Scottish Court of Session Decisions

Section 166 of the Edinburgh Municipal and Police Act (42 and 43 Vict. cap. cxxxii.) as amended by section 34 (3) of the Edinburgh Improvement, &c. (Amendment) Act 1893 (56 and 57 Vict. chap. cliv.) enacts as follows:—“If any house, building, wall, or other erection of whatever form or material, or anything affixed thereon, be deemed by the burgh engineer to be in a ruinous or insecure state,… the burgh engineer shall immediately cause the occupiers (if any) to remove from the occupancy of such houses or buildings until the same are put into a safe condition; and shall, if he judge it necessary, cause the same wholly or partially to be taken down … and shall cause notice to be given to the owner of such house or building, wall, or other erection … requiring such owner forthwith to take down, secure, or repair such house or building, wall, or other erection, as the case may require; and if such owner do not begin to repair, take down, or secure such house, building, wall, or other erection within the space of three days after such notice has been so given … and complete such repairs or taking down or securing, as speedily as the nature of the case will admit, the Dean of Guild Court shall, on the complaint of the Procurator-Fiscal of such Court, if they find it necessary after hearing parties, order the owner of such house or building, wall, or other erection, to take down, rebuild, repair, or otherwise secure the same to their satisfaction within a time to be fixed by the Court; and in case the same be not taken down, repaired, rebuilt, or otherwise secured within the time so fixed, the Court shall cause all, or so much of such house or building, wall, or other erection as shall be in a ruinous or insecure or dangerous condition, to be taken down repaired, rebuilt, or otherwise secured, in such manner as shall be requisite.” Then follow provisions as to expenses.

The words “if they find it necessary after hearing parties” were introduced by the Amendment Act of 1893.

Mrs Isabella Macdonald or Armour, as trustee of the late Tertius Macdonald, surgeon, Edinburgh, was proprietor of a shop numbered 89 High Street, which was on the street level, and was occupied by Mrs Miller, fruiterer.

On 27th April 1900 a notice was sent by the burgh engineer to Mr John Mathison, a partner of Messrs Nisbet & Mathison, S.S.C., the proprietor's agents, in the following terms:—“Sir,—I beg to intimate to you that the slating, roofing, ceilings, joisting, floors, partitions, walls, of your property at 89 High Street are in a ruinous or insecure state, and in terms of ‘The Edinburgh Municipal and Police Act 1879,’ section 166 and ‘The Edinburgh Municipal and Police Acts, 1879 to 1896’ (for provisions of which see third page), hereby require you as part owner forthwith to take down, secure, or repair the same. I beg further to intimate that should you fail to have the work begun within three days from this date, further proceedings will be taken, and all expenses incurred will be levied from you in terms of the statutes.”

No steps were taken by Tertius Macdonald's trustee, and on 22nd May 1900 a petition was presented in the Dean of Guild Court by George Somerville, Procurator-Fiscal of Court, in which she and others interested in Nos. 89, 93, and 97 High Street, to whom similar notices had been sent, were called as respondents. The petitioner craved the Court “to cite them to appear in Court to be heard viva voce thereon; thereafter to issue from time to time such orders, remits, and others, as the circumstances of the case

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may require, and upon your being satisfied that the said houses and buildings or other erections, or any part thereof, are in one or other of the states aforesaid, to decern and ordain the said respondents to take down, rebuild, repair, or otherwise secure the same to the satisfaction of, and within a time to be fixed by, the Court; and failing their doing so within the time to be so fixed, to grant warrant to and authorise the petitioner to employ proper persons to do so at the expense of the respondents; as also, to sell the old materials; as also, to remove tenants and occupants if necessary.”

