s. 7. twenty-seven feet from the old wooden boundary fence of the 57 & 58 Vict. lane. On the 26th September, 1865, the appellant began to c. ccxiii. remove the fence, which had been left untouched, and to substitute a permanent wall and railings, such work being completed upon the 14th October. On the 6th October the Metropolitan Board of Works was informed of what the appellant was doing, and in March, 1866, an information was laid against him to recover penalties for forming or laying out the lane for building as a street for the purposes of carriage traffic of less width than forty feet. At the hearing of the information the magistrate found that the appellant, by taking down the old fence and erecting the permanent fence, began to form and lay out the lane for building as a street upon the 26th September, and completed such formation on the 14th October; but that the lane was not required by sect. 98 of the Metropolis Management Amendment Act, 1862, to be widened to forty feet from the opposite fence, but merely to the width of 20 feet from the centre of the roadway to the boundary fence of the appellant's ground; as, however, there was not this distance left by the appellant, he convicted him, and such conviction was affirmed by the Court of Queen's Bench, Taylor v. the Metropolitan Board of Works, L. R. 2 Q. B. 213; 36 L. J. M. C. 53; 15 W. R. 765. In another case the respondent was the owner of land upon which he had in 1866 erected some houses, the gardens in the rear of which abutted upon an ancient lane, and some of the owners of land adjoining this lane had in 1867 begun to form it into a street for carriage traffic within the meaning of sect. 98 of the Metropolis Management Amendment Act, 1862, which provided that no existing roadway of a width less than forty feet should be laid out for building as a street for carriage traffic, unless such road should be widened to the width of forty feet taken half on either side of the centre of the roadway. The respondent had done no act himself towards forming or laying out the land as a street for the purposes of carriage traffic, otherwise than by the removal in 1866 of an old bank and thorn fence and the substitution of an oak fence, three feet within his own land, and had no intention of so doing, or of erecting any building fronting towards the lane. The case of Taylor v. the Metropolitan Board of Works (ubi supra) was relied upon by the appellants, but the Court of Common Pleas held that the respondent had not committed any offence against the Act, and was not bound to set back his oak fence, so as to leave a space of twenty feet between it and the centre of the land. See The Metropolitan Board of Works v. Clever, L. R. 3 C. P. 531; 37 L. J. M. C. 126; 18 L. T. (N.S.) 723; 16 W. R. 1016. In so holding the Court followed the case of The Metropolitan Board of Works v. Cox, 19 C. B. (N.S.) 445, where the provisions of sect. 98 were held not to apply in the case of the erection of buildings abutting in the rear upon an old lane of a less width than 40 feet. The byelaws and also the Standing Orders of the Council, c. ccxiii. 57 & 58 Vict. with respect to the formation and widening of streets, will be found in Appendix III., post. S. 9. Evidence of commencement of street. Grounds for refusal to sanction plans of streets. 8. For the purpose of this Part of this Act a person shall be deemed to commence to form or lay out a street if he erect a fence or other boundary or lay down lines of kerbing or level the surface of the ground so as to define the course or direction of a street or if he form the foundations of a house in such manner and in such position as that such house will or may become one of three or more houses abutting on or erected beside land on which a street is intended to be or may be thereafter laid out or formed. Provided that no person shall be deemed to commence to form or lay out a street if he do any of the acts in this section mentioned for some purpose other than that of forming or laying out a street. Commencing to form, &c. street.-The provisions of this section are so wide that some limitation must clearly be placed upon them. It is submitted, therefore, that in all cases it will be a question of fact whether or not it can reasonably be said that what is being done, though it may be an act mentioned in the section, may result in the formation or laying out of a street. The section was no doubt intended, by making as far as possible the question one of law, to avoid the difficulty which arose under the Public Health Act, 1875, in cases in which it was necessary to decide whether a person had by building houses, &c., laid out or formed a new street. See Gossett v. the Maldon Urban Sanitary Authority (1894), 1 Q. B. 327; 70 L. T. (N.S.) 414; 58 J. P. 229; Robinson v. Barton Eccles Local Board, 21 Ch. D. 627; 52 L. J. Ch. 5; 47 L. T. (N.S.) 286; on appeal, 8 App. Case, 798; 53 L. J. Ch. 226; 50 L. T. (N.S.) 57; 32 W. R. 249; 48 J. P. 74; and Williams v. Powning, 48 L. T. (N.S.) 672; 47 J. P. 486. But it is obvious that though, on proof that a person has done one of the acts specified in the section, he will, unless, by proof of the intention with which the act was done, he rebuts the presumption which arises under the section, incur the liabilities consequent on the commencement of the formation or laying out of a street, yet it will be for the Court before which the question arises to decide as a question of fact whether the doing of the act of which evidence is given was the commencement of the formation or laying out of a street for carriage or foot traffic as the case may be. 9. In any of the cases following but in no other case (that is to say) : (1) Where any street is proposed to be formed or laid out for carriage traffic without being of or being widened to the full width of forty feet clear or such other width as may be required under the 57 & 58 Vict. (2) Where any street is proposed to be formed or laid (5) Where it is proposed to form or lay out any street (7) Where it is proposed to form or lay out any street it shall be lawful for the Council by order at any time within the period of two months after the receipt of the application to refuse to sanction or to sanction subject to such conditions as they may by such order prescribe the formation or laying out of such street for carriage traffic or for foot traffic only as the case may be provided that the Council shall within such period give notice to the applicant of such order stating fully all their reasons for such refusal or the imposition of such conditions as the case may be: Provided that if within the said period of two months the Council fail to give notice of their refusal to sanction the formation or laying out of such street or of their disapproval of any such plan or section they shall be deemed to have given their sanction thereto. c. ccxiii. s. 9. E 57 & 58 Vict. c. ccxiii. s. 9. See Grounds for refusal.—This section applies to the formation or laying out of streets which had no previous existence. the note under the heading 'street' to section 5 (6), ante, p. 6. The following section deals with the adaptation of existing streets or ways for use for carriage traffic or foot traffic as the case may be. The present Act does not, as the previous Acts did, prohibit the laying out of streets unless the provisions of the Act or of any byelaws thereunder were complied with, except that it requires the sanction of the Council to be first obtained. But the Act lays down certain grounds upon which the Council may refuse to grant its sanction to the formation or laying out of streets, and prohibits the Council from withholding its sanction upon any other grounds. There does not appear, however, to be any obligation upon the Council to withhold its sanction in the event of its being proposed to form or lay out a street in a way which would entitle the Council to withhold its sanction under sect. 9, and it would follow, therefore, that the Council has power, if it thinks fit, to sanction the formation or laying out of streets in any of the manners mentioned in the section. This power may, however, be to a certain extent limited by the byelaws of the Council, inasmuch as any byelaws when made are equally binding upon the Council as upon others, such byelaws being made for the benefit of the public. See Baxter v. the Mayor of Bedford, 1 Times L.R. 424. On the other hand, the section having specified the grounds upon which the Council may refuse its sanction to the formation or laying out of streets, its powers of refusal are limited to such grounds, except that in the cases mentioned in sect. 12 it may refuse to sanction the formation or laying out of a street unless it is formed or laid out, either throughout or in part, of a greater width than 40 ft. Notwithstanding the fact that the Council is by subsect. 7 of sect. 9 empowered to refuse to sanction the formation or laying out of a street proposed to be formed or laid out in a manner which will be in contravention of any of its byelaws, the Council cannot by means of byelaws extend the powers conferred upon it by the Act, but can only make byelaws in order to carry out the objects of the Act; such byelaws must therefore be consistent with the provisions contained in the Act, and they must also be reasonable. See the note to sect. 164, post, p. 249. The Council has no power to refuse to sanction the formation or laying out of a street which, when laid out, will conform with the Act and with the Council's byelaws, merely because in the opinion of the Council what is proposed to be done will be unsuitable to the locality, or tend to depreciate the character of the neighbouring property. See Reg. v. the Mayor and Corporation of Newcastle-upon-Tyne, 60 L. T. (N.S.) 963, 53 J. P. 788; and Reg. v. Wandsworth District Board of Works, ex parte Major Child, 49 J. P. 806. The Court will not, however, in the exercise of its discretion, compel by mandamus a local autho rity to approve of plans where what is proposed to be done 57 & 58 Vict. cannot lawfully be done, although when done it will in all c. ccxiii. respects comply with the authority's byelaws. See Reg. v. s. 9. Llandudno Improvement Commissioners, 92 L. T. 219. Appeal.-An appeal against the refusal of the Council to sanction the formation or laying out of a street, and against the conditional grant of such sanction, or against any condition imposed by the Council in granting its sanction, lies to the Tribunal of Appeal under sect. 19, post, p. 75. Street. See the definition of the expression contained in sect. 5, ante, p. 6. An approach to artisans' dwellings newly erected upon the site of some old warehouses which had abutted upon a roadway, on the same site as the approach, was held not to have been laid out as a 'street for foot traffic only' within the meaning of sect. 8 of the Metropolis Management and Building Acts (Amendment) Act, 1882. At the entrance to the approach a gateway had been erected upon the site of a former gateway which had been pulled down and altered to a greater width, and the approach was intended for the sole use and convenience of the tenants of the dwellings to the exclusion of the public, no right of way over the same having ever been dedicated to or used by the public at large. See The Metropolitan Board of Works v. Nathan, ante, p. 8. 12. Such other width as may be required. These words refer apparently to the powers conferred upon the Council by sect. Under that section the Council may in certain cases require streets to be formed or laid out for carriage traffic of a width greater than 40 ft., but not greater than 60 ft.; but the Act nowhere enables the Council to require streets to be formed or laid out for carriage traffic of a less width than 40 ft., or for foot traffic of a width less than 20 ft. It is noticeable that, whereas sect. 98 of the Metropolis Management Amendment Act, 1862, which is repealed by the present Act, contained an absolute prohibition against the formation or laying out of a street for carriage traffic of a less width than 40 ft., or for foot traffic of a less width than 20 ft., the present Act contains no such prohibition, but merely enables the County Council to refuse its sanction to the formation or laying out of streets if they are not intended to be of one or other of such widths according to the purpose for which they are intended. It is therefore to be inferred that the Council has now power, should it think fit, to sanction the formation or laying out of streets for carriage traffic of a less width than 40 ft., and for foot traffic of a less width than 20 ft. Open from the ground upwards.-Under sect. 98 of the Metropolis Management Amendment Act, 1862, which prohibited the formation or laying out of streets unless (inter alia) such streets were open at both ends, from the ground upwards, the Queen's Bench Division held that no street laid out for building |