Scottish Court of Session Decisions

On 31st July 1895 the Lord Provost, Magistrates, and Council of the City of Edinburgh presented a petition in the Dean of Guild Court, Leith, for warrant to erect a cholera hospital, constructed of wood, on the lands of Quarryholes belonging to them as Governors of the Trinity Hospital, Edinburgh, and lying within the burgh of Leith.

On 2nd August Mr William Beatson, master of works, on whom the petition had been served, reported thereon to the Dean of Guild Court as follows:—The blue line upon the plan, although not so stated, is taken to indicate the drain which must, no doubt, join the district sewer, and it may, under such circumstances, besides adopting a system of periodic automatic flushing of the drain, be advisable to make provision for having the discharges from patients sterilised and deodorised in some efficient manner before allowing such to enter the. sewer. As this, however, is a question more for the consideration of the medical officer than the Master of Works, it may be well to consult him as to a remedy. The buildings are said to be of a temporary character, and the Master of Works has no objections to offer to the structures. ”

On 22nd November the Local Government Board for Scotland dealt with the application of the Edinburgh Corporation for approval of the site and plans of the hospital, in terms of the following minute :—“ Temporary Hospital at Quarryholes.—The application of the local authority of Edinburgh for the approval of the Board to the site and plans of a temporary hospital to be erected at Quarryholes, within the boundaries of the Burgh of Leith, as shewn on the Ordnance Survey Map, was further considered by the Board.

Having made inquiry, the Board, in terms of section 39 of the Public Health Act, approve of the site, subject to the following conditions—(1) That the approval of the Board is, in the meantime, limited to a period of three years only. (2) That the hospital is to be used for the treatment of cases of cholera only. (3) That the drain from the hospital joining the main in Easter Road is to be used for non-infected matter only. (4) That all infected matter (other than clothing, which, if to be used again, must be duly disinfected) is to be disposed of by means of an incinerator, to be placed in a convenient situation.

The Board approve of the plans, subject to provision being made for the proper disinfection of clothing.”

The Provost, Magistrates, and Council of Leith having been sisted as parties to the cause, a record was made up.

The petitioners averred—“(Cond. 5) The said ground lies within a convenient distance of the burgh of Edinburgh, and is within the jurisdiction of the Dean of Guild Court of Leith, and the respondent, William Beatson, master of works, who is cited for the public interest, has alone any interest in the operations proposed to be executed. The said hospital is to be used for the treatment of cases of cholera only. The drain from the hospital joining the main in Easter Road is to be used for non-infected matter only. All infected matter (other than clothing, which if to be used again, will be duly disinfected) is to be disposed of by means of an incinerator on the premises.”

The petitioners pleaded, inter alia—“(5) The site of the proposed hospital being within a convenient distance of the burgh of Edinburgh, and the hospital being required for public health purposes, warrant for its erection ought to be granted. (6) The Local Government Board having approved of the site and plans of

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the proposed hospital, and no valid objections having been stated by the respondents to the structures, the petitioners, the Lord Provost, Magistrates, and Council of the City of Edinburgh, as representing the community thereof, are, in the circumstances condescended on, entitled, as local authority foresaid, to warrant to erect as craved.”

The respondents averred that they had selected a site for a hospital of their own within some 300 or 400 yards of that chosen by the petitioners, but that the Local Government Board had declined to approve of it. They further averred—“(Stat. 6) The petitioners, the Lord Provost, Magistrates, and Council of Edinburgh now propose to erect an hospital for infectious diseases upon a site which is outwith their own burgh and within the burgh of Leith. The site so chosen is unsuitable in respect that it will necessitate the drainage discharges from said hospital passing into one or other of the sewers connected with the drainage system of the burgh, and have to pass through a considerable portion of the burgh before it reaches the sea. This is likely to be offensive and injurious to the health of the inhabitants in the neighbourhood of said sewers. Moreover, the said site is unsuitable in respect that, amongst other objections, it immediately adjoins a cemetery where large numbers of the public frequent and walk, and nurses and children who are susceptible to infectious disease are brought into close contact with an infectious diseases hospital, whereby the spread of infectious diseases is likely to arise. The site selected is liable generally to the same objections in respect of which the Local Government Board declined to approve of the first site selected by the respondents for their hospital.”

