Scottish Court of Session Decisions

The sections of the Housing, Town Planning, &c., Act 1909 (9 Edw. VII, c. 44), so far as necessary for this report, are quoted supra in rubrics.

On 5th July 1911 Archibald Kirkpatrick, coal agent, 5 Terregles Street, Maxwelltown, presented a note to the First Division for an order on the Sheriff-Substitute at Kirkcudbright to state, in the form of a Special Case for the opinion of the Court, certain questions of law which he alleged arose in an appeal at his instance against the Local Authority of the Burgh of Max-welltown.

The note stated—“The said Archibald Kirkpatrick is the owner of the heritable property situated at 40 and 41 Glasgow Street, Maxwelltown. This property is a tenement consisting of two one-room and kitchen houses on the ground floor, one one-room and kitchen and one two-room and kitchen houses on the upper floor, and in the roof there are two attic rooms.

“Of this date (24th May 1911) the Local Authority of the Burgh of Maxwelltown, purporting to proceed in pursuance of sub-section 2 of section 17 of the Housing, Town Planning, &c., Act 1909, made an order prohibiting the use of the dwelling-houses, numbers 40 and 41 Glasgow Street aforesaid, for human habitation until in their judgment they are rendered fit for that purpose.

Notice of this closing order was duly served upon the said Archibald Kirkpatrick.…

The said Archibald Kirkpatrick, being aggrieved by said closing order, appealed to the Sheriff in the prescribed manner. Of this date (5th June 1911) he presented in the Sheriff Court of Dumfries and Galloway at Kirkcudbright an initial writ craving the Court to recal the order complained of. Of the same date the Sheriff-Substitute at Kirkcudbright ordered service of the said initial writ upon the said Local Authority, which was duly effected, and appointed the parties to be heard upon the 9th of June.…

Thereafter the said Sheriff-Substitute pronounced the following interlocutor—‘ Kirkcudbright, 13 th June 1911.—The Sheriff-Substitute having heard parties on the initial writ, in respect that the closing order was made by the defenders in virtue of the powers conferred upon them by the Housing, Town Planning, &c., Act 1909, after duly complying with the procedure directed to be followed in section 17 thereof, and that the pursuer is aggrieved thereby, Allows him a proof of the following statement, namely, that the dwelling-houses, numbers 40 and 41 Glasgow Street, Maxwelltown, are not in a state so dangerous or injurious to health as to be unfit for human habitation, and the defenders a conjunct probation, on a date to be afterwards fixed.’

Note.—“The Housing and Town Planning Act confers very great powers on local authorities, but if they are exercised in the manner that the statute directs the party affected by them has no redress. In the present case the defenders have made a closing order under section 17 (2), which provides that a local authority can do so provided it is represented to them by the medical officer of health or any other officer of the authority, or on other information given, that any dwelling-house appears to them to be in a state so ‘dangerous or injurious to health as to be unfit for human habitation.’ Various objections were stated by the pursuer which I consider can be disposed of now. (1) He contends that the defenders are not the local authority under the Act. But as section 53(5) states that the local authority under the Public Health Act 1897, who are the defenders ( vide 12), is to be the local authority, that objection is bad, and in my opinion it is immaterial whether they design themselves as ‘local authority’ or as ‘Town Council of the Burgh of Maxwelltown.’ (2) It was contended that proceedings ought to have been taken under section 15. Perhaps they might have been. But that section only applies when the rent does not exceed £16, and the rent

