Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2008] CSOH 65
	OPINION OF LADY SMITH in the cause BRIAN GREGORY HAMILTON Petitioner; against DUMFRIES AND GALLOWAY COUNCIL First Respondents: PLANNING AND ENVIRONMENTAL SERVICES COMMITTEE OF DUMFRIES AND GALLOWAY COUNCIL Second Respondents: For Judicial Review ­­­­­­­­­­­­­­­­­________________

Petitioner: Haddow QC; Henderson ; Lindsays WS

Respondents; Olson; Anderson Strathern LLP

25 April 2008

INTRODUCTION

[1] This case is about a stretch of road extending to some 36 metres ("the disputed section of road"). The petitioner's sole interest in this stretch of road is to seek to exploit it for financial gain; he sees it as a "ransom strip". It used to be part of the B724 road between Collin and Annan, in the County of Dumfries. It was, however, transected by the A75, a new trunk road bypassing the village of Collin on its south side which was constructed some time after 1983. When that happened, a section at the southern end of the disputed section of road was grassed over and became part of the verge to the A75. There was, accordingly, physical stopping up at that southern end, over that short distance, which was about 8 metres. The issues raised in this petition concern a 36 metre stretch extending, broadly speaking, to the north of that grassed over part.

[2] At present, access to a housing development, Townhead Park, is taken from the disputed section of road. That has been the access to the housing development since its construction in 1999. There is no other access to Townhead Park. There are fourteen houses in it.

[3] The disputed section of road is used by the public. It is agreed between parties that use of it has included use by the proprietors of the houses in Townhead Park, by other members of the public going there, by members of the public going to the village hall who turn and park there and by buses, to turn there.

[4] The petitioner is heritable proprietor of Rockall Estate in the County of Dumfries. His title is a barony title and he acquired it without paying any consideration therefor, in 2001. His title includes the disputed section of road. He asserts that the public have no right of passage over it. He has sought to persuade the proprietors of Townhead Park to purchase servitude rights of access from him in return for substantial payments. Alternatively, he seeks to have the respondents acquire it from him by way of compulsory purchase, a course of action which would also, of course, involve him receiving payment.

BACKGROUND

[5] On 27 October, the "Gretna-Stranraer-Glasgow-Stirling Trunk Road (A75) (Collin Diversion Side Roads) Order 1983 ("the 1983 Order") was pronounced. It was in the following terms:

"The Secretary of State, in exercise of the powers conferred by section 14(1) of the Special Roads Act 1949 and now vested in him, and of all other powers enabling him in that behalf and having complied with the provisions of Schedule 2 to the Trunk Roads Act 1946 hereby makes the following order : -

1.             This order may be cited as The Gretna - Stranraer - Glasgow - Stirling Trunk Road (A75) ( Collin Diversion Side Roads) Order 1983, and shall come into operation on 11 November 1983.

2.             The following works are hereby authorised:-

i.              the construction of those lengths of road (hereinafter referred to as "the new roads") along the routes described in Schedule 1 to this order.

ii.            the improvement of those lengths of road described in schedule 2 to this order.

iii.           the stopping up of those lengths of road described in Schedule 3 to this order when the new roads are open for the purposes of through traffic.

3.             The new roads will be transferred to Dumfries and Galloway Regional Council as highway authority therefor on the date upon which notice is given by the Secretary of State to that Council that the new roads are open for the purposes of through traffic.

Given under the Seal of the Secretary of State for Scotland.

M I P CUNLIFFE

Assistant Secretary

Scottish Development Department

New St Andrew's House

Edinburgh

27 October 1983."

[6] Schedule 3 to the order included, in its list of roads to be stopped up, the disputed section of road and the 8 metres stretch, to which I have already referred. It had formerly been part of the B724 but once it was transected by the new road it became an unclassified road, the U62n.

[7] In about 1989, the then Regional Council formally amended the list of Public Roads kept by it under and in terms of section 1 of the Roads (Scotland) Act 1984 ("the 1984 Act"). After amendment, the entry in respect of the U62n was:

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

[8] That is a description of the U62n from Collin village travelling southwards but only to a point some 36 metres north of the new road. The disputed section of road was, accordingly, no longer included in the list of public roads. Notwithstanding that, on 12 September 1993, construction consent for the Townhead Park housing development was issued on the basis that the only access to and from it would be taken via the disputed section of road.

[9] By letter dated 15 April 2005, the petitioner's solicitors wrote to the residents of Townhead Park on behalf of the petitioner indicating that the solum of the disputed section of road vested in him and he would be prepared to grant them a servitude right of access each in return for payment of £5,000 plus expenses. The letter also warned them that if they did not agree to that proposal he reserved the right to instruct the commencement of proceedings.

[10] The residents evidently placed the matter before the respondents and they had a report prepared. That report was presented to a meeting of the Respondents' Planning and Environment Services Committee on 26 May 2005 and included the following:

"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."

