Caledonian Railway Company v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1905 |
| Docket Number | No. 182. |
| Date | 19 July 1905 |
| Court | Court of Session |
Lord Low, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear, Lord Kyllachy, Lord Stormonth-Darling.
ProcessStatutory RemedySheriffDeclarator and reduction pending statutory appealCompetencyGlasgow Building Regulations Act, 1900 (63 and 64 Vict. cap. cl.), sec. 9 (2).
The Glasgow Building Regulations Act, 1900, by sec. 9 (2), directs that a Register of Streets shall be prepared, in which, inter alia, the width of streets may be entered, and that any proprietor aggrieved by any entry in the register may appeal to the Sheriff, whose decision shall be final.
A proprietor of subjects fronting on various streets in Glasgow brought an action in the Court of Session for declarator that the width of streets entered in the register must be the actual width, and that the width entered in certain cases opposite his properties was not the actual width, with conclusions for deletion of the entries and for interdict, and reduction. On the same date he appealed to the Sheriff against these entries.
Held (by First Division with three consulted Judges) that the action, although not incompetent, was premature, and fell to be dismissed.
PoliceStreetBuilding RegulationsWidth of StreetBurghGlasgow Building Regulations Act, 1900 (63 and 64 Vict. cap. cl), secs. 4, 9 (2), and 20.
Opinion (per cur.) that in preparing the Register of Streets Glasgow' provided for by sec. 9 (2) of the Glasgow Building Regulations Act, 1900, the width of streets when entered therein must be the actual width of the street at the various points in its course, and not an ideal width fixed with a view to a public improvement.
The Caledonian Railway Company, on 30th July 1904, brought an action against the Corporation of the City of Glasgow and Thomas Nisbet, Registrar of Public Streets, appointed under the Glasgow Building Regulations Act, 1900,* in which the pursuers concluded,
inter alia, for declarator (1) that the defenders are not entitled to insert in the Register of Public Streets prepared under and in terms of the said Act, section 9, subsection (2) (a), under the heading Width of Street any entry stating, or to make on the Ordnance Survey map referred to in the said section of the said Act any marking shewing the width of street to be greater than the actual width thereof, where the railways, works, or properties of the pursuers front or abut on the same, or where the pursuers are interested therein, and that the width stated in the entries under the said heading and shewn on the said map to be the widths of streets are not the actual width of the following streets, where railways, works, or properties of the pursuers front or abut thereon, or where the pursuers are interested therein, viz.:(Then followed a list of streets).
There were also conclusions for deletion of the entries and markings on the map referred to; for interdict against the defenders making or retaining or reinserting in the said register or map any of
the foresaid entries or markings; and if necessary for reduction of the said entries and markings.
The register and map prepared under section 9 (2) (a) of the Glasgow Building Regulations Act, 1900, were placed on completion in the office of the clerk to the Corporation on 28th May 1904, and the pursuers received a large number of notices as owners of certain lands and heritages in terms of section 9 (2) (b).
The pursuers set forth in a schedule appended to the summons excerpts from the register of streets of the entries of the several streets in which the pursuers were interested. With regard to these entries the pursuers averred:(Cond. 7) In the case of the undernamed streets set forth in the said Schedule No. 1, the width stated in the register under the heading Width of Street, and coloured on the Ordnance Survey map relative to the said register referred to in the said subsection (2) (a) of section 9 of the said Act, is not the width of the street as it actually exists where the pursuers' railways and works or properties are situated or where they front or abut thereon. There is no authority under the statutes in force in the city of Glasgow or otherwise for stating the width of the streets at a different width from that actually existing. In certain cases the width of street as stated in the register and shewn on the map includes not only parts of areas of unbuilt-upon land in front of property belonging to the pursuers, although not actually used as street, but also includes the railways, works, and buildings, and the solum thereof belonging to the pursuers. The following are the streets referred to, viz.(Then followed a list of streets).*
In answer, the defenders stated:(Ans. 7) Admitted that in the case of certain of the streets here specifically enumerated the width in the register under the heading Width of street is not the width of the street as it actually exists where the pursuers' railways, works, and properties are situated, or where they front or abut thereon.
