Scottish Court of Session Decisions

This was a petition and complaint under section 97 of the Public Health (Scotland) Act 1867, at the instance of the Local Government Board for Scotland, to have the County Council of the County of Elgin ordained to take the necessary steps for procuring a sufficient supply of water for domestic use for the Hopeman Special Water Supply District.

The petitioners' averments were to the following effect—In 1876 Hopeman and the neighbourhood were formed into a special water supply district. No action having been taken by the Local Authority to improve the water supply of Hopeman, the Board of Supervision in 1878 called upon the Local Authority of the Parish of Duffus (in which Hopeman is situated) to provide an adequate water supply for Hopeman “Since that date the Board of Supervision and the Local Government Board have, as hereinafter more particularly set forth, repeatedly called upon the Local Authority to introduce a sufficient and wholesome water supply into Hopeman, but the Local Authority have refused or delayed to do so. The existing supply is so inadequate and dangerous to the health of the inhabitants of the district that the Board have found it necessary to present this petition and complaint to your Lordships in order that the Local Authority may be ordained to take such steps to remedy the evil as may to your Lordships seem proper.… The inhabitants have also repeatedly complained to the petitioners of the discomfort and danger caused by the neglect of the Local Authority to take any steps to introduce a new supply, and on 8th March 1895 a complaint, signed by 186 inhabitants of the village, was transmitted to the Board, bringing under their notice ‘the deplorable state of Hopeman for want of a water supply.’ This complaint was transmitted to the County Council of Elginshire, but at a meeting, held on April 1st 1895, of the committee of that body appointed to endeavour to procure a water supply for the village of Hopeman, no resolution to take steps in the matter was come to, and the committee adjourned.”

From 1892 to 1895 annually the county medical officer reported very unfavourably on the Hopeman water supply, and expressed regret that no steps were being taken to improve it.

In April 1895 the Local Government Board sent one of their inspectors to report on the existing water supply of the village. He reported unfavourably upon the state of the four wells which supplied it with water, and samples from each were sent to Sir Henry Littlejohn for analysis. The analyst, Dr Falconer King, reported that the use of Nos. 2, 3, and 4 of these waters for dietetic purposes should be discontinued, while the suitability of No. 1 for domestic purposes was at least open to question. He further reported generally that the results of his examination showed almost certainly “that there exists in the near neighbourhood of the sources of supply matter of a suspicious nature, which it is not too much to suppose may at times find its way into the waters, and thereby render them dangerously impure.” The reports of the inspector and the analyst were transmitted by the Board to the County Council.

After sundry proceedings and correspondence, the Public Health Committee of the County Council adopted a resolution to put two of the wells at Hopeman into proper condition, and to sink a third. They further adopted a statement detailing all the circumstances of the Hopeman Water Supply, and containing a declaration that “The County Council consider that ‘it is not their duty to provide water for Hopeman if the cost exceeds the above limit’ of 2s. 6d. per £, leviable within the special water supply district of Hopeman, ‘and they decline to do so.’”

At a special meeting of the County Council this minute of the Public Health Committee was approved of and adopted.

The petitioners maintained that “in the circumstances above set forth, the failure of the Local Authority to introduce a proper supply of water for domestic and sanitary purposes is a refusal or neglect to do what is required of them by the Public Health (Scotland) Act 1867, or otherwise by law, and an obstruction in the execution of the Act.”

The County Council lodged answers, in which they averred that the nett assessable rental of the special water supply district in question was only £1200, so that an assessment of 2s. 6d. per £ would only yield £150 per annum, the difference between which and the present assessment, at the rate of 6d. in the £1, would meet the annual instalment of principal and interest on the sum of £2215 only.

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They further averred that they had appointed an engineer to inquire into certain schemes for improving the water supply of Hopeman, viz.—(1) A scheme to introduce a supply from the river Lossie, estimated cost £4719. (2) A scheme to combine with Lossiemouth and Branderburgh in introducing a supply from the Lennock Burn. The proportion of the cost payable by Hopeman was estimated at £4720. (3) A scheme for arranging with the adjacent village of Burghead to derive a supply from the pipes supplying Burghead. This scheme fell through owing to the action of the Burghead Water Committee.

The respondents proceeded to aver that having thus found it impracticable to procure an increased supply of water for Hopeman from outside sources, they turned their attention to the existing sources of supply with the view of seeing whether these could not be made available. They further had the water from the wells analysed, with the result that it was reported to be fairly pure, and they averred that no care was taken by the inhabitants of Hopeman to keep these sources of supply free from contamination.

“The respondents accordingly submit that no further step should be taken in the petition until the scheme which they have adopted for bringing a supply of water to the special district in question has been completed and tested. They maintain that they are entitled to provide such a supply by digging wells, or by availing themselves of existing sources of supply, and that they are not bound, at an expenditure which is entirely out of proportion to the means of the district or the objects to be attained, to introduce a gravitation supply. They understand that a section of the inhabitants, at whose instigation the present proceedings have been taken, desire to have a gravitation supply, the cost of which would have to be mainly borne by the county, and which will require to be immediately followed by extensive drainage and sewage works, the whole cost of which (the maximum assessment being already exhausted by the cost of the water supply) would necessarily be thrown entirely upon the county. The respondents submit that they are the judges of how a supply of water for the domestic use of the inhabitants of Hopeman should be obtained, and they have resolved that it should be from wells, as being the only practicable mode in the circumstances already narrated. Owing to a section of the inhabitants desiring a scheme of a different nature, they have not assisted the respondents in providing a supply of water by the means in question, but, on the contrary, have obstructed them in every possible way. If the respondents are bound to provide a supply of water by gravitation, whatever the expense, other villages will no doubt seek to obtain the same advantages at the cost of the ratepayers in the county, who derive no benefit from the expenditure upon such works.