Page: 263↓

may be more in this case. Again, it seems to me that a local authority can in all cases proceed under section 17, and need not in any case repair the house themselves, in the first instance, as provided for by section 15. (3) The closing order, it is said, was not really pronounced by the defenders but by a committee, and that they had no power to delegate their powers to a committee. This point need not, I think, be considered in this case, as it is clear from the excerpts produced that the order was pronounced at a meeting of the Town Council. (4) The pursuer objects that he did not have an opportunity of being heard before the order was made. This is a bad objection, simply because the statute does not state that an objector shall have a right to be heard before an order is made. His remedy is the one he has adopted, namely, to appeal, and until the appeal is disposed of the operation of the order is suspended. (5) The pursuer complained that he did not get a copy of the representation of the officer of health. But ( a) it has been produced now and I see that it is in order; ( b) the representation need not be in writing at all; it may be made verbally; and ( c) the order may be made after considering ‘other information,’ which I suppose would include the private knowledge of the members of the town council. Very prudently, however, the defenders have proceeded on the written representation of their medical officer. (6) The pursuer says that 40 and 41 Glasgow Street are tenements, and that ‘dwelling-house’ as used in the statute does not include a tenement, but means each dwelling or house which an individual or a family occupies. Accordingly he says that each individual habitation in the tenements ought to have been closed by a separate order. I cannot accede to this view. ‘Dwelling-house’ by the Interpretation Act means also ‘dwelling-houses.’ By the definition clause (Housing Act 1890, sec. 29, as amended by the Act of 1909, sec. 49) ‘dwelling-house’ includes any yard, &c., attached to it as well as the site on which it stands. It does not seem to me in these circumstances that the meaning of the words ‘dwelling-house’ is strained by holding that they include a tenement. It seems to me, further, that the words ‘inhabited building’ have been struck out of the definition clause by the Legislature not to narrow the meaning of the term ‘dwelling-house’ but to widen it. Dwelling—house as defined by the Act of 1909 I hold now includes any inhabited building or any part of any building that is separately inhabited. Sections 17 (4) and 18 (2) appear to me to confirm this view. But even if this construction be not correct the closing order is unimpeachable in form. Under section 17 (3) the order has to be served on ‘every owner of a dwelling-house,’ which by the Interpretation Act includes ‘dwelling-houses.’ This has been done. Notice of the closing order was duly served on the pursuer, who is admittedly the owner of the dwelling-houses 40 and 41 Glasgow Street, and of course every part of them which is separately occupied by any of his tenants. It may quite well happen that only some of these houses are unfit for human habitation. If this be so the order can be varied and made to apply only to such houses. It was also said that either number 40 or number 41 is not a dwelling-house but merely an entry. This may be so, but it cannot affect the present proceedings—and, at any rate, if it be necessary the order can be varied. For these reasons I hold that a proper closing order applicable to all and every part of the pursuer's dwelling-houses was duly served on him. (7) Finally the pursuer contends that the closing order is bad, because section 17 provides that the order can only be made if a house is in a state ‘so dangerous or injurious to health’ as to be unfit for human habitation, that the defenders must say whether it is the one or the other, and that they have not done so. This objection, however, in my opinion is bad. The section was enacted for the sake of the health of the poor. Under it houses unfit for human habitation are to be closed whether the unfitness arises either because their state renders them dangerous or injurious to health. These words are not really alternative, but practically mean the same thing. They only occur in sub-section one. Sub-section two, which is the operative part of the section, does not use them, but provides for the order being made if any dwelling-house is ‘in such a state,’ that is, ‘in a state so dangerous or injurious to health’ as to be ‘unfit for human habitation,’ and the order continues in force until the house is ‘fit for that purpose,’ that is, fit for human habitation. The real question in fact is whether the house is fit for human habitation, and on that point the order is unambiguous. It states in terms that the dwelling-houses are to remain closed ‘until in our judgment they are rendered fit for that purpose.’ But at the most the phrasing used in the order is merely the case of an alternative charge. Accordingly at the hearing if the defenders succeed I can strike out one or other of the words, if such a course is necessary or proper.”

The Case further stated—“Of this date (June 20, 1911) the said Archibald Kirkpatrick lodged in process a minute requesting the said Sheriff-Substitute to state in the form of a stated case for the opinion of the First Division of the Court of Session certain questions of law arising in the course of his appeal.”

