Scottish Court of Session Decisions

John Lang, the Procurator-Fiscal of the Dean of Guild Court of Glasgow, presented this petition to the Dean of Guild against James K. Walker, setting forth that the respondent was proprietor, in the sense of the Glasgow Police Act 1866, of lands and heritages situated at or near Nos. 5 to 17 Palm Street, and 92 and 94 Cedar Street, Glasgow, and that there was no fence protecting the back court adjoining area in connection with said property; that the Master of Works had given him due intimation in terms of section 384 of the Act; that there was no fence for protecting the back court area, and requiring him to erect an iron fence railing, &c., within ten days, to the satisfaction of the Master of Works, and that the defender had failed to comply with the said requisition, and praying for a warrant to execute the said work; thereafter to ascertain and fix the cost, and decern against the defender therefor, all in terms of the statute, particularly sections 325 and 384.

By section 384 it is enacted that the “Master of Works may, by notice given in manner hereinafter provided, require any proprietor or occupier of a land or heritage to fence the same, or repair any chimney, &c., which appears to be dangerous, to his entire satisfaction.”

Sections 392–394 provide for the form and services of notices.

Section 321 enacts that “The Master of Works shall, in every notice given by him to any proprietor of a land or heritage, … describe the work required to be executed, either directly, or by a reference to plans, sections, or specifications, or to a specimen stated as deposited in the head-office of the Board for inspection, and shall specify the period allowed for the execution of such work.”

By section 322 any proprietor aggrieved by such notice may deliver written objections, the procedure in disposing of which is described.

Section 325 provides that “If the proprietor or proprietors to whom notice has been given fail to comply as aforesaid with the requisition contained in such notice, it shall be lawful for the Procurator-Fiscal to enforce the same at any time by applying to the Dean of Guild for a warrant to execute the work therein specified, in so far as not altered or varied by the magistrate or Dean of Guild; and the Dean of Guild may grant a warrant to execute such work, and shall thereafter ascertain and fix the cost thereof, and decern against the said proprietor or proprietors to whom notice was given for the proportions of such cost due by them, and may award expenses to or against any of the parties to such application, but no such application shall operate as a relief to any proprietor or proprietors from liability for any penalties which had been incurred by him or them previous to the date hereof.”

Section 277 provides that “Where a record is not made up, the decision given by the Dean of Guild shall be final, and not subject to suspension, advocation, or appeal, or to any other form of review.”

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On 15th May 1891 the Dean of Guild pronounced the following interlocutor:—“Finds that the objections now stated to the notice by the Master of Works ought to have been intimated, in terms of the Act, within six days from the date when the notice was served upon the defender; therefore repels the same: Finds that the back court referred to in the petition is surrounded by an area about 10 feet in width and from 3 feet 6 inches to 4 feet 9 inches in depth without any fence or protection, and is consequently dangerous to those requiring to use said court: Grants warrant to the petitioner to execute the operations specified in the notice by the Master of Works as craved, and quoad ultra continues the case.”

Mr Walker appealed.

The respondent objected to the competency of the appeal, and argued—The appeal was incompetent under section 277, as no record was made up. In Lang v. Bruce, February 5, 1873, 11 Macph. 377, the 384th section of the Act was under consideration, but in that case a record had been made up. In Kerr, Anderson, & Company v. Lang, June 1, 1877, 4 R. 779, affd. February 27, 1878, L.R. 3 App. Cas. 529, the 277th section was held not to exclude review, but there the Court held that the Dean of Guild had exceeded his jurisdiction.

Argued for the appellant—The Dean of Guild had exceeded his jurisdiction, and if so, an appeal was competent— Miller v. Crawford, January 15, 1881, 8 R. 385. The feuing which the Dean of Guild ordered was that of private property, i.e., the public had no right of access, therefore section 384 did not apply.

At advising—