Scottish Court of Session Decisions

This was an action of reduction by Robert Brand, builder, Arbroath, of an interlocutor of the Sheriff-Substitute of Forfarshire pronounced in an appeal taken by him against a notice and resolution of the Commissioners of Police of Forfarshire relative to certain drainage operations which they proposed to carry out.

The summons was raised in the following circumstances:—The pursuer, who was proprietor of certain heritable subjects in the burgh of Arbroath, received on 7th December 1888 a notice signed by the Superintendent of Police of the burgh in the following terms:—“Sir, — By clause 199 of the General Police and Improvement (Scotland) Act 1862 it is enacted that ‘If any house or building within the burgh be at any time not drained by a sufficient drain or pipe communicating with some sewer or with the sea to the satisfaction of the commissioners, and if there shall be such means or drainage within 100 yards of any part of such house or building, the commissioners shall construct or lay from such house or building a covered branch drain or pipe of such materials, of such size, at such level, and with such fall, as they think necessary for the drainage of such house or building, its areas, water-closets, and offices; and the expense thereof shall be recoverable from the owner of such house or building, over and above any sum that may be charged for the use of the sewers as above provided for.’ You are therefore hereby informed that the Commissioners of Police are about to lay down proper pipes to carry the sewage into the main drain from your property at No. 34 St Mary Street, Arbroath (back land), occupied by Mrs Stewart, Arbroath, and that

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the expense of constructing the same will be charged against you, all in terms of the above recited Act.”

The pursuer appealed to the Sheriff of the county of Forfar in terms of the said General Police and Improvement (Scotland) Act 1862, sections 396 and 397, against the said notice and the said pretended resolution of the Commissioners, on the following grounds —(1) That the Commissioners of Police never passed an order or resolution to lay down the pipes in question; (2) that the said notice given to the pursuer by the said Duncan M'Neill was not authorised by the Commissioners, and was insufficient; and (3) that the said property was already well and sufficiently drained.

After various procedure in the cause the Sheriff-Substitute ( Robertson) on 21st December 1888 pronounced the following interlocutor and note:—“The Sheriff-Substitute having heard parties' procurators on the appeal by Robert Brand, and having taken evidence in the summary way provided by section 397 of the Police and Improvement (Scotland) Act, Finds that the Commissioners of Police are bound under the above section of the Act to give notice to the appellant of their intention to alter the drainage on his property: Finds that the notice which was sent to him by the Superintendent was sent without the knowledge, sanction, or authority of the Commissioners: Finds that since the present appeal was taken the Commissioners have met and sanctioned the notice, and have resolved to execute the alterations alluded to in the present note of appeal: Finds in law that the procedure is informal and irregular, and ordains the Commissioners of new to send notice to the appellant: Finds, with reference to the merits, that the appellant's property is unhealthy and damp, and is not drained to the satisfaction of the Commissioners, and to this extent dismisses the note of appeal, and refuses to quash the resolution of the Commissioners complained of: Finds the Commissioners entitled to expenses, modified to one-half: Remits to the Auditor, and decerns.

“ Note.—I think that before any alterations on a man's property are commenced he should receive notice of what the Commissioners propose to do. The alterations proposed on the appellant's property are those referred to in section 199 of the Act, and although nothing is said in that section about notice, there is a general instruction given in section 397, to give notice to proprietors before works are authorised or performed. And accordingly the Superintendent of Police did send a notice to the appellant. But he did this at his own hand and without sanction. It is quite true that the Commissioners have since met and sanctioned the performance of the work; and that they have approved of the notice. This, however, is an inconvenient and irregular way of doing business, for if their Superintendent of Police does anything hasty or without due consideration, the Commissioners are tempted to back him up or else throw him over. For example, in the present case the Superintendent of Police admitted in the witness box that he had not full information when he issued the notice and resolved upon these works. He thought that the roof water was not conducted into pipes, whereas in point of fact it is. He never knew that there was a drain filled in with broken metal behind the house, but thought that the damp soil touched the back wall down to the foundation. These are facts that he did not know of, and I am not surprised that the appellant complained. But when everything is said and done, the fact remains and was clearly proved that the Commissioners are still not satisfied, and that the appellant's property is unhealthy and damp.

A mass of evidence was led by the appellant to show that his property is well drained, and a mass of evidence was led by the Commissioners to show that it is not. If this were an ordinary case I would require to sift the evidence and say where the truth lay. But I am not to be the judge of this matter—the Act says the Commissioners are to be satisfied—and as I see they are not satisfied the work must go on.

As to expenses, the Commissioners have been successful on the merits of the case, but not on the preliminary pleas which affect the procedure. And the appellant was so far justified in coming to the Sheriff.”

The pursuer averred that the notice served upon him on 7th December 1888 was null and void, it being served without the authority of the Police Commissioners, and that as without authorised notice there was no proper process before the Sheriff-Substitute his decree was illegal.

