Scottish Court of Session Decisions

The Public Health (Scotland) Act 1897 (60 and 61 Vict. cap. 38), section 126 (2), is quoted supra in rubric.

John Baird Dickson, Auchren, in the parish of Lesmahagow, Lanarkshire, pursuer, brought an action against the District Committee of the Upper Ward District of the county of Lanark, the Local Authority within the Lesmahagow Special Water Supply District, defenders, concluding for declarator “(1) that the defenders, having as Local Authority undertaken the duty of providing a supply of water for the domestic use of the inhabitants of the Lesmahagow Special Water Supply District, and for sanitary and other purposes therein, under and in terms of the Public Health (Scotland) Act 1897, are bound to afford to all inhabitants within the said district, and in particular to the pursuer, a sufficient supply of water for such purposes; (2) that the defenders, after fully supplying water required for domestic and sanitary purposes within the said district, having ample surplus water available, for other than domestic purposes, are bound to afford to all inhabitants within the said district desirous of being supplied for such purposes, and in particular to the pursuer, a sufficient supply of water for such purposes, and that on equal terms; (3) that the defenders in supplying water to premises within the said diistrict for other than domestic purposes, and in particular to the premises owned and occupied by the pursuer, are not entitled to make a special charge for the water as so supplied and also to impose the water assessments in respect of such premises exigible either from the owner or occupier thereof; (4) that it was ultra vires and illegal for the defenders, when requested by the pursuer to give him a supply of water for agricultural purposes at the special rate fixed by them, to demand from the pursuer, or to stipulate as a condition of such supply being given to him, that in addition to agreeing to make payment of the meter rate or special fixed annual charges when applicable, the pursuer should bind himself to pay to them for such supply a sum equal to the amount of owner's assessment on his premises that would have been exigible in respect of said premises apart from agreement or if no water had been taken by the pursuer from the defenders for other than domestic purposes; and (5) that it was wrongful and illegal on the part of the defenders, when the pursuer resisted the said illegal demand and refused to accept the said condition, to cut off the whole supply of water to the pursuer's said property of Auchren;” and for damages in the event of the defenders failing to obtemper a decree in terms

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of the declaratory conclusions, and for damages in respect of the illegal actings of the defenders.

The pursuer pleaded, inter alia—“3. The defenders being statutorily debarred from charging for water supplied to any premises both by assessment and by special charge, decree should be pronounced in terms of the third and fourth declaratory conclusions of the summons.”

The defenders pleaded, inter alia—“1. The averments of the pursuer being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”

The facts are given in the opinion ( infra) of the Lord Ordinary ( Hunter), who on 2nd June 1916 sustained the first plea-in-law for the defenders and granted leave to reclaim.

Opinion.—“The pursuer in this action, who is the proprietor and occupier of the farm of Auchren, in the parish of Lesmahagow, Lanarkshire, sues the District Committee of the Upper Ward District of Lanarkshire, as the Local Authority within the Lesmahagow Special Water Supply District, for declarator of the defenders' statutory obligations to provide water to the inhabitants in their district, and to him in particular, and for damages in respect of their having cut off the water supply to the said farm.

According to the pursuer's averments the defenders have for a considerable time provided a supply of water in their district both for domestic and other purposes under and in virtue of the Public Health (Scotland) Act 1897. The chief non-domestic requirement of the district is said to be for stock and agricultural purposes. In terms of section 126 (2) of the Act 1897 (60 and 61 Vict. cap. 38) it is provided that the Local Authority, if they have any surplus water after fully supplying what is required for domestic and sanitary purposes, may supply water for all other than domestic purposes on such terms and conditions as may be agreed on between the Local Authority and the persons desirous of being so supplied, ‘Provided that when water is thus supplied from such surplus it shall not be lawful for the Local Authority to charge the person so supplied both with the portion of the special water assessment applicable to the premises or buildings supplied and also for the supply of water obtained; but the Local Authority may either charge the said assessment leviable on such buildings or premises or charge for the supply of water furnished to the same as they shall think fit.’

In or about April 1913 the defenders issued to all persons desirous of such supply a form of application containing the terms upon which such water supply could be obtained. In the intimation enclosing the form of application the defenders specified the rates at which they were prepared to supply water for other than domestic purposes. In the application which had to be filled up and signed by the pursuer if he was desirous of receiving such a supply there was a clause in the following terms:—‘In respect that I am owner as well as occupier of the subjects supplied I bind and oblige myself to pay annually, in addition to said special rates, a sum equal to the amount of owner's assessments that would have been exigible from the said subjects had this agreement not been entered into.’