Answers were lodged by the respondent Tertius Macdonald's trustee. She averred—“The upper flats of this tenement are at present unoccupied, the tenants having recently been warned out by the Burgh Engineer. The respondent believes that the upper flats of the tenement, or part of these flats, have been allowed to get into a state of disrepair, but it is denied that the tenement is ruinous or insecure. This respondent had not been informed at any time of the alleged defects in the shop belonging to her. When the case was called in the Dean of Guild Court on the 5th July the respondent through her counsel explained this to the Court, and the Lord Dean of Guild then stated that the respondent's shop was not ruinous or insecure, and that the Court proposed only to remove that portion of the tenement above this respondent's shop. The Lord Dean of Guild then said that a portion of the roof of said shop was defective and required some repair. But the respondent disputed this, and thereupon moved that the complainer should be ordained to lodge a condescendence setting forth in what respects the said respondent's property has become ruinous and insecure. The respondent has been advised by skilled and competent advisers that her property is substantially built and in good condition and is perfectly secure, but she is willing to take all reasonable steps to repair any defects that the Court may hold proved to exist in her property. On the case being again called on the 12th July this respondent stated that if the Court intended to pronounce an interlocutor dealing only with the property above this respondent's shop she had no interest to object; but that if any order was to be pronounced ordering this respondent to execute any work on the tenement, she thought she was entitled to know wherein existed the defect in her said shop, and accordingly renewed the motion for a condescendence. The complainer then intimated that he had no further facts to allege.” She further averred that for some months prior to the notice the Burgh Engineer had been negotiating with her for the purchase of the property.

On 18th October 1900 the Dean of Guild, after having visited the premises and heard the Procurator-Fiscal and parties' procurators, pronounced the following interlocutor—“Finds in the meantime that all the flats of the said tenement above the ground or shop flat are ruinous and insecure and must be taken down: Finds also that the joists between the ground flat and the first flat and the stone arching on the ground flat are insecure: Therefore, in the meantime, ordains the respondents … the proprietors of the flats above the ground flat of the tenement in question, to take down forthwith the flats belonging to them respectively, and failing their commencing to do so within six days and completing the work within thirty days thereafter, grants warrant to the Procurator-Fiscal to employ proper persons to execute the said work at the expense of the said proprietors, respondents: Appoints the work to be executed at the sight and to the satisfaction of the Burgh Engineer, and him to report when it shall have been completed: Grants warrant to remove tenants and occupants, if necessary, and to sell the old materials: Reserves all questions between the respondents inter se, and quoad ultra continues the cause.”

On 20th December 1900 the Dean of Guild pronounced this interlocutor—“Having of new visited the locus and inspected the premises so far as now existing, and having heard the Procurator-Fiscal, counsel for the respondent, the trustee of Tertius Macdonald, and the procurator for the respondent Mrs Henrietta Coldwell or Eckford or Carr, and considered the report by the Burgh Engineer dated 11th December 1900, repels the motion made by counsel for the trustee of Tertius Macdonald, that the Court should allow a proof of the condition of the property owned by the said trustee: Finds, in terms of the said report, that the work ordered by the interlocutor of 18th October last has now been executed: Finds on further inspection now that the upper flats have been taken down, that the premises owned by the respondent the trustee of Tertius Macdonald, and the arching of the close between those premises and the premises owned by the respondent Mrs Carr are not only insecure but are ruinous and must be taken down; Therefore ordains the respondent the trustee of Tertius Macdonald to take down forthwith her said premises, and failing her commencing to do so within six days and completing the work within fourteen days thereafter, grants warrant to the Procurator-Fiscal to employ proper persons to execute the said work at the expense of the said respondent; Further, grants warrant to the Procurator-Fiscal to employ proper persons to take down the said arching, reserving all question of title thereto and liability for the expense of taking down the same: Appoints the work to be executed at the sight and to the satisfaction of the Burgh Engineer, and him to report when it shall have been completed: Grants warrant to remove tenants and occupants if necessary, and to sell the old materials, and decerns: Reserves all questions between the respondents inter se and quoad ultra continues the cause.”