The defenders averred that sec. 397 of the General Police (Scotland) Act 1862, which sanctioned appeals to the Sheriff, declared that his decision should in all cases be final and conclusive, and not subject to review in any manner of way.

The defenders pleaded, inter alia—(1) No jurisdiction; and (2) the present action is incompetent.

By section 199 of the General Police and Improvement (Scotland) Act 1862, it is enacted that, ‘If any house or building within the burgh be at any time not drained by a sufficient drain or pipe communicating with some sewer or with the sea, to the satisfaction of the commissioners, and if there shall be such means or drainage within 100 yards of any part of such house or building, the commissioners shall construct or lay from such house or building a covered branch drain or pipe of such materials, of such size, at such level, and with such fall, as they think necessary for the drainage of such house or building, its areas, water-closets, and offices; and the expense thereof shall be recoverable from the owner of such house or building, over and above any sum that may be charged for the use of the sewers as above provided for.” Section 397 provides “It shall be lawful for any person where property shall be taken or affected … to appeal to the sheriff from any order made or notice given by the commissioners in respect of such matter … and all such

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appeals … and all other appeals to the sheriff allowed by this Act not otherwise provided for, shall be disposed of summarily, and the decision of the sheriff shall in all cases be final and conclusive, and not subject to review by suspension, reduction, or advocation, or in any manner of way.”

On 10th July 1889 the Lord Ordinary ( Trayner) repelled the preliminary defences for the defender in so far as insisted in against satisfying the production.

Opinion.—The defenders plead that the present action is (1) incompetent, and (2) that the Court has no jurisdiction to entertain it, on the ground that the Sheriff's judgment, which is sought to be reduced, was pronounced in proceedings taken under the General Police Act 1862, and is therefore final, and not subject to review. If the proceedings and the judgment are within and conform to the statutory provisions, no doubt the finality clause relied on by the defender would exclude all review. But the pursuer avers (and the findings of the Sheriff, as quoted on record, afford prima facie support to the averment) that the proceedings of the defender, and especially the notice which forms the groundwork of their proceedings, are null, in respect of disconformity to the statutory requirements. If the defender and the Sheriff have gone beyond the statute, have disregarded it, or acted in opposition to its provisions, then the finality clause will not protect their proceedings or his judgment. Besides, I am not asked to review the Sheriff's judgment, but to set it (with the relative proceedings) entirely aside, as dis-conform to statute. I am certainly not prepared to sustain the preliminary defences now urged, at all events at this stage of the case, and I will repel them in so far as pleaded against satisfying production. When the whole proceedings are before me, and a record made up on the merits, the defenders may repeat their pleas to competency and jurisdiction if they think them maintainable.

I cannot refrain from saying that I think this is an unfortunate litigation, and one which it can serve no good purpose to continue. The parties would do well to consider whether it should be carried any further. The judgment of the Sheriff seems to me one which it will be difficult for the defender to maintain, in the face of the finding that the original notice was not one issued by the Commissioners, but by their inspector, without authority. I refrain from saying anything more about the Sheriff's judgment in the meantime, in the hope that the parties may by arrangement make further observations upon it unnecessary.”

The defender reclaimed, and argued—That the Sheriff-Substitute's decree was within the scope of the Act, and that being so, it fell under the provisions of section 397, and was final and not subject to review. Whether the Sheriff had acted rightly or wrongly was not a matter which it was within the province of the Court to determine, and the present action therefore fell to be dismissed as incompetent— Graham v. Mackay, February 25, 1845, 7 D. 515; Mac—donalav. Dobbie, January 14, 1864, 2 Macph. 407; Lennon v. Tully, July 12, 1879, 6 R. 1253; Greenock Board of Police v. Liquidator of Greenock Property Investment Society, March 13, 1885, 12 R. 832; Robertson v. Pringle, February 5, 1887, 14 R. 474.

Argued for the respondent—The notice sent to the pursuer was irregular, and so was not a notice under the statute. It was not authorised by the Commissioners, and the effect of the Sheriff ordering it to be served anew was that it was only the procedure following thereon which was in accordance with the statute. All prior procedure was so irregular as almost to amount to oppression. At the time when proof was led before the Sheriff, there was, strictly speaking, no process before him, and all that followed was null and void, and the decree pronounced in such circumstances was ultra vires of the powers conferred on him by the statute, in such a case reduction was a competent remedy — Crosbie v. M'Minn, June 8, 1866, 4 Macph. 803; Lord Advocate v. Police Commissioners of Perth, December 7, 1869, 8 Macph. 244; Stirling v. Hutcheon, May 25, 1874, 1 R. 935; Adam v. Police Commissioners of Alloa, November 24, 1874, 2 R. 143.

At advising—