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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Diarmid v. Glasgow Corporation (Executive Committee on Housing) [1917] ScotLR 264 (16 February 1917) URL: http://www.bailii.org/scot/cases/ScotCS/1917/54SLR0264.html Cite as: [1917] ScotLR 264, [1917] SLR 264 |
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Page: 264↓
[Sheriff Court at Glasgow.
A local authority issued a closing order narrating that a dwelling-house was unfit for human habitation, and prohibiting its use until in their judgment it was rendered fit for that purpose. The dwelling-house was a tenement containing eighteen separate dwelling-houses, and none of them was fit for human occupation. Held, in a special case under the Housing, Town Planning, &c. Act 1909, section 39, that the closing order was inept and ultra vires in respect that there was no statutory warrant for what was effected by the order, viz., to prohibit the use of the tenement as a whole until each and every dwelling-house in it had been rendered fit for human habitation in the judgment of the local authority— Kirkpatrick v. Maxwelltown Town Council, 1912 S.C. 288, 49 S.L.R. 261, commented on.
The Housing, Town Planning, &c. Act 1909 (9 Edw. VII, cap. 44), enacts, section 17—“(1) It shall be the duty of every local authority … to cause to be made from time to time inspection of their district, with a view to ascertain whether any dwelling-house therein is in a state so dangerous or injurious to health as to be unfit for human habitation.… (2) If … any dwelling-house appears to them to be in such a state, it shall be their duty to make an order prohibiting the use of the dwelling-house for human habitation (in this Act referred to as a closing order) until in the judgment of the local authority the dwelling-house is rendered fit for that purpose.”
In the course of an action in the Sheriff Court at Glasgow by Mrs Catherine M'Diarmid, pursuer, against the
Page: 265↓
Executive Committee on Housing of the Corporation of the City of Glasgow, defenders, craving decree quashing a closing order of the defenders, a question of law arose, and the Sheriff-Substitute ( Thomson) at the request of the pursuer stated a Special Case for the opinion of the Court. The Closing Order was as follows:—
Corporation of Glasgow.
Closing Order under section 17 (2) of the Housing, Town Planning, &c., Act 1909. “To Mrs Catherine M'Diarmid, 38 Steven Parade, Glasgow, and Miss Pennycook, bondholder, per Messrs Mackenzie Roberton & Co., 176 St Vincent Street, Glasgow, and others, owner or owners of the ‘dwelling-house’ being a front tenement at 26 Claythorn Street, Calton, Glasgow.
Whereas under sub-section (2) of section 17 of the Housing, Town Planning, &c., Act 1909 it is the duty of the local authority, if, on the representation of the medical officer of health or of any other officer of the local authority, or other information given, any dwelling-house appears to the local authority to be in a state so dangerous or injurious to health as to be unfit for human habitation, to make a closing order, that is to say, an order prohibiting the use of the dwelling-house for human habitation until in the judgment of the local authority the dwelling-house is rendered fit for that purpose:
And whereas it appears to the Executive Committee on Housing of the Corporation of the City of Glasgow, acting as local authority for said city for carrying out certain provisions of the Housing of the Working Classes Act, 1890 to 1909, including therein sections 17 and 18 of the Housing, Town Planning, &c., Act 1909, on the representation of the junior medical officer of health and the junior sanitary inspector of said city that the above-mentioned dwelling-house is in a state so dangerous or injurious to health as to be unfit for human habitation in respect of the defects set forth in the accompanying memorandum:
Now therefore we, the said Executive Committee on Housing, as local authority foresaid in pursuance of sub-section (2) of section 17 of the Housing, Town Planning, &c., Act 1909, do, by this our order, prohibit the use of the said dwelling-house for human habitation until in our judgment it is rendered fit for that purpose.
Dated this third day of December 1915.
(Signed) J. Lindsay,
Clerk to the Local Authority.”
The memorandum referred to in the closing order set out the subjects in detail and the defects in each.
The Case set forth—“2. Mrs Catherine M'Diarmid, the pursuer, is proprietrix of a tenement at 26 Claythorn Street, Glasgow, consisting of eighteen dwelling-houses and a store. 3. The defenders on 3rd December 1915 made a closing order in regard to said property under section 17 (2) of said Act. 4. The pursuer on 6th January 1916 raised an action under section 17 (3) of said Act craving the Court to quash said closing order. 5. I heard the parties, but before judgment was given the pursuer lodged the minute craving a Special Case.”
The question for the opinion of the Court was—“Whether the closing order is ultra vires and inept in respect it prohibits the use for human habitation of the eighteen separate dwelling-houses in the tenement therein referred to until in the judgment of the defenders each and every one of said eighteen dwelling-houses is rendered fit for that purpose?”
