Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH NUMBER163
CA90/09	OPINION OF LORD GLENNIE in the cause MICHAEL and SARAH HAMILTON Pursuers; against ROBERT KENNEDY NAIRN Defender: ­­­­­­­­­­­­­­­­­________________

Pursuers: R. Smith Q.C.; Paull & Williamsons LLP

Defender: Bartos; Drummond Miller LLP

9 December 2009

Introduction

[1] The pursuers are husband and wife. They carry on business in partnership. Their business includes the running of a cattery and livery stables at Park Hill, Dyce, Aberdeen which, according to the pursuers, is the largest cattery north of Edinburgh and Glasgow. Under threat of a compulsory purchase order in respect of all or part of their land for the purposes of a ring road in the area, the pursuers require to relocate their business to a new site. After an exhaustive search, they have now concluded missives for the purchase of subjects at Tillyoch, Peterculter, Aberdeen ("the subjects"). They have obtained planning permission for the establishment of the cattery and livery stables on the subjects, together with a dwelling house and associated car parking and other facilities. They have also obtained consent from Aberdeen City Council, the roads authority for the area, under s.56 of the Roads (Scotland) Act 1984 ("the 1984 Act"), to improve the junction from the subjects onto Culter House Road. Because of the dispute which is the subject matter of this action, the purchase of the subjects has not yet settled. However, the pursuers have obtained an assignation from the present owner (Mr Jamieson) in respect of any rights that he may have against the defender. In effect, therefore, the pursuers present their claim on the footing that they have all the rights of the owners of the subjects.

[2] Culter House Road is in a rural area to the north of Peterculter, on the western edge of Aberdeen. For much of its length it runs virtually east-west. A person joining the road somewhere to the north east of Peterculter, and following it westwards, would come to a point, approximately due north of the centre of Peterculter, where it takes a right turn of about 45˚, and then continues in a north-westerly direction. (If, at that 45˚ bend, instead of following Culter House Road in that north-westerly direction, he were to go straight ahead, he would then be on Bucklerburn Road, a road which continues towards the west, past a number of cottages known as Bucklerburn Cottages, past Bucklerburn Farm, and past a single cottage also, confusingly, known as Bucklerburn Cottage, until it meets Malcolm Road at a T-junction near to the north east corner of Peterculter.) This action, however, is concerned with Culter House Road. Staying on Culter House Road from the junction with Bucklerburn Road, and proceeding away from Peterculter, that road follows a north-westerly direction for just over 300 metres before taking a further turn (of approximately 30˚) to the right, after which it heads in a direction which is just to the west of northerly. The land of Tillyoch, which includes the subjects, lies to the north of Bucklerburn Road and to the west of Culter House Road.

[3] There is presently a track, which is used by Mr Jamieson for vehicular access and egress to and from Tillyoch, leading from Tillyoch to join Culter House Road at the point where Culter House Road takes that 30˚ turn. At that point, as it leaves Tillyoch, the track opens up into a "bellmouth" across the verge of the road, the open end of the bellmouth joining the carriageway of the road at the 30˚ turn. This is on the left hand side of the road heading north-west. At that same point, a footpath runs from the beginning of the track south to join Bucklerburn Road, effectively providing a shortcut from the 30˚ bend, across the subjects and through woodland within the land at Tillyoch, to Bucklerburn Cottages.

[4] Immediately to the north of where the track joins Culter House Road is Woodend Farm, which is owned by Mr James Adam. He lives there with his wife, Mrs Adam. They are the parents-in-law of the defender, who lives with his wife, Mrs Nairn, at Forest Cottage, on the east side of Culter House Road, almost directly opposite Woodend Farm, and just to the north of the 30˚ bend. Just to the south of Forest Cottage, on the inside of the bend, is another cottage, known as Cumbrae.

The dispute

[5] The dispute between the pursuers and the defender concerns the right of the pursuers to take vehicular access from Culter House Road to the subjects (and specifically for the purpose of the development and operation of the cattery and livery business) by crossing the bellmouth to join the track into Tillyoch. The dispute in court is confined to the question of access. Underlying the dispute, however, is a hostility on the part of the defender to the proposed development. That does not, of course, affect the legal rights of the parties. If the pursuers have no legal right of vehicular access to Culter House Road at this point, and the defender is entitled to refuse permission, so be it. But the relations between the parties, and the actions which the defender has taken to prevent the pursuers using this track to obtain access to the subjects, are explained, to a large extent, by the fact that the real issue between the parties is something rather more substantial.

