Scottish Court of Session Decisions

[1] In this petition for judicial review, the matter came before me for a continued First Hearing. The parties were, ultimately, at one that the issues arising could be determined by me, without the need for further procedure.

[2] In the petition the petitioners seek two declarators. The first is that they are entitled to take vehicular and pedestrian access and egress across a certain strip of land between the metalled surface of a link road (which is owned and controlled by the respondents as Roads Authority) and land belonging to the petitioners to the south of that link road. The second declarator sought is that the respondents' actings in purporting to charge or obtain value from, or otherwise prevent, the petitioners in respect of taking such access and egress are ultra vires. In the petition, the petitioners also seek an order ordaining the respondents to determine the petitioners' application for road construction consent dated 6 May 1999, under section 21 of the Roads (Scotland) Act 1984. In the event, both sides informed me that they were in agreement that the court should not be invited to pronounce such an order and should simply determine whether or not the declarators sought should be granted.

The factual background to the petition

[3] The petitioners are a Jersey based company who are involved in the proposed development of land which they own lying to the south of the Robroyston Road/M80 link road, otherwise known as Saughs Road. The development involves a road services station. The respondents are the roads authority for the said road. They are also the planning authority for the area in which the petitioners' land and the said road lie. Between the land owned by the petitioners and the metalled surface of the said road and to the south of the said surface there lies a verge, an embankment, and a narrow strip of land. In the petition the verge, the embankment and the narrow strip of land are all embraced in the description "the strip" and when I hereinafter refer to "the strip" or "the said strip", it should be read as referring to all of these components. I shall make reference elsewhere, however, specifically to the narrow part of the strip which lies to the south of the embankment.

[4] It was accepted by the petitioners that all of the land, comprising the metalled surface of the road, the verge, the embankment and the narrow strip of land are presently in the ownership of the respondents. The petitioners, for the purpose of their proposed development, require vehicular and pedestrian access over the said strip of land. They consider that they are entitled to this as of right. The respondents have disputed this. The respondents' position is that the land in question being, as it is, in their sole ownership, access and egress over it is something which they have the right to prevent, control or to grant for a consideration. The land comprising the metalled road surface, the verge, the embankment and the narrow strip of land were acquired by the respondents' statutory predecessors, Strathclyde Regional Council, by virtue of a compulsory purchase order, confirmed by the Secretary of State on 22 May 1986 and recorded 22 August 1986 and by general vesting declaration by Strathclyde Regional Council dated 20 October 1986. This order was made under, and in terms of, powers conferred by sections 29 and 35 of the Roads (Scotland) Act 1984. Once the road surface had been constructed by the respondents' predecessors, the respondents' predecessors made an entry in the list of roads, publicly maintained under section 1 of the Roads (Scotland) Act 1984, in respect of it as entry 8479 on that list. It is accepted by the petitioners that the physical description of the land as contained in that listing, does not include the embankment, nor the narrow strip of land to the south of the embankment, nor indeed, as I understood the position, the whole of the verge area. Apart from the metalled road surface itself, the description includes "adjacent 3 metre verges and footway".

[5] The land, prior to being so acquired, was in agricultural use. The petitioners and the respondents, in their role as statutory authority, have been in negotiation for some time regarding the proposed development and there have been a number of agreements prepared in draft. Throughout, however, the position of the respondents has been that the petitioners require their consent with regard to access and egress over the said strip.

[6] On a previous occasion the petitioners brought proceedings against the respondents in relation to the respondents seeking to prevent the petitioners from taking access to their land or, at least, seeking to demand some form of consideration for the granting of any such access, from the said link road at another point, fairly close to the locus to which the present proceedings relate. Those proceedings resulted in a interlocutor being pronounced by the Lord Ordinary, Lady Cosgrove, on 7 January 1999, of consent, the effect of which was that the petitioners were held to have a right of access over the particular area of ground to which those proceedings related.