The questions were as follows—“(1) Was it competent for the Sheriff-Substitute to refuse the motion of the appellant for an order to be made for condescendence and answers to be lodged, and treat the appeal as a summary cause under rule 41 of the first schedule of the Sheriff Court (Scotland) Act 1907 regulating procedure, instead of allowing the cause to be proceeded with according to rule 42 of said schedule? (2) In an appeal taken against a closing order, made in virtue of the Housing, &c. Act of 1909, is it competent and relevant to refer to previous notices or discussion between

Page: 264↓

the owner and the local authority in regard to executing work upon the property to make it habitable? (3) Was it competent for the respondents to issue a closing order under section 17 (2) of the Housing, &c. Act 1909, on the representation of their medical officer, as produced in process, and without exercising or exhausting their powers under section 15 of that Act? (4) Was the closing order inept in respect that it failed to disclose with sufficient specification the grounds for making it? (5) Were the respondents entitled to issue a closing order without giving the appellant an opportunity of being heard? (6) Are the statutory grounds ( a) that a building is in a dangerous condition, and ( b) that a building is in such a condition as to be injurious to health, separate grounds upon which a closing order may be granted under section 17 (2)? (7) Is it competent to grant a closing order upon these grounds, stated alternatively, especially when the representation of the medical officer is, as in the present case, that the dwelling-houses ‘are in a state so dangerous to health as to be unfit for human habitation’? (8) Does the expression ‘dwelling-house’ in section 17 of the 1909 Act mean and include a whole tenement comprising four dwelling-houses. And (9) Was the closing order inept in respect that it applied to a whole tenement?”

To this minute answers were lodged by the Local Authority, and after hearing parties on the minute and answers the Sheriff-Substitute, on 30th June 1911, refused the motion.

Note.—“In my opinion section 39 (1) ( a) of the Town Planning Act does not confer on any party the right to demand that a case shall be stated whenever a party is dissatisfied with a decision on a question of law. It seems to me that the statute intended that cases should only be stated if the Local Government Board in England or a Sheriff in Scotland considered that injustice might be done by refusing to state one. This view, I consider, is strengthened by contrasting section 39 with the sections (60, 61, 62) of the Summary Jurisdiction Act. Under this latter Act a case must be stated at the request of either party, while under section 39 the duty to state a case is clearly not imperative. If this be so, a somewhat delicate duty is imposed upon me, and, with hesitation, I consider that a case ought not to be stated. The statute gives local authorities power to close dwelling-houses which are unfit for human habitation, in a very summary manner. It could not, therefore, be intended that that object should be defeated by inviting the Court to consider every critical objection that might be taken to the procedure adopted by a local authority, or to the construction put upon the sections by a Sheriff-Substitute, provided, of course, that he considers that the provisions of the Act are substantially complied with, and no injustice is done by refusing to state a case. In the present case I consider that the closing order was duly made. Accordingly I think that the only question is the question of fact whether the dwelling-houses in question are unfit for human habitation. But these views may be wrong, and the case may go further. Accordingly, taking the questions in the appellant's minute in order, my reasons why none of them need be stated for the opinion of the Court of Session are as follows—(Ans. 1) The appellant's appeal is, I hold, a summary application under ‘an Act of Parliament which does not more particularly define in what form the same shall be heard, &c.’ (Sheriff Court Act 3 ( p.). Accordingly a record was not required unless I thought one ought to be ordered. My reasons for not ordering one are given in my previous note. Further, I doubt whether this question is a question arising under the Town Planning Act at all. It seems to me to be merely a question of Sheriff Court procedure. (Ans. 2) It cannot now be decided whether it is competent or relevant to refer to previous notices or discussions between the parties. If such evidence tended to show that the respondents previously thought that the buildings were fit for human habitation it might be competent. (Ans. 3) In my opinion it was competent for the respondents to make the closing order under section 17, and that they do not require to exhaust their powers under section 15 before doing so. This, of course, is a pure question of law. But for the reasons already given I consider I must decide it and proceed with the case. (Ans. 4) The order states that the houses are to be closed because they are in a state so dangerous or injurious to health as to be unfit for human habitation.’ These are the words used in the section. In my previous note I have stated my reasons why I consider that the form of order is unobjectionable, or at least that I can vary it by stating whether the houses are to be closed because they are dangerous or because they are injurious to health, and strike out one or other of these words. The appellant therefore, I hold, can suffer no injustice by my refusing to state this question for the opinion of the Court. (Ans. 5) My opinion is that the respondents were not bound to give the appellant an opportunity of being heard before making the closing order. ( Vide my previous note.) (Ans. 6) This question is question 4 stated differently. Houses unfit for human habitation are to be closed whether they are in that state because they are dangerous or injurious to health. These words are therefore not really alternative, but, as I have already said, the order can, if necessary, be varied by striking out one or the other of these words. (Ans. 7) The respondents' medical officer reported that the appellant's houses are ‘so dangerous to health as to be unfit for human habitation.’ The closing order misquoted his report by saying that he reported that the houses were so dangerous ‘or injurious’ to health, &c., and closed them until they are fit for human habitation. The appellant contends that this variation between the medical report and the order renders the