The defender's case in outline

[6] In May 2009 the defender purchased from the Culter Estate the whole strip of land between the carriageway of Culter House Road and the dry stone dyke which marks the edge of the Tillyoch land. It is not in dispute that the land which he now owns is the whole of the strip to the south western side of the carriageway, running up from the junction with Bucklerburn Road to and including the bellmouth at the point where the track gives access from Tillyoch to Culter House Road. The defender's case is very simple. He says that he owns the verge at that point, including the bellmouth, and is entitled to refuse permission for vehicular access across it. The proposed access from Tillyoch to the road crosses his land. He has an exclusive right to use his property as he pleases, subject only to agreement, servitude, public right of way or limitation under statute in the public interest: Bell's Principles at para.939, Ferguson, The Law of Roads, Streets, and Rights of Way etc. at p.8. It is common ground that there is no servitude right of access across that land. He is therefore entitled to prevent the pursuers using the existing entrance way into Tillyoch for vehicular access; and he is also entitled to stop the pursuers widening and improving the bellmouth, which is on his land. This is regardless of the fact that the pursuers have been granted consent by the Aberdeen City Council under s.56 of the 1984 Act to improve the junction between the track and the road.

The Roads (Scotland) Act 1984

[7] It is agreed between the parties that Culter House Road is a "public road" within the meaning of the 1984 Act. The definition of "public road" in s.151 is:

"a road which a roads authority have a duty to maintain".

Such roads are listed by a roads authority in accordance with obligations placed on them under s.1. This provides, so far as relevant, as follows:

"1 Powers and duties of local roads authorities

(1) Subject to subsection (10) below, a local roads authority shall manage and maintain all such roads in their area as are for the time being entered in a list (in this Act referred to as their "list of public roads") prepared and kept by them under this section; and for the purposes of such management and maintenance (and without prejudice to this subsection's generality) they shall, subject to the provisions of this Act, have power to reconstruct, alter, widen, improve or renew any such road or to determine the means by which the public right of passage over it, or over any part of it, may be exercised.

(2) Subject to subsection (10) below, the list of public roads prepared by the local roads authority shall, at the date of commencement of this section, comprise all public roads which immediately prior to that date were required to be entered by the local highway authority for the area in a list of the roads highways and bridges under their management and control under section 41 of the Roads and Bridges (Scotland) Act 1878 or in a register of streets under section 5 of the Burgh Police (Scotland) Act 1903 or any corresponding local enactment.

(3) The list of public roads shall be open for inspection free of charge at such reasonable times and places as the local roads authority may determine.

(4) The local roads authority may, subject to the provisions of this Act, add to or delete from their list of public roads; but before any entry for a road which for the time being is a private road is so added or any entry for a public road is so deleted they shall-

(a) give notice of their intention in that regard to the frontagers of that road; and

(b) publish a notice of such intention in at least one newspaper circulating in the area,

and, where any representation is made within 28 days after the requirements of paragraphs (a) and (b) above have been fulfilled, the authority shall consider that representation and give notice to the person making it and, with a note or copy of the representation, to the frontagers (or to the other frontagers if it was a representation by a frontager) of the authority's decision as regards whether or not to proceed with the addition or deletion following the representation:

Provided that-

(i) any addition or deletion giving effect to a decision under subsection (5) below;

(ii) any deletion in consequence of the stopping up of a public road under this Act; or

(iii) any deletion on transfer of such a road to another roads authority,

shall not require such intimation or publication as is mentioned in paragraphs (a) and (b) above.

...

(9)               Subject to subsection (10) below, every road which is entered in the list of public roads kept by a local roads authority shall vest in the authority for the purposes of their functions as roads authority: but such vesting shall not confer on an authority any heritable right in relation to a road. ..."

The word "road" is also defined in s.151. Subject to certain exceptions dealing with footpaths, waterways and parts of land used only for recreational, sporting, cultural or social activities, it means:

"... any way ... over which there is a public right of passage (by whatever means) ... and includes the road's verge ...; and any reference to a road includes a part thereof".

The duties of the roads authority in terms of s.1 of the Act, therefore, include duties in respect of the verge as well as of the carriageway.

The Culter House Road - more detail

[8] It is necessary to say something more about Culter House Road and, in particular, the stretch of road between the Bucklerburn Road junction and the bellmouth. It was not in dispute that from some date before 1976 Culter House Road was entered in the list of roads and highways under the management and control of Aberdeenshire County Council. That list was taken over by Grampian Regional Council and, in 1996, by Aberdeen City Council. The list is held in a file by Aberdeen City Council at their office at St. Nicholas House, Aberdeen. It is the list referred to in s.1(1) of the Act. That list continues to include Culter House Road. Culter House Road is therefore a "public road" within the meaning of the Act. The paper list held in the file contains no details other than the name of the road and its length. It says nothing about its width. More detail is held on computer as part of the Council's electronic mapping system. I was told by Andrew Smith, the principal engineer within the Council dealing with roads, and I accept, that this information was transferred onto computer from older paper plans; and is used by the roads authority to show the extent of the road as adopted, and therefore the extent of their maintenance and management obligations. The relevant entry on that electronic system, which is in map form, shows Culter House Road and its verges all as adopted by the roads authority. The verges are shown as extending from the Tillyoch dyke on the south west side of the carriageway to the equivalent dyke on the north east side. Mr Smith said that that map showed that the road adopted by the roads authority extended for the full width between the dykes on either side. I accept that evidence. That is what one would expect: see per Lord Murray in County Council of Perth and Kinross v. Magistrates of Crieff 1934 SLT 2, at 7-8 (I cite the passage below). Mr Robertson, a solicitor at Burnett & Reid, who gave evidence for the pursuers, said that the mapping system was not available to the public unless they obtained written authorisation from the appropriate departmental head, who would only give such authorisation for designated purposes. I do not for a moment suggest that Mr Robertson was doing other than his best to assist the court, but I cannot accept that evidence. I preferred that of Mr Smith, who was supported in this by Michael Cheyne, a civil engineer employed by the Aberdeen City Council as Roads Manager, who told me that copies of the relevant entry would be printed and issued to anyone who asked for it. Quite apart from their obligations under the Freedom of Information Act, the Council regarded the provision of such information as part of the public service which they provided. Mr Smith and Mr Cheyne were both in positions of authority within the Council and were in a position to know what practice the Council adopted in this respect.

