance; and then there is a further rider—“and in no case, except with such consent of the Corporation, shall such height exceed one hundred feet.” Now, as a matter of fact, this building exceeded one hundred feet. It did not exceed in height one and a half times the breadth of West George Street, but it did exceed in height one and a half times the breadth of West Regent Street Lane. Accordingly, the applicants addressed a letter to the town clerk, in which they enclosed a plan of the proposed building, and they asked for a consent of the Glasgow Corporation. That consent they got; and the first consent which they got was phrased thus:—“The Corporation of the City of Glasgow intimate their consent, in terms of section 60 (1) of the Glasgow Building Regulations Act 1900, to the proposal of the petitioners to erect a building at 172/176 West George Street to the height shown in the plans in Court relative to said petition, said consent being required in respect that the proposed height is greater than the distance between the building lines of West George Street ex adverso of said building, and one-half more of such distance.” Now, that recital was not true in point of fact, because, as a matter of fact, it was not greater than one and a half times the breadth of West George Street, as I have said. That seems to have been noticed, and, accordingly, that first consent was superseded or supplemented—I do not care which word I use—by another in these terms:—“The Corporation of the City of Glasgow intimate their consent, in terms of section 60 (1) of the Glasgow Building Regulations Act 1900, to the proposal of the petitioners to erect a building at 172/176 West George Street to the height shown in the plans in Court relative to said petition, said consent being required in respect that the proposed height exceeds one hundred feet.”

Armed with this consent they proposed to ask, and did ask, the Dean of Guild for his decree of lining in the ordinary way. And that decree of lining the Dean of Guild was prepared to grant, and did grant. At the same time they had, in terms of section 60 in a provision which I have not read, and which it is not necessary to read at length—they had advertised that they had
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got this consent in order that persons who considered themselves aggrieved might object. The, firm of Lindsay, Meldrum, & Oates, who have property in the immediate neighbourhood, but not exactly touching the applicants' property, conceived that they were aggrieved, and accordingly they presented an appeal to the Dean of Guild against the consent of the Glasgow Corporation. And they presented that appeal in respect of the provisions of subsection 3 of section 60, which is in these terms—“… ( quotes sec. 60 (3) supra).…

At the same time the same objectors appeared before the Dean of Guild in the ordinary lining process and objected, the ground of their objection in the ordinary lining process being that there had been no proper consent given, and that the building was struck at by the provisions of section 60 and section 62 of the Glasgow Building Regulations Act. Now, section 62, which I have not read as yet, is this—“… ( quotes sec. 62 supra)….

Now, that being the state of the two litigations, what the Dean of Guild has done is this—In the lining process he has held that the objectors have no title to plead the provisions of the Glasgow Building Regulations Act 1900 at all. He holds that the privilege of pleading these provisions is limited to the Corporation, and accordingly he disregarded the objections of the objectors and granted the decree of lining. In the appeal case under sub-section 3 of section 60 he went into what may be called the merits, and he said he saw no reason for disagreeing with the consent which the Corporation had given. Both these judgments are brought up to your Lordships, and are objected to by the objectors.”

Argued for Lindsay and others (objectors and appellants)—(1) The petitioners had obtained the Corporation's consent under a section, viz., section 60, of the Glasgow Building Regulations Act, which did not touch the matter. That section dealt only with buildings abutting on one street— Wallace v. Nisbet, October 20, 1904, 42 S.L.R. 1, where the Dean of Guild had so held, and his judgment was sustained on appeal. Section 62 was the section which dealt with the case here where the buildings to be erected abutted on more than one street. It, however, included no dispensing power on the part of the Corporation. Thus the height of the buildings to be erected was to be calculated by the width of West George Street only for 50 feet back from that street. Pitman v. Burnett's Trustees, January 25, 1882, 9 R. 444, 19 S.L.R. 411, where in Edinburgh proprietors had been found entitled to build right back to a lane buildings regulated in height by the front street, was to be distinguished in that the Edinburgh Act contained no provision corresponding to section 62 here. Possibly the Corporation had not the necessary facts before them in giving their consent to these buildings. Certainly the consents were lacking in that they omitted all reference to West Regent Street Lane. (2) The objectors had a title to see enforced the provisions of the Act, at least as to height of buildings. Their interests were materially affected. In Pitman v. Burnett's Trustees, cit. sup., objectors had been allowed to plead the provisions of the City of Edinburgh Act regulating buildings, though they were private individuals. The interlocutors of the Dean of Guild should be recalled.

