Scottish Court of Session Decisions

The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50) enacts—Sec. 81—“With respect to special drainage districts or special water supply districts the following provisions shall have effect—(1) Where a special drainage district or special water supply district has been formed in any parish under the Public Health Acts, the district committee may, subject to regulations to be from time to time made with the consent of the county council, appoint a sub-committee for the management and maintenance of the drainage or water supply works, and such sub-committee shall in part consist of persons, whether members of the district committee or not, who are resident within the special drainage district, or special water supply district. (2) Where a special drainage district or special water supply district is partly within a county and partly within a burgh or police burgh, the sub-committee appointed under the immediately preceding sub-section, and such members of the town council or police commissioners (as the case may be) of such burgh or police burgh as, failing agreement, the Secretary for Scotland may determine, having regard to all the circumstances of the case, shall be charged with the management and maintenance of the drainage or water supply works within such special district, and the determination of the Secretary for Scotland may provide for the regulation of the proceedings, and for the allocation and payment of the expenses incurred under this sub-section. (3) Where a special drainage district or special water supply district is wholly within a police burgh formed after the passing of this Act, the police commissioners of such police burgh shall become the local authority under the Public Health Acts for such special district, and the assessments in respect of the drainage and water supply shall be levied in the same manner as they were before such district was formed into a police burgh.” Sec. 99—“Nothing in this Act shall interfere with the formation of police burghs under the provisions of the General Police and Improvement (Scotland) Act 1862; and on the formation of any police burgh the commissioners of police thereof shall become the local authority therein under the Public Health Acts, subject to adjustment by the sheriff in regard to the property and debts and liabilities affected by such change.…”

In 1868 the town or village of Buckhaven, and in 1870 the village of East Wemyss, both within the parish of Wemyss and county of Fife, were respectively formed into special water supply districts under the Public Health (Scotland) Act 1867 (sec. 89 (5). At that time the areas of these water districts were wholly landward.

In 1876 the Parochial Board of the parish of Wemyss, as local authority, obtained a Provisional Order, confirmed by Parliament, authorising the introduction of a supply of water for the whole parish. The works were vested in and constructed and administered by the Parochial Board of Wemyss as the local authority under the Public Health (Scotland) Act 1867.

The debts due by the special districts of Buckhaven and East Wemyss were taken over and paid by the Parochial Board as the local authority of Wemyss, and the special districts were thereafter treated, like the other parts of the parish, as if they had not been formed into special districts. To provide funds for the construction of the water-works, Sums of money were borrowed from time to time by the said Parochial Board as local authority of the said parish, in security of the repayment of which, and of interest thereon, the water assessments of the parish, including the special districts above mentioned, and also the general public health assessments of the parish, were pledged. Such was the position of matters when the Local Government (Scotland) Act 1889 came into operation, and the parish of Wemyss became part of the Kirkcaldy district of the county of Fife.

In June 1890 a Sub-Committee of the Kirkcaldy District Committee was appointed to manage and maintain the water supply

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works, under section 81 (1) of the Local Government Act.

By an order of the Boundary Commissioners, of date 24th November 1890, a detached portion of the parish of Markinch, known as Innerleven, which had been formed into a special water supply district in the year 1885, was added to the parish of Wemyss.

On 4th March 1891 the district of Buck-haven, Methil, and Innerleven, all then and now in the parish of Wemyss, was formed into a police burgh, under the provisions of the General Police Act of 1862.

On 30th July 1892 the Kirkcaldy District Committee of the County Council passed certain resolutions which had the effect of enlarging the special water supply district of East Wemyss so as to embrace the whole parish of Wemyss including the added district of Innerleven, except those parts embraced within the limits of the police burgh of Buckhaven, Methil, and Innerleven.

On 23rd August 1892 the Police Commissioners of said burgh resolved to enlarge the boundaries of the special water supply district of Buckhaven so as to include in one special water supply district, to be called that of Buckhaven, Methil, and Innerleven, all the special water supply districts within the said police burgh.

The same water supply system supplied both the parish and the burgh, the source being outside the parish of Wemyss, and only the distributing mains within the parish and burgh.

In September 1892 a Joint-Committee, composed of members of the Sub-Committee of the District Committee of the County Council and of Police Commissioners of said burgh, was appointed for the management of the works, and with a view of applying for a Provisional Order to enable the authorities of the parish of Wemyss and of the police burgh of Buckhaven, Methil, and Innerleven, to bring in an additional supply of water, if so advised, and to execute and maintain the new works.

