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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 65
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OPINION OF LADY
SMITH
in the cause
BRIAN
GREGORY HAMILTON
Petitionerursuer;
against
DUMFRIES
AND GALLOWAY COUNCIL
First RespondentsDefender:
PLANNING AND ENVIRONMENTAL SERVICES
COMMITTEE OF DUMFRIES AND GALLOWAY COUNCIL
Second Respondents:
For Judicial Review
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Haddow QC ,; Henderson ; Lindsays WS
Respondents; Olsen QC ;
Anderson Strathearn
LLPWS
25 April 2008
INTRODUCTION
[1] This
case is about a stretch of road extending to some 36 metres ('("the disputed section
of road'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'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'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 s.section 1 of the Roads (Scotland) Act
1984 ('("the 1984 Act'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 each a servitude right of access each in return for
payment of ฃ5,000 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 A754 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 12th 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: s.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 s.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 26th 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' road" under the 1984
Act by deleting the petitioner's averments in support of the plea that
reflected that submission, all by interlocutor dated 14th 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' 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' public" road if it
appears in the list that is kept by them as provided for by s.1section 1.
[19] Under s.1section 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 (s.section 1(2)) and
thereafter empowered to add to or delete from those lists, subject to giving
notice of their intention to do so (s.section 1(4)). Any ' "road' road" which is not
public is a a 'p "rivate' private" road (s.151section 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 (s.section 14) ,
to carry out emergency work in respect of them (s.15section 15), to
provide and maintain snow gates on them (s.section 33), to
provide and maintain cattle grids on them (s.41section 41), to
provide and maintain refuse bins on them (s.section 54), and ,
significantly for the considerations which arise in the present case, the power
to require the removal of obstructions from them (ssection .559). Separately, s59section 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 s.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 haves 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 s.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' 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 'p"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 revelance relevance and I turn to those
now .
It was considered by the First Division in the case of Cowie v Strathclyde Regional Council 8th 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'roads". I begin with those referred to in the 1983
Order, s.section 14(1) of
the Special Roads Act 1949 ("('the 1949 Act'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 s.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 s.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 s.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'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 s.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' road" was also
different from the 1984 definition . It is contained in s.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' access" and on the other any " 'way... over which there
is a public right of passage'passage".
Authoritative discussions of the meaning of the former do not explain
the meaning of the latter.
[31] The 1970 Act definition of 'r "oad' road" was discussed by
Lord Justice General Emslie in the case of Cheyne
v MacNcNeill
1973
SLT 27 at@ 30 :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 forof 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' 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'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' 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 to 'r "oad' road" being defined ' "differently' 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 right 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 betweebetween a n a ' "road' road" under the 1984 Act
and a public right of way. It is also
puzzling that in his opinion at p.page 927C, Lord Cameron appears to
regard use for what he refers to as ' "the prescriptive period' 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' 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 (s.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'
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 in the Road Traffic Act by
the addition of the words "'or
any other way to which the public has access' 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' 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 'r "oad' 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' 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 find itdo not find it difficult to conclude that the
concept of a ' "way over which the public have a right of passage' 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
jiudicata
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 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 j iudicata
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' right" but ' "by tolerance'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 Brodiee (1885) 12R (HL) 52 , the Lord President (Hope) at p.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 Moncreiieff and Lord
Craighill in Scottish Rights of Way and
Recreation Society Ltd v MacpPherson (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 optionnotion
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 197 2 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 p.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
s.151section 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 I also draw support from that conclusion also from
two short passages in the opinions of Lords Cowie and Murray in the Dollar Land case . At p.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 p.page 372 ,
Lord Murray said :
" What
may, I suggest, be drawn from these differingerent 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 Colquhounhoun 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 6 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 23rd 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"e '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 s.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' 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' s.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 12th
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, Further , 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 s.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 12th
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 .
[5560] 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.
[5661] 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 s.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 s.section 151. That
is because it is obviously a 'w "ay' way" and in all the
circumstances, it can be concluded in fact and in law that, prior to 12th June 2007, a
public right of passage along it had been established.
[5762] 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.