Argued for the Summerlee Iron Company, Limited (petitioners and respondents)—(1) The restriction imposed was building above a certain height without the consent of the Corporation. There was no other restriction, and it was impossible to read it leaving out the dispensing power of the Corporation. It was true, no doubt, that power was not mentioned in section 62, but neither was the restriction. Section 62 merely provided the street whereby the measurement was to be taken, but the restriction was the restriction of section 60 with its dispensing power. The petitioners were therefore entitled to build as they proposed with the Corporation's consent, and that consent they had obtained. The objectors had taken the proper course in appealing to the Dean of Guild if they thought themselves aggrieved thereby, but he had gone into the whole matter as was manifest and had disallowed the objection. As to the omission to mention West Regent Street Lane in the consent, the plans had been before the Corporation, so they must be held to have been fully informed. (2) The Dean was also right in dismissing the objector's objections in the petition for lining. The Act was passed in the public interest, and private individuals had no title to appear to enforce its provisions save where such right was given, e.g., the appeal against the consent given by the Corporation. The interlocutors of the Dean of Guild should be sustained.

Judgment:

Lord President—[ After narrating the facts quoted supra]—Now, taking first the ordinary lining decree, I am bound to say that I cannot agree with the ground upon which the learned Dean of Guild disposed of the objections. I cannot think that the universal proposition that no private individual has ever any title to plead the prohibitions of the Glasgow Building Regulations Act is a just one. It may be that there are many of the provisions of the Glasgow Building Regulations Act which it will not be in the mouth of a private individual to plead, and the reason will be found in want of title or want of interest. The truth is that title and interest, as your Lordships very well know, although they are different, often very much run into each other. I will make what I mean, I think, completely clear by an illustration which I draw from the observations of Lord Shand in the well-known case of Pitman, which was a case where private objectors sought to impose restrictions put by a general statute and not by the terms of title upon a person who wished to build. Inter alia, the objectors in that case pleaded that there was not sufficient ventilating space in the plans

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of the Conservative Club according to the provisions of an Edinburgh Police Act. Lord Shand said—and I think said perfectly justly—that those provisions were put in for the sanitary good of the house itself, and that a neighbour somewhere else had either no title or no interest—I do not care which—to plead them. He could not be heard as a sort of general protector of the public health, and he could not show that it was anything to his house if his neighbour's house was badly ventilated internally. But when you come to other questions, questions of excessive height and so on, where the truth is you affect your neighbour far more than you affect yourself, at once I hesitate to say that that neighbour shall have no title to bring forward and found upon the prohibitions of the statute. And therefore, so far as that ground of judgment is concerned, I am unable to agree with the learned Dean of Guild.

But the only result of that is that one must look at the merits. Now the objectors here pleaded their case as high as this—they said there was no possibility here for a dispensation, because section 60 only deals with buildings which are in a street, and this is not a building which is in a street, but it is a building which is in streets—the plural instead of the singular—and that is regulated by section 62. I think that is a completely erroneous view of the statute; and I think the learned Dean of Faculty with all his ingenuity, for which he is famous, was really quite unable to give any answer to the view which was put against him. It is perfectly clear that section 62 of the Glasgow Building Regulations Act is not a code in itself dealing with streets in the plural, with section 60 a code dealing with streets in the singular. Section 62 does not contain in gremio a prohibition at all. But the reason of section 62 I think is clear beyond doubt. Section 60 having said that you shall not build a building which abuts on the street of a height exceeding one and a half times the width of that street except with the consent of the Corporation—with which consent you may build as high as a building will go—section 62 then deals with the question when a building is to be in two streets instead of one, or as a matter of fact in more than two streets, for I do not find that it is limited. You might have a very large building with an elevation in four streets, and it is possible that with a building of the polygonal class of construction you might have it in more than four streets. If it had not been for section 62 you might in any given case have had a dispute between the proposing builder and the Corporation as to whether the consent of the Corporation was needed or not. The Corporation might have said — “Oh, you need our consent because your building abuts on street B and exceeds in height one and a half times the width of that street;” to which the other party might have replied—“I do not consider my building abuts on street B; it has got its back to it; I think my building is on street A.” You might have had just the sort of question raised and decided in the Conservative Club case, where the question was whether the Conservative Club was in Princes Street or in Rose Street Lane.

In order to solve those questions we have section 62, and that section says that when you are in more streets than one you may settle that for the purpose of measurement you consider that your building is in the widest street, subject to this, that that does not mean that you are allowed to say that the whole piece of your ground is in the widest street, but that you may only go 50 feet back from the widest street in ascribing your ground to that street, and that when you get beyond the 50 feet you must ascribe of the continuous building the rest to the narrow street. But that leaves the whole question of prohibition standing as it did upon section 60. Now, it is a considerable feat to do what the counsel for the objectors here sought to do; they said, “We will read in the prohibition of section 60 in so far as it deals with the height exceeding one and a half times the breadth, but we will leave out the consent of the Corporation.” The two things are indissolubly connected in section 60; and if you read them into section 62 you must read them in indissolubly connected. And therefore I think it is clear that although section 62 is the section which shows the streets the buildings are in, section 60 is the only section that makes a restriction on the height; and section 60 says that although there is the restriction on the height—which is to be reached by taking the proportion between the breadth and height of the street and building—yet that is always liable to be overridden by a consent of the Corporation.

