Scottish Court of Session Decisions

The Housing, Town Planning, &c., Act 1909 (9 Edw. VII, cap. 44) enacts—Section 43—“Notwithstanding anything in any local Act or bye-law in force in any borough or district, it shall not be lawful to erect any back-to-back houses intended to be used as dwellings for the working classes, and any such house commenced to be erected after the passing of this Act shall be deemed to be unfit for human habitation for the purposes of the provisions of the Housing Acts. …”

The Edinburgh Municipal and Police Amendment Act 1891 (54 and 55 Vict. cap. cxxxvi), sec. 49, as amended by section 80 of the Edinburgh Corporation Act 1900 (63 and 64 Vict. cap. cxxxiii), enacts—“… The Dean of Guild Court may decline to grant warrant for the erection of any house or building, or for the alteration of any existing house or building, until the said Court is satisfied that the plans provide suitably for strength of materials, stability, mode of access, light, ventilation, water-closets, and water supply, and other sanitary requirements, and are otherwise in conformity with the provisions of the Edinburgh Municipal and Police Acts.”

The Murrayfield Real Estate Company, Limited, presented a petition in the Dean

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of Guild Court, Edinburgh, for warrant to erect four tenements, of three storeys each, of dwelling-houses on the west side of Piersfield Grove, Edinburgh, conform to plans produced.

Answers were lodged by the Lord Provost, Magistrates, and Council of the City of Edinburgh, who averred—“(Stat. 1) The four tenements which the petitioners propose to erect on the west side of Piersfield Grove are to consist of three storeys each. The plans produced with this petition show that it is intended to have four houses on each flat—two houses to the front and two houses to the back. Each of the two houses to the front is divided from the adjacent house to the back by an unbroken and continuous centre wall, which prevents effective through ventilation. The houses on the two upper storeys all enter from the staircase which is to be constructed in the centre of each tenement. Their only ventilation is (1) from their respective windows to front or back as the case may be, and (2) from the said staircase, which, together with the passage at the foot thereof, is common to twelve separate residences, and is roofed over with glass and unventilated at the top. The houses therefore are what are known as back-to-back houses.… The petitioners' plans do not make sufficient provision for the light and ventilation for the said tenements, in respect that ( a) the common stair is only lit from the roof, and ( b) that there is no provision for through ventilation of the houses in the said tenements. The houses at the front and back of the tenement are only ventilated by their windows opening on the front and back respectively, except in so far as they open on the said common stair, which is itself only ventilated from the entrance passage on the ground floor. There is thus insufficient ventilation, and in particular no through ventilation in said houses.”

The respondents referred to section 49 of the Edinburgh Municipal Police (Amendment) Act 1891 (54 and 55 Vict. cap. cxxxvi), as amended by section 80 of the Edinburgh Corporation Act 1900 (63 and 64 Vict. cap. cxxxiii).

The petitioners averred—“Denied that said houses are known as back-to-back houses, or are similar in design and arrangement to houses which are so known. Quoad ultra admitted under the explanation that the plans permit of the through ventilation of each house and also of the common passage and staircase. The petitioners are willing, if required, to amend said plans by the introduction of a ventilator at the top of the staircase. … The petitioners deny that the houses proposed to be erected by them are back-to-back houses in the meaning of the said Act. Such houses are invariably formed by the introduction in a tenement consisting of two houses only of a continuous longitudinal centre wall, the doorways of the respective houses not communicating with each other, and entering from different streets formed on either side of the tenement. The petitioners' plans show no such wall. The houses are all entered from one street by a common passage, which is carried through the tenement to the back green, common to the tenants and occupiers, and as regards the upper flats by a common stair which is lit from the roof. …”

The petitioners further averred that the provisions for lighting and ventilation in their plans were suitable and in conformity with the last-mentioned Act.

The respondents pleaded—“Warrant should be refused with expenses to the respondents in respect that ( a) the warrant craved is for the erection of back-to-back houses in contravention of the provisions of section 43 of the Housing, Town Planning, &c., Act 1909; and ( b) that the petitioners have not made sufficient provision for light and ventilation for the proposed tenements.”