Argued for the pursuer—The closing order was ultra vires. It was legitimate for the purposes of identification to describe a tenement consisting of eighteen separate dwelling-houses as a dwelling-house— Kirkpatrick v. Maxwelltown Town Council, 1912 S.C. 288, per Lord President Dunedin at p. 297, 49 S.L.R. 261. But the present order went further. It prohibited the use of the dwelling-house until it was rendered fit for human habitation. The effect was that no house in the tenement could be used though one or two or even seventeen of them were in perfectly good condition. Such a result was not contemplated by the Housing, Town Planning, &c., Act 1909 (9 Edw. VII, cap. 44). The moment the order became operative the tenants had to leave their houses (section 17 (4)), and the subjects could not be let till the order was determined, i.e., till the whole tenement was rendered fit for occupation (section 17 (5)). Further, if the tenement was to be regarded as a dwelling-house, then if the whole of the separate houses except one in it were put right within three months after the closing order became operative the defenders would still be bound to pronounce a demolition order— Lancaster v. Burnley Corporation, 1915, 1 K.B. 259—or at least if that course was not practicable they would have to keep closed the whole tenement. The Act conferred drastic powers on the defenders and should be construed against them. No doubt the pursuer if the order became operative could apply for a determination of it (section 17 (6)), or could raise the question when the demolition order came to be dealt with (section 18(1) and (2)), but in the meantime her hands were tied by the order, and that gave her a right to have the order put in proper form before it became operative. An appeal by Special Case was competent up to the moment when the Sheriff-Substitute granted decree but not later, so that the present case was competent—Housing, Town Planning, &c., Act 1909 ( cit.), sec. 39 (1) ( a); Johnston's Trustees v. Glasgow Corporation, 1912 S.C. 300, 49 S.L.R. 269.
Argued for the defenders—At the present stage the order was competent, for none of the houses was in fact in a fit state for human habitation— Kirkpatrick's case ( cit.), per Lord President Dunedin ( cit.). Accordingly the question of law did not arise upon the facts, as it could not arise until one or other or several of the houses was fit for human occupation. Consequently the Special Case was not competent (section 39, proviso ( a)).
Page: 266↓
It appears that the pursuer is the proprietrix of eighteen separate dwellings all in one tenement, that the local authority had been advised that all these eighteen separate dwellings are in an insanitary condition and therefore unfit for human habitation, and accordingly that under the recent statute a closing order ought to be pronounced until these dwellings are put in a proper state of repair and rendered fit for human habitation.
Now I cannot conceive of any real difficulty arising in the expression of an order designed to give effect to that view. If the pursuer is the proprietrix of these eighteen dwellings, why not say so? If these dwellings are in an insanitary condition, why not say so? And if and when any one of them is put in a condition in which the medical officer of health thinks it quite fit for human habitation again, why not say that the order will be recalled, as it must be recalled, when that state of affairs arises?
Instead of expressing the order in plain and direct language which would be easy and intelligible to everybody, the local authority have taken advantage of a judicial opinion expressed in the case of Kirkpatrick, 1912 S.C. 288, at p. 297, 49 S.L.R. 261, to describe the cluster of eighteen dwellings as a dwelling-house “being the front tenement at 26 Claythorn Street, Glasgow,” and then in the order they describe it as a dwelling-house. So far so good. It appears to me that on the decision in the case of Kirkpatrick ( cit.) they are well founded in so designating the eighteen dwellings, for the Lord President in that case distinctly says—“I am of opinion that the expression ‘dwelling-house’” in this very statute “may include a whole tenement, even although that tenement comprises four” or eighteen “dwelling-houses,” as the case may be. “The whole question is one simply of identification.” Of course if the local authority took advantage of this mode of expression, then they must also face certain risks. They are confronted with the peril of finding that one or two, or it may be mote, are in a state fit for human habitation, and in that case their order goes by the board.
In the present case, however, and for the purpose of our judgment to-day, we must assume that the whole eighteen dwellings are in a state unfit for human habitation. That being so, if the proprietrix puts one or two or three in order, it appears to me that there is an imperative duty on the part of the local authority, by virtue of the 6th subsection of section 17, if application is made to them, to determine the closing order so far as regards that dwelling-house which the sanitary authority say is now fit for human habitation. But according to the terms of the order and its interpretation by counsel on both sides of the bar the dwelling-house, although perfectly fit for human habitation, would require to remain closed until the whole remaining seventeen had been put in a state fit for human habitation. That appears to me to be directly contrary to the Act of Parliament, and accordingly if that be (as I assume) the correct interpretation of the order—and undoubtedly it is in accordance with the expressions used in the order—I am of opinion that it was ultra vires for the local authority to pronounce it, and that we ought to answer the question put to us in the affirmative.
The next question is whether the statute authorises the closure of eighteen separate dwelling-houses until such time as the whole eighteen have been rendered fit for human habitation. I have been unable to find any clause in the statute which bears that interpretation, and the matter was not really very seriously argued to us by the learned counsel for the Corporation. His argument, as it seemed to me, depended upon certain observations by Lord Dunedin in the case of Kirkpatrick, 1912 S.C. 288, 49 S.L.R. 261. With these observations I respectfully agree. In ordinary language, and in the language of this statute, it is quite legitimate to describe, for purposes of identification, a tenement consisting of eighteen dwelling-houses as a single dwelling-house. But if one is to proceed to the operative portion of the order that circumstance does not entitle us to extend the powers of the local authority as has been here done. In the actual circumstances I do not think that anything is gained either in shortness or clearness by taking advantage of Lord Dunedin's observation, because if the order begins by treating the whole tenement as one it is all the more necessary in the final portion of the order (which defines the period of time for which the closing order is to be maintained) to show that this is a separable matter depending on the condition of each separate dwelling.
For these reasons I agree that the question in this Stated Case must be answered in the affirmative.
The Court answered the question in the affirmative.
Page: 267↓
Counsel for the Pursuer— Mackenzie, K.C.— Maconochie. Agents— Fraser, Stodart, & Ballingall, W.S.
Counsel for the Defenders— M. P. Fraser. Agents— Campbell & Smith, S.S.C.