Scottish Court of Session Decisions

Section 91 of the Turnpike Roads Act, 1831, which with certain other sections of the same Act is incorporated in the Roads and Bridges Act, 1878, Schedule C, provides “that no houses, walls, or other buildings above seven feet high shall be erected without the consent of the trustees, previously obtained in writing, and no new enclosures or plantations shall be made within the distance of twenty-five feet from the centre of any turnpike road.”

Upon August 2nd, 1894, Alexander Macdonald, steamers agent, Ardrishaig, presented a petition in the Dean of Guild Court of the burgh of Fort-William, for warrant to erect certain buildings on a piece of ground situated in High Street, Fort—William, in the burgh of Fort-William, to be used as a post-office. He called as defenders the neighbouring proprietors and John Paterson, C.E., Master of Works for the burgh. The latter objected to the petition being granted.

Upon August 9th, 1894, the following interlocutor was pronounced—“The Court having considered the petition and relative plans, and having heard the objection by the Master of Works that the plans shew that the building is proposed to be erected nearer than 25 feet to the centre liue of High Street, delay consideration of the petition until the petitioner has obtained the permission of the Commissioners of the burgh as the road authority, to build within 25 feet of the centre line of High Street, in terms of sec. 91 of the Act (1 and 2 Will. IV. cap. 43).

Upon September 25th, the Court, after consideration of the petition and relative plans with a report thereon by the Master of Works, and a certified excerpt from the minute of meeting of the Commissioners of the burgh, found “(1) that the Commissioners have refused to allow the building in question to be erected within 20 feet from the centre line of High Street; (2) that from the plans produced, and report above referred to by the Master of Works, it appears that the front or face of the building is proposed to be erected on an average of 12 feet 4 inches from the centre line of High Street: Therefore refuses the prayer of the petition, and decerns.”

The petitioner appealed. The Commissioners of the Burgh of Fort-William, and the Master of Works of the burgh, appeared to oppose the appeal.

A joint-minute was lodged wherein the parties concurred in making, inter alia, the following statements.

“ Second. That the ground on which said block of buildings is proposed to be erected is situated between the Chevalier Hotel on the west side and a building belonging to Mrs Knox on the east side. The front wall of the proposed building is proposed by the petitioner to be built on the line A B of the plan, No. 14 of process. The said High Street of Fort-William was formed upwards of 100 years ago. … There are, and have been from time immemorial, buildings on both sides of the street. They are nearly continuous. The breadth of the street between the buildings varies from about 18 feet to 40 feet, or thereby. …

“ Third. The ground on which the said block of buildings is proposed to he erected was formerly built upon, but the building became ruinous and was taken down about thirty years ago. The front wall of it was in the same position as the front wall of the proposed building. About twenty years after the old building had been taken down, the ground was fenced from the High Street by means of an iron railing in the line of the front of the Chevalier Hotel, and the ground has, for the last nine years or thereby, been occupied as a grass and flower plot.

“ Fourth. That if the proposed block of buildings were erected in accordance with the plans, the distance between the face of the building and the centre line of the said High Street would be 12 feet 4 inches, the width of the street ex adverso of the said piece of ground being 24 feet 8 inches or thereby.

The appellant argued—The Dean of Guild Court had no power to refuse the warrant asked for on the ground they did. The words in the Act were “new enclosures,” and that applied solely to houses built on ground which had not been before built upon. In this case it was admitted that a building had stood upon the appellant's ground, and therefore the appellant was entitled to build up to the verge of his property. The words in section 127 of the Edinburgh Police Act 1879 were fully as broad as those of the General Turnpike Act, but they had been construed to refer only to new buildings— Pitman, &c. v. Burnett's Trustees, January 26, 1882, 9 R. 444.

The respondents argued—The General Turnpike Act referred to every building that was being erected anew. It was admitted that if a house was pulled down

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merely for the purpose of being rebuilt, the Act would not apply, but if, as in this case, the ground had remained vacant for a long time, any erection that might be put up must be reckoned as a new building.

At advising—