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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 96
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P1165/05
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OPINION OF LORD GLENNIE
in the petition
BRIAN GREGORY
HAMILTON
Petitioner;
for
Judicial Review of
a Decision taken by the Planning and Environmental Services Committee of
Dumfries & Galloway Council taken on 26 May 2005 in respect of a
decision to "re-adopt" Road U62N
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Henderson; Lindsays, WS
Respondents: Olson; Anderson Strathern,
WS
12 June 2007
Introduction
[1] Section 1 of the Roads (Scotland) Act 1984, requires the
local roads authority to manage and maintain all such roads in their area as
are for the time being entered in a list (referred to as their "list of public
roads") prepared and kept by them. The
authority has power under that section to add to or delete from their list of
public roads. The process of adding a
road to the list of public roads is colloquially known as "adopting" a road.
[2] Section 16 of the Act provides that, provided a private road
is of a certain standard, then, if application is made to the authority by the "requisite
number of frontagers", the authority shall within 12 months of the application
add the road to their list of public roads (i.e. adopt it). The "requisite number" of frontagers is
identified in sections 16(5) and 1(7) of the Act, So far as is relevant here, the requisite number
is (a) a majority of frontagers or (b) such number of frontagers as together
own land which includes not less than half of the boundary fronting or abutting
the road.
[3] The first and second respondents are the Dumfries
and Galloway Council and its Planning and Environmental Services
Committee. The Council is the local
roads authority for the area. On 26 May 2005 the Committee decided to
adopt a length of road ("the disputed section of road") which, when adopted,
would become part of the U62N. The
disputed section of road is marked on a plan appended to a report prepared by
officials on 17 May 2005.
[4] In these proceedings for judicial review, the petitioner
challenges the decision to adopt the disputed section of road. The respondents, for their part, challenge
the petitioner's title and interest.
[5] The case came before me at a continued First Hearing, there
having already been a debate at First Hearing on certain issues, details of
which can be found in the Opinion issued on 14 July 2006 by Lord Kingarth under
case reference [2006] CSOH 110. At the
continued First Hearing the petitioner contended that the decision to adopt the
road under section 16 of the Act was ultra
vires the respondents because the application made to them was not made by
the "requisite number of frontagers".
The respondents argued that the petitioner did not have title and
interest since he did not own the disputed section of road or any land
adjoining it.
The disputed section of road and the surrounding land
[6] Nearly 20 years ago, the
disputed section of road formed part of the B724 running approximately
north-east south-west from Collin to Annan.
In about 1989, a new section of the A75 was constructed, running
approximately east west, bypassing Collin to the south and cutting across the
Collin to Annan road. A new access road
was built off it into Collin; and a number of roads were blocked off, including
the B724 south of Collin at and adjacent to the point where the new section of
the A75 cut across it. A part of the
B724, north of and immediately adjacent to the new A75, was grassed over so as
to form a permanent barrier between the B724 and the new road. A further short length of the former B724,
extending north-east for about 36 metres from the grassed over part, was (as I
understand it) deleted from the list of public roads. This 36 metre stretch is the disputed section
of road. The remaining section of the
B724 running north-east from that point into the centre of Collin, remained on
the list but was reclassified as theU62N.
There were also alterations to the B724 to the south of the new A75,
giving rise to further disputes, but I am not concerned with these for present
purposes.
[7] At the time when the new section of the A75 was constructed
and the above-noted changes to the B724 were made, there was a field to the
north of the new A75 and to the east and north-east of the disputed section of
road and of theU62N continuing on from it.
That field, measuring just over 8 hectares, directly abutted the road,
in the sense that there was no footway between it and the road. It has since been developed for housing. The houses are laid out around a road, Townhead
Park, which is internal to the
development. Vehicular access into Townhead
Park from the U62N has to the taken
across the disputed section of road.
