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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maguire v. Smith's Trustees [1911] ScotLR 393 (06 February 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0393.html Cite as: [1911] ScotLR 393, [1911] SLR 393 |
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Page: 393↓
[Dean of Guild, Glasgow.
The Glasgow Building Regulations Act 1900, section 38, enacts that no building other than the usual one-storey wash-houses and offices shall be erected within the enclosed space of background in a hollow square, but empowers the Dean of Guild, subject to certain conditions, to sanction the erection therein of buildings provided they do not exceed two storeys in height; and section 60 (3) enacts that whenever the corporation consents to the erection of a building higher than the Act prescribes any owner or lessee within one hundred yards deeming himself aggrieved thereby may appeal to the Dean of Guild.
Circumstances in which held that a neighbouring proprietor had no title to plead the statutory restrictions as an objector to a petition for lining, inasmuch as he had no interest, his property not being in any way prejudiced by the building proposed to be erected.
The Glasgow Building Regulations Act 1900 (63 and 64 Vict. cap. cl), sec. 38,
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enacts—“No building other than the usual one-storey wash-houses and offices shall be erected within the enclosed space of background in any hollow square, the buildings of which or any of them are or may be used or are intended to be used as dwelling-houses: Provided that in the case of any hollow square in which the enclosed space of background exceeds the dimensions specified in the immediately preceding section the Dean of Guild may, if satisfied that the arrangements for ingress and egress, draining, cleansing, lighting, and ventilation, are adequate, suitable, and satisfactory, grant decree for the erection in such enclosed space of background of buildings not exceeding two storeys in height on condition that such buildings shall not be used for purposes which may be injurious or offensive to the inhabitants of the surrounding or adjacent buildings. But no such building shall be authorised by the Dean of Guild unless an entry not less than ten feet in width be provided leading from a street to such building.” Section 60 (3)—“Whenever the corporation consent to the erection of any building of a greater height than that prescribed by this Act … the owner or lessee of any lands and heritages within one hundred yards of the site of any intended building who may deem himself aggrieved by the grant of such consent may … appeal to the Dean of Guild, who shall have power to deal with the case as shall seem to him just.”
On 8th November 1910 the Most Reverend John Aloysius Maguire, Archbishop of Glasgow, trustee for the Roman Catholic Archdiocese of Glasgow, presented a petition to the Dean of Guild, Glasgow, for warrant to make certain additions to, and alterations upon, St Andrew's Roman Catholic School, Ropework Lane, Glasgow, of which he, as trustee foresaid, was proprietor. Objections were lodged by William Smith and others, trustees of the late William Smith, restaurateur, Glasgow, proprietors of certain subjects immediately to the south of the ground on which the proposed buildings were to be erected.
The respondents pleaded—“The proposed building being in contravention of the Glasgow Building Regulations Act 1900, the respondents' objections should be sustained with expenses, and decree of lining should be refused.”
The petitioner pleaded, inter alia—“( 1) No title to sue.”
The facts are given in the following interlocutor of the Dean of Guild ( Henderson), dated 21st February 1911—“ Finds in fact (1) That the petitioner is proprietor of St Andrew's Roman Catholic School in Ropework Lane, Glasgow, and proposes to erect an addition to the said school as shown upon the plans; (2) that the respondents are proprietors of subjects situated at and forming Nos. 10 to 18 Great Clyde Street, Glasgow, on which are erected three tenements of shops and dwelling-houses; (3) that the petitioner's property is situated immediately to the north of the subjects belonging to the respondents, and that his proposed building, if erected, will be distant about 32 feet from the back wall of the respondents' tenements; (4) that the respondents do not claim any right of servitude over the petitioner's property, but maintain that the petitioner's proposed operations are a contravention of the Glasgow Building Regulations Act 1900, and that as they will be injuriously affected by the erection of the proposed building, they are entitled to plead the provision of the said Act; and (5) that the respondents will not be prejudiced nor will the property belonging to them be in any way injuriously affected by the erection of the petitioner's proposed building: Therefore finds in law that the respondents have no interest, and therefore no right or title, to object to the petitioner's proposed operations: Repels the objections stated for the respondents, and grants the lining as craved.
