M'Arthur v Magistrates of Edinburgh

JurisdictionScotland
Judgment Date20 July 1906
Docket NumberNo. 168.
Date20 July 1906
CourtCourt of Session
Court of Session
2d Division

Lord Justice-Clerk, Lord Kyllachy, Lord Stormonth-Darling, Lord Low.

No. 168.
M'Arthur
and
Magistrates of Edinburgh.

PoliceRegulation of BuildingsCourtOpen and accessible to the publicEdinburgh Municipal and Police Act, 1879 (42 and 43 Vict. cap. cxxxii.), sec. 5.

The Edinburgh Municipal and Police Act, 1879, sec. 5, defines court as including any court or passage used solely for foot-passengers, and open and accessible to the public from a street or private street, and forming a common access to lands and heritages separately occupied.

The proprietor of a semi-detached villa in Edinburgh petitioned the Dean of Guild for warrant to erect a block of four two-storey houses, with court thereto, on the back part of the back-garden of the villa. The plans shewed that the access to the houses from the street would be through the garden in front of the villa, thence by a passage along one side of the villa, and thence through the back garden.

Held that the proposed court would not be a court within the meaning of sec. 5 of the Edinburgh Municipal and Police Act, 1879, in respect that it would not be open and accessible to the public.

PoliceRegulation of BuildingsTenementEdinburgh Municipal and Police (Amendment) Act, 1891 (54 and 55 Vict. cap. cxxxvi.), sec. 50.

The Edinburgh Municipal and Police (Amendment) Act, 1891, sec. 50 (as amended by later local Acts), regulates the open space required to be attached to houses, and, inter alia, provides that in the case of houses in tenements intended to be occupied or used as flats or separate dwellings, any open space in front shall not be reckoned as part of the open space required.

A two-storeyed semi-detached villa in Edinburgh was by a horizontal partition divided into two separate dwelling-houses, the lower having the original entrance, and the upper having its entrance by an outside stair at the back.

Held that the house was not a house in tenements, and that accordingly in reckoning the open space required certain garden ground in front was to be taken into account.

Opinion, per the Lord Justice-Clerk, that, speaking generally, the word tenement is used to describe a building containing a number of dwelling-houses within four walls, all or a number of them having a common access from the street.

PoliceRegulation of BuildingsOpen Space used exclusively in connection with HouseEdinburgh Municipal and Police (Amendment) Act, 1891 (54 and 55 Vict. cap. cxxxvi.), sec. 50.

The Edinburgh Municipal and Police (Amendment) Act, 1891, sec. 50 (as amended by later local Acts), enacts that the requisite open space attached to houses shall be pertaining to and used exclusively in connection with such houses.

The proprietor of a semi-detached villa in Edinburgh petitioned the Dean of Guild for warrant to erect a block of houses on the back part of the back-garden of the villa. Access to the houses from the street was to be obtained through the front garden of the villa and a passage at one side of the villa, and thence through the unbuilt on part of the back garden.

Opinions that the part of the back garden not built on would be open space pertaining to and used exclusively in connection with the villa, although the occupiers of the new houses would have access to it, the purpose of the enactment being to secure ventilation and light, and the requisite open space for the new houses being provided otherwise.

In January 1905 Alexander M'Arthur, proprietor of the house No. 34 Tower Street, Portobello, presented a petition in the Dean of Guild Court, Edinburgh, praying for warrant to erect a block of four two-storey houses, with court thereto, on ground forming the garden behind 34 Tower Street, and with a cement footpath as the access to the proposed houses from the street.

The house No. 34 Tower Street had two storeys, and was one half of a block of what had originally been two semi-detached villas. The other half was still a semi-detached villa, but No. 34 had by a horizontal partition been converted into two dwelling-houses, with separate entrances, the ground floor house retaining the old entrance, and the upper floor having its entrance at the back by an outside stair. In front of No. 34 was a garden plot, and at the side of the house there was a passage leading to the garden ground behind, on the back part of which the petitioner proposed to erect the new houses. The proposed access to the new houses was by the side passage, and thence through the back garden.

The Lord Provost, Magistrates, and Council of Edinburgh, who had been called as respondents, lodged answers, in which they objected to the proopsed houses on, inter alia, the following grounds:(1) That the petitioner proposed to form a court within the meaning of section 5 of the Edinburgh Municipal and Police Act, 1879,* and

that plans and sections of this court had not been submitted to the Magistrates and Council in terms of section 40 of the Edinburgh Municipal and Police (Amendment) Act, 1891; and (2) that if the...

To continue reading

Request your trial
2 cases
  • Bainbridge v Campbell
    • United Kingdom
    • Court of Session
    • 9 Noviembre 1911
    ...Limited, v. OgilvieSC (1896) 24 R. 400. 2 Millar v. Church of ScotlandSC (1896) 23 R. 557; M'Arthur v. Magistrates of EdinburghSC, (1906) 8 F. 1123. room for two constructions. Reading the deed in a fair way, the Dean is bound to say that so far as its terms go all that has been provided is......
  • Hasson v Neilson
    • United Kingdom
    • High Court of Justiciary
    • 12 Mayo 1908
    ...43), secs. 1 (1) and (4) and 3; Vallance v. CampbellUNK, 1906, 5 Adam, 70, 8 F. (J. C.) 62; M'Arthur v. Magistrates of EdinburghSC, 1906, 8 F. 1123. ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT