Scottish Court of Session Decisions

This case is reported ante, January 25, 1901, 3 F. 391, 38 S.L.R. 296.

Section 166 of the Edinburgh Municipal and Police Act 1879 enacts—“If any house, … or other erection of whatever form or material, or anything affixed thereon, be deemed by the Burgh Engineer to be in a ruinous or insecure state, and dangerous to passengers or to the occupiers thereof, or of the neighbouring houses or buildings, the Burgh Engineer shall immediately cause such occupiers endangered thereby to remove from the occupancy of such houses or buildings until the same are put into a safe condition, and shall … cause a notice to be given to the owner of such house or building … requiring such owner forthwith to repair, take down, or secure such house or building, wall, or other erection, as the case shall require, and if such owner do not begin to repair, take down, or secure such house … within the space of three days after such notice has been so given … the Dean of Guild Court shall, on the complaint of the Procurator-Fiscal of such Court, order the owner of such house or building, wall, or other erection, to take down, rebuild, repair, or otherwise secure the same to their satisfaction within a time to be fixed by the Court; and in case the same be not taken down, repaired, rebuilt, or otherwise secured within the time so fixed, the Court shall cause all or so much of such house or building, wall, or other erection as shall be in a ruinous or insecure condition, or dangerous, to be taken down, repaired, rebuilt, or otherwise secured in such manner as shall be requisite; and all the expenses of enforcing such removal … or of propping up or of shoring up such house or building, or of taking down, repairing, rebuilding, or securing the same, shall be paid by the owner thereof.”

This section was amended by section 34 (3) of the Edinburgh Improvement, &c. (Amendment) Act 1893 (56 and 57 Vict. cap. cliv.), but the amendment is immaterial to the present report.

On 20th October 1900 an interlocutor was pronounced in the Dean of Guild Court, where by Mrs Isabella Macdonald or Armour, trustee of the late Dr Macdonald, surgeon, Edinburgh, was ordained to take down certain premises belonging to the trust at 89 High Street, Edinburgh, which were declared to be insecure. Failing her commencing to do so within six days, and completing the operation within fourteen days thereafter, warrant was granted to the Procurator-Fiscal to employ proper persons to execute the work. Warrant was also granted to remove tenants and occupants if necessary. That interlocutor was appealed to the First Division of the Court of Session, and on 25th January 1901 the interlocutor of the Dean of Guild Court was affirmed by the First Division, with the variation that warrant was granted to the Procurator-Fiscal to employ proper persons to execute the work of taking down the premises in question at the expense of Mrs Armour, on failure by her to do so within ten days from the date of the interlocutor, and completing the work within fourteen days thereafter.

Mrs Armour failed to begin the work within ten days of the interlocutor of the First Division, and on 8th February 1901 the Procurator-Fiscal instructed Messrs Waddell & Sons, contractors, to execute the work. He did not proceed to execute the warrant which he had obtained for the removal of tenants and occupants. On 25th February 1901 Mrs Leah Miller, who was tenant of the premises at 89 High Street belonging to Mrs Armour, presented a petition to the Sheriff Court against the contractors, Messrs Andrew Waddell & Son, craving that they should be interdicted from interfering with her possession of the premises, and the Sheriff-Substitute granted interim interdict until the Thursday following, 28th February. Upon the contractors applying to him the Procurator-Fiscal instructed them to defend the action. At the hearing on Thursday, 28th February, the interim interdict was at once recalled, and subsequently, on 28th May 1901, the Sheriff-Substitute dismissed the petition, and on 25th July 1901 an appeal to the Sheriff was also dismissed. Mrs Miller was found liable in expenses, amounting to £21, 5s. 2d., but it was found impossible to recover anything from her.