Explained that the width of such streets is in all cases properly entered in accordance with the provisions of the said Act, and particularly of sections 9, 18, 20, and 21, and that the colouring on the Ordnance Survey map, relative to the said register, referred to in subsection (2) (a) of section 9 of that Act shews in each case the width of the street as it actually exists opposite the respective properties in those streets. Explained that it is impossible to enter in said register the actual or existing widths of every public street in the city at every point in such streets. In a great number of instances such streets vary in width at numerous points, and would require as many as one hundred entries for one street. The pursuers are called upon to specify in detail the parts of areas of unbuilt-upon land in front of property belonging to them not actually used as street, and also the railway, works, and buildings, and the solum thereof belonging to them which they allege are included in the width of streets. Without such detailed information the defenders are unable to answer more specifically.
The defenders also founded on the fact that the pursuers on 30th July 1904 had appealed to the Sheriff of Lanarkshire under section 9 (2) w of the Glasgow Building Regulations Act, 1900, in respect of all entries in the Register of Streets which were objected to in this action, and that these appeals were still pending.
The pursuers pleaded;(1) The entries in the said register and the markings on the said Ordnance map, being in the respects condescended on unauthorised by the Glasgow Building Regulations Act, 1900, it is ultra vires of the defenders to insert them in the Register of Public Streets and mark them on the said Ordnance Survey map, and decree of declarator should be granted as concluded for.
There were also pleas in support of the conclusions for deletion, interdict, and reduction.
The defenders pleaded;(1) Lis alibi pendens. (2) The action is irrelevant. (3) The action is incompetent, and is excluded in respect the said Glasgow Building Regulations Act determines the pursuers' rights by providing a remedy by appeal to the Sheriff of Lanarkshire at the instance of any proprietor who may be aggrieved by any entry in the register or omission therefrom, or by any relative marking on the map, and the decision of said Sheriff is declared to be final. (4) The pursuers having exercised their right of appeal regarding the whole entries complained of in terms of section 9 (2) (c) of said Act, are barred from suing this action. (5) The entries complained of being authorised by the provisions of the Glasgow Building Regulations Act, 1900, the defenders should be assoilzied, with expenses.
The case was reported to the First Division by the Lord Ordinary (Low).
On 10th March 1905 the First Division, in respect of the importance of the question raised in the case, appointed the cause to be argued before seven Judges.
The case was heard before the Judges of the First Division, and Lords Kyllachy, Stormonth-Darling, and Low, at the same time as the case of Hamilton v. Nisbet, reported infra, p. 1034.
Argued for the defenders;(1) In view of the special appeal to the Sheriff provided for by section 9 (2) (c) of the Glasgow Building Regulations Act, 1900,1 the present action was incompetent, or at
least premature. Where as here there was a new subject-matter as to which the Courts of law had no jurisdiction originally, and a statutory remedy was provided, that remedy was exclusive even where excess of power was alleged.1 The register was still inchoate. It was not complete until the Sheriff had considered the appeals against the entries complained against.2 There was here no invasion of any right of property. The case of Lord Advocate v. Police Commissioners of PerthUNK3 was really in contrast to the present. (2) Sections 9, 20, and 21 of the Glasgow Building Regulations Act, 1900,4 must be read together. If so read, it was plain that the width to be entered on the register was not the tape measure width, but that the authorities had a certain discretion, and were intended to fix one general mean width for each street. If the width was the tape measure width, and there was no discretionary power, then the appeals provided for to the Sheriff and the Dean of Guild were useless; and the provisions in sec. 21 as to the Dean of Guild having regard to the provisions of sec. 18 were meaningless. The defenders did not maintain that they had power to fix an ideal width, but they claimed that they were not confined to the actual width, which in many cases differed at different points in the street. They were entitled to fix one general width for each street, even if this involved shewing ground as street in the register which never had been street de facto or de jure. Sec. 24 of the Glasgow Building Regulations Act, 1900,4 only applied where the Corporation desired at once to acquire a...
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