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Cite as: 2006 SCLR 839, [2006] CSOH 110, [2006] ScotCS CSOH_110

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 110

P1165/05

OPINION OF LORD KINGARTH

in the Petition of

BRIAN GREGORY HAMILTON

Petitioner;

against

DUMFRIES AND GALLOWAY COUNCIL

Respondents:

________________

Petitioner: Henderson; Lindsays, W.S.

Respondents: Olson; Anderson Strathern, W.S.

14 July 2006

[1] On 26 May 2005 the Planning and Environmental Services Committee of the respondents, having considered a report prepared by officials dated 17 May 2005 ("the report"), agreed that a short length (extending to about 36 metres) of what until about 1989 formed part of the B724 road between Collin and Annan ("the disputed section of road") be added to their list of public roads. The disputed section of road was shown as cross-hatched on the plan appended to the report. They purported to do so under section 16 of the Roads (Scotland) Act 1984 ("the 1984 Act"). The petitioner, who claims to be heritable proprietor of the solum of the disputed section of road, seeks inter alia reduction of that decision.

[2 ] It became clear during the course of the first hearing that the central question which the parties sought (under reference to the pleadings and documents lodged) to have resolved, was whether the decision was one the respondents had power to make under and in terms of section 16 of the 1984 Act - in particular the two critical questions being (first) whether at the time of the decision the disputed section of road was a private road and (second) whether the respondents made their decision on the basis of an application to them by the requisite number of frontagers - all within the meaning of the section.

[3 ] In particular, although the petition refers to a number of other alleged grounds for seeking to set aside the decision, (e.g. that the respondents had no power to "re-adopt" any road) it became clear during the hearing that none were insisted on as such grounds. Although, in particular, some averments are made about the respondents being aware of and taking into account potential litigation between the petitioner and residents of properties served by the disputed section of road and the risk of potential claims against themselves for maladministration if they did not take the decision they did, in the event, all that was submitted was that such averments pointed, in the view of the petitioner, to a possible explanation as to how it came to be that the respondents "took their eye of the ball" when they came to make the decision which, for the two reasons referred to above, it is claimed they had no power to make. Given the limited reference which was thus made to these averments, I do not see any need to refer to them in detail. Further, although the petitioner wished to argue (as a fall-back position) that even if the disputed section of road was a private road the planning and environmental services committee of the respondents did not have sufficient information before them to decide that it was (and thus that the decision was unreasonable), the main focus of the petitioner's attack on the decision was one of vires. I should add also that although averments are made to the effect that the relevant decision was incompatible with the petitioner's human rights under Article 6(1) and the First Protocol, it was accepted by counsel that these avements (apparently related to the claim for damages which the petitioner makes and to a question in connection with expenses) would only require to be considered if the decision was otherwise held to have been unlawful. Both counsel, however, were content that these averments be left over meantime for consideration later, if necessary.

[4 ] The respondents' answer to the petitioner's averments to the effect that he is the owner of the solum of the disputed section of road, is that these averments are not known and not admitted. Counsel for the respondents was content to leave for later consideration, if necessary, his related plea that the petitioner has no title to sue, the question of title being, it was said, potentially one of some complexity involving proof of a number of matters. In addition, counsel for the respondents expressly departed from any insistence on his third plea-in-law to the effect that the petition is incompetent.

[5 ] Section 16 of the 1984 Act provides (so far as relevant):

"16.-(1) If a private road -

(a) is of such standard as has last been required by relevant notice under section 13(1) of this Act; or

(b) where no such standard has been so required, is of a standard satisfactory to the local roads authority,

then, if application is made to them under this subsection by the requisite number of frontagers for such addition, the authority shall, ... within 12 months of the application add the road to their list of public roads:

...

(5) In the foregoing provisions of this section -

...

'the requisite number' has the same meaning in relation to that road and the land fronting or abutting the road as it has in section 1(7) of this Act in relation to the road and land mentioned in that section."

[6 ] In terms of section 151 of the 1984 Act "road" means (so far as relevant) "any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road's verge... and any reference to a road includes a part thereof." "Private road" means "any road other than a public road". "Public road" means "a road which a road's authority have a duty to maintain". Section 1, sub-section (1) of the Act provides that a local road's authority "shall manage and maintain all such roads in their areas as are for the time being entered in a list (in this Act referred to as their 'list of public roads') prepared and kept by them under the section. In terms of section 1(4) and (5) the local roads authority may add to or delete from their list of public roads, provided inter alia they give notice of their intention in that regard to "the requisite number of frontagers". By virtue of section 151. "frontager", in relation to a road or proposed road, means "the owner of any land fronting or abutting it". Section 1(7) of the Act provides, so far as relevant:

"(7) In subsection (5) above, 'the requisite number' - means -

(a) a majority; or

(b) such member as together owns land which either -

(i) includes not less than half of the boundary between the land fronting or abutting the road mentioned in subsection (4)(a) above and that road; or..."

[7 ] In the report the "Background" to the proposed decision was described as follows:

"2.1 The construction of the Collin By-pass necessitated the Gretna-Stranraer-Glasgow-Stirling Trunk Road (A75) (Collin Diversion Side Roads) Order 1983, which was made on 27 October 1983 and came into effect on 11 November 1983. Amongst other things, the Order stopped up a length of the B724 on the north west side of the new By-pass and resulted in the remaining length of the B724 on the north west side of the new By-pass becoming an unclassified road (U62n).

2.2 The length of the former B724 between the new By-pass and the Village Hall (approximately 36m) was, however, not physically stopped up and still looks as if it forms part of the U62n.

2.3 The then Regional Council formally amended its List of Public Roads to reflect the description of the stopped up length of road and the entry now reads:

U62n Low Road (from) C8n at Collin to termination 6m south east of Collin Village Hall, Collin.

Having been removed from the List of Public Roads, the length of road which was to have been stopped up is not a Public Road.

2.4 On 12 May 1993, Robison and Davidson Ltd applied for a Construction Consent for Townhead Park and this was issued on 12 September 1993. Road construction was completed in August 1999 and adoption applied for in March 2000.

2.5 Townhead Park does not connect to a public road, and so it is debatable whether a construction consent should have been issued by the former Regional Council for its construction. Having done so, both the developer and residents have been given the impression that Townhead Park would be adopted as a Public Road. Townhead Park is not adopted and, currently could not be adopted as it does not connect to the Public Road network.

2.6 The failure to physically alter the road, as had been originally planned by the then Scottish Office, and the continued use of the road, initially for bus turning and later by the residents of Townhead Park, means that the affected length of road continues to be a road, and because of the amendment to the List of Public Roads, is a private road.

2.7 A local landowner, having bought the Rockall Estate, has laid claim to the solum of the road. Solicitors acting for the landowner have contacted residents of Townhead Park requiring them to agree to make a payment to allow access over the length of road that was to have been stopped up."

[8 ] In the course of the hearing before me, I did not understand the basic factual position referred to in the report to be disputed. Certain qualifications or additions to it were, as I understood it, also agreed.

[9 ] As regards paragraphs 2.1 and 2.2 of the report, the 1983 Order (a copy of which was lodged) authorised certain works including, in particular, the construction of a section of the A75, running broadly in an east to west, direction bypassing Collin to the south-side of the village. It cut right across the former B724 road which ran between Collin and Annan in a broadly north-west to south-east direction. Included in the "works" authorised by the 1983 Order was "the stopping up" of certain lengths of road described in a schedule to the Order. One of these lengths of road was the disputed section of road, which ran to the northwest of the new bypass, together with a short further section at its southern end (of about 8 metres) which extended right to the edge of the new A75. By the end of the hearing before me it was, as I understood it, agreed that all the 1983 Order authorised was "works" to stop up the relevant length of road, and that the Order itself did not then immediately "stop up" the relevant length of road. In the event, however, once the A75 bypass was completed the 8 metre section at the southern end of the relevant length of road was grassed over and did physically stop up that part of the B724 at it southern end.

[10 ] As regards paragraph 2.3 of the report, the list of public roads was amended in the way described in or about 1989 shortly after the A75 bypass opened, which was on 1 June 1989. It was (as I understood it) agreed that at least then any public right of passage derived from the fact that that section of the B724 was a public road ended. It was submitted on behalf of the petitioner that that public right of passage ended, under and in terms of the Order properly construed, shortly before that when the new bypass was opened (with the relevant section of the B724 being stopped up at its southern end). This, it was argued, was consistent with the approach of the court (albeit to different statutory provisions) in Hope Vere v Young 1887 14 R. 425, to which reference was made by the sheriff in an unreported decision dated 20 November 2002 in respect of two actions brought by the pursuer against J & J Currie Limited and Others in relation to different stretches of road in the vicinity of Collin. These arguments were not accepted by counsel for the respondents. For present purposes there is, I think, nothing of significance which turns on this dispute. That is because not only was there apparently little or no time difference between the opening of the A75 and the removal of the disputed section of road from the list of public roads but, more importantly, it was agreed that the fact that the 1983 Order was made in relation to the relevant length of road did not mean that the section of it which was not grassed over or physically stopped up otherwise, could not thereafter be used as a road (as, it seems, is recognised in section 115 of the 1984 Act, and, before it, in section 16 of the Roads (Scotland) Act 1970). Whether it was so used (in particular after June 1989) is the central issue in this case.

[11 ] This last matter was addressed at paragraph 2.6 of the report. Townhead Park, referred to therein, is a residential development on the northeast side of the disputed section of road. An internal estate road opens, in a bell mouth, onto the disputed section of road. Certain supplementary averments are made by the respondents in their Answers, to the following effect:

"The road continued to be used as a turning area by buses from 1983, by vehicles for parking and turning when using the village hall and by British Telecom and Scottish Water. The road was used as a way in the course of the construction of Townhead Park from about 1993 to 1999. The road has been used as a way by the owners and residents of Townhead Park, and by members of the public and providers of services such as utilities from about 1999."

By the end of the hearing before me, I did not understand that these averments were disputed as a matter of fact. The village hall referred to is situated on the south-west side of the U62n immediately to the north-west of the disputed section of road.

[12 ] In relation to paragraph 2.7 of the report it is averred on behalf of the petitioner that on or after 7 October 2004 the petitioner intimated his concerns to the residents of Townhead Park that they were taking access over his property without his permission. The respondents, in their answers, effectively admit these averments, and explain that in or about April 2005 the petitioner demanded payment of £5,000 plus reasonable expenses from each of the 14 properties in Townhead Park for a servitude right of access to Townhead Park over the road. I did not understand counsel for the petitioner to dispute these averments. Indeed, as counsel expressly accepted, the petitioner's sole interest in the disputed section of road is to exploit his claimed ownership of the solum for financial gain, effectively using it as a ransom strip.

[13 ] In a section in the report headed "Key Points", it is said, inter alia, "Requests for the council to adopt this length of road have been received from two residents of Townhead Park whose property fronts the former B724. The Scottish Executive, who is also a frontager in this context, has agreed that the U62n should be extended by adopting the length of the former B724." The respondents' position in averment is that they received requests from Simon A Hyslop, 1 Townhead Park, Collin, Thomas Scott Marshall, 2 Townhead Park, Collin and the Scottish Executive requesting that the road should be adopted as a public road. A plan was produced in the course of the hearing (Production 7/5) showing, cross-hatched, the house and garden ground of No.1 Townhead Park (said to be owned by Mr Hyslop) and the house and garden ground of No.2 Townhead Park (said to be owned by Mr Marshall). The areas of land forming 1 and 2 Townhead Park are shown on the plan as being separated from the disputed section of road on its east side by short strips of (so far as appears) pavement. The same plan shows land to the south and southwest of the disputed section of road (including the grass verge of the A75) as owned by the Scottish Executive.

Submissions for the petitioner
[14] Although it was accepted that at the time the respondents took the relevant decision the disputed section of road could be described as a way, it could not be said that it was a way over which there was a public right of passage, within the meaning of the 1984 Act. It could not therefore competently be added to the list of public roads under section 16. A road was more narrowly defined in the 1984 Act than it had been in the Roads (Scotland) Act 1970, where it was defined as including "any highway and any other road to which the public has access...". The difference was noted in Cowie v Strathclyde Regional Council, an unreported decision of the First Division dated 8 July 1986, and in Young v Carmichael 1991 S.C.C.R. 332. The Lord Ordinary in Viewpoint Housing Association Limited v Lothian Regional Council 1993 S.L.T. 921 had been wrong to suggest that there was not truly any distinction in this difference. Although the definition of the word "road" in the 1984 Act involved less exacting considerations than those governing the constitution of a public right of way over private land (Cowie v Strathclyde Regional Council), certain requirements for the creation of a public right of way remained relevant. In particular, the public had to exercise access as of right. It was not enough that they exercised access lawfully, in the sense of having the express or implied permission, or with the tolerance, of the person with the legal right to control the road. This might have been enough under the former definition which spoke of the public having access. Whatever the position had been before, it was clear from the intimation of the petitioner's concerns to the residents of Townhead Park that any tolerated use was about to cease. This was enough to bring any lawful exercise of access, or exercise as of right, to an end. Further any exercise of access by the public would require to have been for the prescriptive period of 20 years, which it had not been, given the relevant starting point in 1989. In any event, on the information before them, the respondents' Committee could not reasonably have decided that the disputed section of road was a road.

[15 ] Further, it appeared that application had not been made to the respondents by the requisite number of frontagers. It was not clear from the plan produced (Production 7/5) that either Mr Hyslop or Mr Marshall could be described as a frontager given the presence between their apparent properties and the disputed section of road of the apparent pavements, the ownership of which was not known. It could not in these circumstances be said that a majority of frontagers (within the meaning of section 1(7)(a)) had applied to have the road adopted. Although parties were given some time after the hearing to discover whether ownership of the relevant strips could be agreed, this proved impossible and the petitioner's position was that further investigation suggested that Messrs Hyslop and Marshall did not own the relevant strips of pavement. Further, so it was argued, it was clear that Mr Hyslop, Mr Marshall and the Scottish Executive did not own more than half of the boundary between the land fronting or abutting the disputed section of road and the road itself. The respondents could therefore not seek to rely on section 1(7)(b)(i) either.

Submissions for the respondents
[16 ] The disputed section of road plainly was a road within the meaning of the 1984 Act at the relevant time. The petitioner had made no relevant averments or presented any relevant arguments to the contrary. The Lord Ordinary in Viewpoint Housing Association Limited v Lothian Regional Council had been right to suppose that there was no true distinction in the difference of language used in the 1984 Act and in the Roads (Scotland) Act 1970 and its predecessors. The court in Young v Carmichael had proceeded on an erroneous Crown concession to the contrary. In Beattie v Scott 1990 SCCR 435 the fact of public access was regarded as significant in establishing that the parking area in question was a road within the meaning of the 1984 Act. In any event, the exercise of access without apparent challenge over the substantial period from 1989 (after the disputed section of road ceased to be a public road) was entirely consistent with exercise of access as of right. The communication by the petitioner to certain residents of Townhead Park of his concerns did not alter that. Public access continued until the relevant decision, without physical interference or interdict. There was, in addition, no statutory or other basis for the petitioner's claim that public access required to be exercised for the prescriptive period of 20 years. By contract, special and specific provision was made in respect of public rights of way by section 3(3) of the Prescription and Limitation (Scotland) Act 1973. The Committee of the respondents plainly had enough information before them to decide that the disputed section of road was indeed a road.

[17 ] As regards the question of the requisite number of frontagers, it was accepted, ultimately, by the respondents (after some time was given to both parties to consider the position more fully) that they could not rely on section 1(7)(b)(i). Nevertheless, the respondents' position was that the relevant applications had been made by a majority of frontagers, being the Scottish Executive, Mr Hyslop and Mr Marshall. If the petitioner was allowed to challenge the title of Mr Hyslop and Mr Marshall to the pavement strips, the matter could only be decided after evidence. It was the respondents' position that Messrs Hyslop and Marshall did own the relevant pavement strips. The petitioner, however, should not be allowed to develop this line attack of the decision, it not being properly focused in the pleadings. If it was to be developed, further averments would be necessary and possibly re-service on Mr Hyslop and Mr Marshall. It was too late for such a change of front to be introduced at this stage.

Discussion
[18 ] Although I was referred to (and it may be, as counsel assured me, that there is) limited authority on the matter, and there is thus some uncertainty as to what is meant in section 151 by "public right of passage", I have come to the view that the disputed section of road was, on the information before me, a (private) road within the meaning of the 1984 Act when it was added by the respondents to their list of public roads.

