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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Phillips v. Munro (Clerk to Police Commissioners of Dunoon) [1884] ScotLR 22_127 (21 November 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/22SLR0127.html Cite as: [1884] SLR 22_127, [1884] ScotLR 22_127 |
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[Sheriff-Substitute of Argyll.
In the course of operations on a street within a burgh the police commissioners altered the levels of the street without giving notice to the proprietors of property therein. One of these proprietors sought interdict against them on the ground that the street had never been previously levelled, and that he was therefore entitled, under section 394 of the General Police and Improvement Act 1862, to twenty-eight days' notice of the operations. The commissioners alleged that the street had been previously levelled, and that the section did not apply. The Sheriff granted interdict without a proof of the pursuer's averments. Held that the interdict must be recalled, since section 394 did not apply unless the street had never previously been levelled.
Opinion ( per Lord Rutherfurd Clark) that the commissioners were bound to give notice of their operations whenever those affected existing levels, whether the street had been previously levelled or not.
Observed—that assuming the operations to have required notice, it did not follow from the fact that it had not been given that the works executed must be undone.
Section 146 of the General Police and Improvement Act 1862 provides—“The commissioners may from time to time cause all or any of the streets within the burgh not under the management of any turnpike road or other trustees, or any part of such streets respectively, to be raised, lowered, altered, and formed in such manner and with such materials as they think fit, and they shall also repair such streets from time to time … and any person considering himself aggrieved may appeal to the Sheriff in manner after provided.”
“The 394th section provides—“Twenty-eight days at the least before fixing the level of any street which has not been theretofore levelled or paved … the commissioners shall give notice of their intention by posting a printed or written notice in a conspicuous place at each end of every such street through or in which such work is to be undertaken, which notice shall set forth the name or situation of the street intended to be levelled or paved … and shall refer to the plans of such intended work, and shall specify a place where such plans may be seen and a time and place where all persons interested in such intended work may be heard thereupon.”
Section 395 provides how the objection is to be heard by the commissioners; and that no work to which objection has been taken shall proceed unless the surveyor of the commissioners shall after the hearing certify that it ought in his judgment to be executed, and that it shall not be begun until
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seven days after the order for its execution has been entered in the commissioners' books. Section 390 provides—“Any person liable to pay or to contribute towards the expense of any of the works aforesaid, or otherwise aggrieved by any order of the commissioners relating thereto, may at any time, within seven days next after the making of such order, give notice in writing to the commissioners that he intends to appeal against such order to the Sheriff, and along with such notice he shall give a statement in writing of the grounds of the appeal, and … the work so appealed against shall not be begun until after the judgment of the Sheriff upon such appeal; and the Sheriff … shall hear and determine the matter of the appeal and shall make such order thereon, either confirming, quashing, or varying the same, and shall award such costs to either of the parties as the Sheriff in his discretion thinks fit.” …
Section 397 provides—… “And it shall be lawful for any person whose property shall be taken or affected, and who shall consider himself injured or aggrieved in respect of such other matters and things by this Act so directed to be done or performed and provided for, to appeal to the Sheriff from any order made or notice given by the commissioners in respect of such matters and things, in the manner and to the effect herein last before provided and directed; … provided always, that all such appeals provided for in this and the immediately preceding clause, and all other appeals to the Sheriff allowed by this Act not otherwise provided for, shall be disposed of summarily, and the decision of the Sheriff shall in all cases be final and conclusive, and not subject to review by suspension, reduction, or advocation, or in any manner of way. ”
The Commissioners of Police of the burgh of Dunoon resolved in the beginning of 1884 to rebuild the bridge over the Milton Burn where it intersected Mill Street within the burgh. In the course of doing so they found it necessary to make certain operations in Mill Street which altered the existing levels thereof in the neighbourhood of the bridge.
John Phillips, proprietor of houses and grounds on both sides of Mill Street, and north of Milton Burn, presented a petition in the Sheriff Court at Inverary to interdict William Munro, Clerk to the Commissioners of Police of the burgh, “from levelling Mill Street, Dunoon, or, where any part is already levelled, from altering the level of such part of Mill Street, Dunoon, and from encroaching on or in any way interfering with the pursuer's property on the east and west of Mill Street aforesaid, and immediately to the north of the Milton Burn which crosses or intersects said street; and to grant interim interdict:” Further, to ordain the defender to restore the street and the property belonging to the pursuer, to the condition in which they were before the defender's operations; and failing the defender's restoring as aforesaid within such period as the Court should appoint, to grant warrant to the pursuer to get the said restoration effected at the expense of the defender.
He averred—“The defender has recently commenced to level part of Mill Street aforesaid where it was not previously levelled and made or paved, and has also commenced to alter the level of part of the said street which was partially levelled and made but not paved, without giving any notice or intimation to the pursuer of his intention to do so, or exhibiting to or giving the pursuer an opportunity of seeing a plan of the proposed operations, as is required by the General Police and Improvement (Scotland) Act 1862, or allowing the pursuer an opportunity of objecting or of appealing to the Court against the proposed operations.”
