EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Hardie Lord Mackay of Drumadoon	[2010] CSIH 77 CA90/09 OPINION OF THE COURT delivered by LORD HARDIE in the cause MICHAEL and SARAH HAMILTON Pursuers and Respondents; against ROBERT KENNEDY NAIRN Defender and Reclaimer: _______

Pursuers and Respondents: R A Smith; QC; Paull & Williamsons, LLP

Defender and Reclaimer: Bartos, Advocate; Drummond Miller, LLP

7 September 2010

Introduction

[1] The respondents are spouses who carry on business in partnership of running a cattery and livery stables in Dyce, Aberdeen. They require to relocate their business because part or all of their land in Dyce may be required for the purposes of a ring road in the area. As a consequence they have concluded missives for the purchase of subjects at Tillyoch, Peterculter, Aberdeen ("the subjects"). They have obtained planning permission for the establishment on the subjects of cattery and livery stables together with a dwellinghouse and associated car parking and other facilities ("the proposed development"). In connection with the proposed development the first named respondent has also obtained consent from Aberdeen City Council as roads authority to improve the junction, which currently affords access to and egress from the subjects onto Culter House Road. Culter House Road runs northwards from Peterculter.

[2] Following the grant of planning consent and the consent by virtue of section 56 of the Roads (Scotland) Act 1984 ("the 1984 Act") for the junction improvement at Culter House Road, the reclaimer purchased the strip of land between the metalled carriageway of Culter House Road ("the carriageway") and the boundary of the lands of Tillyoch, within which the subjects lie. That boundary is marked by what remains of a drystane dyke ("the drystane dyke"). There are a number of gaps in the drystane dyke, in particular where the existing junction is located. The proposed junction between the subjects and the carriageway would cross this strip of land.

[3] The respondents contend that they are entitled to take access over the verge acquired by the reclaimer and to effect the junction improvement with Culter House Road. The reclaimer maintains that the public right of way or passage along Culter House Road only extends over the metalled carriageway of Culter House Road, that there is no such public right of way or passage over the strip of land he now owns and that the respondents have no right to carry out the works under section 56 of the 1984 Act.

[4] Against that background, the respondents obtained an assignation from Mr Jamieson, the current owner of the subjects, in respect of any rights that he may have against the reclaimer and raised the present action against the reclaimer. The action was raised on the basis that the respondents have all the rights of the owner of the subjects.

[5] The terms of the first two conclusions of the summons are as follows:

"1. For declarator that the pursuers and Mr Michael Hamilton acting on their behalf are entitled (1) to carry out the works specified in consent 560839 issued by Aberdeen City Council under the Roads (Scotland) Act 1984 upon the existing verge of the public road specified therein, namely Culter House Road, (2) to take access, including vehicular access directly to the subjects Tillyoch from said adjoining public road, and egress, and that by crossing the verge by means of an improved junction as specified in said consent, and (3) to take access and egress aforesaid across said verge for the purposes of said works.

2. For interdict against the defender or anyone on his behalf from impeding the pursuers or anyone on their behalf from (i) carrying out the works specified in said consent 560839 upon the existing verge of the public road as it extends between the metalled surface of the road and the Tillyoch subjects, (ii) from taking access, including vehicular access, directly to the subjects Tillyoch from said adjoining public road, and egress by crossing the verge by means of an improved junction as specified in said consent, and (iii) from taking access and egress aforesaid across said verge for the purposes of said works; and that by placing any obstruction upon the said verge or by any other means."

By interlocutor dated 9 December 2009 the Lord Ordinary granted decree in terms of these conclusions and the defender has reclaimed against that interlocutor.

Description of the area

[6] In his Opinion the Lord Ordinary describes the geography of the area as follows:

"[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.

.....

[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 [1984] 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. ....

[9] .... 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 as 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. .... The verge [on the Tillyoch side] 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 (sic) 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."

Roads (Scotland) Act 1984

[7] The relevant provisions of the 1984 Act are as follows:

"Powers and duties of local roads authorities

1.(1) .... 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) ... 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.

(5) The requisite number of frontagers to whom notice of a decision following a representation is given under subsection (4) above may, within 28 days of such notice, refer the matter by summary application to the sheriff....

...

(9) ... 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. ...

Control of works and excavations
56.(1) ... no works shall be executed in, or excavation made under, a public road except with the roads authority's consent in writing and in accordance with any reasonable conditions which they think fit to attach to the consent. ...

New access over verges and footways

63.(1) Where, in the opinion of the roads authority, vehicles when driven to or from premises adjacent to a public road are habitually being taken across that road's verge or footway other than by way of a satisfactory vehicular crossing they may serve a notice on the owner or occupier of the premises requiring that -

(a) by such date as is specified in the notice he shall have commenced;

and

(b) within such periods thereafter as is, and to such detailed specifications as are, so specified he shall have completed,

the construction of such a crossing over the affected part of the verge or footway.

(2) A vehicular crossing constructed under or by virtue of this section shall on completion be part of the public road. ...

Interpretation

151.(1) In this Act, unless the context otherwise requires -

'improvement', in relation to a road, means the doing of anything for the benefit or road users, or any class of road users, beyond that which is essential to placing the road in a proper state of repair, and includes the improvement of the amenity -

(a) of the road; and

(b) of land abutting on, or adjacent to the road;

'public road' means a road which a roads authority have a duty to maintain;

'road' means, subject to sub-section (3) below, any way (other than a waterway) over which there is a public right of passage (by whatever means) 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."

Section 151(3) specifies certain exceptions which do not apply in this case.