[11] The report also recorded that the respondents had received requests for them to adopt the disputed section of road and contained a recommendation that that was what the respondents should do. At the meeting, the committee:

"AGREED to add the length of road from 6m south east of Collin Village Hall to the A75 Trunk Road Boundary to the List of Public Roads."

[12] The respondents followed that recommendation but their adoption of the disputed section of road was challenged by the petitioner within the present Judicial Review process. By interlocutor dated 12 June 2007, following a continued First Hearing, Lord Glennie declared the decision to adopt to have been ultra vires, the application for adoption not having been presented by the requisite number of frontagers (see: section 16(1) of the 1984 Act). The householders who had presented the application for adoption had not, at the time the applications were made, been infeft owners with an unchallengeable title that qualified them as frontagers. I understand that that may now have changed. The respondents reclaimed but by interlocutor dated 26 October 2007, the Inner House adhered to Lord Glennie's interlocutor and remitted the case back to the Outer House to proceed as accords though on the basis that since the disputed section of road was taken off the section 1 list in 1989 there has been no valid adoption of it since then.

[13] The "frontager" argument was not, however, the only argument presented by the petitioner by way of challenge. At the original first hearing before Lord Kingarth in March 2006, the petitioner submitted that the decision of 26 May 2005 was ultra vires because the disputed section of road was not a 'road' within the meaning of the 1984 Act. Lord Kingarth rejected that submission and gave effect to his decision that the disputed section of road did qualify as a "road" under the 1984 Act by deleting the petitioner's averments in support of the plea that reflected that submission, all by interlocutor dated 14 July 2006.

[14] The existence and effect of the 1983 Order was discussed in Lord Kingarth's opinion. At paragraph 9 he recorded the following, which is of some significance in the light of the petitioner's arguments before me:

" 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."

[15] The facts remain as they were when this case was before Lords Kingarth and Glennie with one exception. It is referred to in averments that have been added by way of minute. The petitioner, through his solicitors, has sent two further letters to all the residents of Townhead Park. The first was a letter dated 24 May 2007 i.e. pending the issuing of Lord Glennie's opinion. It stated:

"Our purpose in writing to you at this time is twofold.

Firstly, it is to confirm that unless the Court determines otherwise, it remains Mr Hamilton's contention that he is proprietor of that area of road. For the avoidance of doubt therefore please note that Mr Hamilton objects to your use of that area of road, and no permission, express or implied, has at any stage been granted by him for its use.

Secondly, in the event that the effect of the Court's decision is to declare the Adoption Order invalid, then with immediate effect from the date of that decision you and all others looking to use that area of road which was the subject of the purported Adoption Order should consider yourselves expressly prohibited from doing so without Mr Hamilton's permission."

[16] The second was a letter to all the residents dated 12 June 2007. By that date, Lord Glennie had found in favour of the petitioner in respect of the "frontager" argument and the letter, having referred to that decision, included the following paragraph :

"We are therefore writing to confirm that with immediate effect you should consider yourselves prohibited from using that area of road which was the subject of the previous purported adoption order, without Mr Hamilton's express permission.

For the avoidance of doubt our client will be happy to grant such permission when met by your written intimation of a willingness to negotiate terms."

[17] The petitioner's position remains as stated in those letters namely that he does not accept that the residents of Townhead Park have any right of passage over the disputed section of road. It goes further than that. He does not accept that any member of the public has such a right.

THE ROADS (SCOTLAND) ACT 1984

[18] Under the 1984 Act, local roads authorities are obliged to maintain public roads. A road is a "public" road if it appears in the list that is kept by them as provided for by section 1.

[19] Under section 1, roads authorities were obliged, at the date of its commencement, to put public roads previously listed under the Roads and Bridges (Scotland) Act 1878, in their lists (section 1(2)) and thereafter empowered to add to or delete from those lists, subject to giving notice of their intention to do so (section 1(4)). Any "road" which is not public is a "private" road (section 151). A private road is not, however, wholly free from control by the roads authority. That is so even if its solum is privately owned. Roads authorities have numerous powers in respect of private roads. They include the power to contribute to the cost of or carry out works on them (section 14), to carry out emergency work in respect of them (section 15), to provide and maintain snow gates on them (section 33), to provide and maintain cattle grids on them (section 41), to provide and maintain refuse bins on them (section 54), and, significantly for the considerations which arise in the present case, the power to require the removal of obstructions from them (section 59). Separately, section 59(1) also provides that it is an offence to place or deposit anything on a road so as to cause an obstruction, a prohibition which extends to the owner of its solum as well as to others.

[20] Further, under section 16 of the 1984 Act, the relevant roads authority is required to add a private road to its list of public roads if it is of the requisite standard and the requisite number of frontagers have made an application calling on it to do so. There is no suggestion that the disputed section of road is other than of the requisite standard and, as I have already indicated, I understand the position now to be that the requisite number of persons who would qualify as frontagers exists although that was not the case at the time that this petition was before Lord Glennie and the Inner House. Thus, were it not for the petitioner's current challenge, the respondents would be obliged, on application being made under section 16, to add the disputed section of road to their list of public roads. They have quite properly undertaken not to do so in the meantime.

[21] The expression "road" is defined in s.151 of the 1984 Act:

" 'road' means, subject to subsection (3) below, any way (other than a waterway) over which there is a public right of passage (by whatever means [and whether subject to a toll or not]) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof;"

[22] It is important, for present purposes, to note that the expressions "public" and "private" as used in the 1984 Act definition of "road" have no bearing on the question of whether or not there exists, in relation to any "way" a public right of passage. The expressions relate, rather, to questions of liability for maintenance, management and repair with the roads authority having a duty to maintain a public road but not a private one notwithstanding that, in respect of the latter, the public have a right of passage.

"ROAD": RELEVANT LAW
[23] There has been limited authoritative discussion of this definition of road. Counsel were agreed as to the authorities which were of potentional relevance and I turn to those now. It was considered by the First Division in the case of Cowie v Strathclyde Regional Council 8 July 1986 where, in the opinion of the court delivered by the Lord President (Emslie), it was observed:

"It should be explained that the Roads (Scotland ) Act 1984 had come into force and that in order to have the benefit of the transitional provisions of Schedule 10 thereof the respondents had, and now have, to show that the lane on the pursuer's property was not only a 'road' as defined in the section 50(1) of the Roads (Scotland) Act 1970 but is still a 'road' as defined differently in section 151(1) of the Roads (Scotland) Act 1984 ...." (p.4).

Later in the same opinion, the Lord President explains:

"Counsel for the respondents was, in our opinion, well founded in saying that the definition of 'road' in the Act of 1984 does not require that there must exist over the 'way' a public right of way. Parliament has not chosen to define 'road' with reference to the well understood concept of a public right of way at common law. Under the definition there must at the outset be 'a way' and the pursuer's averments clearly disclose that the lane which he describes is, on any view, 'a way'. All that is required, therefore, in order to establish that the lane is a 'road' within the meaning of the Act of 1984 is to show that there exists over it 'a public right of passage'. It does not, for example, have to be shown that the passage is between one public place and another. Since it is well known that 'roads' within the meaning of the Act include cul de sacs, and that some exist to provide access and egress to private properties it is evident the 'right of passage' mentioned in the definition of the word 'road' involves less exacting considerations than those which govern the existence of a public right of way over private land." ( p.5-6)

[24] The Lord President thus drew a distinction not only between the 1984 Act definition of road and that in the earlier 1970 Act but also between the 1984 Act definition and the common law concept of a public right of way.

[25] For the purposes of the present case, it is also necessary to look at the provisions relating to "stopping up roads". I begin with those referred to in the 1983 Order, section 14(1) of the Special Roads Act 1949 ("the 1949 Act"), which provided:

"14(1) In relation to a trunk road, not being a special road, the Minister may, by order made in accordance with the provisions of the Second Schedule to the Trunks Roads Act 1946 make provision for any purpose specified in paragraph (c) or (d) of subsection (1) of section three of this Act, or for any purpose incidental to those purposes; and references in subsections (3) to(5) of the said section three to an order under that section, to a special road and to a special road authority, shall be construed accordingly."

[26] Turning to section 3 of the 1949 Act, insofar as relevant, it specified the following purposes:

"(c) for authorising that authority -

(i)            to stop up, divert, improve, raise, lower or otherwise alter any road which crosses .....the route of the special road or is or will be otherwise affected by the construction or improvement of the special road...."

[27] Thus a roads authority could be authorised to effect physical alterations to the state of the road referred to in the Minister's order. It seems plain from these statutory provisions that whilst an order made under section 14(1) had the effect of conferring authority on the relevant roads authority to carry out the physical works specified in it, provided they fell within one of the purposes set out in section 3(1)(c) or (d) of the 1949 Act, it did not of itself effect that purpose. Thus, in the case of an order authorising the improvement of a road, if the road in fact remained in its existing state, it would not be regarded as having been improved simply because the Minister had authorised the specified work. It would be nonsensical to suggest otherwise. So, in the case of stopping up, if authority for stopping up was granted but the physical work of stopping up not carried out, the road remained as it was before the order i.e. not stopped up.

[28] I would also refer to the Roads (Scotland) Act 1970 ("the 1970 Act") not because its provisions applied in this case but because, though repealed in its entirety by the 1984 Act, its provisions relating to stopping up were initially relied on by Mr Haddow, for the petitioner, in his submissions, no doubt because it was in force at the time of the 1983 order. The first plank of his argument was that the disputed section of road had ceased to be a way because the order itself brought about that effect, irrespective of what, physically was its state and that appeared to be a train of reasoning founded on the particular wording of the stopping up provisions in the 1970 Act. The 1983 Order was not, however, promulgated under the 1970 Act and its wording differs from that of sections 14 and 3 of the 1949 Act. Stopping up was provided for by section 12 of the 1970 Act and its provisions included:

"12(1) The highway authority may, either on their own initiative or at the request of any person, make an order stopping up any road which they consider has become unnecessary or dangerous to the public:

......................

(2) An order may be made under this section stopping up a road, subject to the reservation of a means of passage along the road for pedestrians."

[29] Still with the 1970 Act, the definition in it of the expression "road" was also different from the 1984 definition. It is contained in section 50:

"'road' includes any highway and any other road to which the public has access, a bridge over which, or a tunnel through which, the road passes, any verge or footway and, except in sections 12 and 15(1)(a)and sections 16 to 26 of this Act, includes a proposed road;"

[30] The 1970 and 1984 legislation thus contain definitions of "road" which are conceptually different, on the one hand "any ...road to which the public has access" and on the other any "way...over which there is a public right of passage". Authoritative discussions of the meaning of the former do not explain the meaning of the latter.

[31] The 1970 Act definition of "road" was discussed by Lord Justice General Emslie in the case of Cheyne v MacNeill 1973 SLT 27 at 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 for 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 tolerance 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."

That interpretation appears to involve the access in question being taken by way of some sort of entitlement but the reference to the possibility of it arising from the tolerance of the proprietor (which connotes also the possibility of the withdrawal of that tolerance) distinguishes it from the concept of a "public right of passage" which, as I discuss later in this opinion, appears to involve the exercise of that passage as of right, not merely on the basis of tolerance. In short, the discussion in Cheyne provides interesting background but it is not, in my view, an interpretation which can be applied mutatis mutandis to the expression "public right of passage".

[32] It did rather seem that Mr Haddow accepted that the statutory wording of the relevant stopping up provisions were perhaps not as helpful to his argument as at first he had hoped for. He did not, however, depart from his argument that the stopping order brought about an end to the "way" administratively. He moved to focus rather on the wording of the order itself in support of the submission. I will return to that argument later.

[33] In the case of Viewpoint Housing Association Limited v Lothian Regional Council 1993 SLT 921, Lord Cameron of Lochbroom expressed the opinion that there was not truly any distinction between the 1970 Act and the 1984 Act definitions. He did so notwithstanding the contrary view having been expressed in Cowie, to which I have already referred. He appears to have rejected a submission that public right of passage meant something less than a public right of way or express grant, a submission for which the case of Cowie was looked to for support. Lord Cameron does not, however, appear to have been referred to the passage in which the Lord President refers to "road" being defined "differently" in the 1984 Act and it is not entirely clear how he felt able to distinguish Cowie on the basis that he did which was:

"In my opinion, the point which the Lord President was making was related to the requirement for the constitution of a public user of the nature of a public right of way that it must be of 'the whole road, as a means of passage from one terminus to the other." I refer to the speech of Lord Watson in Mann v Brodie...." (page 926)

since the point of the Lord President's reference to a public right of way requiring to be from one public place to another was to give an example of a distinction that could be drawn between a "road" under the 1984 Act and a public right of way. It is also puzzling that in his opinion at page 927C, Lord Cameron appears to regard use for what he refers to as "the prescriptive period" as being necessary before it can be shown that there is a public right of passage within the meaning of the 1984 Act definition. The reference to "prescriptive period" must be a reference to one of the periods set down in the Prescription and Limitation (Scotland) Act 1973. The only potentially relevant provision is that which relates to public rights of way at common law (section 3) but in Cowie, the Lord President made it clear that the 1984 definition of road related to something which was not only not a public right of way but to something which involved "less exacting considerations" than a public right of way.

[34] Mr Haddow, for the petitioner, sought to persuade that the case of Viewpoint should be regarded as authority for the proposition that it is open to a landowner who has permitted or tolerated public passage over his land to withdraw that permission or tolerance at any time. Given the difficulties with that case which I have outlined, I am not persuaded that it should be so regarded. Nor, I should add, do I see that the amendment of the Road Traffic Act 1991, Schedule 4 paragraph 78, of the definition of road in relation to Scotland by the addition of the words "or any other way to which the public has access" points to that being correct either, as he seemed to suggest. If anything, that amendment seems to confirm that there is a distinction to be drawn between a road to which the public has access on account of the tolerance of the proprietor and a road along which the public is able to pass because they have a right to do so.

