T. DOCHERTY Ltd v MONIFIETH TOWN COUNCIL
| Jurisdiction | Scotland |
| Judgment Date | 08 May 1970 |
| Date | 08 May 1970 |
| Docket Number | No. 18. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Public Health—Burgh—Drainage—Duty to cause sewers to be made—Private housing development—Making of sewers to connect house drains to main sewer—Whether local authority entitled to direct private developer to make sewers—Local Government—Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55), sec. 219.
Process—Petition—Order for specific performance of statutory duty—Competency—Alternative remedy available—Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 91.
Title to Sue—Land to be developed by construction of houses and streets—Title of developer to sue local authority for implement of statutory duty to cause sewers to be made—Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55), sec. 219.
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Sec. 91 of the Court of Session Act. 1868, empowers the Court, upon application by summary petition, to order the specific performance of any statutory duty.
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The Burgh Police (Scotland) Act, 1892, enacts by sec. 219 that the local authority for a burgh "shall from time to time… cause to be made, under the streets, or elsewhere, such main and other sewers as shall be necessary for the effectual draining of the burgh…"
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A company of property developers, who had acquired a site within a burgh for the purpose of constructing 52 houses and the streets serving them, called on the town council to lay the sewers necessary to connect the drains from the houses to the main sewer of the burgh. The council stated in reply that "the town council have decided that the sewers within the development shall be laid by you as developers to a point to be arranged with the burgh surveyor for connection to the main sewer of the burgh." In a petition presented by the company under sec. 91 of the 1868 Act to have the council ordained to cause to be made the sewers necessary for draining the site, conform to sec. 219 of the 1892 Act, the respondents contended that they had performed their statutory duty by stipulating that the petitioners should lay the necessary sewers as part of their development of the site. They further contended (1) that the petition was incompetent, since there were other statutory remedies available, and (2) that the petitioners had no title to sue, since the statutory duty was owed to the whole community resident in the burgh, not to individuals.
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Held (1) that the petition was competent; (2) that the petitioners had a title to sue; and (3) that the duty of providing the sewers necessary for the effectual draining of the development site lay on the respondents and that they could not discharge that duty by directing the petitioners to perform it.
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The Court observed that the parties might well come to a practical arrangement on the lines indicated in Muirhead, Municipal and Police Government in Scotland (3rd ed.), vol. i, p. 406; andcontinued the petition for this to be considered.
T. Docherty Limited, a company incorporated under the Companies Acts, presented a summary petition under section 91 of the Court of Session Act, 1868,1 in which they prayed the Court "to ordain the respondents to cause to be made such main and other sewers as shall be necessary for the effectual draining of the area of the petitioners' development at Milton Park within the burgh of Monifieth conform to section 219 of the Burgh Police (Scotland) Act, 1892, and that by causing to be laid such sewers as are sufficient to receive the drains from all the buildings and streets within that development…" The respondents, who lodged answers, were designed in the petition simply as "the Burgh of Monifieth, Municipal Chambers, Monifieth."2
The parties averred, inter alia:—(Art. 2) "The petitioners are the proprietors of an area of ground extending to about 4.9 acres at Milton Park, Monifieth. They are ratepayers of the burgh of Monifieth. The respondents' averments in answer are denied." (Ans. 2) "Admitted that the petitioners are ratepayers of the burgh of Monifieth. Quoad ultra not known and not admitted. Explained that the petitioners are ratepayers as the occupiers of a property not situated on the said area of ground." (Art. 3) "The petitioners acquired the ground in 1963 in order to build a private housing development upon it. They have the necessary planning permission and have obtained the other warrants and consents required for the development. With reference to the respondents' averments in answer the petitioners' title is a disposition in their favour by James Watson Forbes, dated 5th December 1963 and recorded in the division of the Register of Sasines applicable to the County of Angus on 15th January 1966…" (Ans. 3) "The petitioners are called upon to disclose the nature of their title…" (Art. 4) "The development comprises a total of some 52 dwelling-houses served by new streets which lead into and through the said development. These houses are to be supplied with drainage systems which require to be connected to the main sewer of the burgh. Sewage pipes are accordingly required to be laid in order to carry the waste from the drains to the main sewer. Sewers are also required to carry off the surface water from the houses and the new streets." (Ans. 4) "Believed to be true." (Art. 5) "In terms of section 219 of the Burgh Police (Scotland) Act, 1892,‡ the respondents are obliged from time to time to “cause to be made, under the streets, or elsewhere, such main and other sewers as shall be necessary for the effectual draining of the burgh…”" (Ans. 5) "Admitted." (Art. 6) "The petitioners are now about to commence work on the said development. The site is ready for work to commence. The men and equipment are ready to
move in. It is necessary to have the relative sewers made at the outset of the work in order that the drains may be constructed at the appropriate levels and in order that the new streets under which the sewers are to pass can be built. The cost of laying the sewers now will be about £2728, 16s. If they were left until the houses were constructed, the cost would be very much greater, and by that time the roads would have had to be built and would require to be dug up. In a short time the construction of the houses will be started and by then the sewers will already have to be in position. Sewers must also now be made to carry off the surface water. In order for the area of the development in question to be effectively drained, it is now necessary for sewers to be laid and connected to other sewers of the burgh or, in the case of surface water, led off to some other appropriate place of disposal." (Ans. 6) "Not known and not admitted." (Art. 7) "The petitioners have by letter dated 1st October 1969 to the respondents specifically called upon the Burgh to carry out their duty under the said Act and cause there to be laid in the area of the development in question the sewers which are necessary for it to be effectually drained. The respondents have, however, refused to cause the sewers to be made. By letter dated 15th October 1969 they replied to the said letter of 1st October 1969 stating that “the Town Council have decided that the sewers within the development shall be laid by you as developers to a point to be arranged with the burgh surveyor for connection to the main sewer of the burgh.” With reference to the respondents' averments in answer it is admitted that certain of the sewers which are required lie within the area owned by the petitioners. The adequacy of the capacity of the respondents' system is not known and not admitted. Quoad ultra denied." (Ans. 7) "Admitted that the said letters of 1st and 15th October passed between the petitioners and the respondents. Denied that the respondents have refused to cause sewers to be made. They have caused them to be made in terms of their statutory duty by stipulating that the petitioners shall lay sewers so far as necessary for the effectual draining of the site to be developed by the petitioners as a part of their development of the site. The said sewers lie within the area owned by the petitioners. There is adequate capacity in the respondents' system to carry all effluent from the said sewers to the outfall." (Art. 8) "In the circumstances the petitioners submit that the respondents have refused and are refusing to perform the statutory duty imposed on them by the said section of the said Act. In the event of the respondents' failing to perform this duty the area in question will have no...To continue reading
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