I. Caledonian Railway Order [1912] UKHL 1052 (07 May 1912)

I. Caledonian Railway Order.
 

Subject_Provisional Order — Railway — Power to Dispose of Superfluous Lands — Locus Standi — Owners of Adjacent Property — Objection to Establishment of Offensive Industry on Superfluous Lands — Locus Allowed. Headnote:

This Order was promoted by the Caledonian Railway Company in order to obtain certain additional parliamentary powers in connection with their undertaking. The Order was unopposed except in regard to clause 19, which provided—“And whereas lands have from time to time been purchased or acquired by the Callander and Oban Railway Company (in this section called ‘the Oban Company’) adjoining or near to railways or stations belonging to that company, which may not be required for the purposes of the undertaking of the Oban Company, and it is expedient that further powers should be conferred upon that company with respect to such lands: Therefore, notwithstanding anything contained in the Lands Clauses Consolidation (Scotland) Act 1845 or in any Act or Order relating to the Oban Company with which that Act is incorporated, the Oban Company shall not be required to sell or dispose of any such lands which may not be immediately required for such purposes, but may retain, hold, or use, or may lease, feu, or otherwise dispose of the same on such terms as the Oban Company may think fit.”

This power was objected to by certain residents in the town of Oban, on the ground that it included and was intended, inter alia, to apply to a piece of ground adjacent to the goods depot at Oban Station, where it was proposed to establish a herring kippering factory, and on which a building designed for that purpose had already been erected.

The objectors who occupied houses in the vicinity represented that, owing to the smell and smoke which would necessarily be caused by the kippering process the neighbourhood would be ruined for residential purposes, and that their property would be seriously depreciated in value. They stated that their lands were held under the restriction that they should only be used for residential purposes, and complained of the hardship which would be imposed upon them if the kippering factory were erected as proposed.

Counsel for the promoters objected to the locus standi of the objectors, and argued—The grounds of objection were irrelevant and did not entitle the objectors to be heard. The promoters were not asking power to conduct a kippering business, but merely for a general clause to enable them to deal with any superfluous lands. This power was commonly granted to railway companies. Any power given by the clause in question in no way freed the promoters from their ordinary obligations in the use of their property. If they made an objectionable use of it or permitted a nuisance there, it was open to the neighbouring residents to take their ordinary legal remedies. This was an attempt to get the Commissioners to consider a question which fell appropriately to be determined by action at law, and that in a previous case they had refused to do— Corporation of Edinburgh, 1904, 4 Private Legislation (Scotland) Reports, p. 32.

Argued for the objectors—Generally objectors were entitled to a locus wherever it appeared from their averments that an Order was going to do them substantial injury. Here the proposed industry was one which was peculiarly offensive to a neighbourhood. In the analogous cases of gas and sewage works it was specially recognised by General Orders that owners of surrounding property within 300 yards were entitled to a locus, and in certain cases where damage was going to be serious a locus had been given to owners beyond the 300 yards— Rural Council of Waltonon-Thames, 1896, 1 Saunders & Austin, 116. Counsel also referred to London and North-Western Railway, 1899, 1 Saunders & Austin, 330; Dorchester Order, May 29, 1902, 2 Saunders & Austin, 117. Further, the objectors were entitled to be heard, because the proposed clause might affect their rights as adjoining proprietors of resuming superfluous land under the Lands Clauses Act, and also because the powers asked were outside the general powers of

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a railway company which enabled them to take land for a strictly limited purpose.The Chairman intimated that the objectors were entitled to a locus.

After evidence had been led the Commissioners found the preamble proved, subject to the adjustment of a provision prohibiting the use of the Railway Company’s lands at Oban for the purpose of a kippering factory or any such work as would be objectionable to the inhabitants of Oban.

Counsel:

Counsel for the Promoters— Morison, K.C.— Wark. Agent— H. R. Buchanan, S.S.C.

Counsel for Mr D. M. Mackinnon and Others ( Objecting)— Constable, K.C.— Gentles. Agents— Miller, Thomson, & Company, W.S.

 

 

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