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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kirkcaldy Magistrates v. Earl of Rosslyn's Trustees [1910] ScotLR 692 (14 June 1910)
URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0692.html
Cite as: [1910] ScotLR 692, [1910] SLR 692
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SCOTTISH_SLR_Court_of_Session
Page: 692↓
Court of Session Inner House First Division.
[Sheriff of Fife.
v.
Facts:
The Burgh Police (Scotland) Act 1903 enacts—section 12—“Any person presenting a petition to the town council for warrant to form or lay out any new street shall fulfil any conditions which the town council may, by the warrant granting the petition, impose with regard to the following matters, viz. (1) the avoidance of a cul-de-sac. …”
Owners of ground within burgh applied to the town council in terms of section 11 of the Burgh Police (Scotland) Act 1903 for authority to lay out a new street. The street as shown on the plans ended in a cul-de-sac owing to its having been carried up to the extreme limit of the petitioners' property.
Held that the town council were not entitled to refuse the application de plano, their power under section 12 of the Act being only to impose conditions.
The Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), section 12, is quoted supra in rubric.
On 8th April 1909, R. C. De Grey Vyner, of Fairfield, Yorks, and others, trustees of the Right Hon. the Earl of Rosslyn, presented an application to the Town Council of Kirkcaldy, in terms of section 11 of the Burgh Police (Scotland) Act 1903, for authority to lay out a new street on part of their property within the burgh. The Town Council having declined to sanction the proposed street, on the ground that, as shown on the plans, it ended in a cul-de-sac, the petitioners appealed, under section 339 of the Burgh Police (Scotland) Act 1892 (55 and 56 Vict., cap. 55), to the Sheriff-Substitute ( Shennan), who on 18th October 1909 pronounced this interlocutor:—“Sustains the appeal: Finds that therespondents were not warranted in refusing to sanction the street referred to in the appeal merely on the ground that it would form a cul-de-sac: With this finding remits to the respondents to consider of new the petition of the appellants,” &c.
The Town Council appealed to the Sheriff ( Macfarlane), who on 9th December 1909 adhered.
Note. — “The Town Council maintained that section 12 is to be read as giving them a power to impose on a petitioner a condition that the proposed street shall not terminate in a cul-de-sac, under certification that if the petitioner does not
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or cannot comply with the condition the petition will be refused; and they plead—In respect that the proposed street would constitute a cul-de-sac, the defenders are entitled to refuse their sanction thereto under section 12 of the Burgh Police (Scotland) Act 1903. It was not disputed that the pursuers are unable to lay out the new street in such a way as to prevent it ending in a cul-de-sac. They have carried it up to the extreme limit of their own property.
I agree with the Sheriff-Substitute, for the reasons stated by him, that section 12 does not confer on a town council the right of refusal claimed by the defenders. Section 11 deals with the circumstances in which a town council may refuse a petition. Section 12 provides for the case of a town council granting, not refusing, a petition. No doubt the granting may be subject to conditions, but to impose a condition with which the petitioner cannot possibly comply is just to refuse the petition. I think such an indirect result is contrary to the intention of the section, which, as I read it, authorises the imposition of such conditions only as the petitioner can comply with, leaving the town council, in the event of his failure to do so, to the remedies provided, e.g., by section 41.”
A case for appeal was stated.
The question of law was—“Were the appellants entitled, under the powers conferred on them by the Burgh Police (Scotland) Act 1903, and in particular section 12, to refuse their sanction to the formation of said street as proposed by the respondents on the ground that it would form a cul-de-sac.”
Argued for appellants—The Magistrates had power to refuse the application where as here the street would end in a cul-de-sac — Stevenson v. Lee, 1910 S.C. 14, 47 S.L.R. 11. It was not for the appellants to suggest how the cul-de-sac was to be avoided. That was for the owner of the ground to do in submitting his plans for approval.
Argued for respondents — The Town Council were not entitled to refuse the petition de piano. Their duty was to impose such conditions as would avoid the cul-de-sac. The case of Stevenson ( cit. sup.) was not in point, for it depended on a private Act of very special terms.
At advising—
The Rosslyn trustees appealed to the Sheriff-Substitute, who found “that the Town Council were not warranted in refusing to sanction the street referred to in the appeal merely on the ground that it would form a cul-de-sac,” and with this finding remitted to the Town Council to consider of new the application of the Rosslyn trustees. The Sheriff refused an appeal taken to him, and was thereon asked to state a case, which he did, appending the following question—[ His Lordship read the question, supra].
I think that the judgment of the learned Sheriff-Substitute is sound, and that the Sheriff properly refused the appeal.
Subject to the law of nuisance, a proprietor is at common law entitled to put his property to any use he pleases, but in towns he is subjected by statute to a number of regulations interfering with his freedom of action for what is, at any rate intended to be, the general good; inter alia, when he proposes to lay out his ground for building purposes, and requires to form or lay out any new street, he must now, under the Burgh Police Act 1903, as a preliminary, obtain the sanction of the Town Council to his doing so. This is precedent to going to the Dean of Guild Court for a lining for his actual buildings. And with his application he must lodge plans showing dimensions, levels, provision for drainage, and other particulars.