Grounds of Appeal

[8] The grounds of appeal were in the following terms:

"1. The Lord Ordinary erred in law in holding that any ground which is covered by the definition of the words 'road' in s. 151 of the Roads (Scotland) Act 1984 must as a consequence have over it, as a matter of law, a public right of vehicular passage and that as a consequence, where there is a way over which there is a public right of vehicular passage and that way has a verge, there must inevitably, as a matter of law, be a public right of vehicular passage over that verge.

Whereas the true position is that public rights of passage otherwise known as public rights of way, vehicular or pedestrian, arise (with a few immaterial exceptions) under the general law of public rights of way and not by virtue of the definition of "road" under s. 151.

2. The Lord Ordinary erred in law in holding that (a) the listing by a local authority under s. 1 of the Roads (Scotland) Act 1984 of a road as a public road is conclusive as a matter of law with regard to whether there is a public right of vehicular passage over any ground encompassed within it; and (b) the question is whether the listing gives rise to an inference that there is a public right of vehicular passage over the whole of the verge element of any such road.

Whereas the true position is that listing merely gives the local authority rights and duties of maintenance in relation to the ground covered by the listed 'road', and does not give any rights of way or passage to the public, and the question in each case is whether as a matter of fact the legal requirements for a public right of passage over verge element of any listed road are satisfied.

3. The Lord Ordinary erred in law in holding, (or possibly holding) that he was entitled to consider and decide whether a public right of passage had been established by prescriptive possession under s.3(3) of the Prescription and Limitation (Scotland) Act 1973 when no such case was pled by the Pursuers on record - and no such submission was made to him.

4. Esto the Lord Ordinary was entitled to decide whether a public right of way by vehicles had been established by prescriptive possession, there was no evidence to support a finding (necessary for the purposes of s. 3(3) of the 1973 Act) that the public had driven across the bellmouth and parked cars on the whole verge there for a continuous period of 20 years with a frequency that would reasonably have been expected if the bellmouth and verge had been part of a way over which the public had a right of passage.

5. Esto the Lord Ordinary has made a finding in fact in paragraph [12] that '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 inquire' for a continuous period of 20 years with the necessary frequency -

(a) such a finding is not supported by evidence and should be omitted.

and

(b) such use would not cover the whole of the width of the bellmouth or verge at that point.

6. Esto the Lord Ordinary was entitled to decide whether a public right of way by vehicle had been established by prescriptive possession, -

(a) he was not entitled to decide that the requirements of s. 3(3) had been satisfied on the basis of the listing of the road and any plans of the local authority showing the verge as having been listed by them, or any use by the local authority of the verge

(b) there was no evidence to support his finding that the public had used the road without any division of the land into verge and non verge

(c) there was insufficient evidence to allow prescriptive possession to be established in any event.

7. The Lord Ordinary erred in law in not sustaining an objection to Mr Jamieson's evidence regarding passage of vehicles across the verge before the construction of the bellmouth on the grounds of lack of fair notice in the pleadings.

8. The Lord Ordinary erred in law in -

(a) holding that the Pursuers are husband and wife (when the Pursuers are a partnership) and perhaps by implication that the Pursuers held a consent under s.56 of the Roads (Scotland) Act 1984 and

(b) not properly addressing the Defender's well founded submission of no title to sue in respect of parts (1) and (3) of conclusion 1 (the Defender's first plea in law)

The Defender's submission was well founded in that the Pursuers are a partnership, a legal person separate from its partners, and the evidence was clear and not in dispute that the consent granted by the roads authority under s.56 was not to the Pursuers but to one of the Pursuer's partners.

9. The Lord Ordinary erred in law in -

(a) perhaps holding, by implication, that as a matter of law a landowner had no right to prevent a private person carrying out works on a public road for private business purposes if the roads authority had authorised works under s. 56 of the Road (Scotland) Act 1984. and

(b) not properly addressing the Defender's well founded submission in respect of parts (1) and (3) of conclusion 1 (the Defender's 4^th plea in law) that -

- on a proper construction of s. 56, the consent under s. 56 is merely to give immunity to the person carrying out the works from liability to the roads authority or prosecution under that section and does not overcome the need for consent from the landowner for works for private purposes

- listing does not give the roads authority any heritable right to overcome the heritable right of the landowner to refuse consent to the working of his ground for private purposes;

10. The Lord Ordinary erred in law in relation to the grant of the interdict in -

(a) stating in paragraph [25] that no issue was taken as to the wording of the interdict when it was specifically raised in the Defender's 9^th plea in law, in the written skeletal submissions for the Defender and in oral submissions;

(b) granting interdict containing the words "or by any other means" at the end when the Defender is not given any clear and fair indication of the scope of these other means of impediment (other than the placing of obstructions) which are to be prohibited and enforceable by breach of interdict proceedings;

(c) granting interdict at all when the conclusion containing the interdict had not been amended into the pleadings by an interlocutor;

11. The Lord Ordinary erred in law in not sustaining the Defender's 7^th plea in law and dismissing the interdict against transfer of the Defender's land, after the Pursuers had indicated at the end of the proof that they were not insisting upon it."

Submissions on behalf of the reclaimer

[9] The primary submission of counsel for the reclaimer was that in the context of a public road a distinction had to be drawn between a way over which there was a public right of passage, whether vehicular or pedestrian, and the verge adjacent to that way. Accordingly the Lord Ordinary had erred when he concluded that where there is a way over which there is a public right of passage, there must inevitably be the same type of public right of passage over the verge adjacent to the way. Counsel submitted that the logic of that approach was that the public must have a right of passage over such a verge, whether or not the way and verge formed a road listed under section 1 of the 1984 Act. The way is the means of passage from one place to another. (Hamilton v Dumfries & Galloway Council (No.2) 2009 SC 277). The Lord Ordinary had failed to distinguish between an interpretation section in a statute, namely section 151(1), and a section creating rights and duties in relation to the term defined, namely section 1. The case of David Runciman & Sons v Scottish Borders Council 2003 SLT 1405 upon which the Lord Ordinary relied was not relevant. In that case the question in dispute related to the extent of the verge of a road. In the present case that was no longer an issue, as counsel for the reclaimer had conceded before the Lord Ordinary and before this court that the verge extending from the edge of the carriageway to the Tillyoch drystane dyke fell within the definition of a "road" in section 151(1) of the 1984 Act. It was submitted that a verge could fall within the definition of a "road" in terms of legislation without there being a public right of passage over the verge.