[19 ] In the first place, I am not persuaded (any more than was the Lord Ordinary in Viewpoint Housing Association Ltd v Lothian Regional Council) that, although the language used in the definition of road in the 1984 Act is different, there was truly intended to be any material distinction from previous definitions such as in the Roads (Scotland) Act 1970, which referred to ways "to which the public has access". These words were, of course, understood to refer to more than mere access in fact. As was said by Lord Justice General Emslie in Cheyne v Macneill 1973 S.L.T. 27 at p.30:

"... it is not difficult to infer that the words 'to which the public has access' are necessarily referable to a situation in which it is found in fact that the public has access - access for the purpose of which a road is intended or designed, i.e. passage on foot or in a vehicle. But when the statute refers to access it cannot be assumed that this means access which is obtained unlawfully, e.g. by climbing over or opening gates, or by surmounting walls or fences, designed to exclude potential intruders. In our opinion, 'access' as the word is used in the definition, covers access for passage by permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road. The degree or extent of use necessary to bring a particular road within the definition will necessarily be a question of fact in every case. Where there is such permission, acquiescence or tolerance demonstrated by use or otherwise it can properly be said that there is nothing illegal or unlawful in such access as the public has proved to enjoy, and therefore that the public has access lawfully to the road."

Comparing similar language then applicable in relation to England and Wales in terms of section 192(1) of the Road Traffic Act 1988 with the definition which applied in relation to Scotland derived from the Roads (Scotland) Act 1984 Lord Cameron of Lochbroom in Viewpoint Housing Association Limited v Lothian Regional Council said,

"I am not certain there is truly any distinction in this difference. It is true that the definition which now applies in Scotland for the purposes of the Road Traffic Act 1988 is that in the Roads (Scotland) Act 1984, and that the earlier definition which makes reference to 'highway and any other road to which the public has access' is no longer applicable. However the new definition makes no reference to the word highway which, as noted in Cheyne v Macneill, was a road upon which the public right of passage was secured by law and whose maintenance was the responsibility of the statutory authority. In these circumstances it was not surprising that Parliament employed the phrase 'public right of passage' in the substituted definition. If counsel for the pursuer contended the word 'right' is to be read as a real legal right, and not something which is obtained by virtue of permission express or implied from, or acquiescence or toleration by person or persons with legal right to control the use of the road, the consequences would be startling. It would mean, for instance, that where a road was not a public road but a private road, unless and until the public right of passage had been demonstrated by continuance over the prescriptive period, no such road would fall within the definition and thus a person driving on such a road, albeit the public had access to it, could not be convicted on evidence which would secure his conviction in England and Wales."

It is perhaps not unreasonable to suppose that the amendment, by the Road Traffic Act 1991, Schedule 4, paragraph 78, of the definition of road in relation to Scotland in the 1988 Road Traffic Act by the addition of inter alia "any other way to which the public has access" was made ob majorem cautelam in light of such observations. Although Lord Cameron of Lochbroom laid stress on the object of the Road Traffic Act to secure public safety, a similar object could be said to underline the provisions of the 1984 Act. One of the factors which persuaded the court that the parking area in question was a road within the meaning of the 1984 Act in Beattie v Scott was, apparently, simple lawful use by members of the public who drove their cars to the parking area to park there. If that is right, it seems clear, on the information, that there had for a substantial number of years been lawful access by the public to the disputed area of road. In his pleadings the position which, it appeared, the petitioner wished to adopt was that, although there had been use by the public after 1983,

"Since that date anyone using said Road has committed an offence. Reference is made to section 71(5) of the Act. The public could not acquire a right of way by virtue of illegal actings."

This contention - apparently the main basis upon which the petition was brought - was accepted, in the course of submissions, to be unfounded and was not insisted upon. And although the petitioner apparently intimated, at least to certain members of the public, that previous apparent permission might be withdrawn, there is nothing to suggest that it had been at the relevant date.

[20 ] In the second place, if, contrary to the above, the different language used in the definition of road in the 1984 Act is to be taken to have added something different, the question remains as to what. It is clear from Cowie v Strathclyde Regional Council that the definition "involves less exacting considerations than those which govern the existence of a public right of way over private land." In that case it was recognised that although there required to be a "way", since it was well known that roads within the meaning of the Act included cul-de-sacs and that some existed to provide access and egress to private property, at least two of the requirements for the acquisition of a public right of way - use from end to end on a continuous journey and public termini - were not involved. What of the remaining conditions for the constitution of the public right of way, namely continuous use as of right and use for the prescriptive period?