This Joint-Committee resolved upon a scheme to be adopted, and applied for a Provisional Order sanctioning said scheme, the new works to be managed and maintained along with the existing works of the Combined Special Water Supply District of Wemyss. The Provisional Order was obtained, and received the Royal Assent on 9th July 1894.

Difficulties having arisen between the Kirkcaldy District Committee and the Police Commissioners of the Burgh of Buckhaven, Methil, and Innerleven, as to which was the local authority for the administration of the water supply works originally introduced by the Parochial Board for the whole parish, and of those to be constructed, a special case was presented by the District Committee of the first part, and the Police Commissioners of the second part, to have the following questions of law settled, viz—“1. Which of the parties to the case is the local authority charged with, and entitled to the administration of, ( a) the existing, and ( b) the contemplated water-supply and water-works (1) within the landward part of the parish of Wemyss, (2) within the police burgh of Buckhaven, Methil, and Innerleven, and (3) within the part outwith both the said police burgh and the said parish? 2. Do the assessments necessary in connection with ( a) the existing, and ( b) the contemplated water-works fall to be imposed and levied by the County Council over the whole parish; or are the second parties entitled or bound to impose and levy the same within the burghal portion of the said parish?”

The first parties maintained that “looking to the facts that the water supply introduced into the parish of Wemyss by the Parochial Board as local authority of the parish, was introduced for the benefit of the whole parish; that the whole of the works, except certain distributing mains, are outside the limits of the said, police burgh, and partly also outside the parish of Wemyss; that the cost of the said works for the supply of the whole parish, including the burgh, forms a debt upon the parish, including the burgh, and the assessments of the whole parish, including the burgh, were pledged in security for repayment of the money borrowed to construct the works; and that the special water supply districts of East Wemyss, Buckhaven, and Innerleven were all formed before the said police burgh came into existence, only the extensions and combinations of the same having taken place after the creation of the burgh, the District Committee is entitled, in terms of the recited Acts, to exercise all the administrative and financial business of the said waterworks through a sub-committee appointed in terms of section 81 (1) of the Local Government (Scotland) Act 1889, and the County Council is entitled and bound to levy the assessments necessary within the burghal, as well as the landward portions of the parish. Further, as the new supply of water about to be introduced is merely an addition to the existing supply, the whole of the works in connection therewith being outside the burgh, and most of them outside the parish, the administration of and the assessments necessary in connection with such new or additional supply must be dealt with upon the footing above indicated with regard to the existing water supply.

The second parties maintained that “Buckhaven, Methil, and Innerleven being a police burgh formed in 1891 under the General Police Act 1862, of which the second parties are the local authority under the Public Health Acts and the Local Government (Scotland) Act 1889, sec. 81 (3), and sec. 99, and the said police burgh forming a special water supply district, the second parties are entitled to combine with the first parties, the local authority of the parish of Wemyss, in maintaining the existing, and executing and maintaining the contemplated waterworks, and to exercise in conjunction with them the administrative and financial business of the said waterworks, and that the second parties are entitled and bound to impose and levy

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the waterworks assessments so far as within the said police burgh.”

Argued for the first parties—(1) The formation of the burgh did not affect the water supply, which was applicable to the whole parish, and which was to be managed by the District Committee coming in place of the Parochial Board. The existing works belonged to the District Committee, and fell to be managed and maintained by them exclusively. The99th section was inapplicable. It safe-guarded the formation of police burghs, but did not give police commissioners right to interfere in works lying outside the burgh. If they were right as to the old works, it was only reasonable and convenient that the same management should continue undisturbed with respect also to the extensions. (2) As to assessing—they had right to lay on an assessment, or at any rate to fix it, and remit to the burgh authorities to lay it on— County Council of Dumbartonshire v. Police Commissioners of Clydebank, November 16, 1894, 22 R. 64.

Argued for the second parties—(1) The new works would be the most important. They were being promoted by both parties; they must therefore be managed by both jointly. That being so, it would be inexpedient, if not impossible, to separate the management aud maintenance of the old works, which formed a part of the whole, from that of the contemplated works. The first parties, in joining with the second in applying for the Provisional Order, were barred from now objecting to a joint management. If it was necessary to refer to the Act, section 99 constituted the police commissioners the local authority for the carrying out in the interests of the burgh such undertakings as the present, and indeed owners of any works within the burgh. They were entitled under sec. 8 (2) to a share in the management, and when the rate had to be levied, they alone could assess within the burgh, and that according to their own methods. The decision in the Clydebank case did not touch the present question, as it related to a police burgh formed before the passing of the Local Government Act of 1889.

At advising—