The pursuer at first declined to sign the agreement, but finally did so, and water was supplied to him on the terms specified, one of which was payment by him of the amount of the owner's special assessment. The fixed charges were at the rate of so much for each horse, cow, &c. Alternatively to these charges, the defenders intimated that the charge for water by meter would be at the rate of 6d. per 1000 gallons. The pursuer appears to have been dissatisfied with the charges made.

In or about the month of November 1913 the defenders issued their assessment notices. The notice issued to the pursuer made the usual assessment on him as owner in respect of the premises of which he was both owner and occupier, and in addition certain special charges. The pursuer paid the assessment, but refused to pay the special charges. An action was accordingly brought against him in the Sheriff Court at Lanark, and decree given for what the Sheriff held due under the agreement contained in the defenders' intimation and the pursuer's application to which I have referred.

In or about November 1914 the pursuer cancelled the agreement between him and the defenders.

Negotiations appear to have taken place between the parties as to the terms on which the defenders would supply the pursuer with water for other than domestic purposes. On 1st March 1915 the pursuer wrote to the defenders' clerk saying—‘I am quite prepared to pay for the water I use on the farm on condition that when I put in a meter I shall be relieved of all water assessments.’ The reply to this contained the following passage—‘As I understand from your letter you would be willing to have a meter put on by the 15th of May next and pay for all the water recorded through the meter, on the understanding that your premises so supplied would be exempt from both the owner's and occupier's water assessment. As such an arrangement would give an unfair advantage to your premises over other premises supplied by meter but occupied by a tenant, unless the charge per 1000 gallons was more in your case than the other, in so far as in the other case only the occupier's water assessment could be relieved, I presume you would have no objection to the matter being equitably adjusted by means of the meter rate.’

The pursuer did not come to any agreement with the defenders as to the meter rate at which water was to be supplied by them to him. On 27th April 1915 the defenders intimated to the pursuer that as he was not prepared to enter into such an agreement he would from 15th May be entitled to draw water for domestic purposes only, and requesting him to make any alteration of the plumbing arrangements

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at his premises necessary to give effect to this. The pursuer appears notwithstanding this notice to have continued to use water for other than domestic purposes, with the result that on 13th September 1915 the defenders cut off the whole water supply to the pursuer's property and premises.

The argument addressed to me in the procedure roll was confined to the declaratory conclusions of the summons. In the case of Motherwell v. Colville, 1907 S. C. 1203, it was held, on a construction of the statutory provision in the Burgh Police Act 1892 (55 and 56 Vict. cap. 55), sec. 264, which is similar in terms to the provision of section 126 (2) of the Act of 1897, that the burgh was not entitled to charge for the water supplied to a manufacturer's premises by measure and also to impose an assessment on the premises therefor. The case proceeded upon the footing that there was an agreement between the burgh and the manufacturer as to the rate at which water was to be supplied for other than domestic purposes. In order to bring his case under that decision the pursuer alleges that the special rates fixed by the defenders are detailed in the form of intimation to which I have already referred. His counsel maintained that this was equivalent to an agreement. I cannot so hold. There is nothing in the Act to suggest that the local authority may not make different agreements with different individuals on the basis of equal treatment. The defenders offered to supply the pursuer with water at a certain meter rate provided he paid the special water assessment leviable upon him as owner of his premises. This offer the pursuer declined. The defenders then offered to arrange terms which would put his premises on a position of equality with other premises where the owner was not in occupation. They did not maintain, and in view of the terms of the statute and the decision in the case of Motherrwell they could not maintain, that he was bound to pay a meter charge for the water supplied and also the special assessment on him as owner of the premises. The pursuer's contention really amounts to this, that his premises in the matter of supply of water are entitled to preferential treatment over premises where the owner is not in occupation, for it was not disputed that in such a case the occupier had to pay the meter rate and the owner the special water assessment. For this contention I do not think that any warrant is to be found either in the statutes or in the decision on which the pursuer founds. I doubt whether the defenders would be entitled to give the pursuer the preference which he claims. In any event I do not think that they are bound to do so. The pursuer wants to be supplied with water for other than domestic purposes, not at a price mutually agreed upon, but for the price which he is willing to pay. Some of the declaratory conclusions of the summons are no doubt in terms of the provisions of the statute, but as I do not find that the defenders either on record or in the correspondence to which I was referred have taken up a position contrary to their rights, I think that these conclusions fall to be dismissed as unnecessary and therefore irrelevant. As I heard no argument upon the other conclusions of the summons I shall give the pursuer an opportunity of maintaining his position thereunder if he thinks that the opinion which I have indicated is not conclusive of the whole case.”