There are properties at either side of the bell-mouth of Townhead
Park. These are numbers 1 and 2 Townhead
Park, and are owned respectively by
a Mr Hyslop and Mr and Mrs Marshall.
Between the edges of their gardens and the disputed section of road
there is a now a pavement or footpath which, in fact, runs all along the edge
of Townhead Park
road into the middle of the development.
That pavement or footpath was constructed as part of the development on
land which was formerly part of the field.
[8] Counsel who appeared before me were in agreement that
dispositions in 1995 - namely a disposition from various members of the Currie
family in favour of the developers, Robison & Davidson Limited, dated 13
and 15 May 1995 (but recorded in the Register of Sasines only on 2 June 1995), and
two dispositions from the developers in favour respectively of Mr Hyslop and Mr
and Mrs Marshall, dated respectively on 28 April and 26 May 1995 (but again
recorded in the Register of Sasines only on 2 June 1995) - bore to convey the
whole field (and therefore the whole area of the development) to the
developers. However, the prior
disposition in 1992, from Ronald MacDonald Currie to those members of the
Currie family, excluded a strip along the edge of the field adjacent both to
the disputed section of road and the U62N.
That excluded strip is the area now occupied by (a) that part of the
pavement or footpath which abuts the road and (b) the bell-mouth of Townhead
Park road where it abuts the
disputed section of road. It is agreed
that the consequence of this is that, so far as concerns that excluded strip,
the 1995 dispositions were a non domino
dispositions. At the time when the
Council purported to adopt the disputed section of road, the 1995 dispositions
had been recorded in the Register of Sasines for just under 10 years.
[9] I should add that the Scottish Executive claim to own the
land to the south and west of the disputed section of road. The petitioner claims to own the solum of the
disputed section of road, as well as the solum of a section of the U62N to the
north of it and the grassed over section to which I have already referred.
Title and interest
(i) The relevant
dispositions and parties submissions
[10] The respondents questioned whether the petitioner owns any
relevant land, i.e. land adjoining the disputed section of road. I use the word "questioned"
advisedly, since the respondents' case was simply that the title produced by
the petitioner was not clear. They
accepted that the petitioner's title derived from the estate. However, they submitted that prior to his
purchase of the residual part of the estate, the road that ran through the
estate (including all of what is now the disputed section of road, the grassed
over part of the road and the south-eastern end of the U62N) had been sold off
with the surrounding fields. It was
questionable whether the petitioner had ever acquired title either to the solum
of the disputed section of road or the grassed over part or the near end of the
U62N.
[11] It was agreed that this identified the relevant question and
counsel were therefore able to develop their arguments simply by reference to
the two dispositions and accompanying plans which, so the respondents
contended, bore to remove these parts from the estate lands to which the
petitioner acquired title. Those
dispositions were, first, a disposition by Sir Robert Gilbert White dated May
1920 in favour of Thomas and Robert Dickson and, second, a disposition in 1926
by Thomas Dickson in favour of William Callander.
[12] The 1920 disposition bore to dispone "all and whole the
lands and farm of Braehead ... as presently occupied by the said Thomas Dickson
and Robert Dickson as tenants thereof ... all as the said lands and farm and said
cottages are separately delineated and coloured pink on the sketch or plan
annexed and subscribed as relative hereto".
The plan showed the area of land to be delineated as one whole and
coloured pink, but the public roads running through it was not coloured in. Mr Olson, who appeared for the respondents,
submitted that the disposition was of one piece of land. The roads were within the area delineated on
the plan and must have been intended to pass with the disposition even though
they were not coloured pink. Since the
roads cut the land into separate parcels, had it been intended that the roads
should not be disponed with the land, the disposition would have been of five
separately delineated areas. He
submitted that the failure to colour the roads should be regarded as an omission
which did not affect the grant. He pointed
out that the disposition expressly stated that "the accuracy [of the plan]
is not warranted". Mr Henderson,
for the petitioner, relied upon the fact that the roads were not coloured pink. He also took a more fundamental point. He pointed out that the description of the
land disponed was that it was land "presently occupied" by the Dicksons as
tenants. It was difficult, he submitted,
to see how a tenant could occupy a public road running through the farm. The right of ownership is in the solum. It is an incident of the law of landlord and
tenant that to be able to lease subjects the landlord had to be able to grant
the tenant a right to use the subjects.
