Stornoway Town Council v MacDonald
| Jurisdiction | Scotland |
| Judgment Date | 05 January 1971 |
| Docket Number | No. 11. |
| Date | 05 January 1971 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Burgh—Appeal against resolution of town council passed under statutory powers—Statutory right of appeal not exercised—Common law challenge of resolution—Competency—Action for payment of sum assessed on proprieter as share of private improvement expenses—Defence that resolution to undertake work ultra vires—Roads and Streets—Burgh Police (Scotland) Act, 1892 (55 and 56 Vict, cap. 55), secs. 133 and 339.
Personal Bar—Acquiescence—Resolution by town council to execute work under statutory powers—No appeal by affected proprietor—Refusal by proprietor to pay share of cost of work on ground that resolution ultra vires.
Process—Challenge of resolution ope exceptionis—Competency—Interests of third parties involved.
The Burgh Police (Scotland) Act, 1892, empowers the commissioners by sec. 133 to cause a private street to be made up to their satisfaction and by sec. 137 to recover his proportion of the cost from each proprietor of lands abutting on the street as private improvement expenses. Sec. 339 enacts:—"Any person liable to pay or to contribute towards the expense of any work ordered or required by the commissioners under this Act, and any person … who thinks himself aggrieved, by any order, or resolution, or deliverance … of the commissioners made … under any of the provisions herein contained, may … appeal either to the Sheriff or to the Court of Session … within fourteen days after intimation of the order or deliverance … complained of … "
A town council, who were commissioners under the 1892 Act, resolved in terms of sec. 133 to make up a street. Notice of the resolution and of his right of appeal under sec. 339 was served on the proprietor of lands abutting on the street, who did not appeal. The work having been done, the council assessed the proprietor for his share of the cost as private improvement expenses. He refused to pay, and the council brought an action in the Sheriff Court for the amount assessed on him. The defence was that the street in question was not a private street and that consequently sec. 133 did not apply and the original resolution wasultra vires.
Held that, apart from exceptional circumstances, the Courts had no power beyond that conferred on them by sec. 339 to review the town council's resolution, that no exceptional circumstances had been averred, and that the defence was therefore incompetent.
Dictum of Lord President Cooper in Cumming v. Magistrates of Inverness, 1953 S.C. 1, at p. 5,applied.
Held further that, since the town council had to the knowledge of the proprietor incurred expense in reliance on the resolution, he was personally barred by acquiescence from challenging its legality.
Observed by Lord Kissen that the defence was in effect a challenge of the resolution ope exceptionis and was incompetent on the further ground that the other proprietors assessed for the cost were not parties to the action.
The Provost, Magistrates and Councillors of the Burgh of Stornoway brought an action in the Sheriff Court at Stornoway against Robert Macdonald for payment of the sum of £943, 1s. 7d.
The following narrative of the facts, as disclosed by the averments and productions, is taken from Lord Milligan's opinion:—"In 1965 the pursuers, in virtue of the powers conferred on them by section 133 of the Burgh Police (Scotland) Act, 1892, resolved to cause a certain section of a private street known as Rigs Road to be what maybrevitatis causa be described as “made up”, and formal notice of their resolution was sent to the defender, who was the proprietor of a yard abutting on Rigs Road. In the notice, which was dated 16th April 1965, the defender was informed of the rights of appeal open to any person liable to pay or contribute towards the expense of the work, or whose property might be affected or who felt himself aggrieved by the resolution of the pursuers. The defender did not avail himself of his right of appeal, and (although this is not specifically averred) it is clear that the pursuers thereafter proceeded to carry out the work involved in making up the said section of Rigs Road. On 12th February 1969 the pursuers raised against the defender an assessment for private improvement expenses in respect of the share of the cost of the work payable by the defender, namely £943, 1s. 7d. In the notice of assessment the defender was informed that “appeals against the assessment on the ground of being improperly charged must be made in writing and lodged with the collector not later than 6th March 1969. Any such appeals shall be heard by the town council at 7.30 o'clock p.m. on Monday, 10th March 1969.” By letter dated 4th March 1969 the defender's solicitors intimated to the pursuers that the defender wished to appeal against the assessment. In the letter the solicitors stated that they assumed that the road was made in terms of section 151 of the Burgh Police (Scotland) Act, 1892, and that they had advised the defender that in their view such an assessment could be made only when subjects were actually erected on the feu but that none had been erected at the moment. In the letter the defender's solicitors also stated that the defender was also making inquiries as to the calculations of the proportions applicable to the subjects. On 5th March 1969 the burgh chamberlain wrote to the defender's solicitors, acknowledging receipt of their letter of 4th March and, inter alia, pointing out that the road was made under section 133 of the Burgh Police (Scotland) Act, 1892, but that the letter would nevertheless be placed before the town council when appeals were heard on 10th March 1969. On 6th March 1969 the town clerk wrote to the defender, intimating the time and place when the appeals would be heard and pointing out to him that he would not be permitted to debate this matter but merely to state his objection to the assessment levied on him in respect of the private improvement expenses referred to. On 10th March 1969 the defender's appeal was considered at a special meeting of the pursuers, when according to the minute of the meeting the difference between the provisions of section 151 and section 133 of the Burgh Police (Scotland) Act, 1892, were referred to. The defender was present at the meeting and was invited to state his objection. According to the minute the defender “indicated that his appeal was on the lines as set out in the letter by Messrs Walsh, Boyle & Co. on his behalf but that he felt that the charges for the work were excessive.” It is recorded that the defender then left the meeting and that after considering the objection and hearing the burgh surveyor's summary of the cost and allocation of cost for making up the section of Rigs Road the council decided “that Mr Macdonald's appeal against the assessment levied on him in respect of private improvement expenses on Rigs Road be not upheld, since no good reason had been shown as to why the assessment should not be paid as levied on him.” On 13th March 1969 the town clerk wrote to the defender's solicitors informing them that the council had decided to dismiss the appeal. The pursuers aver that the defender, although repeatedly requested to make payment of the assessment, has refused or delayed to do so, and that the amount of the said assessment is the sum sued for."
The pursuers pleaded, inter alia;—"(1) The defender having appealed to the pursuers against the amount of the assessment made on him, his defence to the present action is incompetent.1(2) The defender, not having appealed against the notice of 16th April 1965 in terms of the statutes, is personally barred by acquiescence, and decree should be granted as craved."
The defender pleaded, inter alia:—"(3) Pursuers' purported assessment for private improvement expenses, having proceeded from their ultra vires decision of 12th April 1965, all as condescended on, the defender is entitled to absolvitor with expenses."
On 10th March 1970 the Sheriff-substitute (MacLean) sustained the pursuers' first plea in law, repelled the defences as incompetent and granted decree de plano for the sum sued...
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