Competency of the petition

[7] The respondents have a plea-in-law, which is numbered 2, to the effect that "there being no decision reached by the respondents relevant to the matters condescended upon, the petition should be dismissed". In opening his submissions, in reply, junior counsel for the respondents indicated that the respondents were seeking to rely on that plea-in-law. He made reference to certain authorities in support of the proposition that, since there was no identifiable decision of the respondents as such, there was nothing that was amenable to judicial review. Overnight, however, having taken instructions on the matter, the respondents' position altered in relation to this point and I was informed that they were prepared to concede, for the purpose of the present proceedings, that the question that arose was one which was amenable to judicial review proceedings. In making that concession it was said that the respondents did not want it to be regarded as a precedent which could be held against them in other subsequent proceedings. The court, itself, of course, has to be satisfied that a concession of this sort, in respect of competency, was correctly made and that resort to the court's judicial review jurisdiction is being competently made. Senior counsel for the petitioners fully recognised that and in his speech, in reply, he made submissions in relation to the competency of the petition. In the first place, he stressed that the basis of the petition was an alleged right in the petitioners to connect to a particular road which the respondents, as a public authority, were seeking to obstruct. The petitioners' position was that the strip of land was incorporated in what was a road and that therefore they had, as members of the public, a right of access over it. Since 1996 the respondents and their statutory predecessors had consistently denied that the strip of land formed any part of a public road and that therefore the petitioners were not entitled, as of right, to take access over it. That position had been reiterated in correspondence and discussion over that period of time. It was the position adopted by the respondents in their answers to the petition. While there was no actual formal decision of the respondents, which the petitioners were seeking to reduce, the respondents' consistent course of conduct to date was something that was amenable to judicial review. Moreover, what the petitioners were seeking was in effect the performance by the respondents of their statutory duty to allow the petitioners to take access over the strip of land. Rule of Court 58.3(1) provides that an application for specific performance of a statutory duty under section 45(b) of the Court of Session Act 1988 should be made by petition for judicial review. Senior counsel for the petitioners also referred me to an unreported decision of Lord Milligan in the petition of McLagan Investments Limited in which, apparently, his Lordship repelled a plea to the competency which had been taken in similar circumstances.

[8] I am satisfied that the concession made by the respondents was correctly made. While, in the majority of cases, no doubt, judicial review is concerned with attacking what can be identified as a decision taken by a person or body, it has to be kept in mind that Rule of Court 58 simply provides the procedural machinery for an application to the supervisory jurisdiction of the court - see Rule of Court 58.3(1). As I understand it, the supervisory jurisdiction is not in some way restricted by a technical rule that it is only something identifiable as a decision as such that is amenable to it. While it is true that Rule of Court 58.4(b) refers to "the decision in question", in Rule of Court 58.6(4), the wider basis of the jurisdiction is recognised where it is stated

In the present case the petitioners are seeking declarators of rights which they claim a public authority has, in exercising its public functions, wrongly denied to them, or has refused to recognise. In my opinion, the averments of the petitioners to that effect provide a competent basis for the exercise of the court's supervisory jurisdiction. The respondents' act and omissions and statement in effect denying the alleged rights are, in the circumstances, in my opinion, subject to judicial review.

The petitioners' case on the merits of the application

[9] The petitioners' main argument in support of their claim can be briefly stated. The strip of land, in question, had been acquired by the respondents' statutory predecessors for the exercise of their functions as a roads authority. It was included in land compulsorily acquired for the purpose of building a road. The respondents have not declared the strip of land as surplus to that requirement, nor have they appropriated it to any purpose other than for a road. It is, therefore, to be regarded as part of the road that has been constructed. The terms of any listing under section 1 of the Roads (Scotland) Act 1984 ("the 1984 Act"), is not determinative of what constitutes any area which amounts to a road. The answer to that question has to be arrived at by inference from all the relevant facts and circumstances. The whole facts and circumstances, in the present case, point to the strip of land as being included in the road, and the petitioners, as frontagers to that road, have a legal right to take access over the strip.

[10] It appeared that the petitioners had also an alternative submission, of a somewhat makeweight nature, which was referred to as being one of equity. The land in question, it was said, had been acquired by a public authority in the public interest, namely for the construction of a road to which the public would have rights of access. The respondents, as a public authority, in those circumstances, should not be entitled, thereafter, to deny access over that land to the petitioners, who were members of the public, and, indeed, who were the successors of the proprietors from whom the land had been compulsorily acquired. If the respondents were to be allowed to deny the exercise of a right that equity otherwise, in the circumstances, required to be recognised, it was for the respondents to establish a very clear case as to why they should be entitled to do so.

[11] In support of their primary submission, counsel for the petitioners referred me to the case of Moncrieffe v Lord Provost of Perth and Others (1842) 5 D. 298, for the proposition that a party whose property is bounded by a public road is entitled to take access to and from it, provided such access is exercised in a manner least disadvantageous to other members of the public. I should say at this stage that counsel for the respondents had no difficulty in accepting that as being a sound proposition in law. I was also referred to the case of McRobert v Reid (1914) 1 S.L.T. 434 in which the Lord President traced the history of the rights of the public to use the highway. At p.439 he said:

In his judgment, at p.446, Lord Skerrington, after referring to discussions of the law of the highway as set out in such cases as Waddell v Earl of Buchan said:

It is the petitioners' position that they are entitled to exercise a right of the sort, just referred to, over the strip of land because it is part of a road fronting or abutting onto their land. A road could include more than the metalled surface over which it was envisaged vehicles would pass and any immediate verge. It could, and did embrace, everything that was dedicated, at a certain time, for the purpose of the road. In Regina v United Kingdom Electric Telegraph Company Limited (1862) 3 F. and F. 73 Martin B said:

Standing the reliance placed by the petitioners on that dictum, it is important, in my judgment, to have regard to the context in which it was uttered. The point in the case was whether or not the erection of certain posts, on a permanent basis, on a footpath, which had been constructed adjacent to the metal surface of a road, amounted to permanent obstructions being placed on the highway and so amounting to a public nuisance. The defence, as I understand it, was not that the posts were not positioned in what was dedicated as part of the highway, but that they did not, having regard to where they had been positioned, constitute a permanent obstruction of the highway. That case, as others, in my opinion, demonstrates that the right of the public to have access and egress over land on the basis that it forms part of the highway, depends on whether the land in question can be said to have been publicly dedicated as part of the highway. In County Council of Perth & Kinross v Magistrates of Crieff 1933 S.C. 751 certain questions were put to the court, consequent upon the transfer of functions from the Magistrates to the County Council. One of these questions was whether the transfer to the County of functions hitherto performed by the Burghs as highway authorities, with reference to "classified roads", included a transfer, not only of the functions relating to the actual carriageways of the roads, but also of the functions relating to footpaths and foot pavements alongside the carriageway. The answer to that question depended on the construction that fell to be placed on the word "highway" where it appeared in section 2(i)(c) of the Local Government (Scotland) Act 1929. The court held that that word fell to be read in its ordinary sense as including not only the carriageway but also the footways, - see Lord Justice Clerk Alness at page 758 and Lord Hunter at page 760. The significance of the concept of dedication, to which I have referred above, is touched upon in that case in the judgment of Lord Murray where, at page 761 he was to the following effect:

It was the petitioners' submission that the strip of land, after it had been acquired, had not been dedicated to any other purpose than for use as a road. Reference was also made to section 73(1) of the Local Government (Scotland) Act 1973 ("the 1973 Act"), which provides that:

There had been no appropriation by the respondents, or their predecessors, of the land in question for the purpose of any function, other than that of providing a road. To refuse members of the public, such as the petitioners, rights of access to the land in question was destructive of the purpose for which it had been acquired. Some reliance was also placed by counsel for the petitioners on the definition of "road" in section 151 of the 1984 Act. It is to the effect that a road means:

In the same section a public road is stated to mean a road which a roads authority have a duty to maintain. Senior counsel for the petitioners submitted that once something is a road there is a public right of passage over it. As he put it, it is the existence of a road that creates the public right of way. A public road is simply a road which the roads authority have a duty to maintain. It is in respect of the duty to maintain that the public listing system provided for in the 1984 Act arises. Section 1(1) provides that:

Senior counsel for the petitioners contended that section 1(1) simply provided for the creation, in respect of a length of road, the status of a public road in respect of which a roads authority had certain rights and duties and that was done by the entering of the stretch of road on the list. The list, he said, had no further purpose - it did not, for example, define the physical extent of any road nor could it be used as any conveyancing description. The road, before it was listed, already existed as a road, - listing of it simply imposed an obligation of maintenance upon the roads authority in respect of it. Senior counsel also pointed to the provisions of the Roads (Scotland) Act 1970 ("the 1970 Act"). It was under section 29 of that Act that the land in question had been acquired by the respondents' predecessors. Section 29(1) of the 1970 Act provides:

Section 50 of that Act, inter alia defines "highway" as meaning "a road maintained by a highway authority and, except in section 6 and 35 of this Act, includes a proposed highway". I should say that it is clear to me the exceptions mentioned in respect of sections 6 and 35 arise because it is apparent that where the word "highway" is used in those sections it can only have been intended to mean or to describe an existing road. Senior counsel submitted that "a highway" when used in the 1970 Act was the equivalent of what is now "public road" in the 1984 Act, viz a road maintained by the roads authority. He accepted that the physical extent of land actually acquired under the exercise of the powers contained in section 29 of the 1970 Act does not inevitably mark the physical extent of the road subsequently constructed. His position was that if any of the land turns out to be surplus to that required for the establishment of the road in question then one would expect the authority to exercise its powers under section 73 of the 1973 Act and appropriate it for some other function. It was not simply to be left in limbo. If the authority did not exercise its powers under section 73, the land in question fell to be considered as land used as part of a road. I consider that senior counsel was correct in conceding that the extent of the land acquired under section 29 did not inevitably mark the extent of the road that was subsequently created. It is clear that an authority may require to acquire land beyond the physical surface of any particular road that is proposed, so that temporary works, for example, might be erected during the period of its construction. Acquisition of land for the purpose of those temporary works would be acquisition of land required in connection with the construction of a highway.

[12] Senior counsel for the petitioners went on to submit that a road could include an embankment built to support it. That he said was clear from section 28 of the 1984 Act. That section provides:

Senior counsel for the petitioners also referred to the provisions of section 29(1) of the 1984 Act which is to the effect that:

Various plans had been produced which show upon them a post and wire fence which apparently had been in place at the time the land was acquired by the respondents' statutory predecessors. This fence ran in a line roughly parallel with the now constructed road. The strip of land lay on the road side of this fence. While senior counsel for the petitioners accepted that the fence did not mark the exact division between the land acquired by the respondents' predecessors and the land retained he, nevertheless, invited me to infer that, as a matter of probability, since the fence had been kept in situ, it was intended to mark the extent of the road for the purpose of section 29(1) of the 1984 Act. Although he made that submission, however faintly, ultimately, I think, he did accept that the line of the fence could not be determinative in this case since this was not a situation in which the respondents, or their predecessors, had themselves created the fence for the purposes of section 29(1).

[13] In further support of the main plank of the petitioners' submissions, namely that the land had been acquired for road purposes, and, not having been appropriated by the respondents or their predecessors for any other purpose under section 73 of the 1973 Act, must be deemed to be part of land constituting the road, senior counsel referred me to the case of Dowty Ltd v Wolverhampton Corporation (1976) 1 Q.B. 13. In that case Russell LJ at page 24d-e was to the following effect:

I was also referred to the decision of Carnwath J in the case of R v Bromsgrove District Council (1998) J.P.L. 664 where the equivalent provisions in the English local government legislation to those of section 73 of the 1973 Act were being considered. At page 666 his Lordship said:

[14] It did also appear, at one stage, that counsel for the petitioners were endeavouring to submit that what the respondents were seeking to do, namely to obtain a consideration of some sort for the petitioners' right to access their land from the built road, over the strip of land, was in breach of the so called Crichel Down Rules in relation to land which has been compulsory acquired. In that respect I was referred to the decision of the Court of Appeal in the case of Tomkins and Another v Commission for the New Towns (1989) 1 E.G.L.R. 24. In that case the Crichel Down Rules were discussed by Bingham LJ (as he then was) at page 27 in the following terms:

[15] The respondents' position, in reply, to the petition, was, as set out in their answers, and in the opening speech of junior counsel, a short and sharp one. The petitioners accepted that the strip of land was not included in the description of the road, as it appears in the statutory list. The description in the statutory list was conclusive of the extent of what amounted to the road in question in all cases. That was the end of the matter since the petitioners' position was perilled upon the strip of land being part of the road. While this was initially the position adopted by senior counsel in his submission, he required, in due course, to modify it somewhat. That was because, since the statutory provisions do not prescribe what detail roads authorities are required to provide in listing any particular road, he was asked by me, to check if there was any common practice among authorities as to the way in which the extent of any road is described on the statutory list. Senior counsel had the matter checked and it transpired that there is apparently no common practice among roads authorities and that some authorities, for example, in listing roads simply provide a description of a road running from point X to point Y. In the light of that, senior counsel for the respondents accepted that the statutory listing description could not be regarded as conclusive of the precise extent of a road in every case and for all purposes. His position was, nevertheless, that in the present case where the list gave a detailed description as to the extent of the road, which was not contradicted by what one saw physically on the ground then, absent other clear evidence that the road extended beyond the description in the list, the list description should be held to be what the authority had publicly dedicated as the road. I should say, at this stage, that there was produced a series of photographs which gave no indication of anything beyond what was contained in the list description being in use by the public as a part of a road over which there was a public right of way. Those photographs depicted the narrow strip of land to the south of the road and beyond the embankment in an overgrown state. Counsel for the respondents submitted that the fundamental fallacy in the petitioners' contentions was that land acquired under section 29 of the 1970 Act, in connection with the construction of a highway, thereafter fell to be regarded as a road unless and until the land in question was appropriated for some other use in terms of section 73 of the 1973 Act. In the present case what was involved was the creation of a new road on virgin land over which there had been no pre-existing public right of passage. It lay entirely at the hand of the roads authority, in such a situation, to create and delimit a public right of way by creating a road. What the respondents had created in this case as the road was what was clearly described in the listing in the statutory list. When the entry in the statutory list, as in the present case, clearly described the extent of the land constituting the road, that was a pretty clear statement, or declaration, of what the extent of the public right of passage was. Senior counsel submitted that where, as here, a new road was created by a roads authority the extent of land dedicated thereby for public right of way can be determined, when a question arises, in the first instance, by reference to the statutory list. If the listing description still leaves the matter unclear, one then should look at what the position is on the ground, and see what is used by the public. In the present case what one saw on the ground, by reference to the photographs, and what one saw set out in the list coincided. The acquired land had, at the time of its acquisition, been in agricultural use. The post and wire fence which was shown on the plans which had been produced was a stock-proof fenc

[16] In the submission of the respondents, to acquire a piece of land for the construction of a road does not make it a road. Having regard to the exact language of section 29 of the 1970 Act, the statutory purpose for which the land was required was "in connection with the construction" of a road. That purpose had been fulfilled in the present case - the road which was envisaged at the time of acquisition was Saughs Road, which had now been built. A relatively narrow strip of land had been reserved for the possible purpose of future dualling of the road, but the respondents had no programme in existence for dualling the road. Access could be taken to the respondents' land from the road at certain points marked on the plans produced - accordingly the petitioners' land was not landlocked. Counsel for the respondents further submitted that there was no evidence that the respondents or their predecessors had intended that the strip should be used for public passage when they built the road. The petitioners' were, furthermore, not assisted by the appearance of the word "embankments" in section 28 of the 1984 Act. In B.S. 6100 a definition of "verge" was given which was to the effect that it was "part of a highway, exclusive of embankments". An embankment might be included as part of a road in the statutory list and be regarded then, as a dangerous part of the road for the purposes of section 28, but the fact that the section recognised that an embankment could be a dangerous part of a road, did not mean that an embankment was inevitably part of a road.

[17] The fence seen on the plans, which was, at times, some 30 metres distant from the boundary of the petitioners' land, did not mark the boundary of the road and was never intended to do so. If anything, it was left as a fence for the purposes of section 29(a) of the 1984 Act viz, to prevent access to the road.

