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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Johnston
Lord Clarke
Lord MacLean
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[2007] CSIH 75
P1165/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
RECLAIMING MOTION
in the cause
BRIAN GREGORY HAMILTON
Petitioner and Respondent;
against
DUMFRIES AND GALLOWAY COUNCIL and OTHERS
Respondents and Reclaimers:
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Act: Johnston, Q.C.; Anderson Strathern
Alt: Haddow, Q.C.; Lindsays
26 October 2007
[1] This matter
is concerned with an attempt by the respondent reclaimers to readopt a length
of road at Townhead Park, Collin, near Dumfries categorised as "U62N". It had previously been a minor road prior to
the development of the area surrounding it, when it was stopped off and
declassified.
[2] The decision
in question was taken at a meeting of the respondents'
Planning and Environment Services Committee held on Thursday
26 May 2005. The decision as minuted is in the following
terms:
"AGREED to add the length of road from
6M southeast of Collin Village Hall to the A75 trunk road boundary to the list
of public roads".
[3] There happen
to have been a number of issues relating to this matter ventilated over the
years, but this case at the present time is entirely concerned with whether or
not that decision was ultra vires in
respect of the Council's powers. This in
turn depends upon the competency in legal terms of the request being made by
persons who were said to be the frontagers in terms of the Roads (Scotland) Act 1984.
[4] The relevant
requests were made by two householders whose houses, to use a neutral phrase,
adjoin the road at its extreme end on each side of a hammerhead junction
forming part of the development. Their
respective names are Hyslop and Marshall.
They were joined in the application by the Scottish Executive, having
regard to their ownership of the A75.
[5] Before us the
detailed examination of the respective titles of Marshall and Hyslop and their
predecessors took place. However, it is
sufficient for our purposes, since the matter is not in dispute, that between
the relevant part of the road and the respective properties of Hyslop and
Marshall was a narrow strip of ground approximately a metre wide which,
although encompassed by the description of the land disponed respectively to
the Marshalls and Hyslops, was in fact a
non domino having regard to the fact that it was not contained in the title
of the disponer to each of these parties, namely the developer. The important, therefore, and salient fact which
bases this case is that between the road and the respective properties of
Hyslop and Marshall was a narrow strip of land belonging to somebody else,
which was said to be the petitioner. We
simply refer to that as "the strip".
Against that background the issue is whether or not the Hyslops and
Marshalls should be regarded as frontages within the meaning of the Act at the
time they made their request. In terms
of the statute these are inter alia
persons who have a right to demand that a road be taken over by the local
authority.
[6] The relevant
legislation is in the following terms:
"Section 151(1) of the Roads (Scotland) Act defines a frontager in this
way.
Frontager
in relation to a road or proposed road means the owner of any land fronting or
abutting it.
'Owner'
is also defined in the section which reads as follows:
'Owner' - A (in relation to land
means ... the person for the time being being entitled to receive or would if the
same were let be entitled to receive the rents of the land and include as a
trustee, factor, tutor or curator ... )."
[7] Parties were
agreed that in general terms a person apparently infeft in land which is a non domino in terms of the relevant
disposition can fortify his title by means of prescription after peaceful
possession of that land for a period of ten years. Again it was not disputed that in respect of
their properties both Hyslop and Marshall had occupied or possessed the strip,
the prescriptive period of ten years at the time of the relevant decision which
is the operative date had not expired.
In simple terms, therefore, as the Lord Ordinary held, neither Hyslop
nor Marshall were owners in respect of an unchallengeable title of the strip.
[8] Mr. Johnston
for the reclaimers submitted what he described as two arguments against the
decision of the Lord Ordinary although on one view the second could be regarded
as a mere elaboration of the first.
[9] In essence he
submitted that on the face of the title registered both Hyslop and Marshall had
an ex facie valid disposition which
included the strip which had not been subjected to challenge by the time the
local authority made the decision and accordingly they should be properly
regarded as owner on the face of the register.
They would be entitled to claim rent if such were feasible for the strip
and thus met that the definition in the statute. He further went on to submit in terms of
certain English cases that the proper way to regard the matter was for whose
benefit or advantage would the making up of the road into a public road accrue
and in this respect he submitted it was plainly that of the Hyslops and the
Marshalls, although he recognised that in accordance with those English cases
while the issue of beneficial advantage was discussed, equally there was
authority that unless there was a physical abutment of the relevant property
claiming to be a frontager the legislation did not operate. In this respect he referred us to Lightbound v Higher Bebbington Local Board 1995 Q.B. 577 and Buckinghamshire County Council v Trigg 1963 1 WLR 155. He also referred us to two Scottish cases Magistrates and Town Council of Leith v Gibb 1882 9 R. 627 and Stewart v Greenock Corporation 1957 SLT (Sh. Ct.) 21.
[10] In the final
analysis he submitted that the Lord Ordinary in deciding the matter purely as a
question of ownership had taken a too narrow view and failed properly to
identify the policy of the Act which was to benefit the persons with most to
gain from the makeover, which in this case was obviously the Hyslops and the
Marshalls who were therefore properly to be regarded as frontagers.
[11] Counsel for
the respondents and petitioner submitted that the Lord Ordinary's approach was
entirely correct. The issue was purely
one of actual ownership as determined by the titles. While he accepted that the prescriptive
period had now expired at the material time, namely the date of the decision,
it had not. Therefore both proprietors were
not infeft in the strip which separated physically their property from the road
and that meant, since there could not be two frontagers in respect of the same
piece of road, that the only frontager could be the owner of the strip and
whoever that was, even if it was the petitioner, it certainly was not either
the Hyslops or the Marshalls. Accordingly,
the Lord Ordinary was correct that the local authority had not received a
competent application from frontagers which would enable them lawfully to grant
the application.
[12] In seeking to
resolve this matter we confess to having some difficulty as to what distinction
should be found in terms of meaning to the respective words "fronting" and "abutting". However, there is clear authority that where
there is no physical abutment the property in question should not be said to be
capable of rendering its owner a frontager.
This is the basis of the decision of Sheriff McLean in Stewart whose reasoning we find
impeccable.
[13] It has at once
to be recognised that the English cases are dealing with a different
legislation which can be immediately contrasted with that of the Scots which in
our view imposes a much stricter test, effectively one of conveyancing as
regards who is the rightful owner of the land physically adjoining, to use a
neutral phrase, the road in question.
[14] In these
circumstances we feel compelled to accept the argument that the Lord Ordinary
upheld to the effect that at the material time the properties of the Hyslops'
and Marshalls' being physically separated by the
strip from the road could not render them frontagers. As Mr. Haddow pointed out to us there cannot
be two frontagers and to find otherwise than in favour of the Lord Ordinary's
position would either mean that that was the case or that the owner of the
strip had to be disregarded. We do not
consider that that can be achieved in the context of the Scottish legislation.
[15] In these
circumstances we are persuaded that not being infeft owners with an
unchallengeable title of the strip at the time of the decision neither the
Hyslops nor Marshalls can be regarded as frontagers. We are therefore of the view that the Lord
Ordinary came to the correct decision and that this reclaiming motion requires
to be refused.
[16] We shall so
order, adhere to the interlocutor of the Lord Ordinary and remit the case back
to the Outer House to proceed as accords.