[35] The 1984 Act definition of "road" was also discussed in the case of Beattie v Scott 1990 SCCR 435. It concerned an allegation that an offence under the Road Traffic Act 1972 had been committed. The 1984 Act definition of "road" had, by the time of the alleged offence, been incorporated into the 1972 Act definition of road and the question for the Court of Criminal Appeal was whether or not the alleged offence occurred on a way over which there was a public right of passage . The Lord Justice General (Hope) said:

"The appropriate way to approach that definition is to ask oneself whether there is any way, and then to ask whether it is a way over which there is a public right of passage by whatever means." (at page 437E)

[36] The court was readily satisfied that, on the Sheriff's findings, there was an identifiable way. On the matter of whether there was a public right of passage over it, the Lord Justice General said:

"Two other findings provide the solution to this question. Finding 18 tells us that the local roads authority is responsible for the laying and maintenance of the surfaces of the parking area access and roadway, and finding 19 tells us that members of the public who require access to the various premises including the public house drive their motor- cars into the parking area in order to park there. In the light of these findings we think that there is no room for doubt on the matter. It is quite clear that this was a way over which there was a public right of passage by means of motor-cars, and that being so the two elements of the definition are satisfied." (at pages 437F to G and 438A)

[37] The definition arose again in the road traffic law context in the case of Young v Carmichael 1991 SCCR 332. There the Sheriff had held that a car park where the alleged offence occurred was not a road or a public place. At the appeal, it was conceded by the advocate-depute that the car park was not a "road" within the statutory definition because it could not be suggested on the findings that there was any public right of passage over it. That was in circumstances where there was an absence of evidence of the public in fact using the car park in question. The opinion of the court, delivered by the Lord Justice-Clerk does not, accordingly, contain any useful discussion of the issue. Similarly, it seems to me that no assistance can be derived from the case of Alston v O'Brien 1992 SLT 856 since the decision there turned on the fact that the Sheriff had not been entitled, on the evidence, to find that the alleged offence occurred in a public place.

[38] I accordingly do not find it difficult to conclude that the concept of a "way over which the public have a right of passage" is different from and less demanding when it comes to proof of its existence, than the concept of a public right of way. It is also different from the concept of a road to which the public have access; that concept is wide enough to include access on account of mere tolerance. What is not so easy is identifying what is required for proof of the existence of a public right of passage. Lord Kingarth, having, at paragraphs 20 -21, confirmed that it was not necessary to conform to the requirements of a public right of way, asked and observed:

"...... 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..........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 anything 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."

[39] On one view that is an end of matters. Lord Kingarth determined that the use of the disputed section of road since 1989 was sufficient evidence of the public having the requisite right of passage over it and the letters sent in March 2005 to the Townhead Park residents did nothing to alter that. It is not surprising therefore that Mr Olsen sought to argue that the decision was res judicata and not one that I could competently revisit. As I understand the petitioner's position it is that that is not so because there has been a change of circumstances in respect that the June 2007 letters have been sent, that their terms were such as to make it plain that the owner was no longer prepared to tolerate public use of the disputed section of the road and that once the owner had done that, that was destructive of any prior public right. I will return later to the question of whether or not those letters have that effect. As regards the res judicata argument, I am persuaded that I am being asked to make a decision in respect of a different set of circumstances than was Lord Kingarth and, accordingly, without breaching the principle of res judicata, I can and ought to proceed, to determine the issue raised, of new.

[40] I turn next for assistance to the discussions of the First Division in the case of Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992 SC 357 which was relied on by Mr Olsen . The issue there was whether or not a walkway through Cumbernauld town centre was a public right of way or not and so the case is not directly in point. However, the defenders' position having been that the public had not been using the walkway "as of right" but "by tolerance", what is said in the case regarding the evidential requirements to show use as of right as opposed to use by reason of tolerance, is helpful. The Lord Ordinary had approached matters on the basis that the test was an objective one:

"It is whether the volume and character of the use demonstrate that the user acts as if free to use the route without permission, and without interference, so as to alert a landowner, conscious of the use, to the fact that it is inconsistent with his right to exclusive possession of the subjects."(at 1991 SLT p.813B)

[41] Drawing on Lord Watson's well known speech in the case of Mann v Brodie (1885) 12R (HL) 52, the Lord President (Hope) at page 365, also indicates that an objective test is suggested. Further, proof of the motives which induced the proprietor not to object would be irrelevant.

[42] Lord President Hope found support in the opinions of Lord Justice-Clerk Moncreiff and Lord Craighill in Scottish Rights of Way and Recreation Society Ltd v Macpherson (1887) 14R 875 at p.884 -5. The pursuers' case there was that there was a public right of way. The defender had resisted it on the basis that it was not enough to show use; the pursuers required to show that the public had asserted a right and that the landowner had submitted to it and had not merely tolerated it. The Lord Ordinary, after proof, found that there was "enough to show that there was such a use of the road by the inhabitants of the district generally ....as to infer a public right. I do not think it possible to ascribe this use to tolerance". (at p.881) After having considered the evidence of use of the road by the public that was before the Lord Ordinary, Lord Craighill said:

"Sometimes it would be comparatively large, at other times comparatively small, but all arranged for the use of this road were its use required. Now, this seems to me to be inconsistent with the option that the road was used as if it were a matter of toleration. Such a use of the road is only to be explained by the repute of the road as a way open to the public."

