M'Arthur v. Magistrates of Edinburgh [1906] ScotLR 43_727 (26 June 1906)

M'Arthur v. Magistrates of Edinburgh [1906] ScotLR 43_727 (26 June 1906)

No. 34 Tower Street is not a 'tenement' within the meaning of the statutes, so the open space in front may be counted towards statutory requirements. The proposed court is not 'open and accessible to the public' as required by the Act, so plans need not be submitted for approval. There is no statutory requirement to erect a fence to ensure exclusive use of the open space.

Citation
[1906] ScotLR 43_727
Parties
Petitioner/appellant: Alexander M'Arthur; Respondents: Lord Provost, Magistrates and Council of the City of Edinburgh
Jurisdiction
Scotland
Judgment Date
26 June 1906
Procedural Posture
Appeal From Dean of Guild Court (edinburgh) / Inner House, Second Division, Court of Session
Outcome
Appeal sustained; interlocutor of Dean of Guild Court recalled.
Legal Topics
Definition of 'tenement', Building Regulations, Open Space Requirements, Interpretation of Municipal Statutes, Court Accessibility Under Statute
Local Government Law Municipal Law Property Law Planning Law Definition of 'tenement' Building Regulations Open Space Requirements Interpretation of Municipal Statutes +1 more

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Parties

Alexander M'Arthur

Petitioner/appellant

Lord Provost, Magistrates and Council of the City of Edinburgh

Respondents

Procedural Posture

Appeal From Dean of Guild Court (edinburgh) / Inner House, Second Division, Court of Session

Legal Issues

  1. 1 Whether the proposed court is 'open and accessible to the public' under the Edinburgh Municipal and Police Act 1879, sec. 5
  2. 2 Whether No. 34 Tower Street is a 'tenement' within the meaning of the relevant statutes
  3. 3 Whether open space in front of No. 34 can be reckoned towards statutory requirements

Ratio Decidendi

No. 34 Tower Street is not a 'tenement' within the meaning of the statutes, so the open space in front may be counted towards statutory requirements. The proposed court is not 'open and accessible to the public' as required by the Act, so plans need not be submitted for approval. There is no statutory requirement to erect a fence to ensure exclusive use of the open space.

Court Disposition

Appeal sustained; interlocutor of Dean of Guild Court recalled.

Orders

  • Find that the proposed court is not one requiring submission of plans for approval.
  • Find that No. 34 Tower Street is not a tenement; open space in front may be counted.