If it appears that the proposed street in any of its details ( a) does not fulfil the conditions required by the Burgh Police Acts, or ( b) is otherwise contrary to law or ( c) to private rights, the Town Council may either refuse the application or may grant the same subject to such modification of the plans or other lawful conditions as may be necessary in the circumstances.
In the first case it is clear that modification of plans or conditions can only be such as may conduce to the provisions of the Burgh Police Acts being complied with. In the second case, having regard to the common law freedom of the individual proprietor, it is difficult to determine what sort of contravention is struck at, and therefore what sort of modification or conditions could be proposed with a view to obviating it. And in the third case, as infringement of private right is contemplated, it is clear that the condition must be such as will obviate such infringement. Now it is no breach of any condition of the Police Acts, it is not otherwise contrary to
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But the next section (section 12) provides further that any person craving warrant to lay out a new street “shall fulfil any conditions which the Town Council may by the warrant granting the petition impose with regard to the following matters, viz., (1) the avoidance of a cul-de-sac.”
That a street should end in a cul-de-sac is not illegal; it may be undesirable, the degree of undesirability being one of circumstances, and it may be possible to obviate its undesirable characteristics, and to that end the town council may impose conditions. But they are not empowered in order to avoid a cul-de-sac to refuse their warrant de plano.
There are four other matters under section 12 with regard to which conditions may be imposed.
From the nature of these matters all such conditions must be positive, something to be done. None of these matters admits of refusal, but only of conditional granting of the petition, and equally so it is clear with reference to the one in question. What the nature of a condition which will effect the avoidance of a cul-de-sac may be, it is not for us at present to determine, nor can we at present determine whether the imposition of a condition impossible of performance, rendering therefore the conditional granting of the warrant a virtual refusal, could be sustained. While, therefore, the learned Sheriff acted, I think, rightly in refusing the appeal, in the note to his interlocutor he has gone beyond the matter which he was called on to decide. He may be right in the conclusion which he has expressed. The question on which he has touched may yet arise, but it is not before the Court in the present case.
All that under this stated case we can determine is the point of law, viz., that the mere fact that the street, as laid out on the plans presented to the Town Council, results in a cul-de-sac does not warrant the refusal de plano of the petition. I do not, however, think that the question put quite meets the situation, or that to answer it with a simple negative would quite express the judgment of the Court. It can only be answered under qualification.
The statute confers upon them a very wide discretion, but then it is conferred in terms which to my mind make it clear that they are to consider, in the exercise of that discretion in each case which comes before them, the particular conditions of the case presented, and to impose such conditions of their own according to their judgment of the necessities of the particular case. The statute requires that when a person craves war rant for laying out a new street he shall fulfil any conditions which the town council may by warrant granting leave impose with regard to certain matters including the avoidance of a cul-de-sac. I think, upon the case presented to us, the Town Council claims to convert that discretionary power into an absolute power to refuse peremptorily in any circumstances to allow a street of the kind called a cul-de-sac to be made. I think that is not their power. I think they must, in the due exercise of their discretion, consider the circumstances of each case with reference to the necessities of the community on the one hand and to the reasonable rights of the petitioner on the other; both must be kept in view, and it is only after full consideration of the whole circumstances that they are to grant warrant without conditions or to impose such conditions as they think fit. I do not think it is open to us to decide whether they would be within their power to impose such conditions as the petitioner could not in the exercise of his own proprietory rights fulfil, and so, in effect, to prohibit absolutely the construction of the street. I think that position of things raises two different questions—in the first place, the question for the discretion of the magistrates. It may be, in certain circumstances, perfectly reasonable to say that a street cannot be sanctioned because it would be a cul-de-sac; on the other hand, it might be harsh and very oppressive to prohibit a street altogether because in particular circumstances it cannot be carried through a neighbouring property. These are questions of circumstances which primarily at least it is for the Magistrates to decide. I do not think that this Court would have any power to review their decision as a question of discretion, and therefore the condition on which their assent or refusal for warrant in these circumstances can be brought before us is that they have gone beyond the reasonable exercise of the discretionary power given to them. I do not think we are in a position at present to anticipate what decision on the question of discretion should be given.
It would therefore be premature to decide whether the exercise of that power one way or another would be within the Act? All that I think we ought to decide is that the Magistrates ought not to have refused the petition de piano without considering whether in the exercise of a reasonable discretion it might or might not be granted. I think the
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The
The Court pronounced this interlocutor—
“In answer to the question of law in this case, find that the appellants are not entitled to refuse their sanction to the formation of the street de piano and without consideration of the particular circumstances of the case, but are bound to consider the petition of new in terms of the remit contained in the interlocutor of the Sheriff-Substitute dated 18th October 1909, and decern.”
Counsel for Appellants — Macmillan. Agents — Adamson, Gulland, & Stuart, S.S.C.
Counsel for Respondent — Blackburn, K.C.— Maconochie. Agents — Dundas & Wilson, C.S.