Note.—“The Dean of Guild made a careful inspection of the properties belonging to the parties, and is perfectly satisfied that the property belonging to the respondents will not be prejudiced or injured in the slightest degree by the erection of the petitioner's proposed building. No other objection has been stated to the petitioner's proposed operations, and the Dean has therefore granted the lining.”
The respondents (Smith's Trustees) appealed to the First Division, who on 17th March 1911 recalled hoc statu the Dean of Guild's interlocutor, and remitted to him to state the grounds on which he held and the way or ways in which he held, that the respondents would not be prejudiced, nor their property be injuriously affected, by the erection of the petitioner's proposed building, and to report.
On 3rd June 1911 the Dean of Guild reported as follows:—“Parties having intimated that they did not desire to be further heard, the Dean of Guild, in obedience to the remit contained in the interlocutor of the First Division dated 17th March 1911, states the grounds on which he held and the way or ways in which he held that the respondents would not be prejudiced nor their property injuriously affected by the erection of the petitioner's proposed building.
Before doing so he thinks it right to say this. In pronouncing the decision in question the Dean of Guild regarded it as settled law that neighbouring proprietors having interest as such proprietors are entitled to plead those provisions of the Glasgow Building Regulations Act of 1900 which deal with or affect proprietory interest in the proximity. Further, the Dean of Guild thinks it right to say that the decision in question was given on the assumption that the particular section of the Act in question (section 38) was applicable to the circumstances of this case—that is to say, that the proposal of the petitioner involved a building ‘within the enclosed space of background in a hollow square. The site of the proposed building may or
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may not be capable of being defined as an enclosed space of background in a hollow square.’ It forms at present a portion of the playground of a public school. If the proposed building is held not to be ‘within the enclosed space of background in a hollow square,‘it is not material whether the objectors’ building will be injuriously affected. They have no common law servitude, and must depend on section 38. Section 38 applies only to erections ‘within the enclosed space of background in a hollow square,’ and the Dean assumed in favour of the objectors that the section was applicable. Taking it on the assumption that the proposed building is a building ‘within the enclosed space of background in a hollow square,’ the Dean of Guild inspected the properties in question in presence of the parties, and reached the conclusion embodied in his judgment of 21st February 1911. A question of this kind is, of course, to a considerable extent a matter of impression. The Dean reached the conclusion expressed in his judgment because of the general impression produced upon his mind at and by the inspection, but among the various things which went to form that impression he may mention the following points, namely:—
1. Commercially, that is, as a marketable subject, the objectors' property will not in the Dean's judgment be depreciated in the very slightest degree. The erection of the proposed building in a locality such as this will not keep away any possible tenants who wish or require to reside there, and it will not keep away any possible buyers. It will thus not affect in any way the marketable value of the objectors' property.
2. The objectors’ tenement and the back buildings which have been attached to it cover the whole of the ground belonging to the objectors, excepting a very small area of background wholly surrounded by the objectors’ own buildings. These back buildings are only one storey high. The whole of the objectors’ ground, however, so far as it abuts on the petitioner's property, is covered with buildings. The proposed building of the petitioner's is about 32 feet from the objectors’ tenement, and of that 32 feet the petitioners are leaving open and unbuilt upon, except for some latrines, a belt of 11 feet of ground. In the Dean's judgment neither the light nor the air of the objectors’ tenement will be affected in any way that will entitle the objectors to say that they will be prejudiced, or to say that in any proper use of the expression or in any substantial way the objectors’ property will be injuriously affected by the erection of the proposed building. ( a) The proposed building is to the north of the objectors’ property, and will not exclude sunlight. Again, it is not of such a height as to exclude the sky line from any back window of the objectors’ tenement. The objectors have themselves covered their background with buildings hard up to the petitioner's boundary, and these back buildings are roofed to some extent with glass. From the second storey of the objectors’ tenement and the storeys above that storey the sky line will not be excluded. ( b) As regards air and ventilation, the Dean is of opinion that the proposed building will not injuriously affect the objectors’ property. The objectors’ property is situated on the north side of Great Clyde Street, a street of about 75 feet in breadth, and that again has its south boundary the river Clyde. The proposed building is at the rear of the objectors’ property, and between the proposed building and the objectors’ tenement a space of about 32 feet is left free. The proposed building is lower in height than the objectors’ tenement, and lower in height than the other tenements or the theatre surrounding this ‘hollow square.’ The space thus left free is wider than the lane which lies to the west of the ‘hollow square,’ and that lane seems to be sufficient for the ventilation of the properties abutting on it. The objectors’ premises have plenty of air on the south, and the space of 32 feet to be left at the north boundary is perfectly ample for through ventilation of their tenement.
