John C. M'Kellar, Ltd v. Bryce [1904] ScotLR 41_246 (23 January 1904)

John C. M'Kellar, Ltd v. Bryce [1904] ScotLR 41_246 (23 January 1904)

The petitioners are barred from applying for a lining for the third tenement because the conditions under which the lining for the first two tenements was granted required the open space to remain, and granting the present application would breach those conditions and violate section 170 of the Burgh Police (Scotland) Act 1892.

Citation
[1904] ScotLR 41_246
Parties
Applicant: John C. M'Kellar, Limited; Respondent: John Bryce
Jurisdiction
Scotland
Judgment Date
23 January 1904
Procedural Posture
Appeal / Final Judgment
Outcome
appeal dismissed
Legal Topics
Building Regulations, Open Space Requirements, Statutory Interpretation, Conditions Attached to Planning Permissions
Property Law Administrative Law Local Government Law Building Regulations Open Space Requirements Statutory Interpretation Conditions Attached to Planning Permissions

Case Brief

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Parties

John C. M'Kellar, Limited

Applicant

John Bryce

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether petitioners are barred from applying for a lining for a third tenement after restricting their original application and accepting conditions regarding open space.
  2. 2 Whether the Dean of Guild Court can impose binding conditions on building permissions under section 170 of the Burgh Police (Scotland) Act 1892.
  3. 3 Whether the statutory open space requirement can be circumvented by multiple applications.

Ratio Decidendi

The petitioners are barred from applying for a lining for the third tenement because the conditions under which the lining for the first two tenements was granted required the open space to remain, and granting the present application would breach those conditions and violate section 170 of the Burgh Police (Scotland) Act 1892.

Court Disposition

appeal dismissed

Orders

  • Judgment of Dean of Guild Court affirmed
  • Application for lining for third tenement refused