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In producing his accounts against owners who had failed to carry out work ordered by the Dean of Guild Court, the Procurator-Fiscal included in the account due by Mrs Armour in respect of the operations on 89 High Street, amounting to £39, 3s. 8d., a sum of £21, 5s. 2d., being the expenses incurred by the contractors in the action raised by Mrs Leah Miller. Mrs Armour lodged objections, in which she made the following statement—“She was proprietor of the shop 89 High Street and of the premises behind, this being the only part of the tenement in which she was interested. This part of the property belonging to her was taken down under a separate order of the Court which had reference to this part of the property alone. The contractors' account for taking down her property amounted to £13, 10s. There is, besides, an account of £2,18s. for furnishing tarpaulins to keep out the rain after the upper flats of the tenement had been taken down. This account does not show whether these tarpaulins were used exclusively for the shop 89 High Street or were partly for the adjoining shop, but even if they were used exclusively for 89 High Street the total expense to be allocated upon this respondent cannot exceed these two sums of £13, 10s. and £2, 18s., being together £16, 8s. This respondent would point out that in the account rendered by the contractor for the taking down of the shop 89 High Street, there is included an account of £21, 5s. 8d., said to be incurred by him for law expenses in defending an action of interdict raised against him at the instance of the tenant of the shop, and apparently Mr Hay has allocated all this expense on the present respondent. The respondent maintains that in no possible view of the case is she liable in this expense. The petition for interdict was never intimated to this respondent, and she had nothing whatever to do with it. In these circumstances the respondent objects to being found liable for anything beyond the expense of actually taking down the shop in terms of the order of Court and of the expense incurred in supplying the tarpaulins.”

The Procurator-Fiscal lodged answers, in which he set forth the facts above narratsd.

On 20th February 1902 the Dean of Guild pronounced an interlocutor, whereby he decerned and ordained Mrs Armour to make payment to the Procurator-Fiscal of the said sum of £39, 8s. 8d.

Note.—“A question of importance is raised in this case under the objections for the respondent Mrs Armour, Dr Macdonald's trustee. The respondent was the owner of premises at 89 High Street which the Court held to be insecure, and which the Court ordered her on the twentieth December Nineteen hundred to remove in terms of the 166th section of the Edinburgh Municipal and Police Act 1879. The respondent did not implement the order, and in terms of the same section the Court ordained the Procurator-Fiscal to have the premises taken down. When the contractors employed by the Procurator-Fiscal to take down the premises commenced their operations the tenant of the respondent presented an application for interdict in the Sheriff Court against any interference with the premises. The tenant obtained interim interdict, but the Sheriff, after considering the petition with answers, recalled the interim interdict and found the tenant liable in expenses. The contractor was unable to recover these expenses from the tenant, and has charged the same against the Procurator-Fiscal. The question is, whether the Procurator-Fiscal is entitled to recover these expenses from the respondent. The respondent argues that she is not liable in these expenses, and that the only expenses for which she is liable are the expenses of the Procurator-Fiscal in taking down the property. It might be a perfectly reasonable provision that the owner of insecure property who did not choose to carry out the order for demolition himself should only be liable in the expenses necessary for the act of demolition, but section 166 of the 1879 Act seems to the Dean of Guild to impose upon the owner of the property a wider obligation. Under that section the duty of demolishing insecure property is laid in the first place upon the owner of the property. If the owner of the property recognising his duty carries out the order of the Court he would have to meet every expense necessary for doing so, and if one of his tenants tried to prevent him from carrying out the order of the Court the expenses incurred by the owner in enforcing the order of the Court against such a tenant would be an expense for which the owner alone would be liable. It appears to the Dean of Guild that if the owner does not carry out the order of the Court and leaves it to the Procurator-Fiscal to do so he cannot relieve himself of any of the expenses for which he would be liable if he carried out the order of the Court. This view seems to be borne out by the concluding words of section 166, which are as follows—‘All the expense of enforcing such removal ( i.e., of the tenants) … or of taking down the same ( i.e., the buildings) shall be paid by the owner thereof.’ It appears to the Dean of Guild that if a tenant objects to being removed from the premises which have been declared insecure, and raises any form of action to prevent the Dean of Guild Court's order from being carried out, the expenses incurred by the Procurator-Fiscal in meeting such an action are expenses of enforcing the removal of the tenant, and are expenses for which the owner of the premises is liable. The Dean of Guild thinks it is right to record that in the present instance there is no suggestion that the opposition raised by the tenant was in any way one collusive with the owner. The case presents an appearance of hardship on the owner, but if the expenses in question are not payable by the owner they must be paid by the public. There seems to be no reason why the public should bear an expense which arises from a private individual allowing his property to become ruinous, and the Dean of Guild's interpretation of the section

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of the Act is t hat such expenses are payable by the owner.”

Mrs Armour appealed.

The arguments for both parties sufficiently appear from the opinions of the Judges.