Scottish Court of Session Decisions

Messrs David Allen & Sons Billposting, Limited, 74 Hanover Street, Edinburgh, applied to the Corporation of the City of Edinburgh, under section 45 of the Edinburgh Corporation Act 1899 (62 and 63 Vict. cap. lxxi), as amended by the Edinburgh Corporation Act 1906 (6 Edw. VII, cap. clxiii), section 77 (8) [quoted in rubric supra], for a licence for a hoarding on the south side of Bread Street, Edinburgh, of which they were tenants, for the purpose of placing advertisements upon it. [They also applied at the same time for licences for certain other sites, which applications were similarly dealt with.] The facts of the case are given in the note ( infra) of the Sheriff-Substitute.

On 13th December 1907 the Corporation, having before it a report by a committee and adopting the reasons of that committee, refused to grant the licence for the following reasons—“(1) The hoarding is, especially in view of the improved condition of the neighbourhood, a most objectionable feature in, and detrimental to the amenity of, the district; (2) the hoarding projects over, encroaches upon, and limits the carriageway of the street, which for the greater part is very narrow; and (3) the advertisements displayed on the hoarding might cause the traffic to stop or loiter, and that portion of it facing north being at a narrow part of the street would thus constitute an obstruction and danger.” Messrs David Allen & Sons Billposting, Limited, and Messrs J. K. Munro & Hall, 17 West Nicolson Street, Edinburgh, the proprietors of the site, presented a note of appeal to the Sheriff of the Lothians and Peebles, craving his Lordship to hold that the Corporation had not reasonably exercised their discretion under the statute, and to grant a licence for the site for a period not exceeding three years. Answers were lodged for the Corporation.

On 3rd July 1908 the Sheriff-Substitute ( Guy) pronounced an interlocutor finding that the Corporation in refusing the advertisement licence had not reasonably exercised their discretion under the foregoing provisions as amended, and granting the licence for a period of two years.

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Note.—‘For the purpose of protecting the amenity of the city (of Edinburgh), and of enabling the Corporation to exercise control over any sites or hoardings to be erected and used for the purpose of advertisements,’ Parliament has conferred upon the Corporation certain licensing powers, and has imposed upon the Sheriff what has proved to be the troublesome and thankless task of determining, when the Corporation refuse a licence for an advertisement site, whether the Corporation have not reasonably exercised their discretion under the statutory provisions. The first appeals that came before the Sheriff were in cases where the Corporation in refusing licences gave no reason at all. In these cases I held, and my judgment was affirmed by the Sheriff, that nothing could be more unreasonable than to give no reason at all. In each of these cases the licence was granted. Parliament took the same view, for it subsequently amended the statutory provisions by expressly enacting that ‘when the Corporation refuse to grant any such licence they shall state their reasons for such refusal.’ One appeal, however, came before me, before that amending statutory provision was made, in a case where the Corporation did have before them the grounds of refusal, and stated them as their reasons. In that case I held that, though the reasons might be inadequate and might not commend themselves to me, I could not hold that the Corporation had unreasonably exercised their discretion. I dismissed the appeal, and my judgment was affirmed by the Sheriff.

After the passing of the amending provisions, certain further appeals were taken against refusal by the Corporation of licences. These appeals may be classed under two heads, namely—(1) amenity, and (2) encroachment on public places. The appeals under the head of ‘amenity’ disclosed the fact that the Corporation had before them when they deliberated and resolved to refuse nothing more than a report of a committee recommending in general terms that the grant of the licence would interfere with the amenity of the city or the neighbourhood. The Corporation in these cases approved of that general report, refused the licences, and in refusing the licences only sought to comply with the statutory obligation that rested upon them to state their reasons for refusal by repeating, without any specification, the general reason given by the committee. In the appeals in these cases the Corporation strenuously urged that it was sufficient for them in refusing a licence merely to state that the ground of refusal was amenity, and to formulate in any appeal that might be taken the specification of the details. It is obvious that the amenity of a place is in every case a question to be regarded from the point of view of the particular circumstances of the place. The amenity of Princes Street is different from that of the Cowgate. To have given effect to such a contention as that put forward by the Corporation would have meant that the important statutory obligation to which I have referred might be evaded by the use in all cases of a rubber stamp with the word ‘amenity’ thereon. It would further have meant that an applicant for a licence would only be able to find what the Corporation's reasons for refusal were by appealing to the Sheriff, and then reasons might afterwards be formulated which were never present to the mind of a single councillor. I accordingly expressed the view that to do as the Corporation had done was no better than what they had done at first, namely, refuse a licence without giving any reason at all. I accordingly sustained these appeals and granted the licences, and the Sheriff affirmed my judgment. It has been said that ‘the Sheriff on a technical ground reversed the decision of the Corporation.’ The technicality consisted in deciding that, if an Act of Parliament authorises a body such as the Corporation of Edinburgh to take from any individual a valuable right of property, they must do so in the way prescribed by the Act of Parliament authorising them, and if they choose to evade the provisions of the Act, then the result must necessarily be that they have not effectually taken away the right, and cases of real interference with the amenity of particular parts of the city may be thus allowed to remain. The right of property remains because it has not been validly taken away.

The second class of these last appeals were under the head of encroachment. They were cases—three in number—where the ground for refusal stated by the Corporation was that the advertisement hoardings constituted an encroachment on public places. Two were in lanes running off Thistle Street and Rose Street respectively, where passengers along Rose Street or Thistle Street could see the advertisements on the hoarding affixed to the wall of the lane. The other was on the brick wall of the railway buildings at Granton, opposite the north gable of the Granton Hotel, and along the Granton to Newhaven road. The extent of the encroachment was not in any case put before the Corporation when they refused the licences. It was, however, argued to me in these cases that if there was any encroachment at all the appeal to the Sheriff was incompetent, as the Corporation had other statutory powers to deal with encroachments from which there was no appeal. I could not adopt that view, and I thought it right to avail myself of the provision which Parliament had given the Sheriff in further amending the statutory enactments on this matter of taking such means as he might consider proper of obtaining further information. In presence of the agents of the parties I visited the sites, and I found that the encroachment was, if any, at the most, only about an inch or an inch and quarter, and consisted of the thickness of the wooden hoarding affixed to the wall on which the advertisements were pasted. In one of the Rose Street cases I found the hoarding was exceeded in encroachment by an iron conductor,

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an adjunct of the heritable property to which the hoarding was affixed, and which was about 3 inches in diameter, and I further found that a few feet further up the lane barrows were allowed to be stationed unattended. The opinion I formed was that no reasonable man who saw the sites could possibly object to them on the ground of encroachment, and that if the extent and character of the encroachment had not been withheld from the Corporation, and had the true circumstances been before them when they refused the licences they would have granted them and not refused them. I accordingly sustained the appeals, and that judgment also became final.

I have written the foregoing to make the position of the Sheriffs in this matter of advertisement sites quite clear, and also to preface certain observations which I desire to make on the statutory powers of the Corporation in the matter under consideration.

Certain arguments were used to me on the analogy of the law of licensing for the sale of intoxicating liquors. In my judgment any analogy that might be drawn fails from the fact that the liquor traffic is placed under universal restriction, whereas the right to advertise is under no such universal restriction, and any restriction upon the right to advertise and use heritable property suitable for the purpose so as to make rental out of it must only be exercised strictly within the scope of the statute restricting. Would any town councillor who himself owned an advertising site capable of yielding an annual rental of say £50—which I believe is got for some such sites—be satisfied to lose £50 per annum without seeing that every member of the town council, before it refused the licence, had all the facts before him? I venture to think no. If, however, the Corporation thought, knowing all the circumstances, that it was in the public interest that the site should not be licensed, the individual owner of the site would have no ground of complaint. He would see, however, that before the Corporation came to a decision they should know all the facts. The attitude of mind which every town councillor should adopt to each question of this kind should be—If the rental were mine, is it my duty to sacrifice it to the public interest? There are many cases where the public interest should prevail over the private interest. But I venture to think that in the vast majority of cases the private interest ought to prevail over the public. Still the field of discretion is that of the Corporation, and within it a large margin of error must necessarily be allowed so long as they give themselves reasonable ground for coming to an error of judgment or an error in discretion.