[9] I heard from a number of witnesses about the road and the use to which it and the verge were and are put. These included the pursuers and Mr Jamieson, the defender and Mrs Nairn, the defender's parents in law, Mr and Mrs Adam, and various local residents and employees of the council. I need not refer to them all individually. The road has a metalled carriageway over which there is a public right of passage. The carriageway has been used by pedestrians and vehicles since at least the mid 1930s. It was metalled in the early 1950s. Although not designated at a "single track road", the road is not wide. The carriageway is about 4 metres wide, as against the normal minimum width of about 5.5 metres for a carriageway designed for two vehicles to pass in opposite directions. If two vehicles were to meet on this stretch of Culter House Road, one or both might have to put a wheel onto the grass verge beside the carriageway. There are two passing places near to the 30˚ bend, one in the bellmouth and the other some 20 metres or so to the south east, on the opposite side of the carriageway. On both sides of the carriageway for the length of the road between the junction with Bucklerburn Road and the 30˚ corner, including the whole of the bellmouth area, there is a strip of ground. In view of the evidence of Mr Smith, to which I have referred, and the concession made by M Bartos, for the defenders, towards the end of the proof, to which shall refer, I shall call this strip of ground "the verge". I am concerned only with the verge on the Tillyoch side, that is to say on the left hand side heading north-west, away from Peterculter. The verge varies in width but in some places is as wide as 7 or 8 metres. A part of the verge nearest the road, to a width of approximately 4 feet, is periodically mown by the Council, but otherwise the verge might best be described as rough grassland and scrub, much of it wet, and overgrown in places with bushes and trees. There are telegraph poles set on the cut grass area near to the edge of the carriageway. Where the verge meets the subjects, there is a dry stone dyke which marks the edge of the Tillyoch land. On the Tillyoch side of the dyke, towards the footpath, the land is wooded; and the footpath goes for some of its length through the wood. On the road side of the dyke, there is a ditch extending for much of the length of the road. About half way between the Bucklerburn junction and the 30˚ bend, a burn (the "Buckler Burn") running approximately north-south crosses under Culter House Road and into the Tillyoch land, later crossing under Bucklerburn Road and emerging in Peterculter. In the stretch of Culter House Road between the point where the Buckler Burn passes under the road and the junction with Bucklerburn Road, the ditch between the carriageway and the Tillyoch dyke is in better condition, and more recognisable as a ditch, than in the length of the road running north west from the Buckler Burn to the bellmouth; and, indeed, it is clear from the evidence that repairs, including the laying of a pipe, were carried out to the ditch near the junction with Bucklerburn Road in about 1991. For the length of the Culter House Road, starting at a point about 20-30 metres to the south east of the bellmouth and continuing all the way to the Bucklerburn Road, the camber of the road is such that water drains to the Tillyoch side, and one of the purposes of the ditch is to take away the water running from the carriageway onto the verge.

[10] A large part of the evidence in this case was devoted to the question whether the public used the verge to the Tillyoch side of the road for walking, horse riding etc, and the circumstances in which they might do so. Those factors might have been relevant to the question whether the whole of the grass strip between Culter House Road and the dyke marking the boundary of the Tillyoch land was part of the "verge", a term which is not defined in the Act but which is used in the definition of "road" to which I have referred. The question of whether the whole of that strip was "verge" was live during most of the proof. In the event, however, it is unnecessary for me to decide this because, just before calling the defender to give evidence (unusually, as his last witness), Mr Bartos, who acted for him, confirmed that his client now accepted that the whole of that strip of land, including the bellmouth area over which the pursuers wished to take access and to improve the entrance to the track into Tillyoch, was "verge" as that word is used in the Act. Standing that concession, it is no longer disputed that the Culter House Road, which is listed as a public road, includes the whole of the strip of land to the south west of the carriageway, including the area over which the defender wishes to improve the entranceway to Tillyoch.

[11] That concession was, in my view, properly made, having regard to the evidence. Had I had to decide whether or not the verge extended over the whole of the land in question, I would have found that it did. In any event, however, standing the arguments presented to me, it is right that I should make some further findings in relation to the verge. I have already referred to the manner in which the boundary of the listed road was shown on maps prepared by the roads authority, originally in paper form and now stored electronically. That demonstrates, to my mind, that the whole of the verge between the carriageway and Tillyoch has, for many years (and since long before the 1984 Act came into force), been regarded as part of the road and subject to a public right of passage. But, quite apart from this, I am also satisfied that, for many years (and since long before the 1984 Act came into force), there has been use of the strip by both public authorities and the public, without opposition and without any division of the land in question into "verge" (over which there is a right of passage) and "non-verge" (over which no such right exists). In particular, I find the following to be established on the evidence: that the ditch on the Tillyoch side of the carriageway is used for drainage of surface water from the road; that the council, as roads authority, undertakes an obligation to maintain the ditch, and indeed, without seeking permission from others, has carried out works to the ditch, in particular in about 1991 the area near to the Bucklerburn Road junction; that the council, as roads authority, regularly mow to a width of about 4 feet from the carriageway, that width being determined by them without reference to the owners of the verge; that vehicles go on to the grass at the edge of the road when necessary to avoid traffic coming in the opposite direction; that there are telegraph posts sited on the cut part of the verge and the verge is used, without leave of the owners of the verge, by service vehicles attending to such poles; that walkers (both with and without children and/or dogs) and horse riders will often use the metalled carriageway but do not confine themselves to that, and will often walk or ride on the verge, where it is practicable, even when it is not necessary to do so as a refuge from traffic; and that there has been no opposition over the years, nor explicit consent, to such use of the verge. In practice, some parts of the land are impractical for access, because of trees and uncontrolled undergrowth, and other parts are damp and muddy. But the evidence seems to me to establish that the public has been free to take access to the whole of the verge.

[12] In the area with which this action is concerned, there is the added factor that members of the public using the footpath from the 30˚ bend to Bucklerburn Cottages, will cross the verge at what is now the bellmouth to access the footpath from the road; and they will not confine themselves to a particular line across the verge. They have done this for many years, certainly since long before the 1984 Act. Old photographs of the path were lodged in process. A track into Tillyoch has existed for some time. Until fairly recently, it was not passable by vehicles, although even then, according to the evidence, cars would be driven across what is now the bellmouth and parked on the verge there, by the track into the woods, for purposes into which it is unnecessary to enquire. However, in about 2001, because of difficulties in relation to his other access route into Tillyoch from the Bucklerburn Road, Mr Jamieson opened up the track and created the bellmouth, putting down hardcore or shale or similar material, thereby giving himself vehicular access to Tillyoch from Culter House Road; and since then he has taken vehicular access to Tillyoch by this means. It is this track and bellmouth which the pursuers wish to improve and by which they seek to take access to Tillyoch for the purpose of their proposed business.

The pursuers' case in outline

[13] Mr Smith QC, who appeared for the pursuers, submitted that, subject to the provisions of the 1984 Act (and, in particular, any permission stated therein to be required of a roads authority) an owner of land adjoining a public road has the right to take access from his land onto a public road at any point on that road. He referred in particular to the well known passage in the Opinion of Lord Skerrington in M'Robert v. Reid 1914 1 SLT 434 at 447-8. He referred also in support of this proposition to Moncrieffe v. Lord Provost of Perth (1842) 5D 298, Trustees of Leith Walk v. Home 1828 7S 39 and Elmford Limited v. Glasgow City Council 2001 SLT 725 paras.[11] and [19]. Once it was conceded that the "verge" went right up to the dyke forming the boundary of the Tillyoch land, i.e. that all the land in question was part of the public road listed in accordance with s.1 of the 1984 Act, the issue was concluded in the pursuers' favour. The pursuers, in right of the owners of the adjoining land, were entitled to connect to the road and to do so over the bellmouth or any other part of the verge. In County Council of Perth and Kinross v. Magistrates of Crieff 1934 SLT 2, at 7-8, Lord Murray said that:

"In its natural meaning and construction (unless some more restricted meaning is imposed upon the words from 'context' or 'circumstance') 'road' or 'highway' means and includes the whole area dedicated to public passage from 'fence to fence' (or, it may be 'building-line to building-line'), including the area, if any, occupied by footways of any kind. That the public user of a footway is restricted to foot-passage does not make it any less part of the public road."

That was concerned with footpaths, but it also must apply to verges, which, in terms of the definition in the 1984 Act, are part of the road and, like other parts of the road, subject to a public right of passage. This analysis was confirmed in David Runciman and Sons v. Scottish Borders Council 2003 SLT 1405 at para [9].

Discussion

[14] In my opinion the argument for the pursuers is correct. In terms of s.151 of the 1984 Act, "road" includes the "road's verge". "Road" means "any way....over which there is a public right of passage". That means that if it is a road, there is a public right of passage over it - if there is no public right of passage over the road, it is not a road within the meaning of the Act. The definition does not contemplate that there may be a public right of passage over part only of a road. There is a public right of passage over the whole road, which includes a part of the road, such as the verge. The powers and duties of the roads authority extend to the whole of the road, i.e. to the road and verge. It is now accepted in this case that the area of land with which I am concerned, including the bellmouth at the point at which the track from Tillyoch joins the road, is all "verge" within the meaning of the Act. It follows that there must be a right of public passage over the whole of that land.

[15] This conclusion seems to me entirely consistent with the reasoning of Lord Drummond Young in David Runciman and Sons v. Scottish Borders Council. That case raised a very different question. The road ran through the petitioner's land. It had a grass verge on each side bounded by an old beech hedge. The petitioners had erected a post and wire stock fence on each side of the road, on the roadside of the hedge and so close to the hedge as to be in an area where the public were unable to walk because of the overhang of the hedge. The roads authority served a notice requiring removal of the fence from the verge of the road. The petitioners contended that that notice was ultra vires on the basis that, since the public were unable to walk on the area overhung by the hedge, there could be no right of passage on that area, and therefore that area could not be part of the road and subject to the control of the roads authority. Lord Drummond Young rejected that argument in para.[9] in the following terms:

"The main argument for the petitioner was that, if the definition of a road in section 151 of the 1984 Act is to be satisfied, there must exist a public right of passage. If passage is impossible, the statutory definition cannot be satisfied. Consequently, if the public are unable to walk on the area overhung by a hedge, there can be no right of passage and that area cannot be part of the road. In my opinion this argument is not well founded. It is true that a public right of passage is necessary if a road is to fall within the statutory definition. It does not follow, however, that it is necessary that passage should be possible, or even practicable, over every part of the area of such a road. That is clear from the powers of a road authority ... to place objects such as road signs, barriers, bus shelters and bins within the area of a road. Public passage through the areas occupied by such objects is clearly impossible, or at least impracticable. Nevertheless, it is obvious that the existence of such objects does not prevent the area occupied by them from forming part of the road, including its verge. Moreover, section 151 defines a road as any 'way' over which there is a public right of passage. The right of passage is thus related to the existence of the way rather than the area of the road itself. That in my opinion tends to confirm that it is sufficient that there is a right of passage along the road in general, as that is all that is required for a 'way' to exist. It is not necessary that passage should be possible over every part of the area occupied by the road."

I respectfully agree with that passage. Lord Drummond Young draws a distinction between the public right of passage, which extends to the whole of the road, including the verge, and the question of whether passage is possible or practicable over some part of it. The fact that over certain parts passage is not practicable does not prevent there being a public right of passage over the whole road, including the verge. Public passage over the whole road is necessary if the road is to be listed as a public road. Put another way, the listing of a road is impossible unless it (i.e. the whole of it, carriageway and verge) falls within the statutory definition in the sense of there being a public right of passage over it. The fact that it is listed confirms that there is a public right of passage over the road and verge. The concession that the land in question here is part of the verge leads inevitably to the conclusion that there is a public right of passage over it.

[16] Mr Bartos submitted that that passage did not correctly set out the law. He submitted that the definition in s.151 drew a distinction between the "way...over which there is a public right of passage" and the "verge". The reference to the verge being part of the road reflected the intention of Parliament that the roads authority should be under an obligation of maintenance in respect of the verge as well as of the road. The listing of the road as a "public road" under s.1(1) of the Act did not have the effect of giving the public a right of passage over the verge where none existed previously. It was right to regard the land between the carriageway and the Tillyoch dyke as being a verge, and therefore as part of the road listed under s.1. But that did not mean that the public had a right of passage over the verge or any part of it. That question, whether there was a public right of passage over the verge or any part thereof, was to be determined by reference to the common law. In support of this argument he cited a number of cases, including the decision of the Inner House, delivered by Lord Reed, in Hamilton v. Dumfries and Galloway Council (No.2) 2009 SC 277.

