United Kingdom House of Lords Decisions

Subject_Provisional Order — Locus — Burgh — Extension of Boundaries — Tramway Company Opposing — General Locus of Tramway Company qua Ratepayer and Proprietor within Area Proposed to be Annexed. Headnote:

This Order was promoted by the Corporation of Dundee. Its main object was the extension of the burgh boundaries by the annexation of the suburb of Downfield to the north, and of a strip of land lying to the north and east and adjoining the burgh of Broughty Ferry, and all situated in the county of Forfar. The County Council of Forfar did not oppose the Order. It was opposed by the Broughty Ferry and District Tramway Company, who own and work a tramway within the district proposed to be annexed. The Broughty Ferry and District Tramway runs from the existing boundaries of Dundee first for a distance of about one-sixth of a mile through that part of the county lying between Dundee and Broughty Ferry which it was proposed by the Order to annex, thence through the

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burghs of Broughty Ferry and Monifieth, and again through the county. It has also running powers over the Dundee Tramways line into the centre of the town.

The tramway was incorporated under Provisional Order in 1904. The Confirming Act of that Order contains (sec. 93) the following provisions as to the purchase of the undertaking by local authorities:—“Sec. 43 of the Tramways Act 1870 shall in its application to the undertaking and to the company in relation thereto be modified as follows — that is to say—(1) The local authorities in whose districts the tramways are situate (if by resolution passed at a special meeting of the members constituting each of such local authorities they so decide), may within six months after the expiration of a period of thirty years from the commencement of this Order, and within six months after the expiration of every subsequent period of seven years, with the approval of the Board of Trade (which approval the Board of Trade are hereby authorised to give), by notice in writing require the company to sell, and thereupon the company shall sell, to them the whole of the tramways situate within such districts as one undertaking upon the terms of paying the fair market value of the undertaking as a going concern.” Section 47, sub-section (7)—“If at any time after the construction of the tramways the municipal boundary of the city shall be extended eastwards so as to include the portion of the tramways between the eastern boundary of the city and the western boundary of the burgh of Broughty Ferry as existing at the commencement of this Order, the provisions of the section of this Order of which the marginal reference is ‘As to purchase of undertaking,’ shall cease to apply to such portion of the tramways, and the Dundee Corporation may, notwithstanding anything in the Tramways Act 1870 contained, on the expiry of the period of ten years from the commencement of this Order, and on the expiry of every succeeding period of five years, by six months' previous notice in writing, require the company to sell, and thereupon the company shall sell, to the Dundee Corporation the said portion of the tramways, including the overhead equipment thereof, but excluding any generating station of the company situate within the extended area, at the structural value thereof at the date of such notice as such value shall, failing agreement, be determined.”

The opposition of the company was mainly upon three grounds, set forth in paragraphs 5, 6, and 7 of their petition respectively. That in paragraph 5 was to the effect that in the case of annexation the conditions applying to purchase of the tramway by the city would be those of the Act of 1904, section 48, which were more onerous upon the Tramway Company than these of purchase in the hands of the county authority within the county area. Paragraph 7 dealt with apprehended loss to the Tramway Company should the city acquire a certain private road which had been constructed by the company for the use of their tramway. Paragraph 6 contained a general opposition to the proposed extension on the ground that there was no public expedience or desire therefor, nor was there any dissatisfaction with the present administration by the county of the area proposed to be annexed, that the area was only sparsely built upon, and in no sense a populous place, and that there was no congestion of population within the city, and that no new circumstances had arisen since 1899, when a similar application had been refused.

The promoters did not oppose a limited locus of the objectors upon paragraphs 5 and 7, but opposed the granting of a general locus upon paragraph 6.

Argued for the objectors—The objectors were entitled to a general locus as ratepayers and as proprietors within the area proposed to be annexed. They were proprietors of the whole tramway within the area. They were entitled to be heard as to whether their property should be within or remain outside the burgh. Further, in virtue of section 45 (7) of the Act of 1904 the objectors were entitled to oppose this extension, as it would or might have the effect of accelerating the period at which they might be deprived of the most valuable part of their concern.

Argued for the promoters—The objectors had no general locus in virtue of clause 45 (7). They were, further, neither proprietors nor landowners in the sense of the General Orders. Qua ratepayers they could not be heard against the County Council who were consenting to the Order.

After hearing counsel for the Tramway Company the Commissioners by a majority disallowed the locus founded on in paragraph 6, Viscount Dalrymple in the minority. The company's locus, based on other grounds (paragraphs 5 and 7), was allowed by the Commissioners.

Evidence was then led for the promoters, for these objectors, and for Mr W. B. Ballingall, a tenant of subjects proposed to be acquired for the purposes of a street widening, who objected to the terms upon which the said subjects were to be acquired.

The Commissioners found the preamble proved.