And now to come to the case under consideration, which is one opposite No. 41 Bread Street. It is admitted that it has been for years used as an advertisement site, but the grounds of refusal now are that (1) The hoarding is, especially in view of the improved condition of the neighbourhood, a most objectionable feature in and detrimental to the amenity of the district; (2) the hoarding projects over, encroaches upon, and limits the carriageway of the street, which for the greater part is very narrow; and (3) the advertisements on the hoarding might cause the traffic to stop and loiter, and that portion of it facing north ( i.e., to the street) being at a narrow part of the street, would thus constitute an obstruction and danger. It is to be kept in view that these are summarised reasons. A statement of fact was put before the Corporation with these suggested reasons for adoption, The statement of fact in this case was partly direct and partly by adoption from a report on another site. This should not be done in future, as it becomes necessary in such a case more or less to enter into the circumstances of another case that may be quite different. But taking the statement submitted to the Corporation (reasons included), a fact was alleged to them that ‘the whole hoarding encroaches materially upon the carriageway of the street.’ I visited the site in presence of parties' representatives. The whole hoarding does not encroach on the carriageway of the street. But the building to which the hoarding is attached, on account of the building adjoining it having been set back to widen the street and form a pavement, appears to encroach on the carriageway of the street. The only possible encroachment on the street in this case is again only the thickness of the hoarding board. The hoarding is partly facing west to Lothian Road over the pavement which proprietors of newer buildings to the west have sacrificed for more space, and partly along Bread Street itself. The Corporation having stated that immediately opposite 49 Bread Street they have acquired a strip of ground to widen the street, but that the width of it (43 feet) is still insufficient. Presumably what they now desire to acquire is on the other side, namely, that on which this advertisement site is situated. Why they should have stated this fact I do not know, unless it be to show that they desire to acquire the other side for widening purposes without paying compensation for advertising value. But to return to the reasons expressed: It is to be observed that the appellants say that the site has been used as an advertisement site without complaint from the residents in the district that it was injurious to amenity, without any inconvenience to traffic in the street being created, and without any suggestion on the part of the Corporation as street authority that it was an encroachment upon their rights. The Corporation content themselves with a denial of these assertions, but do not condescend on any complaint or any inconvenience to traffic, and do not state when, if ever, they complained of it as an encroachment. I think I am right in taking such a denial on the part of the Corporation as of no avail. If any instances were to be founded on in a proceeding of this kind they should have been averred. Having

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visited the site, I think the first reason of refusal, namely, that of amenity, is quite unreasonable. The site is on an old building within 100 yards of the West Port. The reason as stated that the whole hoarding encroaches on the carriageway of the street is untrue, and the amount of the encroachment on the carriageway at any point was not put before the Corporation, and the actual encroachment is of no material consequence. The reason that the advertisements might cause congestion of traffic, in view of the fact that no past inconvenience is averred, is quite unreasonable.

I have accordingly sustained the appeal and licensed the site.

“Other questions have been raised as to the way in which the Corporation deal with their own property in the matter of advertisement sites. It is unnecessary for me to deal with this. I prefer to deal with each case on its own circumstances.”

The Corporation appealed to the Sheriff ( Maconochie), who, by interlocutor dated 15th July 1908, recalled the interlocutor of the Sheriff-Substitute, found that the Corporation had not unreasonably exercised their discretion in refusing the licence, and refused the appeal against the decision of the Corporation.

Messrs David Allen & Sons Billposting, Limited, and J. K. Munro & Hall, appealed, and argued—(1) Where a new jurisdiction was conferred by statute, the exercise of it must be regulated entirely by the conditions of the statute, and remedies which might have been competent in civil process were not to be presumed to be given— Magistrates of Portobello v. Magistrates of Edinburgh, November 10, 1882, 10 R. 130, 20 S.L.R. 92, per Moncreiff, L. J.-C. The provisions of the Act here negatived the view that the ordinary remedies of civil process were applicable, for the functions discharged by the Sheriff under the Act were ministerial and not judicial. The proceedings were not initiated in the Sheriff Court in the ordinary way, but came before the Sheriff by way of appeal. The question he had to consider was not a legal one, but whether a certain body had exercised a statutory discretion reasonably. The procedure was specially provided by the Act, and differed entirely from the ordinary procedure of the Sheriff Court. The Sheriff might inform his mind in any way he pleased, and if he did elect to have witnesses examined, no provision was made for keeping a record of the evidence. Power of awarding expenses was specially provided. Similar proceedings under the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55) had been held to be ministerial and not judicial— White v. Magistrates of Rutherglen, January 28, 1897, 24 R. 446, 34 S.L.R. 387; County Council of Dumbartonshire v. Clydebank Commissioners, November 14, 1901, 4 F. 111, 39 S.L.R. 57; Glengarnock Iron and Steel Company v. M'Gregor, July 7, 1904, 6 F. 955, 41 S.L.R. 727. Where the Sheriff was exercising ministerial powers conferred on him by statute, it was well settled that there was no appeal— Strichen Parish Council v. Goodwillie, 1908, S.C 835, 45 S.L.R. 684; Liddall v. Ballingry Parish Council, July 4, 1908, 45 S.L.R. 816; Balderstone v. Richardson, February 20, 1841, 3 D. 597; School Board of Lorn v. Bone, March 16, 1886, 13 R. 768, 23 S.L.R. 537; Main v. Lanarkshire and Dumbartonshire Railway Company, December 19, 1893, 21 R. 323, 31 S.L.R. 239. The cases of Leitch v. Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40, 8 S.L.R. 8; and Fleming v. Dickson, December 19, 1862, 1 Macph. 188. were distinguishable. In the former the subject-matter was a dispute to be decided according to ordinary rules, and appeal was appropriate. In the latter the proceedings were under a statute which provided for the taking of evidence in the same way as in civil process. (2) Alternatively, if an appeal from the Sheriff-Substitute to the Sheriff was competent, it necessarily followed that an appeal from the Sheriff to the Court of Session was likewise competent. On this view counsel argued that on the merits the Sheriff-Substitute's interlocutor was right. [It was conceded by counsel for the respondents that if the appeal to the Sheriff was incompetent, the Court of Session could competently review his judgment in a simple appeal.]