[17] I have already made it clear that, on the evidence, I am satisfied that there has been a public right of passage over the whole of the verge since well before the road was first listed by the Council. For this reason, I do not consider that Mr Bartos' argument takes him anywhere. But even if I had not come to that conclusion, I would have rejected Mr Bartos' argument as unsound. It seems to me to be based upon a misreading of the definition in s.151 of the Act. That section gives a definition of road. A road is a way over which there is a public right of passage. The definition goes on to say that road includes the road's verge. Reading that into the definition, that means that the "road", i.e. the road and its verge, constitute a way over which there is a public right of passage. The listing of that road as a public road for the purpose of management and maintenance under s.1 of the Act is conclusive. That road is a public road to be maintained and managed by the roads authority. The powers of the roads authority in respect of such management and maintenance extend both to the road and to the verge. Those include the powers in ss.56 and 63 of the Act. Under s.63, the roads authority may, in some circumstances, serve a notice on the owner or occupier of the adjoining premises requiring that a crossing be constructed over the verge. Under s.56 the roads authority is entitled to give its consent to works executed on a public road. That includes the verge. It is true, as Mr Bartos submitted, that the listing of the road and verge does not affect rights of ownership in the land. However, those rights of ownership may not be exercised inconsistently with the existence of the public right of passage and the rights and obligations of the roads authority under the Act. In David Runciman and Sons v. Scottish Borders Council, Lord Drummond Young put the matter in this way (at para.[10]):

"The passages cited [from Rankine on Land Ownership] indicate that a highway involves a right of passage, an incorporeal right, and does not of itself affect the ownership of the land across which it lies. Consequently the land owner is entitled to exercise all rights of ownership that are not inconsistent with the public right of passage. In the present case it was accepted that the petitioners were the owners of the land on which the B74/6 road had been constructed. Nevertheless, the principle stated by Rankine does not in my opinion help the petitioners. Under modern statutory regulation the public right in a highway entails all of the rights and powers conferred on a roads authority by the Roads (Scotland) Act 1984 and other highways legislation. Consequently the land owner's rights of ownership are subject to all of those rights, as well as the basic public right of passage. Moreover, the definition of a road under the 1984 Act includes the verge, and those rights and powers of a roads authority extend to the verge as well as the surfaced part of the road."

I agree with that analysis.

[18] I should note that I was told that the defender has lodged a petition for judicial review challenging, as I understand it, some aspect of the listing of the road under s.1 of the 1984 Act. The petition was lodged after this case first called in the Commercial Court and after one or more preliminary hearings. I do not know the details of the argument laid out in the petition. The defender did not contend that the fixing of this proof should be delayed until after disposal of the petition, nor did he seek to suggest a procedure whereby the proof and the petition could, formally or informally, be heard concurrently, so as to ensure a measure of consistency in the outcome. I simply mention the existence of the petition procedure so that it should not be thought that this proof was conducted and determined in ignorance that a challenge to some aspect of the listing of the road was to be made.

[19] Mr Bartos relied on the decision of the Inner House in Hamilton v. Dumfries and Galloway Council (No.2) 2009 SC 277 in support of the argument that the 1984 Act had to be construed against the background of the pre-existing law. It was not intended to create rights where none had existed before. Accordingly, Mr Bartos submitted, the question of whether there was a public right of passage over the verge depended on what was the position at common law. I do not consider that that case assists him. That was a petition for judicial review of the decision by a roads authority to list (or "adopt") a road as a public road. The argument, which prevailed, was that the road, having been stopped up, was not a way over which there was a public right of passage and so was not a road capable of being adopted. That raises entirely different questions from those which arise in the present case. First, the issue there was as between the petitioner and the roads authority. The petitioner sought reduction of the decision to list (or adopt) the road. A challenge to the acts of the roads authority based on the absence in fact of a public right of passage over the land in question can readily be understood. But the case does not touch upon the question presently before the court. This is not a proceeding designed to reduce the listing or any aspect of it. The case proceeds upon the basis that the road is listed; and, furthermore, that the land in question is all part of the verge of the road as listed, and therefore part of the public road. The question here, against that background, is whether the listing of the road (for so long as it remains listed) gives rise to an inference that there is a public right of passage over the whole of the verge. I have answered that in the affirmative. Secondly, although I was told of the existence of a petition for judicial review, I do not know what aspects of the decisions by the roads authority are challenged. It seems unlikely that there could be a challenge to the listing of the road itself. If that is not challenged, the only issue would seem to relate to the verge, or possibly to the s.56 consent. It is difficult to see how Hamilton v. Dumfries and Galloway Council (No.2) could bear on those issues. The primary question raised by the defender here, but conceded by him towards the end of the case, was as to whether the whole of the strip of land between the verge and the Tillyoch dyke was verge. For the reasons I have given, once that question is conceded, no further issue of public right of passage remains for decision. Third, in case I am wrong about that, and it is necessary to look to the common law to determine whether there is a public right of passage over the relevant part of the verge, I have found on the evidence that the public right of passage extends over the whole verge, and has done so for considerably longer than the prescriptive period. The case of Hamilton v. Dumfries and Galloway Council (No.2) makes it clear that there is no such thing as a public right of passage established by statute falling short of, and less stringent in its requirements than, a public right of passage established at common law by prescription. But that does not assist the defender where the evidence clearly establishes a public right of passage at common law. Therefore, even if the adoption of the road and verge as a public road is not sufficient for the pursuers' case, and it were relevant to consider the question of whether a public right of passage exists over the verge and has done so for the prescriptive period, I would still have found in favour of the pursuers.