The defender denied that the street was not previously levelled. He admitted that no notice was given to the pursuer, and maintained that in the circumstance no notice was required by the Act.
The pursuer averred, and the defender denied, that the operations had prejudicially affected the accesses to his property by making the gradients from the street steeper than they were before, and putting some of the floors of the houses below the level of the street, and by causing flooding in the houses from insufficient arrangements for carrying off the surface water.
The defender averred that the street had been previously levelled long before, and had been in use for many years. The bridge, which was a wooden one, had, he stated, become decayed and unsafe, and it was on complaints from the public, including the pursuer, that the commissioners resolved to build a new one. “The bridge could not with advantage be lowered below its present level, and the commissioners, acting for the general good, had to fix levels suitable for both sides of the burn. Their operations in rebuilding the bridge do not amount to fixing the level of the street, which had long ago been previously levelled. Those operations have been conducted in a reasonable and proper manner, and in the only suitable way in which the bridge could be rebuilt.”
The pursuer pleaded—“(1) The defender having encroached on or interfered with the pursuer's property, and altered the said street which bounds the same and forms the means of access thereto, the pursuer is entitled to interdict as craved. (2) The operations complained of being illegal and incompetent, the pursuer is entitled to interdict as craved. (3) The requirements of the General Police and Improvement (Scotland) Act 1862 having been disregarded by the defender, the said operations are inept and incompetent, and ultra vires of the defender. ”
The defender pleaded—“(3) The said commissioners having power by the 146th section of the General Police and Improvement (Scotland) Act 1862 ‘to raise, lower, alter, and form, in such manner and with such materials as they think fit, all or any of the streets within the burgh not under the management of any turnpike road or other trustees,’ they are entirely within their right in making the alterations complained of. (4) The street referred to having been previously levelled and long in use, the commissioners are not in the circumstances stated required by said Act to give any notice or intimation to the pursuer of the operations complained of. (5) The operations complained of not being a fixing the level of the said street, no notice was required. (6) The defenders being entirely within their right in the operations complained of, and not having in any particular violated the provisions of the before-cited Act, and further, no material or avoidable injury having been inflicted on the
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pursuer's property thereby, decree of absolvitor ought to be pronounced, with expenses. ” The Sheriff-Substitute ( Campion) pronounced this interlocutor:—“Finds (1) that the pursuer is proprietor of houses and ground on either side of Mill Street, close to the spot where the street is crossed by Milton Burn; (2) that the defender has recently commenced to level and alter the level of said street opposite to pursuer's houses and ground; (3) that no notice or intimation of the defender's intention to do this was given to pursuer: Finds that notice was required under The General Police and Improvement (Scotland) Act 1862: Therefore grants interdict in terms of the prayer of the petition: Further, ordains the defender to restore the said street and the property belonging to the pursuer to the condition in which it was before the said operations commenced, and failing his doing so within a period of thirty days, grants warrant to the pursuer to get the said restoration effected at the expense of the defender: Finds the defender liable to the pursuer in expenses, & c.
Note.—The sole question here is whether notice was. required to be given under The General Police and Improvement (Scotland) Act 1862. It is admitted that none was given. The facts are very simple. Leading out of Dunoon there is a street now only partly formed, intersected by a burn called the Milton Burn, over which there was an old wooden bridge. This was considered dangerous, and was removed by the commissioners, and replaced by a stone bridge. In doing this the commissioners had, as stated in the statement of facts for defender,’ to fix levels suitable for both sides of the burn.’ The pursuer complains that his property has been thereby injured, and asks interdict and the removal of what has been already done, on the ground that these operations were illegal without due notice of what was intended to be done, against which he might have appealed. The Sheriff-Substitute is of opinion that the pursuer was entitled to notice under section 394 of the Act. It is true that the defender places upon record the general statement that the ‘street was levelled long ago.’ It is not, however, stated when, or by whom, or whether notice was then given, and it is clear that, as the street is not yet finished, that the levelling contemplated by the Act is only now in progress. The operations may possibly vastly benefit the pursuer's property, and add much to its value and amenity; but the pursuer may think not, and prefer his legal notice and right of appeal. But beyond section 394 it appears to the Sheriff-Substitute that the pursuer is further protected by sections 146, 169, and 397 of the Act. In any alterations upon private property rendered necessary by the operations of the commissioners acting under the powers conferred upon them by the Act of 1862, it was intended by these sections that the proprietor should receive notice, and appeal if he considered himself aggrieved. No notice was given, and the pursuer has adopted the remedy open to him, viz., presenting a petition for interdict ( Campbell v. Commissioners of Leith, 8 Macph. 31).”
The defender appealed to the Court of Session.
The arguments and sections of the Police Act referred to appear from the opinion of Lord Young.
At advising—
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The
The Court sustained the appeal, recalled the judgment of the Sheriff-Substitute, and remitted the cause back to the Sheriff Court.
Counsel for Pursuer (Respondent) — Mackintosh. Agents— Henry & Scott, S.S.C.
Counsel for Defender (Appellant)— J. P. B. Robertson. Agents— Skene, Edwards, & Bilton, W.S.