Wallace v. Nisbet [1904] ScotLR 42_1 (20 October 1904)

Wallace v. Nisbet [1904] ScotLR 42_1 (20 October 1904)

The Court held that the proviso to section 62 of the Glasgow Building Regulation Act 1900 applied, as the entire ground belonged to one owner at the relevant time and the building was of the warehouse class. Therefore, the height of the building was to be regulated by the width of Sauchiehall Street, the widest street. The Court further held that a negative servitude of light and air cannot be constituted by implied grant, and Gallaway's trustees had no such right under the common title.

Citation
[1904] ScotLR 42_1
Parties
Petitioner/respondent: William Wallace; Objector/appellant: Thomas Nisbet, Master of Works for the City of Glasgow; Objectors/appellants: Gallaway's Trustees
Jurisdiction
Scotland
Judgment Date
20 October 1904
Procedural Posture
Appeal From Dean of Guild Court (building Regulation Objection) / Inner House, Second Division, Court of Session – Appeal Judgment
Outcome
Appeal dismissed; interlocutor of the Dean of Guild affirmed.
Legal Topics
Building Height Restrictions, Negative Servitude (light and Air), Implied Grant, Statutory Interpretation
Property Law Building Regulation Servitudes Building Height Restrictions Negative Servitude (light and Air) Implied Grant Statutory Interpretation

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Parties

William Wallace

Petitioner/respondent

Thomas Nisbet, Master of Works for the City of Glasgow

Objector/appellant

Gallaway's Trustees

Objectors/appellants

Procedural Posture

Appeal From Dean of Guild Court (building Regulation Objection) / Inner House, Second Division, Court of Session – Appeal Judgment

Legal Issues

  1. 1 Whether the height of the proposed warehouse building is governed by the width of Sauchiehall Lane or Sauchiehall Street under the Glasgow Building Regulation Act 1900, sections 60 and 62.
  2. 2 Whether Gallaway's trustees have an implied negative servitude of light and air over Wallace's property.

Ratio Decidendi

The Court held that the proviso to section 62 of the Glasgow Building Regulation Act 1900 applied, as the entire ground belonged to one owner at the relevant time and the building was of the warehouse class. Therefore, the height of the building was to be regulated by the width of Sauchiehall Street, the widest street. The Court further held that a negative servitude of light and air cannot be constituted by implied grant, and Gallaway's trustees had no such right under the common title.

Court Disposition

Appeal dismissed; interlocutor of the Dean of Guild affirmed.

Orders

  • Objections of the Master of Works and Gallaway's trustees repelled.
  • Warrant granted to Wallace to erect the building as specified in the petition.