The respondents pleaded—“(1) No title. (3) It being illegal for the Lord Provost, Magistrates, and Council of Edinburgh to erect an hospital within the burgh of Leith, the prayer of the present petition should be refused with expenses. (4) The approval of the Local Government Board not being in conformity with the provisions of the Public Health (Scotland) Acts, the petitioners are not entitled to obtain warrant for the erection of the proposed hospital buildings until said approval is obtained in terms of the statute and produced to the Court. (5) The approval of the Local Government Board being ultra vires, is inept and insufficient as a warrant for the erection of said hospital buildings.”

The Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101), sec. 39, enacts—“The local authority may provide within their district, hospitals or temporary places for the reception of the sick for the use of the inhabitants. Such authority may build such hospitals or places of reception, provided the Board [of Supervision] approve of the situation and construction thereof, or they may make contracts for the use of any existing hospital or part of an hospital, or for the temporary use of any place for the reception of the sick.”

The Public Health Amendment (Scotland) Act 1890 (53 and 54 Viet. cap. 20), sec. 1, enacts—“In the application of sections 39 and 42 of the Public Health (Scotland) Act to burghs, the said sections shall be read and construed as if the words ‘or within a convenient distance of such district’ were inserted after the word ‘district’ where it first occurs in each of the said sections; and for the purposes of the said Act, any hospital or temporary place for the reception of the sick, provided within a convenient distance of a burgh, shall be held to be within the burgh.”

By the Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58), sec. 3, the Local Government Board for Scotland came in place of the Board of Supervision,

On 16th December 1895 the Dean of Guild Court pronounced an interlocutor sustaining the first, third, fourth, and fifth pleas for the respondents and dismissing the petition.

Note.—[After stating the facts of the case, and dealing with the respondents’ plea to title, which was subsequently abandoned in the Court of Session, the note proceeded]—“The fourth and fifth pleas for the respondents raise a different question, and one of general importance. The petitioners founded their right to have the application granted on the 39th section of the Public Health (Scotland) Act 1867, as amended by section 1 of the Public Health Amendment (Scotland) Act 1890. Leaving out of view in the meantime the effect of the amending statute, section 39 of the 1867 Act authorises local authorises to provide within their districts hospitals or temporary places for the reception of the sick for the use of the inhabitants. But it goes on—‘Such authority may build such hospitals or places of reception provided the Board approve of the situation and construction thereof.’ To take advantage of this section accordingly the local authority of any burgh must comply with two conditions—(1) they must erect the hospital within their own district, and (2) they must obtain the approval of the Board of Supervision, whose functions are now transferred to the Local Government Board, to the situation and construction thereof. The pleas which are now to be dealt with have reference only to the latter, which, the petitioners argued, had been satisfied by the excerpt minute and relative letter, Nos. 14 and 15 of process, dated respectively 22nd and 23rd November 1895.

It appears plain that if the result of the petitioners' application had been a refusal by the Local Government Board to approve of the situation and construction of the hospital for the erection of which warrant is craved, the Court would have had no option but to dismiss the petition. Does its conditional approval as expressed in these letters satisfy the provisions of section 39? The Court are of opinion that it does not. There is no authority in the Act for the approval of the Board of the situation and construction of a proposed hospital being for a limited time or for the treatment of one class of infectious diseases only. The

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situation and construction must be such as the Board can unconditioually approve; and the mere fact that the Board have limited their approval to a period of three years seems to indicate that they were not in a position to give an approval in terms of the Act. The district in question is known to the Court to be one in which a considerable amount of feuing has recently been going on, and which might reasonably be expected, in ordinary course, to be entirely built upon within a comparatively short period. The site of the proposed hospital is within a comparatively short distance of Easter Road, which is rapidly becoming an important thoroughfare in Leith; and the Court infer, from the terms of the minute in question, that the Local Government Board did not feel themselves in a position to give an unqualified approval of the site for the purposes of an infectious diseases hospital on that among other grounds. The petitioners' agent expressly refused to make any restriction or amendment on the prayer of his petition, and accordingly, if warrant were granted as prayed for, the petitioners would obtain something more than, on their own showing, they are entitled to demand. It may also be noted that if warrant were granted in the form prayed for, the Local Authority of Leith would, apparently, have no power to insist upon the conditions laid down by the Local Government Board being implemented, more especially in reference to the use of their drain in Easter Road, which it is proposed should receive the discharges from the proposed hospital. The Court, accordingly, have sustained the fourth and fifth pleas-in-law for the respondents, which embody these contentions.