On 16th February 1911 the Dean of Guild ( Carter) repelled the respondents' plea-in-law and granted warrant as craved.

Note.—“… In considering the question of the applicability of clause 43 of the 1909 Act, the first question which the Dean of Guild Court had to consider was whether the term ‘back-to-back’ houses was known either in Edinburgh or in Scotland as a description of a certain class of house. The unanimous answer of all the members of the Court was that it was an unknown term.

The petitioners supplied to the Court some information as to the nature of back-to-back houses in England, and this information was corroborated by the Master of Works, who has had English experience.

It appears that back-to-back houses in England are built in terraces, and the buildings have a solid party wall running parallel to two terraces, and the houses are built on each side of this party wall, one set of houses facing one terrace and the other set facing the other. In such houses the means of ventilation is from the front of the house except in the case of the houses at the end of the terraces, where there is ventilation on the front and one side.

The Court having thus been informed of what back-to-back houses in England are, they considered whether the houses in the present case were back-to-back houses in the English sense, and they came to the conclusion that they were not, because in the proposed houses there is ventilation not only from the front of the houses but also into the well of the staircase at the back of the houses, although there is no ventilation from open air to open air as there is in the case of houses running from the front to the back of a tenement. In these circumstances the Court considered section 43 of the Housing Act of 1909 was inapplicable, and that they could not refuse warrant on the ground that the houses would be back-to-back.

The Court then considered what was the principal objection intended to be struck at by the 43rd section of the Housing Act of 1909, and they were unanimously of opinion that it was defective ventilation.

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They further considered that the system of having four houses on each floor as proposed in the present plans is objectionable from the point of view of ventilation, because proper ventilation cannot be obtained merely by means of the well of a staircase like that in the plans before the Court.

In these circumstances the Court had to consider whether they should exercise the powers conferred upon them by section 49 of the Edinburgh Municipal and Police Amendment Act 1891, as amended by section 80 of the Edinburgh Corporation Act 1900. If the power conferred by these sections had been conferred upon the Court recently the Court would have had no hesitation in rejecting the present plans, but during the time these enactments have been in force the Court have passed many similar plans to these in question, and have previously authorised similar buildings on the petition of the present petitioners in the same street where the proposed buildings will be situated.

In these circumstances the Court considered that it was undesirable to exercise the powers conferred upon the Court, and they therefore resolved that, subject to certain amendments of detail, the petitioners' plans should not be rejected on the second ground pled by the respondents.

At the same time the Court take this opportunity of intimating that in the case of future proposals possessing the features shown on the plans now under review, but unattended with the specialty of the present case, they reserve to themselves the right to refuse plans showing four houses to the flat.”

The respondents appealed, and argued—The houses for which warrant was craved were “back-to-back houses” within the meaning of section 43 of the Housing and Town Planning Act 1909 (9 Edw. VII, cap. 44). The Act did not define the expression, and it must therefore be construed according to popular usage. The object of the section was to prevent the erection of houses without adequate provision for ventilation, and it naturally applied to such houses as were here proposed, with only one wall facing air space and three party walls—Howkins' Housing Acts 1890–1909 and Town Planning, p. 109. (2) Warrant ought in any case to have been refused in exercise of the powers conferred by section 49 of the Edinburgh Municipal and Police (Amendment) Act 1891 (54 and 55 Vict. cap. xxxvi), as amended by section 80 of the Edinburgh Corporation Act 1900 (63 and 64 Vict. cap. cxxxiii), for the Dean of Guild was of opinion that the provisions for light and ventilation were not suitable. The words used in the Act were no doubt enabling or permissive, but such words must be read as compulsory, wherever as here they were used to effectuate a legal right— Julius v. Lord Bishop of Oxford, 1880, 5 A.C. 214, per Lord Blackburn at p. 224—or were coupled with a duty— Nichols v. Baker, 1890, 44 Ch. Div. 262, per Lopes, L.J., at p. 273. But even if the Dean of Guild had a discretion he was not entitled to exercise it in the way he had done by granting warrant simply because similar warrants had been previously granted and intimating that it would not be granted again.

The petitioners were not represented at the hearing of the appeal.