Argued for the respondents—(1) Where a special jurisdiction was conferred by statute on the “Sheriff” and no express provision was made with regard to appeal, it was not to be presumed that the Sheriff-Substitute in his exercise of the jurisdiction so conferred was final— Fleming v. Dickson, cit.; Leitch v. Scottish Legal Burial Society, cit.; Magistrates of Portobello v. Magistrates of Edinburgh, cit. If the statutory jurisdiction were judicial and not ministerial there would admittedly be a right of appeal from the Sheriff-Substitute to the Sheriff. The distinction between ministerial and judicial proceedings was that in the former the intervention of the Sheriff was necessary to enable the proceedings to be carried through, while in the latter the Sheriff was invoked only in case of a dispute arising between the parties to the proceedings. In that view the functions of the Sheriff under the present Act were judicial. He was not invoked at all in the event of the Magistrates granting the licence, but only when a dispute arose as to the reasonable or unreasonable exercise of the Magistrates' discretion. In the cases of Strichen Parish Council v. Goodwillie, cit.; Liddall v. Ballingry Parish Council, cit.; Main v. Lanarkshire and Dumbartonshire Railway Company, cit., the functions exercised by the Sheriff were clearly ministerial. In the case of the School Board of Sorn v. Bone, cit., there was a provision in the statute that the proceedings should be summary, and that excluded the idea of appeal. (2) Even if in the ordinary case there were no appeal from the Sheriff-Substitute to the Sheriff, it would be competent to appeal to the Sheriff where the Sheriff-Substitute had exceeded his jurisdiction. The Sheriff-Substitute here had exceeded his jurisdiction. He was not

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entitled to overturn the decision of the Magistrates merely because if he had been judge of first instance he would have come to a different conclusion— Guthrie and Others v. Millar, May 25, 1827, 5 S. 711 (663); Nicol v. Aberdeen Town Council, December 20, 1870, 9 Macph. 306, 8 S.L.R. 231; Small & Company v. Dundee Police Commissioners, November 14, 1884, 12 R. 123, 22 S.L.R. 92; Somerville v. Macdonald's Trustee, January 25, 1901, 3 F. 390, 38 S.L.R. 296. The Sheriff-Substitute was only entitled to sustain the appeal if he was satisfied that the Magistrates had exercised their discretion unreasonably, and that meant that the reasons given by them were either not legitimate or not honest. It was clear that in this case the Sheriff-Substitute could not have held that; he had proceeded simply on a difference of view as to the merits of the question. (3) Unless the Sheriff-Depute had exceeded his jurisdiction there was no appeal to the Court of Session. Where a new jurisdiction was conferred by statute on the Sheriff Court, there was, in the absence of express provision, no appeal to the Court of Session— Main v. Lanarkshire and Dumbartonshire Railway Company, cit., per Lord Adam; Lundy v. Magistrates of Falkirk, October 31, 1890, 18 R. 60, 28 S.L.R. 72; Walsh v. Magistrates of Pollokshaws, 1907 S.C. (H.L.) 1, 44 S.L.R. 64, per Loreburn, L.C., at p. 3 and p. 65.

At advising—