Glasgow Corporation v McOmish
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1896 |
| Docket Number | No. 174. |
| Date | 26 June 1896 |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
Burgh—Police—Drainage of houses—Glasgow Police Act, 1866 (29 and 30 Vict. c. 273), secs. 332-5—Glasgow Police Amendment Act, 1890 (53 and 54 Vict. c. 221), sec. 16.—
Section 16 of the Glasgow Police Amendment Act, 1890, enacts that if the drains of any house, &c., are found to be defective, the owner of the premises shall be bound immediately on an ‘order to that effect being given by the Police Commissioners, to carry out all necessary operations for removing defects of structure, and to do such acts as may be requisite to prevent risk to health, and failing compliance the Police Commissioners may do the work and recover the expenses from the owner.’ No appeal is provided.
By secs. 335, 337, 321, and 322 of the Glasgow Police Act, 1866, the Police Commissioners are empowered to require owners of houses to construct new drains if such should be necessary; and it is provided that in the event of an owner objecting the case shall be brought before the Dean of Guild.
The Glasgow Police Commissioners having found the drains of a block of houses to be defective, issued an order in terms of section 16. The owner having failed to obey the order, the Police Commissioners proceeded to execute certain work, on the advice of their sanitary engineer, discarding as useless the materials of the old drain, and constructing at a safer distance from the property a new drain in a different site, and with a different outflow.
In an action by the Police Commissioners against the owner for the expenses of the work, the Court (diss. Lord Young) assoilzied the defender on the ground that the proceedings of the pursuers were not warranted by section 16 of the Act of 1890, in respect that it only contemplated repairs to existing structures, and not the formation of a new system of drainage.
The Glasgow Police Commissioners having spent a sum of £80, 10s. 8d. on the drainage of a block of houses at Garngad Hill, Glasgow, raised this action for repayment of the amount against J. & J. M'Omish & Arthur, the factors for the proprietor of the houses, and as such owners in the sense of the Glasgow Police Acts.
The action was raised in the following circumstances: In March 1894 the sanitary inspector of the city intimated to the defenders that there were reasonable grounds for believing that the drains of the houses were defective so as to cause risk to health, and that a test would be applied on a certain date. The drains were found to be defective, and on 4th April 1894 the sanitary inspector issued to the defenders this notice:—
‘29° and 30° Victoriæ, cap. 273.* 53° and 54° Victoriæ, cap. 221.
‘Chambers, 1 Montrose Street.
‘M'Omish & Arthur, 19 Parliamentary Road, Glasgow.
‘The Glasgow Police Commissioners hereby give you notice, that within or near the premises situated at 134 and 140 Garngad Hill,
Glasgow, of which you are owners, there exists the following nuisance within the meaning of the Glasgow Police Acts, 1866 to 1890, viz.:—
‘Drains in back court and in wash-houses are very defective, also branch drains from sink conductors and under surface gratings, and in wash-houses untrapped, likewise the whole is discharged into the Monkland Canal.
‘Remedy.—Disconnect from canal and lay down a new drainage system from present drain in court through close at No. 134 Garngad Hill, and insert in drain under foot pavement of street an improved ventilating trap, &c. With certification that, if you fail to do so, the said Police Commissioners will immediately thereafter take proceedings to enforce the provisions of said Acts.’
At this time it was supposed that by taking the drains through the closes junction could be effected with a public sewer in front or on the west side of the houses. It was afterwards discovered, in the course of the operations conducted by the Police Commissioners, that the public sewer did not run in front of the houses, but stopped some distance from the south gable of the block. The assumption that the drains discharged into the Monkland Canal was also erroneous. They were actually connected with the public sewer.
Representatives of the sanitary authority and the defenders met at the premises on 11th April, and it was agreed to delay operations until the defenders could consult their client, the owner. The pursuers again urged the execution of the works, and on 10th September the defenders informed them that they were unable to induce the owner to undertake the repairs, and that the pursuers would require to do the work and charge them with the expense. ‘The matter was, however, allowed to lie over till on or about the 20th of September 1894, when the defenders or their representatives called on the sanitary inspector, and he then informed them that he insisted on their executing the work specified in said notices dated 4th April 1894.’ This was stated in cond. 8, and admitted.