Page: 265↓

order bad. I do not think so, and respectfully decline to state this question for the opinion of the Court. (Ans. 8 and 9) The closing order applies to a tenement comprising four dwelling-houses. The appellant contends that a closing order can only apply to a single dwelling-house, and that the closing order is inept in respect that it bears to apply to a whole tenement. In my former note I have stated why I cannot accept this construction of the term ‘dwelling-house.’ But it undoubtedly is a question of law. I think, however, I need not state it for the opinion of the Court. I consider that one order can close any number of dwelling-houses belonging to one owner if it names them all and is served on him. If this be so, the closing order in question is unobjectionable, because although it does not name the four individual dwelling-houses, yet it clearly identifies them. The appellant knows quite well that he is asked to close all the dwelling-houses in 40 and 41 Glasgow Street, Maxwelltown. For these reasons it seems to me that a proof in this case ought now to be fixed.”

Argued for appellant—The appellant was entitled to have a case stated for the opinion of the Court—Housing, Town Planing, &c., Act 1909 (9 Edw. VII, c. 44), secs. 17 and 39. The order pronounced was irrelevant, in respect that it failed to distinguish between two alternative charges, viz., “dangerous” or “injurious to health.” It was also inept in respect ( a) that the appellant was not heard before it was pronounced, and ( b) that the tenement in question was not a dwelling-house in the sense of the Act.

Argued for respondents—The appellant was not entitled to a stated case, for that lay in the discretion of the Sheriff. The order pronounced was neither irrelevant nor inept. It was not irrelevant for it did not contain an alternative charge. The word “dangerous” meant dangerous to health. That was clear from the terms of sec. 16 (7) of the Public Health (Scotland) Act 1897 (60 and 61 Vict. c. 38), where the same phrase was used in connection with the sanitary provisions of that Act. Moreover, dangerous structures were specially dealt with by other legislation. The order was in the form prescribed by the rules issued by the Local Government Board, and contained only the one charge, viz., “dangerous or injurious to health.” The order was not inept, for ( a) the appellant was not entitled to be heard before it was pronounced; his remedy was to appeal to the Sheriff before it became operative, sec. 17 (3). Such appeals were to be disposed of by the Sheriff as if they were summary applications. The Sheriff therefore was master of the situation. The tenement in question was a dwelling-house in the sense of the Act, for dwelling-house might mean all or any of the houses in a tenement, according to the circumstances of the case. What was a dwelling-house was a question of fact. What had been closed by the order in question were Nos. 40 and 41 Glasgow Street, and that applied to each and all of the inhabited houses therein.

At advising—