Scottish Court of Session Decisions

George Somerville, Procurator-Fiscal, brought this petition in the Dean of Guild Court of Edinburgh, against Malcolm Macgregor, S.S.C., Edinburgh, to have the respondent interdicted from proceeding further with certain operations on his property, and to have him found liable in a penalty for proceeding with the operations without first obtaining a warrant.

The following narrative is taken from the note of the Dean of Guild—“The respondent is proprietor of the main-door house No. 24 London Street, which up till now has consisted of a street flat and basement flat, and has been occupied by one tenant. He has lately made alterations upon this property so as to fit it for the occupancy of six tenants—three in each flat. The street floor has been made to contain two two-roomed houses and one one-roomed house. The respondent has introduced three new sinks, for two of which the back wall has been slapped; he has erected a new partition and a water-closet has been provided in the centre of the house for the common use of the three new houses in this flat. The basement flat has been made to contain one three-roomed and two one-roomed houses. Three sinks have been provided, a new partition has been added, and the old water-closet has been left as common to the three houses. These alterations have all been made without notice to the Dean of Guild Court, and the present petition has been brought by the Procurator-Fiscal of Court for interdict until warrant of the Court shall be obtained, and for a penalty.”

The respondent in answer averred—“(1) The houses in the east division of London Street have been for a number of years changing their character of occupation. In particular, they have been to a considerable extent altered from one to dwellings for two or more occupants, many of the area floors indeed being now occupied as small shops. It has resulted that large houses, such as the house in question, could not be let at reasonable rents. The rent of this house, though reduced during the last three years from £57, 10s. to £45, could not be let even at the smaller rent. (2) The respondent was informed by practical men that the only course was to let it to several tenants, as has already been done in some adjoining houses. Instead of letting the house in parts as it stood, it was suggested that to make it more convenient for two or more tenants some small internal improvements should be made. The following is the specification of alterations and improvements submitted by the tradesman entrusted with the work—‘Curtail the internal part of the lobby by fitting up a new partition, and two old doors re-fitted with fan-lights over. The two old dirty pan W.C.'s to be substituted with new pedestal wash-out water-closets, with three gallon automatic flush cisterns. The one on street floor to be changed from dark unventilated position at room door, and re-fitted in large ventilated space above internal stair leading to basement, and made to conform with the best sanitary regulations. One new cistern to hold 120 gallons to be fitted up above stair for the supply of pure water to all the sinks, the cistern to have a close-fitting cover, and the waste-pipe to end openly. The waste-water pipes from sinks, which at present join the drains direct, to be made to end openly over gully or disconnecting traps. The drains at front and back to be overhauled, and new surface water gully traps introduced. The garden walls and back wall and area cellar wall to be re-pointed, and the area cellar walls lime-washed, the cellars to be cleaned out and all rubbish removed.’ (3) These alterations did not appear to the respondent such as to require the intervention of the Dean of Guild Court, there being no alteration of the structure of the house in the sense of the Acts of 1879 or 1882. (4) It is not a fair representation to state that the erection of the partitions referred to ‘form three houses on the street floor, and three houses on the basement floor.’ The partitions referred to render the house available for two or more tenants, and that is all that can be fairly said. Not a single apartment in the house has been interfered with in extent, except the two lobbies on the street and area floors, and there is no slapping of the back wall, and the doors of ingress and egress are the same as before.”

He pleaded—“(1) On a sound construction of the Acts referred to, the operations specified do not amount to a contravention thereof. (3) The alterations complained of being internal improvements, which do not affect the rights of conterminous proprietors or the public, the Dean of Guild Court has no jurisdiction to interfere.”

The Dean of Guild on 22nd August 1889 pronounced the following interlocutor:—“Having visited the premises, and having heard counsel for the parties, and considered the whole case, in terms of the prayer of the petition continues the interdict against the respondent until a warrant of Court be obtained for said operations: Finds the respondent liable in a penalty of ten shillings, payable to the Procurator-Fiscal of Court, for proceeding with said operations without first having obtained an extracted warrant of Court therefor: Finds the respondent liable in expenses, &c.

He added the following note:—[ After stating the circumstances as above]—“The petition is brought on the ground that the respondent has proceeded, and is now proceeding, to alter the structure of this house.

“The question is, Has the Court jurisdiction to interfere?

The respondent admits the alterations as explained above. His whole objections, as explained at the debate, are summarised in his third plea-in-law—‘The alterations complained of being internal improvements which do not affect the rights of the coterminous proprietors or the public, the Dean of Guild Court has no jurisdiction to interfere.’