[18] It may be that the respondents were open to criticism for not having appropriated the land in question, to say, landscaping use, but that was not the issue which arose in the present proceedings. The question raised, in the present proceedings is whether or not at the present time, the land is land over which the public, including the petitioners have a right of way. There was nothing of substance, it was said, in the petitioners' subsidiary case based on equitable considerations. The respondents' predecessors had given full value for the land acquired. Access to the land retained had been reserved. It was the petitioners' acquisition of the land that led to pressure for development, otherwise the land might have remained in agricultural use. There was no duty on the respondents to enhance the profit of the respondents by affording them, gratuitously, access over land which was not a road. There was no obligation on the respondents to dispose of land or land rights gratuitously to encourage development. The respondents were not exercising a statutory discretion in a way that thwarted the purpose of the Town & Country Planning legislation. They were simply seeking, in the context of the overall development of the site, to reach an agreement about the basis upon which the petitioners might have access over their land. Accordingly the decision in the case of Padfield had no application to the present circumstances. Nor was there any room for any reference to the Crichel Down Rules since the respondents were not seeking to dispone the land in question to a third party. The previous litigation between the parties which had resulted in the interlocutor of Lady Cosgrove did not assist the petitioners. In that case there had been a serious doubt in the mind of the respondents as to whether the particular area of ground, which was some distance from the area with which the present proceedings were concerned, did form part of the road or not and it was for that reason that the interlocutor pronounced by Lady Cosgrove was of consent.

[19] I was provided with full and detailed submissions in this case which I have endeavoured to summarise. Ultimately, however, I am of the opinion that the matter can be disposed of briefly. The strip of land in question is owned by the respondents. Counsel for the petitioners, accepted that they were not in a position to lead any evidence to show that any public right of passage had ever been actually exercised over it. The photographs of the land in question show no sign of the land having been used by the public as a public right of way. The entry in the statutory list of roads, describing the road, does not embrace the strip of land in question. In that situation the petitioners have not shown that the land in question has ever been dedicated by the respondents or their predecessors in any way as an "area dedicated to public passage" to use the language of Lord Murray in County Council of Perth & Kinross v Magistrates of Crieff. In my judgment the acquisition by an authority of land under section 29 of the 1970 Act in connection with the construction of a road is not to be taken, by itself, as the equivalent of a dedication of that land, in its entirety, to public passage. In my opinion, in this case the petitioners have failed to demonstrate any subsequent actings, or circumstances, which amount to dedication of the strip of land to public passage. What should be done with any of that land, so acquired, which turns out to be surplus to the requirements of the physical extent of the road actually constructed, raises other questions, but any failure in that respect by the respondents, having regard to their statutory duties cannot, in my opinion, assist the petitioners, in the present proceedings, in establishing a right in them to treat the land, as if it had been dedicated to public passage. That question is, in addition, in my opinion, one of legal right and cannot be decided on the basis of some equitable considerations. In any event, for the reasons given by senior counsel for the respondents, it is not clear that the equities in any way favour the petitioners. I am also satisfied that the petitioners are not assisted by reference to the Crichel Down Rules since no disposition to a third party of the land in question has been made, nor has it, apparently, been even proposed. The complaint of the petitioners is with regard to the respondents seeking to obtain from them some consideration for the granting of rights in the land. Nor are the petitioners, in my opinion, supported by the decision in the case of Padfield. The respondents are not seeking to thwart development, they are simply seeking to obtain some return in respect of granting of rights which they are in a position, in law, to confer.

[20] Since I am satisfied, for the reasons given, that the petitioners cannot assert a right to take access over the land in question and, given that the respondents are the owners of that land, the respondents are, in my opinion, entirely justified in law in seeking to obtain some form of consideration from the petitioners in exchange for granting any rights of access over it. Accordingly, I do not consider that the petitioners are entitled to the declarators they seek. I, therefore, shall, of consent, repel the respondents' second plea-in-law, but otherwise sustain the respondents' first and fourth pleas-in-law and dismiss the petition.