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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mason v. Rodger and Others [1912] ScotLR 41 (29 October 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/50SLR0041.html Cite as: [1912] ScotLR 41, [1912] SLR 41 |
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Page: 41↓
[Dean of Guild Court at Dunoon.
The Burgh Police (Scotland) Act 1903, section 11, enacts—“Every person who intends to form or lay out any new street, or to widen, extend, or otherwise alter any street, shall present a petition for warrant to do so to the Town Council.… The Dean of Guild Court shall not grant warrant for the
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erection of any buildings abutting on any new street until warrant for the formation of such street has been granted.…” The proprietor in a burgh of a feu which was bounded on one side by a public passage or esplanade, proposed to erect on his feu certain buildings and applied for a warrant. The Dean of Guild Court sisted procedure to enable the petitioner to apply to the Town Council for warrant to form a new street in terms of the above section.
The Court recalled the sist, holding that as the esplanade or street was not on the pursuer's ground the section did not apply.
[The Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 11, is quoted in the rubric.]
Walter Mason, the proprietor of a certain feu in Dunoon, presented a petition to the Dean of Guild Court for warrant to erect certain buildings thereon. The petitioner's feu was described in his titles as bounded on the east by Jane Street, and on the south by “the walk or road called Baugie Place leading along the shore.” This walk or road was sometimes called West Bay Esplanade.
Objections were lodged for William Rodger, Master of Works for the burgh of Dunoon, and for Robert Paterson, C. A., Glasgow, a neighbouring proprietor, and others.
On 11th April 1911 the Dean of Guild Court pronounced this interlocutor—“… Find (the Chairman dissenting from the third finding in fact)—(1)That the general question of the loss of amenity is not one which the Dean of Guild Court can take cognisance of; (2)that the petitioner's property is, according to his title, bounded on the east by Jane Street, and on the south by the walk or road called Baugie Place; (3) that Jane Street is a public street within the meaning of the Burgh Police (Scotland) Acts 1892 to 1903, and that it extends from Hillfoot Street to the public thoroughfare or passage along the West Bay; (4) that the building proposed to be erected by the petitioner in Jane Street has not immediately adjoining it on the further side of the building from that fronting the said street on which it abuts an open space for light and ventilation equal in breadth at the narrowest part to the height of the building; (5) that the public passage, footpath, or esplanade which runs along the foreshore of the West Bay, and now forms the southern boundary of the petitioner's feu, is not a street within the meaning of the Burgh Police (Scotland) Acts 1892 to 1903; (6) that the buildings proposed to be erected by the petitioner along the said south boundary of his property will convert the said existing public passage into a new street; (7) that the Dean of Guild Court cannot grant warrant for the erection of any buildings abutting on a new street until warrant for the formation of such street has been granted by the Town Council: Therefore sustain the first plea-in-law for the respondent the Master of Works: Sist procedure in the cause to enable the petitioner to present the necessary petition to the Town Council for warrant to form a new street along the southern boundary of his feu, in terms of section 11 of the Burgh Police (Scotland) Act 1903.…”
The petitioner appealed, and argued—The petition should not have been sisted, and the sist should be recalled. Section 11 of the Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33) did not apply. There was no intention to lay out a new street. The path or esplanade or street (whatever it was) existed already, and was not on the petitioner's ground, and building operations on petitioner's ground could not make the esplanade into a new street— Mair v. Police Commissioners of Dumbarton, December 14, 1897, 25 R. 298, 35 S.L.R. 239; Glasgow and South-Western Railway Company v. Hutchison, 1908 S.C. 587, 45 S.L.R. 444.
Argued for the respondents—The Dean of Guild Court were right in sisting the petition. Section 11 of the Act applied. The proposed buildings would make the esplanade into “a new street” within the meaning of that section. Even if the esplanade were already a street within the definition of the statute, that did not preclude it from being transformed into “a new street” within the meaning of the section, and the new street so formed would include the buildings erected as well as the roadway— Robinson v. Local Board of Barton-Eccles, 1882, 21 Ch. D. 621, 1883, 8 App. Cas. 798, Lord Selborne at p. 801. The question of the formation of a new street was a question of fact and circumstance— Mair v. Police Commissioners of Dumbarton (cit. sup.), per the Lord Justice-Clerk at p. 302, and the facts and circumstances here differed widely from Mair, where warrant was sought for a mere college.