3. It is to be kept in view that the proposed building is to be used as a school and not for residential purposes. For the height of the first storey it is carried on pillars and stands open. The building will only be occupied during school hours, and it will not carry with it the sources of annoyance to neighbours frequently associated with dwelling-houses closely built together. It is also to be kept in view that if the proposed building had been regarded as objectionable in the locality, the Master of Works would have appeared and objected. He has not done so. The only other adjoining proprietor who appeared at the first calling did not persevere in his opposition.”
The case was further heard on the Dean's report on 16th June 1911.
Argued for appellants—The appellants as adjacent proprietors had both a title and an interest to plead the prohibitions of the statute— Summerlee Iron Company, Limited v. Lindsay, 1907 S.C. 1161, 44 S.L.R. 854; 1908 S.C. 754, 45 S.L.R. 563. It was immaterial that the officer administering the statute thought it too wide or that in the circumstances the protection was unnecessary. The protection was statutory, and that being so the Dean of Guild was not entitled to find on the merits that the appellants had no interest to plead it.
Argued for the petitioner—The appellants had no interest to object to the proposed building, as their property would not be in any way injuriously affected thereby— Pitman v. Burnett's Trustees, January 26, 1882, 9 R. 444, 19 S.L.R. 411. The mere statutory prohibition was not enough, otherwise there would be no room for any exercise of the Dean of Guild's discretion. Moreover the Court would not readily adopt a construction of the statute which would virtually amount to a confiscation of the petitioner's property.
Page: 396↓
At advising—
I did so—and I say this to make it quite clear—I did so under a complete misapprehension in my mind as to the height of the buildings. Undoubtedly it is the case—as indeed I called attention to it in Porter's case—that the dispensating power of the Dean of Guild under the proviso in section 38 is limited by the statute, and that the only buildings he can, if he choose, grant authority to erect, are buildings not exceeding two storeys in height with certain other conditions. Now I was under the misapprehension that these buildings were only two storeys in height. It appears—and parties very rightly drew our attention to it—it appears that while they in one sense consist of only two storeys, that is to say, while there are only two storeys of habitable buildings proposed to be put up, yet these two storeys are, so to speak, put upon legs, there being below them on the ground floor an open space in the manner of a cloister.
Now I am bound to say that I think the expression “not exceeding two storeys in height” means the height which two ordinary storeys would be, and therefore I should not be prepared to hold that this building did not exceed two storeys in height. I think it does. Accordingly I think it was obviously necessary that the case should be reconsidered to see what should be the result of the objection, seeing that this building cannot be brought under the Dean of Guild's dispensing power.