The third plea raises the question whether the local authority of one burgh is entitled to erect an hospital for infectious diseases which it deems necessary for the use of its inhabitants within the precincts of another burgh which happens to be in close proximity. Had section 39 of the Act of 1867 alone fallen to be considered, there would be no dubiety upon this point; but the petitioners contended that by the Act of 1890 any restriction as to the invasion of the districts of the neighbouring local authorities was entirely removed, whether that local authority was a burgh or a parish, provided only the site selected was ‘within a convenient distance’ of the district whose local authority desired to erect the hospital. If the words are construed literally, and without regard to the presumed intention of the Legislature, there is no doubt that the site in question fulfils this condition. It appears, however, to be equally plain that such a result was not contemplated by the amending statute, the object of which was to enable a burgh which within its own precincts could not find a convenient site for an infectious hospital, to go into the surrounding country with a view of obtaining a site there. The enactment applies only to burghs, and no reason was suggested why it should have been passed other than that above stated. If, however, the contention of the petitioners is sound, the position of Leith, which, in common with other burghs was entitled to the benefit of section 1 of the amending statute, is considerably altered for the worse. Under the previous Act, while Leith was bound to find accommodation within its own district for its own hospitals, it was entitled to exclude the hospitals of other local authorities. On the petitioners' contention, however, the amending statute would enable the Magistrates of Edinburgh to plant all the hospitals they proposed to erect within the precincts of the burgh of Leith, subject only to the control of the Local Government Board. The Court does not think that this could have been the intention of the Legislature, and that the second clause of section 1, which provides that ‘for the purpose of the said Act any hospital or temporary place for the reception of the sick, provided within a convenient distance of a burgh shall be held to be within the burgh,’ sufficiently shows that the sites contemplated by the statute were sites outwith the boundaries of any burgh. In short, that the object of the amending statute was to enable the local authorities of burghs to invade landward districts for the purposes of the Act, but not to invade each other's territories.

The petitioners strongly argued that the respondents had no title to state any of the above objections, but the Court is unable to give effect to that contention. Very little interest will support the right of a party to object to what is an illegal or ultra vires proceeding on the part of a statutory body. The Court is of opinion that the respondents have such an interest, not merely as owners of the drain with which it is proposed to connect the drain of the new hospital, but as charged with the duty of protecting the interests of the community, which will undoubtedly be seriously prejudiced if the proposed cholera hospital is permitted to be erected on the site in question.”

The petitioners appealed, and argued—(1) It was incompetent for the Dean of Guild Court to decide the question dealt with in the note. Its business was purely with the building as such, and it must leave other questions alone— Donaldson v. Pattison, November 14, 1834, 13 S. 27; Colville v. Carrick, July 19, 1883, 10 R 1241; Kirkwood's Trustees v. Leith and Bremner, December 20, 1888, 16 R. 255. The proper remedy for the Corporation of Leith was interdict. (2) The Local Government Board had given its approval as required by the Public Health Act 1867, sec. 39. No doubt that approval was qualified by conditions, but if the Board had power to approve simpliciter, it had power to approve sub modo, and the Corporation of Edinburgh had agreed to accept these conditions, as appeared from condescendence 5. (3) The Public Health Amendment Act 1890 placed no restriction on the territory which a burgh might invade except that it must be within a convenient distance of the burgh.

Argued for the respondents—(1) The Dean of Guild Court was quite entitled to

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decide the cause on the grounds set forth in the note— Pitman v. Burnett's Trustees, January 26, 1882, 9 R. 444. (2) The approval given by the Local Government Board must be an absolute approval. The consent or approval given here was not such as would warrant the granting of a lining, for it was conditional on ( a) something being done which was not shown on the plans, and (6) on a certain use being made of the hospital after it was built. The Board could not qualify its consent by a condition which it could not enforce. (3) The Public Health Amendment Act 1890 contemplated the invasion only of thinly populated landward districts. It assumed that burghs might be-too densely populated to demand of an hospital being built within their own territory, and therefore authorised an incursion into a thinly populated district—[ Lord Kinnear—But does it matter that the thinly populated site happens to be in another burgh?]