The following notice was served upon the defenders on 25th September 1894:—‘53° and 54° Victoriæ, cap. 221, sec. 16.—The Glasgow Police (Amendment) Act, 1890.—By virtue and in terms of section 16 of the Glasgow Police (Amendment) Act, 1890, the Glasgow Police Commissioners hereby intimate to you that the drains connected with the houses or buildings situated at 134, 140, 146, 152, 160, and 164 Garngad Hill, Glasgow, have, after examination thereof, been found to be defective, so as to cause risk to health, and order you, as the owner of said houses or buildings, to carry out all necessary operations for removing defects of structure, or to do such acts as may be requisite to prevent risk to health, and that within seven days from this date, under certification that if you fail to comply with this order within the above period, the said Police Commissioners will, on the expiry thereof, execute the work, and recover the expense thereof as damages from you, all in terms of the section above mentioned of the said Glasgow Police (Amendment) Act, 1890.’
The defenders failed to execute the repairs.
The sanitary inspector then took estimates for the work, and the operations were conducted under the superintendence of the sanitary engineer of Glasgow, by whose advice a new drain was laid down some feet further from the windows of the houses than the old drain, and the materials of the old drain were discarded as injured and useless, and new pipes were used. As the pursuers were ignorant that the old drain was connected with the public sewer, they connected the new drain to the sewer by a new outfall.
The defenders refused to pay the expense of these operations.
After a proof, the Sheriff-substitute (Spens), on 14th March 1896, pronounced this interlocutor:—‘Finds that the Sanitary Inspector for the city of Glasgow had, on or about March 1894, reasonable grounds for believing that the drains connected with the houses or buildings at Garngad Hill, specified in article 2 of the condescendence, of which defenders were factors, were defective: Finds that he gave notice to defenders on 16th March, having in view the 16th section of the Glasgow Police Act, 1890, that the sufficiency of said drains would be tested on 2d April 1894: Finds on the said 2d April the smoke test was applied to the drains in said tenement, with the result of indicating the drains were defective, and finds in point of fact said drains were defective: Finds that certain procedure thereafter went on, but finally, on 24th September, the pursuers, the Glasgow Police Commissioners, issued an order under the 16th section of the statute above referred to, ordaining the defenders to carry out all necessary operations for removing defects of structure, or to do such acts as might be requisite to prevent risk to health, and that within seven days, under certification that if they failed to comply with said order within said period the pursuers would execute the work at the expense of the defenders: Finds nothing was done by defenders, and the sanitary inspector, on or about 17th October 1894, ordered the witness John Shaw to proceed with the work, which the sanitary authorities specified as in their opinion necessary to put the drainage right: Finds the charge for the work done in connection with the premises by the said John Shaw amounted in cumulo to the sum of £80, 10s. 8d., being the amount of the account sued on: Finds, under reference to note, the defenders are liable for said expenditure by pursuers; therefore repels the defences, and decerns as libelled: Finds defenders liable in expenses,’ &c.
The defenders appealed, and argued;—The pursuers' proceedings were ultra vires. The notice of 25th September referred to and incorporated the notice of 4th April, and both were under section 16 of the Glasgow Police Act, 1890. From the first a new drainage system was contemplated and ordered. All that the corporation could legitimately do was to call for remedy without specification.1 If on failure of the owner the pursuers did the work, they could only repair the existing structure. Instead of this they had made a drain which was new throughout. Accordingly they were outside the provisions of section 16 of the Act, and the defenders were not liable.2 They should have proceeded under the Glasgow Police Act, 1866, sections 332–335, or under the Public Health Act, 1867 (30 and 31 Vict. c. 101), section 85, which was applicable to Glasgow, both of which applied where there was either no system at all, or where an existing system had to be discarded.
Argued for the pursuers;—The Local Authority was prima facie
the judge of sanitation, and the Court would only interfere in very exceptional circumstances. [Lord Trayner.—We might not interfere in respect of the manner in which a Local Authority executes what it has power to do, but here was there not a new construction substituted for repair ?] Even if there were, the pursuers were within the...
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