This makes it necessary to examine the title of the objectors. Now I have already said something on that matter in the case of Summerlee Iron Company v. Lindsay, which was twice before the Court and is reported in Session Cases 1907 and 1908. In that case, at the initial stage, the Dean of Guild had pronounced a judgment in which he found as a bald proposition that no private person had a title to plead the restrictions of the Glasgow Building Regulations Act, but that it was the corporation only that had right to do so. The first time the case was before us I said that I should hesitate to adhere to such a proposition. In the second case ( 1908 S.C. 754) I went further into the matter, and speaking of the neighbour's right to object, said (at p. 759) “I think he has got a right to say so” (that is, that it is going to affect him in a peculiar way) “and I think it falls within the province of the Dean of Guild to consider his objection in an appeal under section 60, sub-section 3, but I think he must show his hurt, not upon any ground of private injury—for he must do that in the lining—but upon what I may call the public ground which he says presses upon him more severely than it would do upon other people.”
Now I retain that opinion, though I do not say that it appears very clearly from the Act. This Act, as I have already had occasion to say, is a very drastic Act; and I think we are here under what I may call the somewhat painful necessity of deciding between two alternatives, either of which has much to be said against it, but one of which must be taken if any meaning at all is to be given to the Act.
The first alternative would be to say that the prohibition being absolute no building other than the usual one-storey wash-houses andoffices shall be erected with in the enclosed space of background in any hollow square. In that view there would be nothing more to decide than the two questions, was this a hollow square, and was it proposed to erect on background. If the answer to these questions were in the affirmative, the axe of the statute, so to speak, would fall, and it would be open to anyone to plead the statute to prevent the erection of the proposed building. That is evidently exceedingly drastic, and exceedingly hard on the individual who builds late instead of building early.
The other alternative is to distinguish, as I did in the Summerlee case, between the cases in which a private individual will have a title to plead the Act and those in which he will not. Though I say “title,” this is really one of those cases—and there are many others familiar to your Lordships—where title and interest run into each other; such cases are familiar in the chapter of law which deals with building restrictions enforceable at the instance of the superior, or it may be of other people.
Now I think here that the title does depend upon interest, and that the interest as I have expressed it must be an interest not actually of private injury, because when a man builds upon his own ground he does not, in the ordinary case, invade any legal right of his neighbour, but there may be a private interest in a public prohibition, entitling an objector to say “It hurts me more severely than it does other people.”
On this matter we have the second report of the Dean of Guild. I take it that this question is really a question of fact, and I think we are entitled to inform ourselves upon it through the Dean of Guild. Now the Dean of Guild says quite distinctly in his report that in the matters of ventilation, of light, and of commercial value—the latter is not really, I think, a separate consideration, but one which flows from the two former—the property of these particular objectors is not going to be hurt by the building that he proposes to allow.
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I do not think that is a satisfactory state of things, because I think it puts the inhabitants of Glasgow very much in the power of the Dean of Guild. I will not say entirely in his power, because I wish to reserve my view as to whether the Court would criticise or review any opinion which the Dean of Guild may come to on such a matter; I think the Court would do so. But upon the lining as granted in this case I do not see anything either to criticise or to review.
On the whole matter, therefore, I think the Dean of Guild was within his powers in granting this decree of lining.
In this case we were not asked to take this course. I should not myself have thought it to be a case in which we ought to have done so, because to my mind the Dean of Guild's report is so clear and explicit that I should require very strong grounds indeed to persuade me to overturn it.
It is clear from the report of the Dean of Guild that the conclusion he reached in the fifth finding of his interlocutor of 21st February 1911 was justified. That finding is “that the respondents will not be prejudiced, nor will the property belonging to them be in any way injuriously affected by the erection of the petitioner's proposed building.” In his report he states that commercially, that is, as a marketable subject, the objectors' property will not be depreciated in the very slightest degree; that neither the light nor the air of the objectors' tenement will be affected in any way that will entitle the objectors to say that they will be prejudiced by the erection of the proposed
Page: 398↓
The Court pronounced this interlocutor—
“Refuse the appeal; remit to the Dean of Guild of new to grant the lining craved and proceed as accords, and decern.”
Counsel for Appellants— Horne, K.C.— Moncrieff. Agents— Cumming & Duff, S.S.C.
Counsel for Respondent—Solicitor-General ( Hunter, K.C.)— Hon. W. Watson— Carmont. Agent— Charles George, S.S.C.