The Dean of Guild's judgment is contained in certain findings. He first of all finds that the loss of amenity is not a matter of which he can take cognisance. Then he describes the locus, and he finds
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Now the argument before your Lordships turned upon this last matter. There was really no argument upon the question of Jane Street, because the question of distance from the middle of the street to the buildings can be put right by modification of the plans, and is really not before us.
The theory of the Dean of Guild's judgment is really based entirely upon the provisions of the 11th section of the Burgh Police (Scotland) Act 1903. This Court has already considered that section very carefully and given judgment upon it in the case of the Glasgow and South-Western Railway Company v. Hutchison ( 1908 S.C. 587). I need scarcely say that I adhere to the opinion that I there formed; and I am afraid that if that opinion is carefully looked at it is really destructive of the Dean of Guild's view here. I have reconsidered the matter and see no reason to doubt the soundness of my opinion. In other words, section 11, when it speaks of “every person who intends to form or lay out any new street,” is speaking of the physical act of laying out or forming a street; and it follows from that that it can only refer to an operation upon a man's own ground. Accordingly, as soon as one finds—as one finds here—that the petitioner's ground is bounded by the street, and that therefore the street is not in the petitioner's ground, it is quite impossible to hold that he is forming or laying out a new street.
In so holding I am not, I think, running counter to the English cases that were cited; and in particular, if I may say so with respect, I entirely agree with the remarks of both the Master of the Rolls (Sir George Jessel) and also Lord Justice Brett in Robinson's case ( 21 Ch. Div. 621) which was quoted. It is always to be kept in view that the word “street” has two significations. It may mean a street by definition, or a street in the ordinary popular sense. You must go to the particular Act of Parliament concerned. The definition of a street in the set of statutes known as the Burgh Police Acts in Scotland might not be, and probably is not, the same definition of street as in the Local Government Acts in England with which the learned judges were dealing But you may have a street by definition which is not a street in the ordinary sense of the word at all; and by practical operations a place that is a street by definition may become a street in the popular sense of the word. When precisely it becomes a street—whether it becomes a street by the erection of three or four houses, or whether it can so become by the erection of one house—is really a practical matter associated with the old puzzle known as the Sorites; and nobody can lay down a general rule as to when a street by definition becomes a street in the popular sense of the word; each case would have to be judged on its own merits. But the English judges were really dealing with that kind of case. They were dealing with a power in a local authority to make certain regulations as regards streets; and they held in those cases that “street” meant street in the popular sense of the word, and they held in the case before them that the time had come at which what had been merely a street by definition should be held to be also a street in the popular sense.
That reasoning would, I think, apply to any provisions of our set of statutes which give certain powers as regards streets, but it obviously does not apply to the expression “Every person who intends to form or lay out any new street.” I do not think, with the utmost straining of language, you can truly describe a man as forming a street who simply proposes to build a house upon his own ground, although there is contiguous to it something that may be a street by definition. The opposite view, as we pointed out in the Glasgow and South-Western Railway Company v. Magistrates of Ayr ( 1909 S.G. 41), would really lead to most inconvenient and unjust consequences, because then you would be entitled to build up to the boundary of your own ground and proceed to form a street on somebody else's ground.
Now that being so, I am afraid the Dean of Guild's judgment sisting the cause in order that this gentleman may present a petition to the Town Council cannot stand, because I do not think he is in a position to present a petition. He has no ground upon which he can form a street, and it is not necessary for him to form it. Nor does he come under the following words of the clause of proposing to widen, extend, or alter a street, upon the hypothesis that Baugie Place is a street already.
I think myself it is inadvisable at this time to pronounce on the question what is the precise position of Baugie Place. I do so for this reason—it may be a mere public passage, without being a street, of the class that we had to deal with in this
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At present there stands on the appellant's feu a villa residence at the end next Clyde Street, having its main entrance from that street, and the ground between this house and the Esplanade is in garden, with, I think, a door opening on to the Esplanade.
The appellant having these three open frontages proposes to utilise his ground by pulling down the villa and building a long stretch of tenement buildings with a front to each of the three open spaces, making thus three sides of a rectangular oblong. In the present case we are only concerned with the frontage to Jane Street and the frontage to the Esplanade.
The municipal authorities in Dunoon are not unnaturally concerned about the interference with the amenity of the town's sea frontage which the appellant's proposals would cause, and when his application for approval of his plans came before the Dean of Guild Court there was opposition. The Dean of Guild Court rightly held that they had no concern with the question of amenity—their functions being statutory only. When the case came before the Court the appellant's proposal was at his own hand to widen both Jane Street and the Esplanade by throwing a portion of his ground into these accesses. But when he found that he could not do this without the authority of the Town Council, under the Burgh Police Act 1903, section 11, he asked leave to amend his plans and application so as to show no widening or alteration of either Jane Street or the Esplanade, and this leave was granted.