The respondents would further add that the health of the village of Hopeman has always been good, and no epidemic of any kind has ever been traceable to the water supply. An outbreak of diphtheria which occurred some years ago was investigated, but was found to be unconnected with the water supply of the villages. The death-rate of Hopeman has been in the same ratio as in other fishing villages of the same class.

In the whole circumstances the respondents maintain that the petition should be refused, with expenses, in respect (1) that it is not competent under section 97 of the statute; (2) that there are no relevant averments of the respondents having refused or neglected to do any duty imposed upon them by the law or by the Public Health Act 1867; (3) that the scheme which the respondents are in course of carrying out will give a supply of water sufficient and suitable for the domestic uses of the inhabitants of Hopeman, and for the sanitary and other purposes thereof. In any event, the respondents maintain that the proceedings should be sisted for six months until the scheme which they are in the course of carrying out has been completed and tested.”

Sec. 89 of the Public Health (Scotland) Act 1867 (30 and 31 Vict. c. 101) empowers the local authority, “if they think it expedient to do so, to provide a water supply for any burgh having a population of less than ten thousand, and not having a local Act for police purposes, and for any parish, and to borrow for that purpose on the security of certain special water assessments.

Sec. 94 (1) enacts—“ Special Water Supply Assessment.—Where any special water supply district has been formed, as hereinbefore provided, the expense incurred for the water supply within the same, or for the purposes thereof, and the sum necessary for payment, as before mentioned, of any money borrowed for water supply purposes, as hereinbefore provided, shall be paid out of a special assessment, which the local authority shall raise and levy on or within such special district, in the same manner and with the same remedies and modes of recovery as are herein provided for the district of the local authority.” Subsection (2)—“ Assessment for general purposes incurred in executing this Act.—All charges and expenses incurred by the local authority in executing this Act, or any of the Acts hereby repealed, and not recovered as hereinbefore or after provided, may be defrayed out of an assessment to be levied by the local authority along with, but as a separate assessment from, any one of the assessments hereinbefore mentioned in this section—that is to say, the said assessment shall be assessed, levied, and recovered in like manner and under like powers … as the prison assessment or police assessment, … the assessment for the relief of the poor where the local authority is a parochial board, or where there is no such assessment, by an assessment levied in such manner as an assessment might have been levied for the relief of the poor.”

Section 1 of the Public Health Amendment

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Act 1871 (34 and 35 Vict. c. 38), fixes the maximum assessment for all purposes under the Public Health Act 1867 at 2s. 6d. per pound of rental.

By sec. 97 of the Act of 1867 it is enacted that “In case any local authority shall refuse or neglect to do what is herein or otherwise by law required of them, or in case any obstruction shall arise in the execution of this Act, it shall be lawful for the board, with the approval of the Lord Advocate, to apply by summary petition to either Division of the Court of Session, or during vacation or recess to the Lord Ordinary on the Bills, which Division or Lord Ordinary are hereby authorised and directed to do therein, and to dispose of the expenses of the proceedings as to the said Division or Lord Ordinary shall appear to be just.”

After answers had been lodged the petitioners moved the Court to order inquiry by remit to a man of skill, and argued—The application was competent. Similar applications had been favourably entertained by the Court in the Board of Supervision v. Local Authority of Montrose, December 3, 1872, 11 Macph. 170; Board of Supervision v. Local Authority of Pittenweem, July 8, 1874, 1 R. 1124; Board of Supervision v. Local Authority of Galashiels, December 5, 1874, 12 S.L.R. 111; Board of Supervision v. Local Authority of Lochmaben, February 28, 1893, 20 R. 434. The local authority were empowered, under the Public Health Act 1867, to provide a proper water supply, and it was a well-recognised canon of construction that where such power was given it was incumbent on the authority on whom it was conferred to exercise it— Walkinshaw v. Orr, January 28, 1860, 22 D. 627; Julius v. Bishop of Oxford, 1880, L.R., 5 A.C. 214; The Queen v. Bishop of Oxford, 1879, L.R., 4 Q.B.D. 245. It was urged that to provide a proper supply for Hopeman, the statutory limitation of assessment must be exceeded. But that was not a conclusive argument, for the case of Tolmie v. Parochial Board of Urray, June 21, 1890, 17 R. 1027, proved that where a local authority had exhausted the resources of the special supply district it might fall back upon the general county assessment. The real question, however, was, not whether the statutory assessment would be exceeded, but whether the Local Authority had done their duty, or whether they had refused or neglected to do it. For twenty years they had done nothing, and a remit should be made to a man of skill to report upon the existing state of matters, in order that the Local Authority might if necessary be compelled to take action.

Argued for the respondents—The application was incompetent. The Local Authority were in terms of the statute the judges of the expediency of the introduction of a water supply. If they declined absolutely to consider the question, the Local Government Board would be entitled to present a petition and complaint against them, but if, having duly considered it, they rejected a particular scheme, the Local Government Board could not interfere. The Local Authority here were performing precisely their duty under the Act, and the nature of that duty was not affected by the fact that twenty years ago a special water supply district had been formed. What the Local Government Board apparently contended was that the Local Authority were bound to introduce a gravitation supply, but they were quite within their rights in rejecting such a proposal, and formulating a scheme for turning the present sources to the best account. Tolmie, ut sup., was no authority for the proposition that in adopting a scheme the local authority were entitled to rely upon the possibility of falling back upon the general assessment when their statutory resources were exhausted. There was no precedent for such a remit as the petitioners craved.

At advising—