[10] The second submission was to the effect that the Lord Ordinary had erred in suggesting that the listing of a road under section 1 of the 1984 Act is conclusive of the issue whether there is a public right of passage over what has been listed as a road by the roads authority. Listing does not confer any greater rights upon the roads authority than those conferred by the 1984 Act. In particular it does not give members of the public a right of passage, where such a right was not previously publicly enjoyed, nor does it confer on the roads authority a right to grant a public right of passage over the road. In support of that proposition counsel relied upon Hamilton v Dumfries & Galloway Council (No 2). Listing merely granted to the roads authority certain rights of management and maintenance over the road but excluded any heritable right in relation to the road (section 1(9) of the 1984 Act). Listing depended upon the existence of a road to be listed and the road itself depended on the way over which there was a public right of passage.

[11] The third submission was directed to the third to seventh grounds of appeal inclusive and proceeded upon the assumption that the reclaimer's primary and secondary submissions were sustained. This submission involved the criticism of certain factual findings of the Lord Ordinary based upon an analysis of the evidence of some of the witnesses. Ultimately we were invited to conclude that, on a proper reading of the evidence, there had been no prescriptive use of the verge between the carriageway and the Tillyoch dyke by pedestrians or vehicular traffic. In any event there were insufficient averments in the pleadings to give the reclaimer fair notice of a case based upon prescription. Insofar as the Lord Ordinary had relied upon prescriptive use, the reclaimer had been prejudiced.

[12] The fourth submission on behalf of the reclaimer, which related to the eighth ground of appeal, was that the respondents had no entitlement to carry out the works in terms of the section 56 consent. The consent had been obtained by the first named respondent and did not equate to a consent granted to the partnership in which both respondents were partners. Counsel also submitted that, on a proper construction of section 56, a consent granted by the roads authority simply granted immunity to the holder of the consent from prosecution and from potential civil liability under section 56. It did not remove the landowner's right to prevent private persons from carrying out development on his land for private trading purposes, other than as a public utility. (Strathclyde Regional Council v Persimmon Homes (Scotland) Ltd 1996 SLT 176).

[13] The final submission related to the ninth to eleventh grounds of appeal and was directed to the terms of the interdict pronounced in terms of the second conclusion of the summons. Objection was taken to the inclusion of the phrase "or by any other means" occurring at the end of that conclusion. An interdict must be so precise and clear that the person interdicted was in no doubt as to what he was prevented from doing. (Murdoch v Murdoch 1973 SLT (Notes) 13). The phrase complained of lacked precision and the interlocutor should be amended by deleting it. Counsel for the reclaimer confirmed that he had no objection to the terms of the remainder of the conclusion which were mirrored in the interdict pronounced.

Submissions on behalf of the respondents

[14] In response counsel for the respondents submitted that there was a common law right to the proprietor of heritable property adjoining a public road to take and form an access from that road to his land (Trustees of Leith Walk v Home (1828) 7S 39; Monkland Canal Co v Graham (1828) 6 S 544; Moncreiffe v Lord Provost of Perth (1842) 5D 298; McRobert v Reid 1914 SC 633; Elmford Ltd v Glasgow City Council (No 2) 2001 SC 267). It was not disputed that the listing of Culter House Road was intended to identify the area between the two drystane dykes on either side of the carriageway, and to include the metalled surface of the carriageway and the grass verges on either side of the carriageway which extended as far as the two drystane dykes. The consequence of the reclaimer's submissions was that an adjoining proprietor would be precluded from crossing the verge to join the metalled surface of the road unless there was a discrete right of passage over the verge. Moreover, unless such right of passage amounted to a vehicular right of access the adjoining proprietor would be precluded from taking vehicular access to the road. It was submitted that such a result was contrary to authority. In any event the 1984 Act envisaged a public right of passage over the whole of a road, including the verge. In his opinion the Lord Ordinary had recorded that it was not in dispute that prior to 1976 Culter House Road was entered in the list of roads and highways under the management and control of the then local authority (Aberdeenshire County Council) and the list had been taken over by successor roads authorities. (para [8]). It was reasonable for the Lord Ordinary to conclude that there had been a public right of passage over the entire area contained within the list for a period in excess of 20 years.

[15] In relation to the question of the title of the partnership to undertake the works authorised by the roads construction consent, counsel for the respondents explained that the partnership had been in existence prior to the application for roads construction consent. It was sufficient that the consent was issued to a party with a lawful interest in carrying out the works. The reclaimer could have no interest in whether the consent was issued to Mr Hamilton as an individual or as an agent of the partnership. Moreover it was too narrow an approach to suggest that the consent merely provided immunity from prosecution or that the roads authority was unable to overcome the heritable rights of the landowner. The landowner's rights were subject to the rights and powers conferred on a roads authority by the 1984 Act and other statutory provisions relating to highways, as well as the public right of passage over the road. (David Runciman & Sons v Scottish Borders Council). Powers under section 63 of the 1984 Act enable the roads authority to require the owner or occupier of premises to construct a crossing from his premises over a verge or footpath to connect with a public road. The exercise of such a power by a roads authority is independent of the wishes of the heritable proprietor of the verge or footpath. Such heritable proprietor can have no legitimate interest in whether the crossing is formed by a requirement under section 63 or by reason of a roads construction consent under section 56.