Two points arose before the Dean of Guild Court. The first depended shortly upon whether there was sufficient width in the appellant's ground to admit of his proposed buildings facing Jane Street being erected without a breach of the statutory provisions with regard to free space behind. This matter is left by the Dean of Guild Court in such a position that it is not properly before this Court. We are only concerned with the question raised regarding the Esplanade and the buildings proposed to be erected ex adverso of that frontage. The Dean of Guild Court have come to the conclusion (1) that the public passage, footpath, or esplanade along the foreshore of the West Bay, and which forms the southern boundary of the appellant's feu, “is not a street within the meaning of the Burgh Police (Scotland) Acts 1892–1903”; (2) that the erection of the buildings proposed on this frontage “will convert the said existing public passage into a new street”; (3) that the Dean of Guild Court cannot grant warrant for the erection of buildings abutting on a new street until warrant for the formation of the street has been granted by the Town Council, and they therefore sisted procedure to enable the appellant to present the necessary petition for warrant to form his new street in terms of section 11 of the Burgh Police Act 1903. It is these conclusions of the Dean of Guild Court which we are called upon to review.
It is pretty clear that the appellant is seeking to force the hand of the Town Council into the opening of the Esplanade as an ordinary means of access to his proposed buildings, and that the municipal authorities would like to checkmate him in some way or another. Whether their effort is justified in the public interest or not we are not concerned with considering. The question before us is whether the Dean of Guild Court has rightly understood the situation, and is justified by anything in the statutes in the conclusion at which they have arrived.
It may be unnecessary for the purpose of this case to determine finally what are the rights of parties in the Esplanade. But a joint minute of admissions has been lodged, and a consideration of this and of the statements on record lead, I think, without doubt to the conclusion that the Esplanade was nothing but a passage for foot-passengers—in other words a footpath—and, as I have already said, that it was no part of the appellant's property. The appellant may
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But the Dean of Guild Court appears to me to have approached the matter from a wrong point of view. The question before them is whether a lining should be granted for the erection of certain buildings with a frontage to, and whose only access will be from, a footpath. There may be other objections to the proposed buildings, but the power of the Dean of Guild Court is statutory, and I do not-find anything in the statute which justifies the Dean of Guild in refusing sanction to the erection of a building simply because the access to it is from a footpath, or in compelling a new street in the proper sense to be made by the intending builder on his own ground.
To arrive at a complete understanding of what is a public street and what a private street in the sense of the statute is no easy task, and it is rendered none the easier by the new definition in the Act of 1903, section 103. But I think that we are relieved from considering whether the Esplanade is a street, and what kind of a street, by section 128 of the Act of 1892 as amended by section 104 (2) (c) of the Act of 1903. The Esplanade is certainly a public footpath. The Town Council, by that section as so amended, have “the sole charge and control” of it, and it is thereby vested in them accordingly.
Now the Town Council's authority in the matter of new buildings is derived from the Act of 1892, section 166. It requires the applicant for a lining to accompany his petition with a plan of the site, showing “the immediately conterminous properties, and also the position and width of any street, court, or footpath from which the property has access or upon which it abuts.” This clearly recognises that a new building may have its access from a footpath as well as from a street or court. If that be so, and there is no express enactment—and I can find none—empowering the Town Council to enforce the substitution for the footpath of a street in the statutory sense as an access to the buildings as a condition of granting a lining, then it follows that the appellant may erect his buildings, if otherwise unobjectionable, with no access other than the footpath or Esplanade upon which his property abuts.
It follows that the judgment of the Dean of Guild Court falls to be recalled, though I doubt whether its recal will much advantage the appellant.
The Court pronounced this interlocutor—
“Recal the interlocutor of the Dean of Guild Court dated 11th April 1911: Of new find in fact in terms of findings (1) to (4) inclusive therein, and remit to the Dean of Guild Court for further procedure.…”
Counsel for the Petitioner— Christie— A. A. Fraser. Agent— James G. Bryson, Solicitor.
Counsel for the Respondent, the Master of Works— M'Lennan, K.C.— Mercer. Agents— Alex. Campbell & Son, S.S.C.
Counsel for the Respondent, Paterson— D. P. Fleming. Agents— Alex. Campbell & Son, S.S.C.