Note.—“In consequence of the report of the Burgh Engineer, dated 11th December 1900, it became necessary for the Court to

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again visit the premises, and they did so on 14th December, in the presence of agents for the parties interested. The Court found that the work of pulling down the upper flats had been executed, and the Court were in a better position to judge of the condition of the premises on the ground floor than they were in before the upper flats were taken down. The result of the Court's inspection was that they were unanimously satisfied that the premises of the respondent the trustee of Tertius Macdonald are not only insecure but also ruinous, and that they are in such a condition that they must be taken down. The Court heard counsel for the respondent the trustee of Tertius Macdonald and the procurator for Mrs Carr on 18th December. The counsel for the respondent the trustee of Tertius Macdonald then asked to be allowed to lead proof as to the condition of his premises. The Court repelled this motion, because they consider the matter which was to be the subject of proof is one which they are completely competent to judge of without proof, in respect that the members of the Court are men of skill on this particular matter. Counsel for the respondent the trustee of Tertius Macdonald then urged that no order should be pronounced against his client in respect of the statement in article 1 of his answers to the effect that the said respondent ‘is willing to take all reasonable steps to repair any defects that the Court may hold proved to exist in her property.’ The Court invited the said respondent to put in a minute stating precisely what she was willing to do, but her counsel refused to do this. The Court has no desire to pronounce orders against parties who are willing to carryout necessary works themselves, but the offer in the answers is only to take all reasonable steps to repair defects, and in the present case the defects are such that the only course open is to pronounce an order on the respondent to take down her ruinous property.

“It is not at present in evidence before the Court who is liable for the removal of the arching over the close between the property of the respondent the trustee of Tertius Macdonald and of the respondent Mrs Carr. As this arching is ruinous and insecure, and must be taken down, the Court therefore orders the Procurator-Fiscal to have this work carried through, leaving it for ascertainment at a subsequent period who is liable for the expense.”

The respondent Macdonald's Trustee appealed to the First Division, and argued—The jurisdiction exercised by the Dean of Guild under section 166 was in every way similar to his ordinary jurisdiction, and was in no sense final— Somerville v. Directors of Edinburgh Assembly Booms, July 7, 1899, 1 F. 1091, at 1094. Accordingly the appeal was competent, but in any case objections to its competency should have been made in the Single Bills, and not at this stage. The appellant had never been informed from beginning to end in what respect there was any defect in her property. The notice did no more than draw her attention to the section of the statute, and in no way indicated what she was required to do. It was just such a notice as the appellant might have expected had she been a pro indiviso proprietor of a share of a ruinous tenement, no part being specified in the notice. But the Dean of Guild's jurisdiction under section 166 depended on the sufficiency of the notice— Campbell v. Magistrates of Edinburgh, November 24, 1891, 19 R. 159. The Dean of Guild had further refused to grant her motion for a proof. The appellant was entitled either to a proof of her averments that her premises were not ruinous, or to a remit to a man of skill to report on their condition. The latter course had been taken in Boswell v. Magistrates of Edinburgh, July 19, 1881, 8 R. 986.

Argued for the respondent—He did not dispute the competency of the appeal or the jurisdiction of the Court. But the only power which the Court had under such an appeal was to consider what duty had been put upon the Burgh Engineer and the Dean of Guild by statute, and whether that duty had been properly exercised. There was no allegation that they did not apply their minds to the question whether the building was ruinous, or honestly arrive at the conclusion that it was so. Accordingly, the only question was whether the Court could reverse their decision upon a matter of fact. It was not within the power of the Court to do so, but in any case they would be slow to disturb—either on a proof or a report by a practical man—a judgment arrived at by the Dean of Guild Court, which was composed of practical men— Saltoun v. Magistrates of Edinburgh, March 19, 1897, 24 R. 832, at 836. It was true that the notice was in general terms, and if nothing had followed upon it the appellant's argument might have had some weight, but a great deal of procedure had followed, in the course of which it was found specifically that the appellant's premises were ruinous and must be taken down. In the case of Campbell v. The Magistrates of Edinburgh, supra, the proprietor was never given a chance of deciding whether he should himself do the work in question or allow it to be done by the Magistrates, and accordingly the notice was held to be insufficient. Here the appellant had every chance during the subsequent procedure.

At advising—