The road being a public road, it would be impossible for the owner of
the solum to grant a tenant any such right.
Since the road could not have been leased to or occupied by the tenants,
it could not have formed part of the lands disponed by the disposition.
[13] The 1926 disposition bore to dispone to William Callander
certain lands "all as the said subjects hereby disponed are delineated and
coloured pink on the Plan thereof hereunto annexed and subscribed by me
...". The Plan consisted of a sheet from
the Ordnance Survey Map and was held to be "descriptive merely and not taxative". The disposition went on to say that the lands
hereby disponed "consist of and comprehend enclosures Numbers 475, 476, 477,
478, 480, 481, 490, 491 and 493 on the foresaid Ordnance Sheet ...". Mr Olson argued, by reference to the Plan,
that since the relevant part of the road running through the land did not have
a separate enclosure number, in contrast to another stretch of public road on a
different part of the Plan, that part of the road appeared to be treated as
though it were part of the field and covered by the same enclosure number. Mr Henderson disputed this construction. He also pointed out that the 1926 disposition
went on to describe the lands disponed as being the lands described in the 1920
disposition. If the 1920 disposition did
not convey the roads running through the land, neither could the 1926
disposition.
(ii) Discussion
[14] On this question, I prefer the submissions of Mr
Henderson. It is true, as Mr Olson
submitted, that the delineation on the plan attached to the 1920 disposition
encloses a single area of land to the disponed, and that within the single area
there are a number of roads. However,
the terms of the disposition show that the subjects intended to be disponed
were not only delineated on the plan but were also coloured pink. Whilst the farm tracks within the delineated
area are coloured pink, the public roads running through it are not. It is impossible, in my opinion, to regard
this as an accidental omission. The pink
colouring has been carefully carried out up to the edges of the size of the
public roads running through the land.
There can be no doubt, in my opinion, that the roads were deliberately
excluded from the colouring on the plan so as to indicate that no interest in
the roads was disponed. I do not think
that anything turns on the wording in the disposition to the effect that the
accuracy of the plan is not warranted.
Such a disclaimer is intended to cover errors in the plan and also to
make it clear, for example, that field boundaries may not be precisely
drawn. But it does not to remove
altogether the relevance of the plan.
The plan is important, for example, to identify which fields are
disponed. By the same token, it is
relevant for the purpose of identifying that there is no intended disposition
of any interest in the public roads running through the land.
[15] In light of this conclusion, it is unnecessary for me to reach
any concluded view about Mr Henderson's more fundamental submission that a
tenant cannot be said to occupy the solum of a public road running through the
subjects, and that therefore the disposition, which describes the land disponed
as being "occupied" by the then tenants, could not have been intended
to include the public roads. Clearly the
solum of a public road is capable of ownership.
However, I think that Mr Henderson is correct in drawing a distinction
between the ownership of the title holder and occupation by a tenant. It is difficult to see how a tenant under a
lease can occupy the solum of a public road running through the land. He may use it, but if he uses it he does so
by virtue of its being a public road.
His use of the road is not suggestive of occupation. If it were a private farm road, there would
be no such difficulty. He could park a
tractor blocking the road, if he so chose, or use it for feeding
livestock. He cannot lawfully use a
public road in the same way. No other
attributes of occupation were suggested.
In terms of the 1920 disposition, therefore, it is difficult to see that
the reference to lands "occupied" by the tenants could have been
intended to include the public roads running through the land or the solum of
those roads. For this reason also, had I
had to decide the point, I would have found in favour of the petitioner.