It is probably quite true, as the respondent avers, that this house is situated in a falling locality, and that something must be

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done to make the property let, but the Dean of Guild considers that he is bound by the Edinburgh Municipal and Police Act 1879 to consider sanitary conditions with respect to drainage and water-closets, and an alteration of a house which involves a consideration of such matters should be submitted for the warrant of the Dean of Guild Court.

The clauses of the Act which concern the present question are as follows—‘Section 159. Every person who proposes to erect any new house or building, or to alter the structure of any existing house or building within the burgh, shall lodge with the Clerk of the Dean of Guild Court a petition for warrant so to do, and such petition shall set forth a description of the intended house or building or alteration, and shall be accompanied by a plan of the site, showing the immediately conterminous properties, and also the position and width of any street, court, foot pavement, or footpath from which the property has access or upon which it abuts; and also plans, sections, and such detailed drawings as are necessary to show the mode of structure and arrangement of the intended house or building or alteration, and the lines of the intended drainage thereof, and the levels thereof relatively to the street, court, foot pavement, or footpath, and to the sewer or drain with which the soil-pipes and drains of the property to be built or altered are intended to be connected.’ ‘Section 160. The Clerk of the Dean of Guild Court shall forthwith, on receiving such petition, give notice thereof to the Burgh Engineer, who shall, before such petition is heard, report to the Court whether in his opinion the plans sufficiently provide for ventilation and other sanitary objects; and the Dean of Guild Court may decline to grant warrant for the erection of any new house or building, or the alteration of the structure of any existing house or building, until satisfied that the plans provide suitably for such ventilation and other sanitary objects.” Section 162. Every person who shall erect or begin to erect any house or building, or who shall alter the structure of any existing house or building, without a warrant or otherwise than in conformity with a warrant of the Dean of Guild Court, and every person who shall, in the erection of any house or building the erection of which has been sanctioned by the Dean of Guild Court, deviate from the plan or plans and section or sections so sanctioned, shall be liable to a penalty not exceeding five pounds, besides being bound, if and in so far as required by the Dean of Guild Court, to take down and remove the said house or building, or to restore it to the state it was in previously to the alterations thereon, or to alter it in such way as the Dean of Guild Court shall direct, so as to make it in conformity with the warrant of the Court; and the Dean of Guild Court may grant an interdict for the prevention of any such erection or alteration or deviation being proceeded with till the warrant of the Court shall be obtained for the same.’

It may also be useful to cite section 165—‘Within one month after any new house or building, or any alteration on the structure of any existing house or building has been completed, or before such house or building or any portion thereof has been occupied, the owner or the builder shall give notice to the Clerk of the Dean of Guild Court that the house or building, or any part thereof, is ready for inspection before being occupied, and the said Clerk shall thereupon transmit such notice to the Burgh Engineer, Master of Works, or other officer appointed by the Magistrates and Council, who shall forthwith proceed to survey such house or building or alteration, and if he is satisfied that such house or building is fit for occupation, and is in accordance with the provisions of this Act, he shall grant a certificate under his hand to that effect, and all such certificates shall be entered in the register of plans and sections; and every owner or builder who shall fail to give such notice aforesaid, or shall permit such house or building to be occupied before a certificate applicable thereto has been obtained, shall be liable to a penalty not exceeding five pounds, with an additional penalty of two pounds for every day during which such occupation shall continue, which penalties shall be recoverable by the collector as a debt at common law.’

The present alterations are materially concerned with the water-closets, drains, and sanitary conditions; they involve a change of one dwelling into six smaller dwellings, and the Dean of Guild is of opinion that this is one of the class of operations which he was intended by the Act to consider.

In support of his third plea the respondent referred to Colville v. Carrick, 10 R. 1241. In that case the disponees in a street had power to erect behind their houses ‘such offices as they might consider necessary for additional convenience.’ It was held that a proposed hall behind two of the houses which had been used as a school was such an office, and that the Dean of Guild had no jurisdiction to inquire as to the use of the buildings if the structure was unobjectionable.

But this was a question at common law, and the present matter falls to be decided by the terms of the Act of 1879.

In Speed v. Philip, 10 R. 795, it was held that an application to the Dean of Guild of Dundee was unnecessary, as his warrant was not required for alterations within buildings which were not dangerous to the lieges. The sanction of the Police Commissioners had been obtained for the alterations.

Besides the common law question of the Dean of Guild's powers, the Dundee Police Act was under consideration, and, as pointed out by Lord Mure, that Act gave authority to persons, with the sanction of the Police Commissioners, to engage in such operations as were objected to without the warrant of the Dean of Guild of Dundee.