[16] Finally counsel for the respondents accepted that there was an outstanding issue concerning the wording of the terms of the interdict which had not been resolved following parties' submissions at the proof before the Lord Ordinary. The issue related to the inclusion of the words specified by counsel for the reclaimer. In the event that the Court considered that the inclusion of these words rendered the interdict too wide counsel for the respondents tendered an alternative form of words which involved the deletion of the last phrase of the interdict namely "and that by placing any obstruction upon the said verge or by any other means" and by substituting therefor "and that by placing or excavating any obstruction upon the verge so as to impede the foregoing access, egress or works, or by placing any notice purporting to restrict access to Tillyoch by means of said improved junction".

Discussion

[17] Before considering the legal issues raised in this case we consider that it is important to recognise the undisputed factual situation. Culter House Road has appeared in the list of public roads kept by the appropriate roads authority in terms of the 1984 Act and preceding legislation from some date prior to 1976. The boundary of the subjects known as Tillyoch at Culter House Road is formed by the line of the drystane dyke which separates the subjects from the west verge of that road. The said verge extends from the drystane dyke to the metalled surface of the carriageway of Culter House Road. The carriageway has been used by pedestrians and vehicles since at least the mid-1930s as a public right of passage. Although not a single track road the carriageway is narrower than the minimum width for a carriageway designed for two vehicles to pass in opposite directions. If two vehicles were to meet on this stretch of the road, one or both of the vehicles might have to mount one of the grass verges beside the carriageway. On the west verge near to the edge of the carriageway there are telegraph poles. On the roadside of the Tillyoch drystane dyke there is a ditch, one of the purposes of which is to take away water running from the carriageway on to the verge, as the camber of the road is such that water drains to the Tillyoch site.

[18] In Hamilton v Dumfries & Galloway Council (No.2) Lord Reed, in delivering the Opinion of the Court, explained that the 1984 Act was a codifying rather than a consolidating measure and replaced various terms such as "highway", "street", "road" and "carriageway" appearing in earlier legislation with the term "road". From the definition of "road" in section 151(1) of the 1984 Act his Lordship observed that an essential pre-requisite of a road, whether public or private, was that it was a way over which there is a public right of passage although neither the term "way" nor the expression "public right of passage" is defined by the 1984 Act (paras. [25] to [27]). Moreover having reviewed the law prior to 1984 his Lordship analysed the case law after 1984 and concluded "that the expression 'road', as defined by section 151(1) of the 1984 Act, is not confined to public rights of way constituted by usage" (para [56]). In the same paragraph he continued:

".... the expression also encompasses roads which are constituted by grant or by statute. There is in addition no logical necessity that roads in the latter categories must necessarily begin and end at a place which is in some sense "public". In those respects the statement that "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" is consistent with the authorities, and we do not take issue with it. It is however important to understand that the point which the court was making, when it referred to "less exacting considerations", was that a "road" as defined by the 1984 Act need not necessarily meet all the requirements relevant to a public right of way constituted by prescriptive usage."

The reference to the "court" in that quotation is a reference to the unreported opinion of the court in Cowie v Strathclyde Regional Council (8 July 1986). These observations are consistent with the earlier observations of Lord President Dunedin in Reilly v Greenfield Coal & Brick Co Ltd 1909 SC 1328 in which he drew a distinction between a regular highway and a public right of way. At page 1338 his Lordship observed:

"... you may find that a person is doing a thing which is in initio unlawful, and I suppose it was with the view of this that the pursuer here was so very anxious to make out that this was a public right of way. I do not think that, even if he had made it out, it would really have made any difference, because although his counsel contended strenuously that there was no difference between one class of right of way and another, I cannot help thinking that there is a very great difference, and that any citation of the law of England, which treats them all under the heading highways, is no answer to that contention. On a regular highway you have no right to put anything. Anything you put there is an obstruction, and, consequently, the moment you are doing so you are, to use the phrase employed in the older Scottish cases, versans in illicito, and that, of course is the basis of the class of cases of which Clark and Chambers [(1878) LR 3 QBD 327] may be taken as an illustration, where if you once put on the highway, where you have no business to put anything, a dangerous obstruction, you will not be absolved from the consequences of what you have done, even although the precise accident is brought about by the intervention of another and subsequent conscious volition. That is the case upon a regular highway, but that certainly is not the case upon a right of way constituted as this has been, even upon the assumption that it is a right of way. Nobody has ever supposed that in Scotland a right of way constituted in that way prevents a proprietor from still dealing with his own ground in any lawful manner; and in particular it has been decided that he may set gates across the road in order to keep in his stock. I need scarcely say you cannot set gates across a turnpike road or a statute-labour road or one of those still older roads in Scotland for which there is no actual nomen juris, and which, though neither statute-labour roads nor turnpike roads, have still been public roads from time immemorial. You may cast about a right of way, but those others you cannot touch".

We consider that the distinction between a public road which a local roads authority has an obligation to manage and maintain and a private road or public right of way, the management and maintenance of which remains with the heritable proprietor, is one of significance. In the former case section 1(1) of the 1984 Act confers upon the local roads authority certain powers to enable that authority to manage and maintain the road. These powers include the powers of reconstruction, alteration, widening, improvement or renewal of any such road, as well as the power to determine the means by which the public might exercise right of passage over the road or any part of it. Thus, unlike private roads or public rights of way, the heritable proprietor of the solum is deprived of the right to interfere with the road as long as it remains a public road. In that regard we do not consider that the opinion of the court in Hamilton v Dumfries & Galloway Council (No.2) to be of assistance to the reclaimer because in that case the issue was whether the disputed section of road, which undoubtedly had been a road over which there was a public right of passage at the time when a stopping up order was made in 1983, had ceased to be a "road" because the public right of passage over it had been extinguished by the 1983 order and the changes following upon that order. In the present case counsel for the reclaimer accepted that Culter House Road is a public road and has been such since a date prior to 1976. Thus in terms of section 1 of the 1984 Act the local roads authority have the sole responsibility of managing and maintaining the road and as such have the enabling powers referred to above.