[16] Since the description of the land disponed by the 1926
disposition expressly describes it as being the land disponed by the 1920
disposition, it must follow that, on its proper construction, the 1926
disposition bears to dispone no more than was disponed by the 1920 disposition. Since I have concluded that the 1920
disposition did not dispone this public road running through the land, it must
follow that the 1926 disposition did not dispone the road either.
[17] Quite apart from that, however, it seems to me that there are
other reasons why the 1926 disposition did not bear to dispone this road. Admittedly the road is coloured pink on the
plan annexed to the 1926 disposition, but that plan (unlike the plan annexed to
the 1920 disposition) is held to the "descriptive merely and not taxative". With such wording, any inference that might
be drawn from the colouring of the plan is very weak. Of greater importance is the fact that the
lands disponed by the disposition are said to consist of and comprehend certain
enclosure numbers on the Ordnance Sheet on which the plan is drawn. Those enclosure numbers are Ordnance Survey
numbers, and they refer to particular parcels of land identified on the
Ordnance Survey map. Mr Olson pointed
out that one of the public roads on the map has its own enclosure number,
whereas the road containing the disputed section of road does not. The inference to be drawn, he submitted, is
that since the road leading out of Collin to the south east (which includes the
disputed section of road) does not have its own enclosure number, it is to be
regarded as part of the field having enclosure number 491, and therefore as
part of the land disponed. I cannot
agree. The plan is drawn on a section
only of the Ordnance Survey Map. Without
seeing the whole Sheet, and maybe such neighbouring Sheets as are necessary to
cover the whole length of the Collin to Annan road, one cannot say whether the
public road in question has an Ordnance Survey enclosure number. There might be a number given for the road on
another Sheet. But even if the road does
not have such a number, the fact is that it is separated by lines from the
fields either side. I accept, as Mr
Olson pointed out, that the line on one side of the road is bolder than that on
the other, but this means nothing, since the same is true of the road which
does have its own enclosure number.
Taking the disposition and plan as a whole, I do not think that it can
possibly be said that the road is identified in the plan as part of one of the
fields so as to be conveyed by the 1926 disposition.
[18] I therefore find for the petitioner on the question of title
and interest.
Was the respondents' decision ultra vires
(i) The issue
[19] The decision to adopt the disputed section of road was taken
under section 16 of the Roads (Scotland)
Act 1984. No argument was addressed to
me as to whether the respondents would have had power to adopt the road under
any other section of the Act. For
section 16 to apply, the application had to be made by either a majority of the
frontagers or such number as together owned land which formed more than half
the boundary between the disputed section of road and the land surrounding
it. It is agreed between the parties
that the Scottish Executive do not own half the boundary around the disputed
section of road. An application only by
them, therefore, would be insufficient to enable or require the respondents to
adopt the road. Mr Hyslop and Mr and Mrs
Marshall also joined in the application to the respondents. If they were "frontagers", the fact
that they joined in the application would mean that the application was made by
a majority of frontagers. It would also
mean that the application was made by people who together owned land forming at
least half the boundary around the disputed section of road. In either case, the requirements of section
16 of the Act would be satisfied and the decision taken by the respondents to
adopt the road would be intra vires.
[20] The issue is, therefore, whether, at the material time, Mr
Hyslop and Mr and Mrs Marshall were "frontagers" within the meaning
of the Act.
(ii) The relevant statutory
provisions
[21] Section 151(1) of the Roads (Scotland)
Act 1984 defines a "frontager" in this way:
"'frontager',
in relation to a road or proposed to road, means the owner of any land fronting
or abutting it".
The word "owner" also has its own
definition in that section. Only the
first part is relevant. This reads as
follows:
"'owner' -
(a) in relation to land means, subject to
paragraph (b) below, the person for the time being entitled to receive, or who
would, if the same were let, be entitled to receive, the rents of the land, ..."
It was not suggested that other
provisions of that Act are relevant for present purposes.