Now, having settled that, all that is left, of course, is a very narrow point, and that is—has the consent of the Corporation been here given? A little doubt—I do not, personally, think there is much—but a little doubt is thrown upon the matter, because, undoubtedly, the applications in terms bore to be for a building in West George Street, and not a building in West Regent Street Lane. On the other hand, it is perfectly clear that the plans sent to the Corporation disclosed quite clearly that the building did abut on West Regent Street Lane as well as on West George Street. And it is not too much to assume that the parties who dealt with the matter for the Corporation know enough about West Regent Street Lane to know that it is a private street in the technical sense—a street to which all the public are admitted — and is not merely a private enclosure of the parties who own the buildings about it—I mean a private enclosure such as an avenue would be. But I do not care, I think, to decide that question here. What I propose is that, with this explanation of the law—which I hope is clear—the question should go back to the Dean of Guild in order that the Dean of Guild may consider, in the light of what we have told him about section 60 and section 62, whether as a matter of fact the consent

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of the Corporation has been knowingly given to a building which under section 62 must be held as abutting upon two streets; where, in other words, if no consent was given, 50 feet of that building would be regulated by the breadth of West George Street, and the height of the remanent part of the building would be regulated by the breadth of West Regent Street Lane. If that consent has been given and the Dean of Guild sees no reason to interfere with it, then all is right. If that consent has not been knowingly given, then, of course, the Dean of Guild in his turn would send it back to the Corporation in order that they should consider that matter for the first time.

Accordingly, I propose that the interlocutors as they stand should be recalled in hoc statu, and that both cases should be sent back to the Dean of Guild in order that, having expiscated the matter in that way, he should proceed as seems just.

Lord Dundas—I am of the same opinion. The case after all lies within comparatively narrow limits. In the first place, I am, like your Lordship, not prepared to accept the Dean of Guild's views upon the question of the title of individuals in the matter; but your Lordship has, I think, put that topic upon a proper footing, and I agree with all that you have said. In the second place, I think that the view expressed by your Lordship as to the meaning of section 60 and section 62 of the Glasgow Building Regulations Act of 1900, and the relations of these two sections to one another, is unanswerably right; at all events, we have had no feasible answer to it stated from the bar. Lastly, I concur in thinking that it would be safer, in order to avoid any possibility of error, that the case should go back in the manner your Lordship has explained to the Dean of Guild. I am content to express my entire concurrence in your Lordship's opinion without attempting further to add to or develop it.

Lord Johnston—While I agree in the course which your Lordship proposes to take in this case, I am afraid I differ to some extent as to the grounds upon which we should proceed, because I cannot take the same view of section 62 of the Glasgow Building Regulations Act 1900 which I think your Lordships take.

I quite agree that the respondents here have a good title to object, and that the Dean of Guild should have heard them on their objections, on the footing that he was hearing parties who had such a title. There can be no question that under Acts of this description coterminus proprietors who have an interest have a title to be heard. And I cannot conceive a greater interest than that of the respondents, the light and air of whose property will be so much affected by this proposed building, more particularly when they must look to it that if this measure is meted out to the petitioners by the Corporation and the Dean of Guild they may expect a similar measure to be meted out to other proprietors in the neighbourhood, with the result of gradually solidifying the ground between West Regent Street and West George Street, on to which the back of their property looks, into a block of buildings. Accordingly, I think they have a most undoubted interest, and therefore title to be here. And the reason for which I should send the case back to the Dean of Guild is, that I cannot conceive that either he or the Corporation could have fairly considered the interests of the objectors if they approached the matter on the footing that they had no title to be before them.

But then when I come to sections 60 and 62 of the statute I feel a great deal more difficulty than I think your Lordships have indicated as to their proper application, for this reason—I do not think that they contain a complete code of building regulations in regard to the matter in question, viz., the height of buildings, but that the present case is a casus improvisus. I am satisfied that section 62 does not apply to a case where buildings abut upon two streets which are not at an angle to each other — the one a main and the other a side street. The provision therein contained, that “where any building is erected or intended to be erected so as to front or abut upon more than one street, the height of the building shall be regulated by the widest of such streets, not only so far as such building abuts or will abut upon such widest street, but also so far as it abuts or will abut upon the narrowest of such streets,” would be perfectly intelligible, and might apply equally where the two streets are parallel as where they are at an angle to one another if the clause had stopped there. But it continues, “to a distance of 50 feet from the side of such widest street.” This makes it quite clear to me that what the statute contemplated was a corner subject, and that the meaning of the enactment is that where a building is to be erected so as to abut upon a main street and also upon a side street the height regulated by the width of the main street is to be carried back along the side street to a distance of 50 feet, however narrow the side street may be. It is impossible, in my opinion, to read the provision taken as a whole as applicable to the case of a main street parallel to a back street—in the present case just 100 feet apart.