[19] Apart from the right of passage enjoyed by the public over any road, the designation of a public road confers upon members of the public additional rights. As Lord Justice Clerk Inglis observed in Campbell v Walker (1863) 1 M 825 at 831: "A turnpike road is made not merely for the purpose of connecting termini, but for the convenience of every one who has property along the line." In the same case, at page 833 Lord Neaves expressed it thus:

"The use of a public road, when once established, is not confined to affording access from the public place at one end of it to the public place at the other end. Valuable rights spring up alongside the road; property is purchased, and houses are built in its vicinity; and it becomes the medium of communication not only between its extremities, but between all the intermediate points and places."

As a result of the commercial activity associated with the existence of a public road,

the law has long recognised the right of the proprietor of adjoining property to access his property from the road. In Ferguson: The Law of Roads, Streets and Rights of Way Bridges and Ferries in Scotland (1904) (at 163) such a right is expressed as follows:

"The owner of adjoining property is entitled to form accesses thereto from the highway of an ordinary character suited to the legitimate traffic. In one case it was held that such crossings might be made across a foot-pavement ..."

In Moncreiffe v Lord Provost of Perth the Inner House adhered to the interlocutor of the Lord Ordinary allowing the pursuer, whose property adjoined a public road, to form accesses to his property for carts and carriages across the footpath. In the course of the Lord Ordinary's Note recorded at page 301 he had observed:

"It is manifestly of great benefit to the public to give a free and unrestrained access to and from all places of public resort, so as to attract the public, and invite observation, and thus prevent abuses growing up. In another view, also, it is of great advantage to the community to encourage all proprietors adjoining to a public street connected with a harbour, market, or other public establishment, to take the use of the street, by erecting along its boundary such accommodations, in the shape of shops, dwelling-houses, inclosed yards or warehouses, as the establishment connected with it obviously requires. On this ground, it is supposed that it would be contrary to the universal understanding of the country, as well as to the common law, to hold that there is any limitation on proprietors adjoining to the boundary line of a public street from using it in any way that, from its locality, is most profitable to the owner, and most useful to tenants and others likely to resort to the neighbourhood."

In McRobert v Reid Lord Skerrington opined about the rights of members of the public to use a highway and continued at page 649 as follows:

"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 on to his private property and vice versa. This is familiar law in the case of ordinary public roads and streets...".

Thus the right of an adjoining proprietor to connect to a public street to enable vehicular and other access to his property is a long-standing one. In modern commerce its importance is recognised by those involved in the development of land. As is observed in Faulds and Others Scottish Roads Law (2^nd Edition):

"It is a cardinal rule of property development to ensure that the land taken for the proposed development falls within the control of the developer or within the boundary of the road to ensure that they can provide access from the development to the road network without risk of ransom." (para. 4.7.2).

The 1984 Act also recognises the interests of owners and occupiers of adjoining properties in the existence of a public road and its retention as such. Before a roads authority may delete a public road from the appropriate list, it must give notice of its intention to do so to frontagers, who may object and ultimately may make an application to the sheriff against any decision to remove the public road from the list, assuming the requisite number of frontagers support the application (sections 1(4) and 1(5)). Moreover the roads authority can ensure that vehicular access taken from a public road across a footpath or verge is satisfactory and of suitable construction in one of two ways. The first is by the grant of a road construction consent in terms of section 56 of the 1984 Act. The second is by the procedure specified in section 63 of the 1984 Act. In this case, where vehicular access is already taken from Tillyoch to Culter House Road, the roads authority could require by virtue of its powers under section 63 the owner or occupier of Tillyoch to construct a satisfactory vehicular crossing, if the roads authority considered that the existing crossing was not satisfactory. In either case, the reclaimer would have no title or interest to object to the granting of consent or to the construction of road works following upon such consent whether it was granted in terms of section 56 or section 63, assuming that the works were undertaken within the boundary of the road.

[20] There is no dispute that Culter House Road is a public road. The reclaimer accepts that there is a public right of passage by pedestrians and vehicles over it, although he maintains that is confined to the metalled carriageway. Thus the question for our determination is a narrow one, namely whether the verge between the metalled surface of the road and the drystane dyke forming the boundary of Tillyoch is part of the public road over which there is a public right of passage. One way of approaching this question might be to consider whether the verge is subject to the management and control of the local roads authority or whether the reclaimer can continue to exercise management and control over the verge as an incident of his ownership of it. In his opinion the Lord Ordinary records that the question of whether the whole strip of land between the road surface and the drystane dyke was "verge" was a live issue during most of the proof. However, prior to calling the reclaimer as his last witness, counsel for the reclaimer confirmed that the reclaimer "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" (Lord Ordinary para [10]). We also note that the evidence, accepted by the Lord Ordinary, disclosed maps showing "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" (para [8]).