[20] If, as I have held, the land in question is not only part of the verge but (as part of the road) is subject to a public right of passage, the cases cited by Mr Smith in support of the proposition that an adjoining land owner has the right to take access to a public road at any point would seem to point to a decision in favour of the pursuers. The classic statement is that of Lord Skerrington in M'Robert v. Reid at pp.447-8 in which he says that an essential quality of a public highway is that

"the surface of the highway and every square inch of it belongs to the public, not, of course, in property, but in order that it may be used for certain purposes."

He proceeds from that to this statement of the law:

"In short, a member of the public has a jus spatiandi within the limits of a highway which he may exercise as he thinks fit, provided the eccentricity of his course does not disturb the public traffic or the public peace. ... So far, I have been speaking of an ordinary member of the public, but if he happens to be also the owner of the land fronting or abutting on a highway, he has superadded to his public right a right which is peculiar to himself and which is attached to and enhances the value of his estate, viz. the right to step from the highway onto his private property and vice versa. This is familiar law in the case of ordinary public roads and streets ..."

The right, as Lord Drummond Young pointed out, is subject to the current statutory regime, but the pursuers here have been given permission by the roads authority under s.56 of the Act to carry out the necessary works to improve the junction at the bellmouth and to take access at that point, so this causes no difficulty for the pursuers.

[21] Mr Bartos argued that none of the cases on which the pursuers relied applied to the verge. In so far as that submission depended upon the argument which I have just considered, namely that the public has no right of passage over the verge as opposed to the carriageway, then it falls to be rejected for the reasons which I have already given. In so far as the argument is a discrete one, and is maintained whether or not there is a public right of passage over the verge, it requires to be considered here. Mr Bartos submitted that in the older cases relied upon by Mr Smith, namely M'Robert v. Reid, Moncrieffe v. Lord Provost of Perth and Trustees of Leith Walk v. Home, were cases where the adjoining land gave directly onto the carriageway. I am not sure that is correct. It appears from p.299 of the report in Moncrieffe v. Lord Provost of Perth that access there involved crossing a footpath - if Mr Bartos was correct in his argument, the owners of the footpath would surely have had a right to object, but there is no hint in the report of any such point having been taken. Be that as it may, I see no reason why the principle should be limited to cases where the land directly abuts the carriageway. Once it is established that a public right of passage exists, then there can be no reason why an owner of land adjoining that public right of passage should not take access to it, subject, of course, to the power of the roads authority to refuse consent or regulate the manner in which he does so. If he takes access directly from his own land onto the land over which there is a public right of passage, it cannot make any difference whether he takes access across the verge or directly onto the carriageway.

[22] There is support for this view in the Opinion of Lord Clarke in Elmford Limited v. Glasgow City Council. In that case a strip of land had been compulsorily acquired under s.29 of the Roads (Scotland) Act 1970 for the purposes of the roads authority. A development company which owned adjoining land wished to take vehicular and pedestrian access across it. The problem was that the entry in the list of roads under s.1 of the 1984 Act did not list the whole of that land as part of the public road; it excluded both an embankment and a narrow strip of land to the south of the embankment, and, it seems, part of the verge area. The company's application for declarator that they were entitled to take vehicular and other access to the public road was refused, since that access would have had to cross land which was not part of the public road as listed. However, Lord Clarke appears to have assumed that the position would have been different if the whole of the land in question had been listed. In para.[11] he said this, under reference to a case which had been cited to him:

"That case, as others, in my opinion, demonstrates that the right of the public to have access and egress over land on the basis that it forms part of the highway, depends on whether the land in question can be said to have been publicly dedicated as part of the highway. ...."

He then referred to County Council of Perth and Kinross v. Magistrates of Crieff and quoted the opinion of Lord Murray to which I have referred at para.[9] above. Mr Bartos submitted that this passage was wrong, in that the law of Scotland recognised no principle of "dedication": Cumming v. Smollett (1852) 14 D 885, 894, Colquhoun v. Paton (1859) 21 D 996, 1003, Wallace v. Dundee Police Commissioners (1878) 2 R 565, 579 and Mann v. Brodie (1885) 12 R (HL) 52, 54-55. He said that the relevant cases had not been cited to Lord Clarke. I do not consider that to be a valid criticism. There are, so it seems to me, conflicting indications in the cases about whether Scots law recognises a principle of dedication. But for present purposes I do not think that it matters. Lord Clarke's analysis did not depend upon an acceptance of such a principle - had an argument been advanced to which the existence or otherwise of such a principle was of importance, I would have expected the experienced counsel who appeared in that case to have referred to the authorities. But they did not. As I understand it, Lord Clarke was using the language of "dedication" as shorthand for the various ways in which a public right of passage might be established, including the listing of the road under s.1 of the 1984 Act. He explained his reasoning on this point at para.[19]. He noted that the petitioners were unable by evidence to show that any public right of passage had ever actually been exercised over the land in question, i.e. that which had not been included within the listing. He then went on to say this:

"The entry in the statutory list of roads, describing the road, does not embrace the strip of land in question. In that situation the petitioners have not shown that the land in question has ever been dedicated by the respondents or their predecessors in any way as an 'area dedicated to public passage', to use the language of Lord Murray in County Council of Perth and Kinross v. Magistrates of Crieff. ... In my opinion, in this case the petitioners have failed to demonstrate any subsequent actings, or circumstances, which amount to dedication of a strip of land to public passage."