In Gourlay v. Lang, 14 R. (J.C.) 31, the Court construed the Glasgow Police Act 1866, which provides that an alteration of the ‘exterior dimensions’ of a building without the Dean of Guild's warrant is a

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Guild offence. It was held that the insertion of a window which did not project beyond the plane of the wall was not an alteration affecting the exterior dimensions of a house.

As before stated, it appears to the Dean of Guild that the present question must be determined by a construction of the Edinburgh Act of 1879. The only authority which interprets the Act of 1879 on this head is Mitchell v. Dean of Guild of Edinburgh, 12 R. 844.

In that case warrant was refused where the plans did not show water-closets next to the outside walls of the proposed tenements, and on appeal the Court refused to interfere with the discretion of the Dean of Guild Court with respect to the sufficiency of ventilation and other sanitary purposes.

The premises in question have been visited, and the Dean of Guild is of opinion that the arrangements are of a very objectionable character. If a petition for warrant to make such alterations had been presented it must have been refused on the ground that these are highly insanitary. The chief objection concerns the provision of a common water-closet for the three families of each flat. It has been the invariable experience of the Dean of Guild Court that common water-closets are a source of nuisance and of danger to the inhabitants. Even when the cleaning of such is necessary the responsibility for so doing is denied by each of the families using the place. It has been found, moreover, that common water-closets have been material in spreading disease.

The water-closet on the street flat occupies an unventilated position in the centre of the house. The views of the Dean of Guild could be carried out without any hardship to the respondent. The one-roomed house on the main-door flat might be utilised to give not only a water-closet but also a bath-room to each of the two remaining houses on that flat, and the Dean of Guild is of opinion that no loss would ensue, as such provision would much enhance the value and desirability of these two houses, and increase their rent. In the one-roomed house as proposed there could not be a water-closet except in the old unventilated staircase leading down to the basement flat, which would be a very insanitary arrangement.

On the basement flat no space would be sacrificed. There is already in the three-roomed house a space available for a water-closet; in the one-roomed house next the entrance door a water-closet exists lighted from the outside, and for the other one—roomed house a water closet could either be provided in the area or at the back where the respondent's drains are situated.”

The respondent appealed to the Second Division of the Court of Session, and argued—This was a question of the construction of the Edinburgh Municipal and Police Act 1879, sec. 159, and the question was whether the operations amounted to an alteration of the structure of the house. The common law powers of the Dean of Guild were these—1st, To see that no buildings were erected in the city which affected either the private or public rights of the citizens. 2nd, To see that no house should be erected which should be dangerous to the lieges. Here neither of these two dangers appeared. The Act of Parliament did not enlarge the powers of the Court. In the erection of a new building the Court might be entitled to control the sanitary arrangements, and might refuse a lining if these were not carried out, but in the case of old buildings they could only interfere with alterations which affected the structure of the house. That meant something more than the mere alteration of the accommodation within the house. If the petitioner's view was correct, any alteration, however slight, must receive the authority of the Dean of Guild Court. All the authorities quoted by the Dean of Guild were against his contention except the case of Mitchell, which was distinguished from the present, as that was an instance of the erection of a new building over which the Dean of Guild undoubtedly had authority, while this was the case of the alteration of an old building. If the Dean of Guild was of opinion that the sanitary arranements of any house were defective the Court could send the burgh engineer to examine into these, under sec. 165, and if he was of opinion that the house was unfit for habitation in a sanitary sense, then the Court could order the necessary changes to be made. Instead of waiting for the conclusion of the operations on this house to see if sanitary requirements had been complied with or not, the Court had interdicted the respondent from improving his own property. The Court of Appeal had held that the Dean of Guild had no right to consider the use to which a building was to be put, in considering the question whether a lining was to be granted or not in the case of alleged nuisances, and allegations of the petitioner that danger would arise from the use of the buildings ought not to be considered — Robertson v. Thomas, June 17, 1887, 14 R. 822; Manson v. Forrest, June 14, 1887, 14 R. 802; Kirkwood's Trustees v. Smith & Bremner, December 20, 1888, 16 R. 255.

The petitioner argued—Under the Act of 1882 the Dean of Guild Court had received power to interfere where any structural alterations were made in an old house. The Act clothed him with a new sanitary jurisdiction which entitled him to interfere with objectionable operations either in an old or a new house. It was a question of degree whether alterations were structural. Here their effect made them so. They introduced a material difference in the sanitary conditions of this house. Of all the cases cited in the Dean of Guild's note the only one which applied (and that was in favour of the interdict) was Mitchell, because that alone was brought under the Edinburgh Police Act, and the whole question was one of construction of that statute.

At advising—