Scottish Court of Session Decisions

The General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. cap. 101), sec. 177, provides—“It shall not be lawful to form, lay out, or build any court unless the same shall be of a clear width of 15 feet, measuring from the buildings or intended buildings therein: Provided always, that to any such court in which there shall be more than eight houses there shall be an additional width of 1 foot for every such additional house; provided also, that there shall be an entrance to every such court of the full width thereof, and open from the ground upwards.” Clause 3 provides, inter alia—“The word ‘street’ shall mean a public street, and shall extend to and include any road, bridge, quay, lane, square, court, &c., and public passage, or other place within the burgh used either by carts or foot passengers, not being a private street,” &c.

George Couper, Glasgow, presented this petition in the Dean of Guild Court, Maryhill, for warrant to erect buildings in a court belonging to him. The petitioner's property consisted of a rectangular block, extending between Main Street and White-law Street, to the former of which it had a frontage of 126 feet 9 inches, and to the latter a frontage of 125 feet 11 inches, while the two sides measured respectively 187 feet 10 inches on the south-east, and 184 feet on the north-west, and were bounded by properties of other parties. The property was in a populous part of the burgh, and the frontages to both streets on each side of the petitioner's property were occupied by buildings. The petitioner's frontage to Main Street was occupied by three tenements of shops and dwelling-houses, two storeys in height, while the Whitelaw Street frontage was occupied by three tenements of dwelling-houses two storeys in height, and in these six tenements there were a considerable number of small houses. The space from the back of the tenements fronting Main Street to the back of the tenements fronting Whitelaw Street formed the existing court for the use of the tenants in these tenements, and measured about 124 feet. The only access thereto was by covered closes through the tenements fronting Main Street and Whitelaw Street.

The plans produced showed—(1) That the petitioner proposed to erect on the existing court, and about midway between and parallel to the two streets, a row of four tenements of three storeys in height, to be occupied as sixteen dwelling-houses of one apartment, and twenty-four dwelling-houses each containing one room and kitchen—in all forty houses. These tenements would front to the back of the Main Street tenements, from which they would be separated by a space 40 feet in width, and they would be separated from the tenements fronting Whitelaw Street by a space about 35 feet in width. The four tenements proposed would occupy the full width of the petitioner's property, excepting that there would be left a passage about 9 feet in breadth at one end, extending from the area behind the Main Street tenements to the area behind the Whitelaw Street tenements. (2) That the present Main Street tenements were to be taken down, and replaced by four tenements four storeys in height, of eight shops and twenty-four dwelling-houses in the flats above, which would occupy the whole of the frontage to Main Street, excepting a space of about 6 feet in width at one end,

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which was to be left as a passage from the street to the back ground, and to the proposed back buildings. As the ground fell considerably from Main Street towards Whitelaw Street, it was proposed to have a sloping foot passage and a stair of nine steps at the end of that passage, leading down to the two new courts shown on the plan.

The Magistrates found that the proposed alterations were not in conformity with section 177 of the statute.

“ Note.—…. That section is not very clearly expressed, but its object evidently is to prevent the formation of any new ‘courts,’ unless on two conditions—(1) That there shall be in front of the dwelling-houses in the courts a certain open space proportionate to the population of the buildings fronting the court; and (2) that the new court shall have an entrance of the full width of the court itself. If these conditions are applicable to the proposed back buildings, it appears to the Magistrates that there should be in front thereof a space 47 feet in width, i.e., 15 in width for the first eight houses, and 1 foot in width for each of the remaining thirty-two houses. This condition is not complied with, because the whole width of the court in front of the tenements is only 40 feet, as shown in the plans, even measuring to the back of the tenements fronting Main Street. It also appears necessary that there should be an entrance to the proposed new court 47 feet in width, and this condition likewise is not complied with, because, as has been pointed out, the only access from the street will be through covered closes so long as the present front buildings remain, and thereafter by the proposed entrance of 6 feet in width at the end of the Main Street tenements.” ….

The petitioner appealed, and argued—There was ample space in front of the houses proposed to be built. The Dean of Guild was wrong in thinking that the word “house” in this section of the Act meant “dwelling-house;” it plainly applied only to “tenement houses.” As there were less than eight tenement houses to be built here, the only space required was 15 feet, but here there was a width of 48 feet. The Dean of Guild was also wrong in thinking that this section of the Act applied. What was referred to was a public court, while here the petitioner was building on his own property, and if the proposed buildings were not dangerous to public safety, the burgh surveyor had no right to interfere. The Act recognised that a proprietor could make a court upon his own property, as in section 142 the words used were “all private courts, &c.”

The respondent argued—The word “court” did not apply solely to public courts. The statute was meant to apply to the whole population of the burgh, and was not merely a direction to the Commissioners of Police in laying out new public courts. The petitioner was going to add a large number of new dwelling-houses in what was already a crowded district, and the burgh surveyor was entitled to interfere in the public interest. The petitioner was going to construct a new court having an inadequate entrance from the main street. The only entrance at present was by covered archways, and no proper provision was made to ensure that the entrance to the court would be of the whole width of the court. The word “house” as used in the Act did not apply solely to tenement houses, it meant “dwelling-house” as was shown by the way the word was used in clause 213.

At advising—