[22] I was also referred to section 1 of the Prescription and
Limitation (Scotland)
Act 1973. This, so far as material,
provides as follows:
"1(1) if the land has been possessed by any
person, or by any person and his successors, for a continuous period of 10
years openly, peaceably and without any judicial interruption and the
possession was founded on, and followed -
(a) the recording of the deed which is
sufficient in respect of its terms to constitute in favour of that person a
real right in -
(i) that land ...
...
then, as from
the expiry of that period, the real right so far as relating to that land shall
be exempt from challenge."
The submissions on this section
focused particularly on the meaning of "possessed" and what was meant by "shall
be exempt from challenge".
(iii) Submissions
[23] Mr Henderson advanced two
submissions on the half of the petitioner.
His first was that, as at 26
May 2005, the date of the decision to adopt the disputed section of
road, 10 years had not elapsed since the recording of the dispositions in the
Register of Sasines. Therefore neither
Mr Hyslop nor Mr and Mrs Marshall could demonstrate, as at that time,
that they had good title to the land immediately abutting the disputed stretch
of road, i.e. the pavement around the gardens and the notional strip across the
entrance to Townhead Park.
[24] His second submission was that, whether or not 10 years had
elapsed, Mr Hyslop and Mr and Mrs Marshall had not "possessed" the relevant
strip of land so as to bring section 1 of the Prescription and Limitation (Scotland)
Act into play. There were no averments
of possession anent the strip across the entrance to Townhead
Park, immediately adjacent to the
disputed section of road. The best that
could be said, presumably, was that they drove across it. The averments anent their possession of the
pavement were simply that "they maintained the pavements by weeding them,
sweeping them and clearing them of snow".
This was not the sort of possession that indicated ownership so as to
give rise to their a non domino title
becoming exempt from challenge after 10 years.
Mr Henderson emphasised, however, that his client did not seek to go
back on his assurance, given to Mr Hyslop and Mr and Mrs Marshall, that he did
not now challenge their title.
His point was that as at the date of the decision, on 26 May 2005, neither Mr Hyslop nor
the Marshalls were owners, and therefore frontagers within the meaning of the
Act.
[25] Mr Olson, for the respondents, submitted that any act of
possession had to be viewed against the nature of the land possessed. In certain circumstances, relatively minor
acts, occasional in nature, might suffice: see Hamilton v
McIntosh Donald Ltd. 1994 SC 304, a case involving the present
petitioner. The test was whether the
acts were "unequivocally referable" to the ownership claimed: per the Lord Justice-Clerk at p.322. What more could one do to indicate possession
of a pavement or footpath running over one's land? But there was in fact more to it than that. The pavement had been built on the land by
the developers. The continued existence
of the pavement on the land was an act of possession by the developers and,
subsequently by Mr Hyslop and by Mr and Mrs Marshall.
[26] Mr Olson submitted that the person with recorded title was the
owner of the land for the purpose of the definition in the Roads (Scotland)
Act, and was therefore the frontager. Mr
Hyslop and Mr and Mrs Marshall had both recorded titles. It did not matter that their title was a non domino and might be vulnerable if
challenged. So far as concerned the rest
of the world, they were the people to whom rent would be paid because they were
the people who had the recorded title.
Any third party, a fortiori someone
in the position of the respondents, had to be able to accept the recorded title
in the Register of Sasines. It was not
practical for the respondents to do otherwise.
He accepted that this approach led to the possibility that an
unscrupulous individual could, immediately before a relevant date, record any
number of a non domino titles so as
to secure a majority of frontagers.
This, he said, was one of the defects in the system which was now
replaced by land registration. Any
prudent solicitor acting for a third party would simply check the title
recorded in the Register of Sasines.
However, in discussing this further, he accepted, as I understood it,
that an ordinarily prudent solicitor would check the last recorded title dating
back more than 10 years prior to the relevant date. Had such that notional prudent solicitor done
that in the present case, he would have had his attention brought to the 1992
disposition and would have been put on notice that there was at least a
question as to the Hyslop and Marshall titles to this narrow strip.