I do not understand how a building abutting on a wide front street can be raised to the height of one and a-half times the said front street, not only so far as it abuts on said front street but so far as it abuts on a parallel narrower back street 100 feet, and it might be much more, off, to a distance of 50 feet from the side of said front street. It humbly appears to me to make nonsense of the section, which is perfectly intelligible if applied to the case of streets at an angle to one another. Consequently I conclude that section 62 does not apply to the question we have to consider, and only applies to a corner block facing a main street and also facing a side street.

If one goes, then, back to section 60, I do not think that that section really contemplates

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the state of matters which arises here, where you have a property with two frontages, one to a main street and one to a back street. If you build on that property the width of the front street regulates the height of your building so far as abutting on it, and the width of the back street regulates such height so far as the building abuts on the back street, and there is nothing to say where, in the intermediate space, the one width ceases to regulate and the other begins, for I can find no help from section 62. It may be that it was intended that the width of the front street should regulate the height for 50 feet back from its building line, but neither it nor section 62, if it was the intention, so provides. You are therefore, as it seems to me, left with a piece of property facing a main street on the one side and facing a parallel back street on the other side, and if you can give any interpretation to section 60 as applicable to that situation, you have the width of the main street to regulate the height of the building as it abuts upon that street, and you have the width of the back street to regulate the building as it faces the back street, but you have nothing to indicate to you to how great a depth from either street these heights are to extend.

It seems to me therefore that this building code, if it may be so called, is not complete; and I feel therefore very great difficulty in applying its provisions to the present case. The only way that I can so apply it, although it is not satisfactory, is to hold that the Corporation, and through them the Dean of Guild, have under section 60 the power to dispense with any regulation as to height on the whole area if they so choose, both on the frontage to the main street and on the frontage to the back street, and therefore that it is immaterial how far back the width of either the front or the back street regulates. It is an unsatisfactory conclusion, but the unsatisfactoriness of it is, to my mind, occasioned by the failure of the statute to provide for all circumstances which must arise in connection with such buildings.

Lord President—T should like to say with regard to what Lord Johnston has said, that I think his construction of section 62 is most unfortunate, because the effect of it would be then that where there are parallel streets the building regulations for these are not dealt with; and also that I personally find no difficulty whatever in holding the word “abut” as applying to parallel streets, because, I should like to point out, section 62 is only introduced where the building is erected or intended to be erected so as to front or abut on two streets—that is to say, it only comes into being in the case of parallel streets if you have one continuous building from the one street to the other. In order to make this quite clear I do what I very seldom do, and take the opportunity of saying something after my brethren, because I see this is a matter of great practical convenience for the Glasgow authorities, and it is a pity there should be any doubt about it. I think I can make my meaning clear by an illustration. Supposing one was building for the first time between Princes Street and George Street: I can quite understand that if you build a house in Princes Street and add the ground up to George Street it would be certainly an abuse of ordinary language to talk of the ground that was behind, after you built your house in Princes Street, as abutting on George Street; but if you build one continuous building that goes from Princes Street to George Street, then I do not think it is an abuse of language to talk of any building which is left after you have done that to your Princes Street building as abutting on George Street. It may be that when 50 feet is taken it is rather a small breadth, but that the section applies quite clearly to parallel streets as well as to streets meeting at an angle I have no doubt. It says—“Remember that your building must only come 50 feet back, and the rest is to be considered as abutting on the smaller street for regulation of height.”

Then the judgment of the Court will be: Recal the interlocutor in hoc statu, and remit both cases to the Dean of Guild to proceed as shall be just.

The Court pronounced this interlocutor—

Recal in hoc statu the interlocutor of the Dean of Guild, dated June 3, 1907, in the respective processes, and remit to him to consider whether as a matter of fact the consent of the Corporation has been knowingly given to a building which, under section 62 of the foresaid Act, must be held as abutting on two streets, and if he is satisfied that such consent has been so given, and does not propose to recal that consent, in virtue of the powers given to him by said sub-sec. 3 of sec. 60 of the said Act, to dismiss the appeal taken to him, with or without expenses as to him shall seem just, and to grant the lining in the petition therefor: Find no expenses due to or by either of the parties in connection with the two appeals to this Court, and decern.”

Counsel:

Counsel for the Objectors and Appellants— The Dean of Faculty (Campbell, K.C.)— Lippe. Agents— Erskine Dods & Rhind, S.S.C.

Counsel for the Petitioners and Respondents — Scott Dickson, K.C.— Hon. W. Watson. Agents— Webster, Will, & Company, S.S.C.
1907