[21 ] It is possible to envisage that Parliament intended that something similar to the former of these conditions apply - that is that there should have been substantial, as opposed to occasional, use as of right - as opposed to use by tolerance or by permission. In relation to public rights of way, it is well known that while occasional use might be tolerated, regular open use, if not challenged, is generally taken to imply a right (see e.g. Gordon, Scottish Land Law, 2^nd ed. at p.775). In these circumstances it seems clear that the use by the public of the disputed section of road since 1989 could be said to have been as of right. Again, there is nothing in the petitioner's averments, nor was there in submission on his behalf, to suggest the contrary. Indeed at one point in his submission, counsel appeared to accept this, insofar as he suggested that such public use as had been made of the disputed section of road could have been made in the belief that it remained a public road. Rather, the emphasis of counsel was on what he maintained was the additional requirement of use for the prescriptive period. Nor could it be said that the mere intimation of his concerns by the petitioner to residents of Townhead Park could be said to have interrupted any continuous use as of right.

[22 ] I am not persuaded that it can have been intended that any such use as of right required to be for the prescriptive period. This, ultimately, was counsel's main submission - although once more it is not clearly foreshadowed in the pleadings. Prescriptive use was not apparently thought to be necessary in Beattie v Scott. I was not referred to any authority in which it was. The 1984 Act itself makes no specific requirement to this effect. Section 3(3) of the Prescription and Limitation (Scotland) Act 1973 relates specifically to public rights of way only.

[23 ] Counsel for the respondents argued that, in any event, if regard was had to use by the public prior to 1989, it could be said that there had been continuous use for a period of over 20 years by the relevant date. Although having some sympathy for that argument, it seems to me that it would be difficult to look for this purpose at any period other than the 16 years or so since 1989. The public right to use the disputed section of road because it was a public road ended in 1989, after which the use was plainly different in nature and degree.

[24 ] On this branch of the case I would only add that I was not persuaded by the alternative submission made by counsel for the petitioner (which was only faintly pressed) that in any event the respondents' Committee had insufficient information before them to decide that the disputed section of road was a road. Even if it was legitimate to assume that the elected members who made the decision only had such information about local use as was contained in the report (as in my view it is not), there was in my view sufficient in the report to entitle them to reach the conclusion they did.

[25 ] I shall give effect to my decision on the matters covered thus far by sustaining the respondents' first plea in law in relation to such averments in the petition as may be taken to support the claim that the decision of the Planning and Environmental Service Committee of the respondents on 26 May 2005 was ultra vires by virtue of the fact that the disputed section of road was not a private road within the meaning of section 16 of the Roads (Scotland) Act 1984, or at least that it could not reasonably have been made on the basis that it was.

[26 ] The other matter argued before me was whether it could be said that the respondents' decision had followed application made to them by the requisite number of frontagers. As narrated above the petitioner's position now is that it cannot be said that Messrs Hyslop and Marshall (two of the applicants) were frontagers since they do not own the apparent pavement strips between their properties and the disputed section of road (all as shown on Production 7/5 produced for the hearing by the respondents). This was not the basis of challenge which, judging by the averments and what I was told, he intended originally to make. Rather, it seems clear, that it was intended to suggest that neither could be said to be frontagers because (if I understood it correctly) of the way their houses faced (and it was also to be suggested that the Scottish Executive could not be described as a frontager at all) - positions no longer insisted on. The respondents accept that the matter now raised will require proof (perhaps after re-service of the petition on Messrs Hyslop and Marshall) if the petitioner is allowed to maintain the argument at all. Although I have considerable sympathy for the position of the respondents on this matter, I have come to the view that since the basis for the petitioner's argument was suggested by the respondents' own production produced shortly before the hearing, and since the general question of whether the respondents had had the necessary relevant applications was at least raised in the petition, it would be wrong to deny the petitioner the opportunity to make the challenge which he does. I shall - as agreed by counsel in that eventuality - put the case out By Order to determine how this matter should be progressed, if the petitioner still seeks to insist upon it. I say if the petitioner still seeks to insist upon it, because it was said more than once in the course of the hearing that the real question which he was interested to resolve was the question of whether the disputed section of road was a road at all. It may be, in light of my decision that it was, that he would not wish to take this peripheral point any further.