[27] Mr Olson further argued that none of that mattered, because
section 1(1) of the Prescription and Limitation (Scotland)
Act 1973 provided that after 10 years "the real right so far as relating to
that land shall be exempt from challenge".
This was retrospective in effect.
It meant that the real right from the beginning of that 10 year period
could no longer be challenged. This
precluded any discussion now about who were the owners or frontagers at the
time of the decision on 26 May 2005. It was no longer open to anyone to challenge
the Hyslop and Marshall titles. He
referred me to Johnston on
Prescription and Limitation at paras.15-25 - 15-27. There was an irrebuttable presumption that
the title was good. The effect of
prescription was to exclude all inquiry into the validity of the prior title. It was not necessary to go farther than that
and consider the theory of original acquisition.
[28] In a brief reply to Mr Olson's submission that it was enough
simply to look to see who had the recorded title, Mr Henderson drew my
attention to Trade Development Bank v David W. Haig (Bellshill) Ltd 1983 SLT
583 to vouch the point that the public registers gave public notice of what was
contained in them. It was not enough
simply to look at a disposition recorded less than 10 years before the relevant
date. Everyone knew that it was
necessary to look back beyond the 10 years.
The information was all in the Register.
(iv) Discussion
[29] Section 16 of the Roads
(Scotland) Act 1984 imposes a duty on the respondents to adopt a road, assuming
it to be of the required standard, if the application is by either a majority
of the frontagers, i.e. a majority of the owners of land fronting or abutting
the stretch of road in question; or by frontagers owning between them at least
half of the land fronting or abutting the road or stretch of road. It is agreed that for either requirement to
be satisfied in the present case, it must be shown that both Mr Hyslop and Mr
and Mrs Marshall were frontagers.
[30] The answer to that question depends, in terms of the definition
of owner in section 151 of the Act, upon whether they were the persons who, "for
the time being", were entitled to receive the rents of the land or who would
have been entitled to receive such a rents if the land were let. It seems to me that the phrase "for the time
being" is intended to indicate that the inquiry must focus upon the particular
time when, in terms of the Act, frontagers are called upon to act or their
actions are to the assessed. The inquiry
must, therefore, be whether on 25 May
2005 Mr Hyslop and the Marshalls were the persons at that time
entitled to receive the rents of the land.
If that question were asked and answered on any particular day, being a
date less than 10 years after the recording of their titles, it seems to
me that the answer would plainly be: No. At that date, both Mr Hyslop and Mr and Mrs
Marshall had no more than a non domino titles. In a dispute over title, their titles would
not have prevailed since they had not been recorded in the Register of Sasines
for 10 years. It cannot, therefore,
be said that on that day they were owners of the land or entitled to receive
the rents of the land.
[31] Nor does it seem to me that any extended construction ought to
be placed upon the words in the section to take account of practical difficulties
which might be encountered by those wishing to know to whom they should pay
rent. Mr Olson accepted that the
ordinarily prudent solicitor wishing to find out who was the owner of land or
to whom rent should be paid would look in the Register of Sasines as far as the
last title recorded more than 10 years before his inquiry. This makes obvious sense. Such a solicitor would have discovered not
only that the dispositions in favour of Mr Hyslop and Mr and Mrs Marshall,
recorded less than 10 years before, bore to show that they had title to
the whole land; but also that the disposition recorded immediately prior to
that cast some doubt upon their titles to the strip of land immediately
adjoining the disputed section of road.
In other words, such a solicitor would have discovered without
difficulty that, to put it at its lowest, the titles recorded in favour of Mr Hyslop
and the Marshalls were a non domino titles. In those circumstances it would have been
incumbent upon such a solicitor to delve deeper. Exactly the same is true of a solicitor acting
for the respondents when presented with an application by persons claiming to
be frontagers. Although no doubt
cumbersome and time-consuming, the process presents no great difficulty.