[21] As we have noted, the definition of a road in section 151(1) of the 1984 Act includes the road's verge. We consider that the Lord Ordinary was correct to conclude that in the context of a public road, the duties of management and maintenance and the supporting powers conferred by section 1 of the 1984 Act in relation to Culter House Road extend to the verges as well as to the carriageway. We are reinforced in that view by the acknowledgement before us by counsel for the reclaimer that, having regard to the extent of the listing, the roads authority has power to widen the carriageway up to the limit of the boundary of Tillyoch without reference to the reclaimer as heritable proprietor of the verge at that location. That acknowledgement recognises that, as long as Culter House Road, including its verges at this location, appears in the list of public roads, the reclaimer has no power to interfere with the reconstruction, alteration, widening or improvement of the road, the responsibility for which has passed to the local roads authority. As is observed in Faulds and Others, op cit, at para. 4.7.2:

"The statutory definition of a road includes the verge, which means that the public right of passage extends to the verge".

[22] It is understandable why Parliament considered it appropriate to include the verge in the definition of a road, thereby conferring a public right of passage over the verge. There will be many situations where it is in the interests of safety that road users should have a right of passage over verges. Indeed in the present case, where the metalled carriageway is too narrow to permit the safe passage of two vehicles, one or both vehicles may need to mount a verge to enable them to pass in safety. Moreover, in the context of a country road, pedestrians might elect to walk on the verge in the interests of their own safety. We reject the suggestion by counsel for the reclaimer that, if they did so, they would be trespassing. A verge is an integral part of the road. It may accommodate utilities, traffic signs and sight lines for farm vehicles exiting fields or farm tracks. As in this case, it may be essential for the drainage of the road including the accommodation of a ditch to remove surface water draining from the road on to the verge.

[23] Even if these considerations did not exist we consider that the grant by a local authority of a road construction consent in terms of section 56 of the Act is not incompatible with the reclaimer's rights as heritable proprietor of the verge. Section 56(1) prohibits the execution of any works in or excavation under a public road, except with the roads authority's consent in writing and in accordance with any reasonable conditions which the local authority thinks fit to attach to the consent. That prohibition is unrestricted and applies with equal force to the heritable proprietor of the solum of the road as defined in the list of public roads. The roads authority in the present case has a duty to maintain the carriageway and the verges extending to the drystane dykes on either side. As we have already observed, counsel for the reclaimer acknowledged that the roads authority, as part of its obligation to manage and maintain Culter House Road, could itself reconstruct or alter the road, including carrying out the alterations which are the subject of the roads construction consent in this case. Moreover while section 56(2) requires the applicant for roads construction consent to intimate the application to statutory undertakers who may be affected by the proposed works, there is no obligation to intimate the application to the heritable proprietor of the land. The reason for this omission is obvious. Once the roads authority has assumed responsibility for the management and maintenance of a public road, the extent of which is identified in the records of the local authority or by other competent evidence, the heritable proprietor ceases to have any jurisdiction to interfere in what is exclusively the responsibility of the roads authority.

[24] In view of the entry in the list of public roads and the contents of the electronic mapping system (based on older paper plans), which delineate the boundaries of Culter House Road as the drystane dyke on either side, about which the Lord Ordinary heard evidence (para [8]), and having regard to the acceptance by counsel for the reclaimer that the local roads authority had power to remove the verge in its entirety and extend the road up to the limit of the boundary wall with Tillyoch we conclude that in this case the extent of the road includes the verges on either side up to the respective dyke. Even if there had been no such acceptance on behalf of the reclaimer, we consider that the inclusion by Parliament of the verge in the definition of a road is consistent with the observations of Lord Murray in County Council of Perth and Kinross v Magistrates of Crieff and Auchterarder 1933 SC 751 at page 761 to the following effect:

"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. Historically, since the Turnpike Roads Act of 1831, and anterior even to the first Burgh Police Act of 1833, road or highway authorities have been empowered to provide a footway at the side of a highway, and (it is important to notice), have within and adjacent to burghs been under statutory obligations so to do. This was necessarily on the footing that the footways formed upon the area dedicated to public passage were part and parcel of the road or highways under their jurisdiction."

Applying these observations to the present case, it seems to us that the starting point of any consideration of the extent of the road over which there is a public right of passage is the area contained within the boundaries of the drystane dykes on either side of the metalled carriageway. It is, of course, possible to restrict the area according to the particular circumstances of the case and the extent of the road then becomes a question of fact. Indeed before the Lord Ordinary the position initially adopted on behalf of the reclaimer was that the west verge forming part of the road did not extend as far as the boundary wall at Tillyoch but was restricted to a strip of about 1.4 metres from the edge of the carriageway, reflecting the extent of the grass cutting of the verge by the roads authority. However, towards the end of the proof before the Lord Ordinary counsel conceded that the entire strip of land between the west verge and the Tillyoch dyke was verge.

[25] We do not accept the submission by counsel for the reclaimer that it is necessary to establish a public right of passage over every part of the road, including the verge. The definition in section 151 requires there to be a "way (other than a waterway) over which there is a public right of passage (by whatever means)." Thus a public right of passage by motor vehicles or pedestrians would be sufficient to establish that the way was a road. The reclaimer accepts that vehicles use the tarmacadam surface as a public right of passage. In his pleadings he also accepts that the verge is used by pedestrians. At a time when the distinction was maintained between the verge element of the reclaimer's land (approximately 1.4 metres maintained by the roads authority) and the remainder extending from the boundary of the verge to the boundary wall at Tillyoch the following averments were made in Answer 5:

"The verge element of the defender's strip is used by pedestrians as a refuge from passing vehicles on the road. There is no footpath along the side of the road on the defender's strip."