The judgment of the Second Division was affirmed when it was appealed to the House of Lords. Having considered their Lordships' discussion of the case, Lord President Hope continued, at p.366:

"The significance of these passages for present purposes is that, where the user is of such amount and in such manner as would reasonably be regarded as being the assertion of a public right, the owner cannot stand by and ask that his inaction be ascribed to his good nature or to tolerance. If his position is to be that the user is by his leave and licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right."

and he then drew further support from some more recent cases, including Rhins District Committee of the County Council of Wigtownshire v Cuninghame 1972 SLT 169 at p.171, where Lord Sands said:

"The legal character of the way as determined by evidence of user as of right depends in the general case, not upon what was in the mind of the public or in the mind of the proprietor, but upon what the public did and what the proprietor did, considered in relation to all surrounding circumstances."

[43] So, again, very firmly an objective test. At page 368, Lord President Hope summarised his views of the applicable law so far as establishing public use as of right was concerned:

"It seems to me to be clear, on an examination of all the later authorities, that a proprietor who allows a way over his land to be used by the public in the way the public would be expected to use it if there was a public right of way cannot claim that that use must be ascribed to tolerance, if he did nothing to limit or regulate that use at any time during the prescriptive period."

[44] It seems to me to be clear that the same line of reasoning can be applied when asking whether there is sufficient evidence that a public right of passage that falls short of being a public right of way exists; exercise of such apparent right will be enough without having to ask whether it has subsisted for the prescriptive period. We know that such rights exist, otherwise Parliament would not have referred to them in section 151 of the 1984 Act. It seems then to be simply a matter of looking at what the public have been doing and looking at what, if anything, the landowner has been doing and determining whether a point had been reached at which it could properly be concluded that a public right of passage existed. Once such a point has been arrived at, the right is vested in the public and it then becomes too late for the landowner to do anything about it. Hence, no doubt, the First Division's preparedness to allow a proof before answer in Cowie notwithstanding that the defender had, in the years leading up to the litigation, made it quite clear that he was objecting to the public exercising a right of passage on his land and had made numerous and repeated attempts to block the lane.

[45] I also draw support from two short passages in the opinions of Lords Cowie and Murray in the Dollar Land case. At page 370, Lord Cowie, having agreed with the Lord President's analysis of the appropriate test, concluded:

" ..I am satisfied on the facts found by the Lord Ordinary that ......the public user throughout the prescriptive period has been of the necessary volume and character to be expected of a route such as Tay Walk and that there is no specialty limiting or regulating the use or to show that the use was to be ascribed to the permission of the landowner or to tolerance on his part."

and at page 372, Lord Murray said:

"What may, I suggest, be drawn from these differing ways of expressing the matter is that, if a user of a path of the necessary quantity, quality and constancy by the general public can be established, the law will impute to that public user animus in the sense of an intention to pass freely, without let or hindrance, such as would be the case with pedestrians knowingly exercising an established right of way. No doubt this may also reflect the tacit assumption of many or most of those who use the passageway. This imputed or inferred animus supplies the missing ingredient to convert de facto user into legal possession. Such animus will be imputed from the quantity, quality and constancy of user by the general public in the absence of some material overt action by the proprietor to displace it by asserting his own possession."

[46] That approach is quite consistent with the view that a landowner retains the right to put a stop to public passage over his land for a period but it seems clear that if the passage continues there will come a time when that right will be lost. If he waits until, objectively viewed, the public user has reached a level of the sort discussed in Dollar Land then he cannot effectively object thereafter. If the prescriptive period has passed and passage has been exercised along an identifiable way between two public places, then it is too late for him to prevent a public right of way being established. Similarly, if such a level of user has been arrived at over an identified way (which need not pass between two public places) at any point even if short of the prescriptive period, it will be too late for the owner to prevent a public right of passage having come into existence. Once that has occurred, the public right of passage can only be destroyed by a road authority in exercise of its statutory power to stop up the road.

[47] I turn then to the case of Colquhoun v Paton 1859 21D 996. It was relied on by Mr Haddow as being authority for a submission that a public right of passage could only arise by way of grant or prescription. It does not seem to me to be authority for that proposition at all and could in fact be regarded as support for the principles which I have drawn from Dollar Land and the cases cited therein. In Colquhoun, the public had been allowed by a landowner, to land on piers on his property on each day of the week apart from Sundays, in return for payment. On Sundays there was no-one present to collect the money and the gates were locked. The landowner objected when attempts were made to use the piers on Sundays. He was entitled to do so; it was not to be inferred from the fact of six day use that there was consent to Sunday use and the extent of the prior tolerance was to be taken as fixing the measure of the relevant rights. Although Lord Cowan refers to the need for express grant or prescriptive right for the establishment of public right, there appears to have been no evidence of such grant or prescription, and the case would seem to have been decided on the basis that a public right to use the piers for 6 days per week was demonstrated by evidence of that use but only to that extent, not so as to include Sundays. The issue for determination, however, was not whether or not the public did have that six day right but whether they had a right to use the piers on Sundays and there was clearly no evidence that they had ever used the piers on Sundays before the use which was objected to. The case is, in all the circumstances, of no real assistance for present purposes.