[32] On the other hand, there are great practical difficulties with
the construction advanced by Mr Olson.
It would be open, if he were correct in his argument, for an
unscrupulous frontager who wished a road to be adopted over the opposition of
his neighbours to grant a non domino
dispositions over small sections of land to enough individuals to constitute a
majority of frontagers, and to record the dispositions in the Register of
Sasines. The weakness of their titles
would be irrelevant. The roads authority
would be obliged to adopt the road and a person aggrieved by the act would be
met by the answer that the recording of their title in the Register was
conclusive on the point. This cannot be
right. It would, in effect, allow the
recording of an a non domino title to
be conclusive for certain purposes even short of the 10-year prescription
period set out in section 1 of the 1973 Act.
[33] It seems to me, if this analysis is right, that the discussion
about whether or not Mr Hyslop and Mr and Mrs Marshall subsequently gained the
benefit of prescription is beside the point.
The effect of their having done so would be to make their titles exempt
from challenge from that point on. But
it would not have the effect of retrospectively validating actions which took
place before the expiry of 10 years.
Insofar as it is necessary to examine what occurred before the expiry of
10 years, that examination must proceed upon the basis of what the
position was then. Otherwise one would
have the absurd situation that the validity of a decision by the roads
authority to adopt a road would alter merely by the passage of time. In the present case, the decision taken on 26 May 2005 would have been
invalid at the time it was taken but, on Mr Olson's argument, would have
become valid about a week later without anyone doing anything to achieve
that. One can imagine a similar case
where the decision was taken not one week before the expiry of 10 years
but, say, only five years into the 10-year period of prescription; and that
there were a number of different dispositions recorded in the Register of
Sasines on different dates. The system
would be unworkable if the effect of the exemption from challenge in section 1
of the 1973 Act had the effect of retrospectively validating prior acts.
[34] Having reached this conclusion, it is not strictly necessary
for me to consider whether Mr Hyslop and Mr and Mrs Marshall did in
fact "possess" the narrow strip of land abutting the disputed section of road
so as to bring section 1 of the 1973 Act into play. The difficulty is in finding some act of "possession"
which can be said to the "unequivocally referable" to their claimed titles of
ownership. Driving out through Townhead
Park does not fall within this
category. Such an act is in no way
referable to the claim to ownership.
There were no doubt many others living within the development doing the
same without pretending to any title; and equally Mr Hyslop and Mr and Mrs
Marshall no doubt drove across the disputed section of road in precisely the
same way without claiming title to that land.
For similar reasons, I was not persuaded that the routine acts of
sweeping the pavements, weeding them and clearing them of snow were
unequivocally referable to the claim to ownership. However, the developers constructed the
pavement at some time after 1992, and it seems to me that the act of
constructing the pavement and keeping it there could be said to be an act of
possession which was unequivocally referable to a claim to ownership. In those circumstances, had it been necessary
for me to decide this point, I would, on balance, have held that by 2 June 2005 the title enjoyed by Mr Hyslop
and Mr and Mrs Marshall was exempt from challenge.
Disposal
[35] For the reasons which I have set out, I consider that the
respondents' challenge to the petitioner's title and interest fails. The petitioner has made good his contention
that the adoption of the road by the respondents was ultra vires. I shall
therefore grant declarator that the decision of the Dumfries and Galloway Council
and the Planning and Environmental Services Committee thereof on 26 May
2005 to add to their list of public roads the section of road set out in the
plan annexed to the report prepared by their officials on 17 May 2005 was ultra vires; and I shall reduce the said
decision. I was asked to make other
orders but it seems to me that the more appropriate course is to put the case
out By Order to discuss whether any and, if so, what further procedure is
necessary. I shall reserve all questions
of expenses, in particular because the point on which the petitioner has been
successful was raised only recently and it does not, therefore, follow that his
success should carry with it the expenses of the whole action.
