Scottish Court of Session Decisions

The Edinburgh Corporation Act 1906 (6 Edw. VII, cap. clxiii) enacts—Section 67—“ Distance Buildings may be kept back from Centre Line of Street.—Where any ground, whether belonging to one or to more than one proprietor abuts on an existing street, and is for a continuous distance of two hundred yards or upwards along the street either unbuilt upon within a line parallel to and running at a distance of thirty feet from the centre line of the street, or not occupied within the said thirty-foot line by buildings of a greater height than fifteen feet, the Corporation may from and after the commencement of this Act require that no houses or buildings shall be erected within the said thirty-foot line: Provided that this section shall not apply to an existing street which has been formed or laid out under the provisions of the Edinburgh Municipal and Police Acts.”

Section 78—“ Exemption of Crown Property.—Without prejudice to any existing right of His Majesty there shall be exempted from so much of the provisions of this Act as relates to buildings, structures, or works, every building, structure, or work vested in or in the occupation of His Majesty either beneficially or as part of the hereditary revenues of the Crown or in trust for the public service or for public services, as also any building, structure, or work vested in or in the occupation of any department

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of His Majesty's Government for public purposes or for the public service.”

Section 79—“ Protection of Crown Rights.—Nothing in this Act affects prejudicially any estate, right, power, privilege, or exemption of the Crown, and in particular nothing herein contained authorises the Corporation to take, use, or in any manner interfere with any portion of the shore or bed of the sea, … or any land, hereditaments, subject, or rights of whatsoever description belonging to His Majesty in right of his Crown and under the management of the Commissioners of Woods or of the Board of Trade respectively. …”

On 9th October 1911 the Lord Provost, Magistrates, and Council of the City of Edinburgh, pursuers, brought an action against His Majesty's Advocate, as representing the Commissioners of His Majesty's Works and Public Buildings, defender, in which they craved declarator that the Commissioners had no right or title to erect houses or buildings on a portion of the Royal Botanic Gardens of Edinburgh within 30 feet of the centre line of Inver-leith Row, one of the streets of the city vested in the pursuers in terms of the Edinburgh Municipal and Police Act 1879 (42 and 43 Vict. cap. cxxxii), along which it extended. Interdict against their doing so was also craved.

The following narrative is taken from the opinion ( infra) of the Lord President—“In 1909 the Commissioners of His Majesty's Works and Public Buildings proceeded to erect in Inverleith Row certain buildings in connection with the Royal Botanic Gardens. These buildings had a facade to the street with an entrance, and the plans which were exhibited at that time show clearly, to my mind, that it was intended to complete the buildings which were first designed by the addition of another wing on the other side of the entrance, which, although at that time at the end of the building, was described as a central entrance. A warrant for the erection of the first wing, so to speak, of the buildings was duly obtained from the Dean of Guild Court at the time and the buildings were so far erected. These buildings were all inside the ground belonging to the Commissioners, and came forward to within less than 30 feet of the centre of the street in front of them. Last year the Commissioners decided to complete their original scheme by building the other wing. The facade of the other wing was naturally to be in line with the facade so far as erected. They again applied to the Dean of Guild Court and obtained a warrant for the erection of this new wing; but before the wing was erected, or indeed practically begun, the Town Council passed a resolution in terms of the powers which are conferred upon them by section 67 of the Edinburgh Corporation Act of 1906, a section which is headed ‘Distance buildings may be kept back from centre line of street,’ and which enacts—‘… [ quotes, v. sup.] …’ The Town Council having passed that resolution, bring this action of declarator and interdict to have it declared that the proposed building is to the extent of five feet in contravention of this regulation, and to interdict the Commissioners from further proceeding with their building.”

The defender pleaded, inter alia—“… (2) In respect that the lands in question are the property of the Crown, the pursuers are not entitled to decree of declarator and interdict as concluded for. (3) In any event, the defender is entitled to be assoilzied from the conclusions of the action in respect of the exemption of Crown property contained in section 78 of the Edinburgh Corporation Act 1906. (4) In view of the position adopted by them in the Dean of Guild Court and the warrant of 7th September, the pursuers are barred from insisting in the present action.…”

On 7th March 1912 the Lord Ordinary ( Ormidale found in terms of the declaratory conclusion of the summons and granted interdict.

Opinion.—“The defenders ask that the action be dismissed on two grounds— First, they say that, standing the Dean of Guild warrant, the pursuers are barred from insistingin the present proceedings. Second, they say the exemption of Crown property contained in section 78 of the Edinburgh Corporation Act 1906 is applicable to the buildings which they propose to erect.