Thus it appears that the strip of land acknowledged by the reclaimer to be verge was used by pedestrians as a refuge from vehicles, while the pedestrians were exercising their right of passage along the road. Moreover there is a passing place or lay-by at the point in the road where the respondents wish to undertake road construction for which consent has been granted. According to the reclaimer's pleadings (Answer 5), in or about 2000 Mr Jamieson created a track for vehicles from Tillyoch to Culter House Road from what was previously a path for pedestrians. The averments of the reclaimer are to the following effect: "At the point where Mr Jamieson created said track, a lay-by was constructed. The lay-by does not extend beyond what the defender regards as verge." Thus it appears that the verge as originally accepted by the reclaimer to be part of the road is also a way over which there is a public right of passage by vehicles in respect that they may use the lay-by to enable two on-coming vehicles to pass in safety. The Lord Ordinary also concluded that if two vehicles were to meet on Culter House Road, one or both might have to put a wheel onto the grass verge beside the carriageway. It is thus clear that the verge is used inter alia as a way over which there is public right of passage by pedestrians and vehicles. Even if it were confined to pedestrians that would be sufficient to satisfy the definition of a "road" in terms of section 151(1) of the 1984 Act because the definition refers to a public right of passage "by whatever means".

[26] In these circumstances counsel for the reclaimer was constrained to submit that the public right of passage must be shown to have been exercised over the entire width of the verge, as opposed to a strip nearest the carriageway of the road. Such a proposition would appear to be contrary to the views expressed by Lord Skerrington in McRobert v Reid at page 648:

"There is not much authority in Scotland as to the extent and limits of the right enjoyed by the public in the different classes of highways, but, in my view, there is one quality which is essential and which must be common to all of them, viz., that the surface of a 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... The primary right of the public in a highway is that of passage, but if this point be kept in view, one may say, as Lord Curriehill did in Waddell v Buchan [(1868) 6 M 690 at p. 699], that 'the nature of the right is a right to use the surface for the purposes of locomotion.'. 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."

We respectfully agree with these observations from which it may be concluded that members of the public are free to exercise their right of passage along the line of a road within its boundaries and, in doing so, may follow any course they choose subject to the constraints recognised by Lord Skerrington.

[27] In any event it is a sufficient answer to the reclaimer's submission to refer to the factual findings of the Lord Ordinary. Having referred to the concession on behalf of the reclaimer that the whole of the strip of land owned by him was a verge, the Lord Ordinary opined:

"[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 that, 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 the area near to the Bucklerburn Road junction; that the council, as roads authority, regularly mow to a width of about four feet from the carriageway, that width being determined by them without reference to the owners of the verge; that vehicles go onto the grass verge 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. ..."

From these findings the Lord Ordinary was satisfied on the evidence that members of the public did not confine themselves to that part of the verge which the reclaimer initially acknowledged to be part of the road.

[28] Moreover we consider that it would be impracticable to expect members of the public to establish that a public right of passage had actually been exercised over every square metre of a verge at the side of a country road. As Lord Drummond Young observed in David Runciman & Sons v Scottish Borders Council (para [6]), a roads authority has power under various statutory provisions to construct fences and barriers for the purpose of safeguarding persons using a public road, to erect bus shelters and to plant trees and shrubs within the boundaries of a public road, to erect sound barriers or to maintain bins for the collection of refuse and waste paper or for the storage of sand, grit or other materials. His Lordship commented that each of these items would be obstructions and by their nature would be located or planted on the verge of a public road. Thereafter his Lordship concluded:

"Finally, although the matter is not dealt with in the 1984 Act, it is obvious that road signs will typically be placed on the verge of a road, and that the verge may be used to provide a drainage ditch for the road. In each of these cases the verge is used for a purpose associated with the road and the right of passage along the road, but the nature of the use is such that the right of passage cannot in fact be exercised over the part of the verge that is taken up by the use in question, whether that is a barrier, bus shelter, bin, sign or drainage ditch."

At paragraph 9 of his Opinion Lord Drummond Young addressed a similar argument to that advanced on behalf the reclaimer in this case to the effect that the statutory definition in section 151 of the 1984 Act could not be satisfied if passage over the whole area of the way was impossible. His Lordship rejected the argument and continued:

"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 roads authority, discussed in paragraph 6 above, 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."

We respectfully agree with these observations, the effect of which is that as long as there is a right of passage over the way, that right may be exercised over any part of the area occupied by the road. In this case that area extends from the boundary wall at Tillyoch on the south west of the carriageway to the equivalent dyke on the north east side. Thus the undisputed right of the public to passage on foot, horseback and in vehicles along the tarmacadam surface of the road would itself be sufficient to establish a right of passage over the verges on either side. Even if that were not the case, the Lord Ordinary found it established that a right of passage has been exercised over the verge on the Tillyoch side since long before the 1984 Act.

[29] For the foregoing reasons we reject the submissions in support of the first and second grounds of appeal. Accordingly it is unnecessary for us to determine the third to seventh grounds of appeal, which depended upon the success of the first two grounds.

[30] We also reject the submission by counsel for the reclaimer to the effect that the respondents have no title to pursue the declarators in sub-paragraphs 1 and 3 of the first conclusion. Although the consent was granted to the first respondent in his own name, the Lord Ordinary has accepted the averments on behalf of the respondents that they carry on business in partnership. The section 56 consent was obtained by the first respondent in connection with the works necessary to implement the planning consent granted to the respondents in respect of the creation of their business at Tillyoch. As a partner of the firm, the first respondent has an implied mandate to act as agent of the firm and his other partners for the purpose of the partnership business. Thus, although the section 56 consent is in the name of the first respondent, it authorises the construction work specified in that consent. It may well be that the first respondent will undertake the responsibility for instructing and supervising the work but, insofar as the work is related to the partnership business, it is clear that the consent was obtained on behalf of the partnership. The partnership and the second respondent as a partner have an interest in ensuring that the section 56 consent is implemented to purify the planning permission granted in favour of both respondents in connection with their partnership business. Even if there had been any substance in this submission on behalf of the reclaimer, the declarator sought in the first conclusion includes a declarator that Mr Hamilton acting on behalf of the respondents is entitled to carry out the works. There can be no question that he is so entitled because the section 56 consent is in his name. If it were considered that he were an agent for an undisclosed principal when he applied for the consent, he has identified his principal as the partnership in article of condescendence 6 of the summons. Accordingly, having been disclosed, the principal is entitled to pursue the action in his own name.