[48] The last authority to which I would refer on the matter of the definition of a road is the case of Lang v Morton 1893 20R 345, relied on by the respondents as authority for the proposition that the fact that a road is not on a road authority's list of public roads is not determinative of the question of whether or not it ought to be on that list. I accept that the case is support for that submission and note that it was not seriously disputed by Mr Haddow that the respondents were right in that respect.

PERSONAL BAR
[49] I turn briefly to the matter of personal bar. For the petitioners, Mr Olsen submitted that the respondent was now personally barred from asserting a right to prevent the public passing along the disputed section of road. He had acquiesced in public passage along it from the time he acquired right until the June 2007 letters. Further two recent cases were authority for the proposition that acquiescence by his predecessors in title was relevant: Michael v Carruthers 1998 SLT 1179 and Caledonian Heritable Limited v Canyon Investments Limited 23 January 2002 (Extra Division). It was a difficult argument to run though as he could not point to any actings or change of position or reliance by the respondents on any conduct or representation by the petitioner or to the respondents conducting their affairs on the basis of any reasonable belief that the petitioner would not object to such public passage (see: Reid & Blackie: Personal Bar at p.25 and the cases there referred to; Gatty v Maclaine 1921 SC (HL) 1). Whilst it is not difficult to accept that the respondents would not have granted the planning and building consents for the construction of Townhead Park that they did if they had not thought that the disputed section of road was a public road, it is much more difficult to accept that that belief can properly be attributed to conduct or representation on the part of the petitioner or his predecessors in title. I would, accordingly, reject the respondents' submission that the petitioner is personally barred from asserting any right to prevent public passage along the road.

CONCLUDING DISCUSSION
[50] I begin with the observation that the disputed section of road was included in the respondents' 1984 Act list of public roads when it came into effect. It was only public roads that could properly be included in such a list so it can be concluded that by 1984 there was a public right of passage over it. It remained on the list between 1984 and 1989 from which it can be inferred that the roads authority continued to be satisfied that the public right of passage subsisted. Then, I note that removal of a road from the list of public roads means only that i.e. removal from the list, not that the "way" in question thereby ceases to be a road or that the removal from the list has any effect on the public right of passage. As above noted, roads authorities have important powers in respect of all roads and those powers are retained even if a road is removed from its section 1 list. It is plain that a number of these powers are aimed at facilitating the passage of the public along them in safety.

[51] Turning to the matter of stopping up, the relevant facts and circumstances here are firstly the 1983 order and secondly what was done under and in terms of it. Plainly, it authorised the actual physical stopping up of the disputed section of road. It is common ground between the parties that that did not happen. The disputed section remained and has remained in public use in the manner to which I have already referred. Did the order have the effect of causing an "administrative" stopping up of the road, as Mr Haddow urged me to accept? Setting aside for the moment such difficulties as exist for him in the fact that the argument amounted to the withdrawal of a concession that had been made to Lord Kingarth, I cannot accept that his argument is well founded. He suggested that by reading paragraphs 2 and 3 of the order together, it was evident that there was administrative stopping up of the disputed section of the road on the date referred to in paragraph 3, a logical result in his view since that was when the new road would be operational. I am not at all convinced by that argument. Firstly, the date referred to in paragraph 3 is not the date that the new road opens but the date when a notice of it having achieved that status is given to the highway authority by the Secretary of State. Secondly, the purpose of paragraph 3 is not to fix a point at which stopping up occurs but to fix a date for the transference of responsibility for the new road to the roads authority. Thirdly and most importantly, on a plain and ordinary reading of the whole order it is clear that it authorises stopping up works but does not require that they be carried out. It is, accordingly, envisaged that unless and until the stopping up works are carried out, the public will continue to use the road. That fits with the terms of the statutory scheme contained in sections 14(1) and 3 of the 1949 Act, to which I have already referred. Without physical stopping up, the public right of passage, accordingly, remained intact.

[52] I am thus readily satisfied that the public right of passage evidenced by the inclusion and retention of the disputed section of road in the respondents' section 1 list until 1989 was not destroyed by delisting nor was it destroyed by the 1983 order. What did happen was that 8 metres of it was physically stopped and so that section ceased to be a road, the public no longer being able to exercise a right of passage along it; the respondents' predecessors destruction of the public right to that extent was within their statutory powers. They had been authorised by the Secretary of State so to act. The remaining section of road remained unaffected, however, and it is evident, as observed by Lord Kingarth, that the public's regular use of it since 1989 could be said to have been use as of right.

[53] I would only add that, as noted, the petitioner's argument about the effect of the order plainly amounted to a withdrawal of the earlier concession but Mr Haddow did not make any submissions as to how or why he should be allowed to withdraw it.