I understood parties to be in substantial agreement with regard to what took place in the Dean of Guild Court.

It appears that on 2nd September 1911 the defenders presented a petition in the Dean of Guild Court for warrant to erect ‘upon a portion of the grounds forming the Royal Botanic Gardens, Edinburgh, on part of which portion of the said grounds a laboratory is at present erected, certain buildings to be used’ for purposes which are described ‘in connection with said gardens, all as shown on 5 plans’ produced.

On the plans the proposed new buildings are described as an extension of laboratory buildings (which were erected so recently as 1910 under a warrant obtained from the Dean of Guild in 1909), and the plans show that the proposed new buildings are, so far as their design and purpose are concerned, in complement of the existing buildings.

The buildings for which warrant was craved included also a porch to the northeast of the proposed extension.

The petition was served upon the pursuers. No answers were lodged by them, but on the 7th September an agent appeared for them, and while offering no objection to the petition so far as the main buildings were concerned, took exception to the porch.

On that date the Dean of Guild granted interim warrant for the erection of the buildings other than the porch, the cause being continued quoad the porch.

The interim warrant was extracted on the 14th September.

On the 15th September the pursuers lodged a minute craving the Court to allow them to lodge answers relative to the whole

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operations of the petitioners. This crave was afterwards abandoned and no answers were lodged.

On the 20th September the pursuers passed what has been referred to as the sterilising resolution.

On 3rd October the defenders lodged a minute consenting to their petition being dismissed so far as it craved warrant for the erection of the porch, and on 12th October the Dean of Guild, having heard parties' procurators, allowed the petition, so far as warrant had not been already granted, to be abandoned. No appeal was taken against any interlocutor of the Dean of Guild.

As there is at present no proposal or intention to erect the porch, the present action appears to be unnecessary so far as it relates to the porch.

In the circumstances I have narrated it does not appear to me that the pursuers are barred from insisting in the present proceedings either by the existence of the Dean of Guild's warrant or by anything they did or omitted to do in the Dean of Guild Court proceedings. At the time the warrant was granted they had no valid ground on which to oppose it. It was on that account that the supervenient resolution of 20th September was passed. Now the validity of the resolution is not challenged. It is not suggested that any of the physical conditions required by section 67 in order to warrant it were non-existent. What is maintained is, that it cannot be given effect to in connection with the present proposed buildings, in respect that the pursuers joined issue with the defenders on the question of the defender's right to erect the buildings in the manner and on the site proposed by them in a Court competent to deal with and to decide that question, and that the defenders obtained a judgment in their favour. But the warrant has not to any extent been put in execution, and I see no reason why the Court of Session should not de piano interdict the erectionof the buildings complained of without the warrant being formally reduced, or by some other process set aside. I cannot give to the Dean of Guild's order the effect of a judgment ascertaining and determining the rights of parties. The matter is certainly not res judicata, for the objection now taken was not open to the pursuers on the 7th September, and the Dean of Guild did not in fact entertain or dispose of the present question, assuming that it was within his competency to do so. The existence of the warrant and the proceedings in the Dean of Guild Court, therefore, do not appear to me to form any bar to the present proceedings.

The contention of the defenders, founded on section 78, raises a difficult question, but I have come to the conclusion that it does not apply to the buildings in question. The section purports to grant an exemption of certain Crown property from so much of the provisions of the Act as relates to buildings, structures, or works. These words are quite general in expression, and there is nothing in them, read by themselves, to exclude from their purview buildings which are not yet erected. As section 67 regulates the distance at which buildings may be kept back from the centre line of a street, it seems to me clearly to contain provisions which relate to buildings in the sense of seotion 78, and accordingly, if the exemption conferred by section 78 had applied to all Crown property, I should have had no difficulty in giving effect to the defenders' contention. But what is exempted is not all Crown property, but every building, structure, or work vested in or in the occupation of His Majesty. Now these words of themselves impose a limitation, for buildings which are not yet erected, but which it is only proposed to erect, cannot be described as vested in anyone. What is vested in the Crown here is a piece of unbuilt-upon ground upon which it is proposed to erect buildings, and unbuilt-upon ground is not in terms exempted from the provisions of the Act relating to buildings, including section 67. I do not think I am warranted in reading into the section the words ‘or which will be vested.’ It was said that such a construction limits the effect of section 78 to buildings already erected, and that there are no provisions in the Act relating to such—that all the provisions relating to buildings, relate to buildings to be constructed. Even if that were so it would not alter the construction of the section. It would only mean that the Crown took no benefit from the exemption. But I do not think that it is so in fact, for there are certain provisions in sections 65, 66, and perhaps 69, which relate or may relate to existing buildings, and from these provisions buildings vested in the Crown would, on the construction I give to section 78, be exempt.