[31] The final issue for our determination is the scope of the interdict pronounced in terms of the second conclusion of the summons, in particular whether the phrase "or by any other means" lacks the precision required in orders for interdict (Murdoch v Murdoch). Mr Smith, on behalf of the respondents, did not advance a substantive contradictory argument but invited us to amend the terms of the interdict in the event of our concluding that the order pronounced was imprecise. Although we were advised that this matter had been canvassed before the Lord Ordinary, it does not feature in his Opinion. Nevertheless, we are not satisfied that the complaint of the reclaimer is well-founded. It is clear from the Opinion of the Lord Ordinary and from transcripts of evidence which were available to us that the dispute between the parties has been acrimonious. The reclaimer and others objected to the grant of planning permission for the proposed development at Tillyoch of the respondents' business. When planning permission was granted, including planning permission for reserved matters, the reclaimer purchased from the Culter Estate the strip of land between the carriageway of Culter House Road and the drystane dyke forming the boundary of Tillyoch. The purpose in doing so was clearly in an attempt to frustrate the respondents' development and to deny them obtaining vehicular access from Culter House Road into Tillyoch. It was not disputed that, after acquiring the verge, the reclaimer erected a fence round it thereby narrowing the existing access into Tillyoch. The roads authority required the removal of the fence. The Lord Ordinary considered that this episode showed "a determination on the part of the defender to restrict the pursuers' use of that access into Tillyoch." The Lord Ordinary also referred to another incident where the reclaimer excavated a posthole in the ground near to the car occupied by the respondents. Although the Lord Ordinary considered that the importance of the incident was exaggerated, nevertheless he concluded that this incident pointed 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 defender are such that it is appropriate to regulate the rights of the parties by granting the interdict sought." It is apparent to us that the reclaimer should be interdicted from impeding the pursuers or anyone on their behalf from carrying out the works under the section 56 consent and from taking access, including vehicular access, to Tillyoch from Culter House Road. Accordingly the terms of the interdict as framed in conclusion 2(i), (ii) and (iii) are appropriate and in any event were not subject to any criticism by counsel for the reclaimer except for the inclusion of the phrase "or by any other means".

[32] We acknowledge the need for clarity in any interdict as it is essential that those who are subject to such court orders should not be in any doubt as to their meaning and effect. The decision in Murdoch v Murdoch related to circumstances in which a wife sought interim interdict against her husband before the summons was served against him. In that regard Lord President Emslie observed at page 14:

"It will be appreciated that in this opinion we have been concerned only with the grant of interdict ad interim to a wife - pursuer in an action of divorce. Nothing we have said should be understood to cast any doubt upon what was said by Lord Guthrie in the wholly different circumstances of Gunn v Gunn, 1955 S.L.T.(Notes) 69".

In Gunn v Gunn there was a conclusion for interdict against a husband to restrain him from molesting his wife in any way. After proof Lord Guthrie granted decree of divorce and as regards the conclusion for interdict he observed:

"The third conclusion for interdict is a most unusual one, and, in ordinary circumstances, I should be very reluctant to entertain it in an action of divorce. In the present case, however, the evidence clearly shows that the pursuer has reasonable grounds for fearing molestation at the hands of her husband, unless she receives such protection as the law can afford. Now that decree of divorce has been pronounced, I wish to make it clear to the defender that he has no right whatever to interfere with his wife in any way or to molest her passage through the streets and that, if he does so, he will be liable to be dealt with by the law".

The interdict in that case did not specify the means of molestation. The court order was sufficiently clear to give notice to the defender that he was prohibited from molesting his former wife "in any way". In Webster v Lord Advocate 1985 SC 173 Lord Justice Clerk Wheatley emphasised that each case depends upon its own facts and circumstances when he observed at page 186:

"Since the terms of an interdict should be directed to and governed by the illegal act complained of and the method or methods required to prevent a recurrence of that illegal act, each case must have its own individual form of words, and I doubt whether, except where they are in pari casu, other cases can provide any substantial assistance in determining whether the terms proposed in the particular case are too wide or not wide enough".

In this case the reclaimer does not seek to challenge the specification of the illegal acts which he is prohibited from doing. Rather the challenge mounted on his behalf is directed at the specification of the methods which he is prohibited from employing. We consider that challenge to be ill founded. Where a pursuer seeks interdict prohibiting a defender from interfering with construction works and access to and from a site, it would be unreasonable for the court to expect the pursuer to anticipate every means of interference which the defender might devise, particularly in cases such as this where the reclaimer has shown the determination mentioned above to restrict the use of the respondents' access into Tillyoch (para.[31]). From the terms of the second conclusion the reclaimer can be in no doubt that the extent of the interdict pronounced against him includes any means adopted by him or others on his behalf to interfere with the respondents or anyone on their behalf from undertaking the activities specified in that conclusion.

Decision

[33] For the foregoing reasons we shall refuse the reclaiming motion. Counsel for the reclaimer acknowledged that, if we were to reach this conclusion, the reclaimer should be found liable in the expenses of the reclaiming motion except for the cost of certain transcripts of evidence. If the issue of expenses cannot be resolved between the parties it will be necessary for a motion to be enrolled in that regard. We shall accordingly reserve the question of expenses.