Lord Clarke appears to have accepted that an adjoining landowner could take access from his land directly onto land over which there was a public right of passage; but refused the application because it could not be shown that there was a public right of passage over that particular strip of land. Nothing turns on his use of the words "dedicated" and "dedication". It is clearly to be inferred from his reasoning that had the listing of the road included the strip of land in question, that would have been sufficient to amount to a "dedication" to public passage and would have entitled the adjoining land owner to succeed. That reasoning, with which I agree, is directly applicable to the present case.

[23] For these reasons I find in favour of the pursuers. The land in respect of which the dispute arises is all verge, over which there is a public right of passage. The verge being part of the public road, it is for the roads authority to grant or refuse consent for access over the verge by an adjoining landowner and for associated works. They have given consent in terms of s.56 of the 1984 Act and the pursuers are therefore entitled to carry out the works and take access to the subjects from Culter House Road across the verge. I shall therefore grant declarator to this effect in terms of the first conclusion.

[24] I should mention that during the course of the evidence objection was made to some of the pursuers' evidence on grounds, essentially, of lack of fair notice. Two were insisted upon in Mr Bartos' final submissions. I repel those objections. I am satisfied that there has been no lack of fair notice and that the defenders have in any event suffered no prejudice.

Interdict

[25] The pursuers also seek interdict of the defender from taking steps to obstruct their use and development of the access to Tillyoch from Culter House Road over the verge. Mr Bartos argued that if the issue of law was decided in favour of the pursuers, interdict was unnecessary, since there was no basis for any apprehension that the defender would take steps to interfere with the pursuers' lawful rights of access. In my opinion, having heard the evidence, it is right that the court should grant interdict in the terms sought (no issue was taken as to the wording of the interdict concluded for). Two matters are relevant to this. First, there was evidence, and indeed it was not in dispute, that after acquiring the verge, the defender erected a post and wire fence around it which had the effect of narrowing the existing access to the track into Tillyoch and making it extremely difficult for larger vehicles to turn into it. In doing so, it is clear that he was attempting to influence the decision of the roads authority, hoping to show that the junction was unsuitable for the kind of traffic which would be an essential part of the pursuers' intended business, and thereby hoping to persuade them to refuse s.56 consent. In the event, the roads authority required the fence to be removed and granted s.56 consent. I consider that that episode shows a determination on the part of the defender to restrict the pursuers' use of that access into Tillyoch. Second, there was evidence given of an incident involving the pursuers and the defender, in which, on the pursuers' account, they were subjected to intimidation by the defender. They gave evidence that the defender drove a digger at speed towards their car, which was at the exit from the track onto the bellmouth, stopped only a couple of feet in front of them, blocking their passage, and then threateningly swung the jib of the digger (with its bucket) over the bonnet of their car, before starting to dig a post hole in the ground right next to it, preventing Mrs Hamilton getting out of the passenger door. The defender, for his part, said that the pursuers appeared to be trying to prevent him digging the post hole by positioning their car in the way; and although he was angry with their obstructive behaviour, he did not threaten or intimidate them. He did not swing the jib over the bonnet. He was able to dig the hole, notwithstanding the position of the pursuers' car, though it was more awkward for him because he had to work only a matter of a few feet from it. Although this episode featured prominently in the evidence, I consider that its importance was exaggerated. Having heard all parties concerned, I am satisfied that the pursuers were genuinely apprehensive at the time as to the behaviour of the defender. But equally, I am persuaded that the defender did not deliberately act so as to intimidate them. The explanation seemed to me to be that the defender was angry about what he perceived (wrongly, in my opinion) to be obstruction and high handedness on the part of the pursuers; and he allowed his anger to manifest itself in rude and aggressive conduct. But he was a skilled digger operator and there was in fact no danger to the pursuers. Nor do I think that he did swing the jib over the pursuers' car. Feelings clearly ran high. The parties did not come to blows, but there was a heated argument and the police were called. I do not consider that the credibility of either party in their evidence as a whole is affected by this incident. However, it does point to the irascibility of the defender in his dealings with the pursuers in relation to the access track, and confirms me in my view that the relations between the pursuers and the defender are such that it is appropriate to regulate the rights of the parties by granting the interdict sought.

Disposal

[26] I shall grant decree of declarator as first concluded for. In view of the history of the matter, I am persuaded that it would be appropriate also to grant interdict in terms of the second conclusion, and I shall do so.