Montgomerie & Co., Ltd v. The Burgh of Haddington [1907] ScotLR 73 (13 November 1907)

Montgomerie & Co., Ltd v. The Burgh of Haddington [1907] ScotLR 73 (13 November 1907)

The Burgh of Haddington was entitled to proceed under section 103 of the Public Health (Scotland) Act 1897, which was not repealed or limited by the Burgh Sewerage, Drainage, and Water Supply (Scotland) Act 1901 or the Burgh Police (Scotland) Act 1892. The procedure under the 1897 Act is a complete code, and the requirement for written consent under section 217 of the 1892 Act does not apply. The notice given to the pursuers was reasonable within the meaning of the statute. Even if there was a procedural irregularity, it would not justify removal of the works, especially where the pursuers had approved the scheme and suffered no serious prejudice.

Citation
[1907] ScotLR 73
Parties
Pursuer: Montgomerie & Company, Limited; Defender: The Burgh of Haddington (Provost, Magistrates, and Councillors)
Jurisdiction
Scotland
Judgment Date
13 November 1907
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal refused; interlocutor of Lord Ordinary adhered to; action dismissed; defenders assoilzied (absolved)
Legal Topics
Sewerage and Drainage Powers, Statutory Interpretation, Notice Requirements, Burgh Powers, Interference With Watercourses
Public Health Law Local Government Law Property Law Sewerage and Drainage Powers Statutory Interpretation Notice Requirements Burgh Powers Interference With Watercourses

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Parties

Montgomerie & Company, Limited

Pursuer

The Burgh of Haddington (Provost, Magistrates, and Councillors)

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the Burgh of Haddington could lawfully construct sewers under section 103 of the Public Health (Scotland) Act 1897 after the Burgh Sewerage, Drainage, and Water Supply (Scotland) Act 1901;
  2. 2 Whether the procedure under the 1897 Act was a complete code, or whether compliance with section 217 of the Burgh Police (Scotland) Act 1892 (requiring written consent) was also necessary;
  3. 3 Whether 'reasonable notice in writing' was given to the pursuers under section 103 of the 1897 Act;

Ratio Decidendi

The Burgh of Haddington was entitled to proceed under section 103 of the Public Health (Scotland) Act 1897, which was not repealed or limited by the Burgh Sewerage, Drainage, and Water Supply (Scotland) Act 1901 or the Burgh Police (Scotland) Act 1892. The procedure under the 1897 Act is a complete code, and the requirement for written consent under section 217 of the 1892 Act does not apply. The notice given to the pursuers was reasonable within the meaning of the statute. Even if there was a procedural irregularity, it would not justify removal of the works, especially where the pursuers had approved the scheme and suffered no serious prejudice.

Court Disposition

Appeal refused; interlocutor of Lord Ordinary adhered to; action dismissed; defenders assoilzied (absolved)

Orders

  • Defenders assoilzied from the conclusions of the summons
  • Defenders found entitled to expenses as between agent and client