It is to be regretted, I think, that the defenders should not be allowed to erect the buildings in question, for they are really an extension of existing buildings which are themselves built within the 30 feet limit, and it is difficult to understand in what way the public interest would be affected by the erection of the extended buildings. The phraseology of the two sections 67 and 68 does not, however, permit of any distinction being made between the extension of existing buildings over unbuilt-upon ground and the erection of entirely new and self-contained structures. Had there been room for such a distinction a proof would probably have been necessary to ascertain precisely the true relation of the addition which the defenders propose to make to the existing buildings, for the erection of which warrant was granted in 1909.

I shall grant decree in terms of the first declaratory conclusion of the summons and the first part of the conclusion for interdict.”

The Lord Advocate reclaimed, and argued—(1) The Corporation was barred by allowing plans to be sanctioned which showed the proposed buildings. The decree of the Dean of Guild Court was still subsisting, and being the decree of a competent Court it excluded the present action. (2) The

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Lord Ordinary was in error in limiting the exemption in favour of the Crown to existing buildings exclusive of additions thereto. Such a construction was not warranted by the Act, the provisions of which were mainly directed to future buildings. Even if section 78 were limited to existing buildings, the present building fell within that category, for what was proposed was merely its completion. What was vested in the Crown was the building as a whole and not merely a part thereof. [As to the meaning of the word “building” reference was made to Deas on Railways (Ferguson) at p. 200, and to the case of Grosvenor v. Hampstead Railway Company, (1857) 26 L. J. Ch. 731, therein cited.] The construction contended for by the respondents would render section 78 inoperative, for no alteration of an existing building could be effected without consent of the Corporation. (3) The Act was not binding on the Crown, for the Crown was not affected by statute unless it had consented to be bound—Maxwell on Statutes (4th ed.), 202 and 209; Coomber v. Justices of Berks, (1883) L.R., 9 A.C. 61; Hornsey Urban Council v. Hennell, [1902] 2 KB 73; Cooper v. Hawkins, [1904] 2 KB 164; and Gorton Local Board v. Prison Commissioners, therein cited at p. 165, footnote; Cuckfield Burial Board, (1854) 24 L.J. Ch. 585. That was especially so where, as here, the Act in question was a municipal one and not a public statute— Somerville v. Lord Advocate, July 20, 1893, 20 R. 1050, 30 S.L.R. 868. Where an Act was intended to affect persons in the public service of the Crown it generally said so, e.g. Motor Car Act 1903 (3 Edw. VII, cap. 36), sec. 16.

Argued for respondents—(1) The respondents were not barred by the proceedings in the Dean of Guild Court, for that did not prevent them passing a subsequent resolution in terms of the Act. A Corporation could not surrender its statutory rights. (2) The exemption in favour of the Crown was inapplicable, for section 78 clearly referred to existing buildings. Where the Act meant to deal with future buildings it said so, as in section 65, which dealt with buildings to be erected after the commencement of this Act, and section 66, which referred to new buildings. It was to “buildings” not to “ground” that the exemption related. That being so, it did not apply to section 67, which dealt with “ground” and not with buildings. (3) The rule that the Crown was not affected by statute unless it had consented to be bound was not in accordance with the law of Scotland, for in the absence of express or implied exemption the Crown was subject to statutes affecting property— Somerville ( cit. sup.) ( per Lord Kyllachy at pp. 1065–6; Lord Kincairney at p. 1071; Lord M'Laren at p. 1076; and Lord Kinnear at p. 1076–7). That was especially so where, as here, the property in question was not held by the Crown jure coronce, i.e., as part of the original property, but had been acquired for public purposes from a private owner. [As to the history of the Crown's title reference was made to the Universities (Scotland) Act 1889 (52 and 53 Vict. cap. 55), sec. 24.] In any event, the terms of the Corporation Act plainly showed that the Crown had consented to be bound, for by claiming exemption from certain provisions it impliedly consented to be bound quoad the remainder— The Crown v. Inverness Magistrates, January 29, 1856, 18 D. 366; Lord Advocate and Barbour v. Lang, November 30, 1866, 5 Macph. 84, 3 S.L.R. 75.