The pursuer reclaimed, and argued—The defenders were entitled to assess for water under the Public Health (Scotland) Act 1897 (60 and 61 Vict. cap. 38), sec. 135, by assessments assessed, levied, and recovered in the same way as assessments under the Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. cap. 51), sec. 52. That section, so far as manner of assessment was concerned, had been repealed by the Statute Law Revision Act 1894 (57 and 58 Vict. cap. 56), but a similar provision had been enacted by the Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), secs. 26 and 27. By section 26 (4) and 27 (2) of the last-mentioned statute these assessments were to be levied one-half on owners and one-half on occupiers, according to the valuation roll, and by the Agricultural Rates (Scotland) Act 1896 (59 and 60 Vict. cap. 37), sec. 1, the occupier's share was limited to three-eighths of the annual value of the subjects as appearing in the valuation roll. By section 126 (2) of the Public Health (Scotland) Act 1897 ( cit.) the defenders, when water was supplied by them for non-domestic purposes, had an option either to charge the persons so supplied for the water actually supplied, or might charge the assessments as above described on the buildings or premises so supplied, but they could not adopt both alternatives. Here the defender was owner and occupier of the premises; as owner and as occupier he was the person supplied with water. The pursuers had chosen to charge him as such “person so supplied” by meter, and having adopted that alternative they could not thereafter separate his two capacities and charge him qua tenant by meter and qua owner by assessment. The definition clause, section 3, had no bearing on section 126 (2), for it only applied when “owner” and “occupier” occurred in the Act. Sections 134 and 135 had no application; they only applied to cases where the assessment was levied, and here the charge was by meter. Further, under the Roads and Bridges Act 1878 ( cit.), sec. 52, the rate was to be uniform, and to be paid one-half by the occupier and one-half by the owner. If therefore the occupier was not assessed the owner could not be, because the value of the premises could not be taken into account in fixing the assessment, for ex hypothesi they were not liable to assessment. The case was ruled by Motherwell v. Colville, 1907 S.C. 1203 per Lord President Dunedin at p. 1207, and Lord Kinnear at p. 1208, 44 S.L.R. 851. There was no material difference between the sections of the statutes under consideration in that case and those in the present case. In both the sections dealt with premises not with ratepayers, and the water-rent charge was charged as water supplied to the premises, not as water

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supplied to a person who stood in a particular relation to the premises. Statutory rights and powers as to assessment must be carefully observed— Wordie's Trustees v. County Council of Lanark, 1895, 23 R. 168, 33 S.L.R. 91—and that had not been done here.

Argued for the defenders (respondents)—The provisions of the Public Health (Scotland) Act 1897 ( cit.), section 126 (2), applied to persons desirous of being supplied with a non-domestic supply, and to them only. That person in the normal case was the occupier, and in the present case was and could only be the defender qua occupier. Further, section 126 (2) contemplated an agreement with the occupier. Here there was no agreement, but a cancellation of an agreement. That distinguished the Motherwell case, for there the decision proceeded on the fact that there was an agreement. The defenders did not charge the owner of the premises with the meter charge but only the occupier, who, as a result of section 126 (2), was exempt from any assessment so far as it applied to him. That was the effect of section 126 (2) on the Roads and Bridges Act 1878, sec. 52. But there was no provision relieving the owner; where the owner and occupier were different persons the owner could have no interest in and could not be affected by his tenant being charged under section 126 (2), and he would have to pay the assessment; the same rule must be followed when the owner and tenant were one. To relieve the owner where he was also tenant would not be treating him on an equality with other owners who were not tenants, and to secure equality the defenders were entitled to charge the meter-rate from the pursuer as tenant and the assessment from him as owner, or to make such an arrangement with him as would secure that he was not receiving preferential treatment. That was what the defenders had done, and if they exercised the powers conferred by their statutory mandate reasonably their determination was not to be interfered with lightly— Knox v. Mackinnon, 1888, 15 R. (H.L.) 83, per Lord Watson at p. 87, 25 S.L.R. 752. Further, the assessment was to be one-half on the owner and one-half on the occupier of each individual assessable subject, and not one-half on owners as a class and one-half on occupiers as a class— Govan Police Commissioners v. Armour, 1877, 14 R. 461, 24 S.L.R. 324—so that there was no obstacle to assessing the owner without assessing the occupier.

At advising—