[54] What then remains of the petitioner's argument is that matters were altered in his favour by reason of his having issued the letters of 12 June 2007 to the Townhead Park residents. The facts and circumstances point to a public right of passage being in existence as at 1989, when the road was taken off the list, as previously discussed. Even if one assumes that the public use thereafter was of a different nature , as Lord Kingarth seemed to accept (see paragraph 23) on the basis that after 1989 it could not be referable to the fact of the road being a "public" road, that means that there had still been some eighteen years of continuing daily public use. The petitioner did not dispute that that was what had been happening. Mr Haddow's argument came to be that that was not enough; it was only indicative of use on the basis of tolerance for the time being. He did not, though, point to any factor, let alone a material factor, which showed that between 1989 and 2007 the landowner was merely tolerating the public use of the road. When asked what would be "enough", his response was that he had no idea; all that he was clear about was that the use founded on by the respondents was insufficient. It was implicit in his approach that if it could be said that the public use of the road since 1989 was of such quantity, quality and constancy, to use Lord Murray's language in Dollar Land, as to justify the inference that the use had come to be as of right, then the letters of 12 June 2007 would indeed have had no effect. He did not appear to go as far as seeking to argue that a landowner retains a right to reverse a public right of passage once it is established, which is not surprising since the authorities all seem to be to the opposite effect, as I have already discussed.

[55] It thus comes to looking at the facts and circumstances insofar as they are not disputed and reaching a view as to whether it can properly be inferred that a public right of passage had been established over the disputed section of road prior to the issuing of the June 2007 letters. I am readily satisfied that it can.

[56] Firstly, there had by then clearly been regular, daily unrestricted use of it in the manner described over an eighteen year period prior thereto, from the time that the road came off the public list. That use alone appears to me to have been sufficient to defeat the petitioner's argument. It does not point to use by reason of mere tolerance. Rather, it is quite long enough a period of use of that nature for the conclusion to be drawn that a proprietor would not have voluntarily allowed the public passage if they had no right so to use the road.

[57] Secondly, that public use occurred against a background of long term prior public use of the road in the exercise by the public of a right of passage. It may be arguable, as Lord Kingarth seemed to think it was, that the pre 1989 use required to be disregarded on the basis that the public's right to pass along the road whilst it was listed arose from it being a 'public' road but the logic of that may be open to question on closer examination. Under the 1984 Act scheme, the fact that a road is a "public" road does not mean that the use of it is permitted by the roads authority. All that it means is that the road, the solum of which may be vested in a private landowner, is bound to be maintained by the roads authority. Thus the fact that the road is a public road tells the objective bystander nothing about what lies behind the fact that the public are able to use it. The fact remains that the roads authority must have been satisfied that there was a pre-existing public right of passage along the road when it put it onto its list in 1984.

[58] Thirdly, the effect of the road having become private on delisting did not, as I have discussed, sever all connection with the roads authority or relieve it of local authority control. The objective bystander would have been able to observe, for instance, the facilitation of the public's ability to pass along the road afforded by the provisions of section 59. However, even if it is correct to regard the pre 1989 use as having been of a different character, the landowner in 1989 was faced with a position whereby a road which had been maintained by the local authority and used by the public continued to be used by the public in exactly the same way as before i.e. as far as they were concerned, they could carry on the same as before, exercising passage over it as of right. Where a proprietor takes no steps to intimate to the users that in fact matters have changed and they are now no longer being allowed to use the road on the basis that it is recognised that they are entitled to do so but that their use is a matter of mere tolerance which could be withdrawn, he must run a serious risk of the objective view being that a continuing public right is in fact recognised.

[59] Fourthly, there is simply no inkling of the proprietor of the road having taken any steps at all to limit, stop or regulate use of the road prior to the 12 June 2007 letters. As Lord Sands said in the Rhins District Committee case:

"A judge ...............is required to assume a vigilant proprietor" .

In the absence of such vigilance, it is more likely that the inference of use by the public as of right will be drawn. It is an inference which, in my view is readily drawn in the present case.

[60] Further, a question arises as to whether the letters to the residents of Townhead Park amounted to sufficient notice of objection to public use of the road. Whilst they appear to have been the principal users of the road, it is not said that they have been its only users. It seems at least doubtful whether letters to the proprietor could have been regarded as sufficient to put the general public on notice of the proprietor's objection.

[61] Ultimately, the petitioner drew back from seeking interdict and indicated that he would be content with a declarator to the effect that the disputed section of road was not a road within the meaning of section 151 of the 1984 Act. I could see problems with such a declarator lest it fail to allow for a change of factual circumstances in the future. That is not, however, a matter that need cause concern since I am readily satisfied that the disputed section of road is a road within the meaning of section 151. That is because it is obviously a "way" and in all the circumstances, it can be concluded in fact and in law that, prior to 12 June 2007, a public right of passage along it had been established.

[62] In these circumstances, I am satisfied that the petitioner is not entitled to the remedy he seeks and I will pronounce an interlocutor dismissing the petition.