United Kingdom House of Lords Decisions

At delivering judgment, on 22nd June 1993:

LORD KEITH OF KINKEL —My Lords, for the reasons given in the speech to be delivered by my noble and learned friend Lord Jauncey of Tullichettle, which I have read in draft and with which I agree, I would dismiss this appeal.

LORD BRIDGE OF HARWICH —My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Jauncey of Tullichettle. I agree with it and, for the reasons he gives, I would dismiss the appeal.

LORD JAUNCEY OF TULLICHETTLE —My Lords, this appeal is about a walkway in the town centre of Cumbernauld which was built by the Cumbernauld Development Corporation in accordance with their powers and duties under the New Towns Act 1946 and later the New Towns (Scotland) Act 1968. The centre was built on a number of levels and part of it straddled a main road which carried through traffic. It was so designed that pedestrian and vehicular traffic were segregated to a substantial extent. The walkway in question, known as Tay Walk, ran from north-west to south-east over the main road and through the town centre linking developments known as Seafar and Carbrain situated respectively at the north-west and south-east corners of the town with the town centre and with each other. It was part of a comprehensive walkway system related to the segregation of pedestrian and vehicular traffic. That part of Tay Walk which passed through the town centre was enclosed by the surrounding structure which contained shops, banks, public offices and for the first twelve or more years of its life a hotel and a number of residential flats. Tay Walk was completed in 1966 as part of the core works of Phase 1 which was officially opened in 1967. In the late 1970s doors were installed at the north-west and south-east ends of the enclosed part of Tay Walk and fire doors were also installed within that part.

The town centre structures remained in the ownership of the development corporation until June or July 1987 when they were sold to the appellants. While in the ownership of the development corporation no restriction was placed on the use by the public of Tay Walk and the doors, albeit fitted with locks, were never locked notwithstanding persistent vandalism which cost the development corporation substantial sums of money. In November 1988 the appellants locked the doors on Tay Walk at night in order to prevent vandalism. Thereafter the respondents, as local planning authority, in pursuance of their duty under sec. 46 (1) of the Countryside (Scotland) Act 1967 to protect and keep open any public right of way in their area raised the present action for declarator that there existed a public right of way over Tay Walk.

The case went to proof before the Lord Ordinary in January 1991 and by interlocutor of 22nd February 1991 he granted decree of declarator as concluded for. In a judgment, carefully reasoned both as to fact and law, the Lord Ordinary found that not only was Tay Walk since 1966 used to obtain access to the shops and other associated units in the town centre but that it was also used inter alia (1) by worshippers going to St Mungo's Church at the north-west end of the walkway; (2) by persons making their way to and from the railway station; (3) by persons frequenting the Town Hall; (4) extensively by schoolchildren going to and from school; (5) by residents in Seafar proceeding to facilities such as the health centre, swimming pool and technical college on the south-eastern side of the town; (6) by persons resorting to entertainment centres in the central development area; (7) by those visiting banks with cash dispensing machines out of hours; and (8) by mothers with young children in prams crossing the town centre for social purposes. The Lord Ordinary concluded that all these uses had the character of general public use of a town centre pedestrian thoroughfare. The appellants reclaimed and the First Division refused the reclaiming motion and adhered to the Lord Ordinary's interlocutor.

Before the First Division the appellants did not seek to challenge the primary facts found by the Lord Ordinary and indeed accepted that there had been sufficient use of Tay Walk by the public during the prescriptive period to satisfy what was described as the preliminary requirements for a public right of way. Their argument was that there was no evidence of use which could not reasonably be ascribed to tolerance on the part of the proprietors. The Lord President considered that the question to be decided was ultimately one of fact. After reviewing the facts he reached the same conclusion as did the Lord Ordinary, namely, that the use of Tay Walk "had the character of general public use of a town centre pedestrian thoroughfare." Lords Cowie and Murray agreed with the Lord President in reaching this conclusion. However, the Lord President not only considered the facts of the case but, like the Lord Ordinary, carried out a careful analysis of the relevant authorities during which he concluded that the only support for the appellants' argument was to be found in the passage of the judgment of Lord Deas in Mackintosh v. Moir (1871) 9 Macph. 574, at p. 576 which was disapproved by Lord President Normand and Lord Moncrieff in Marquis of Bute v. McKirdy and McMillan 1937 SC 93, at pp. 121 and 129 respectively. Lord President Hope said:

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

This proposition was entirely in line with the following dictum of Lord President Normand in Marquis of Bute v. McKirdy & McMillan Ltd, at pp. 119–120:

"The question is rather whether, having regard to the sparseness or density of the population, the user over the prescriptive period was in degree and quality such as might have been expected if the road had been an undisputed right of way. If the public user is of that degree and quality, the proprietor, who fails for the prescriptive period to assert or put on record his right to exclude the public, must be taken to have remained inactive, not from tolerance, but because the public right could not have been successfully disputed or because he acquiesced in it."

I have no doubt that these dicta correctly state the law of Scotland.

Neither in the First Division nor in your Lordships' House did the appellant seek to argue that the position of the original proprietors of Tay Walk as a New Town development corporation with wide statutory powers affected their position as owners of the walkway. The case proceeded on the basis that the development corporation fell to be treated as any other proprietor for the purposes of applying common law principles.

Before this House, senior counsel for the appellants referred (first) to the following statement of Lord Halsbury L.C. in Macpherson v. Scottish Rights of Way and Recreation Society Ltd (1888) 13 App. Cas. 744, at p. 746, that "…if it can be established that for the necessary period there has in fact been such a use of the way as negatives a mere licence or permission, then as I understand the law of Scotland that establishes absolutely the right of way in question." and (second) to a statement of Lord Cowie in Richardson v. Cromarty Petroleum Co. Ltd 1982 S.L.T. 237, at p. 238 to the effect that the pursuer in the right of way action before him had to "prove four things (1)…(2)…(3)…(4) that the use by the public was of such a nature as to show that they were using it as a matter of right as opposed to the tolerance of the proprietor." In reliance on these dicta senior counsel for the appellants argued that unless a public user of a way was adverse to the interests of the proprietor it must necessarily be ascribed to tolerance and that since the user of Tay Walk had been positively encouraged by the development corporation, it could not amount to user as of right. For a user to be so considered there must, it was argued, be conflict between the interest of the users and that of the proprietor. For this somewhat stark proposition counsel could produce no authority.

There is no principle of law which requires that there be conflict between the interest of users and those of a proprietor. As Lord President Normand pointed out in Marquis of Bute v. McKirdy and McMillan acquiescence on the part of a proprietor in continued user throughout the prescriptive period without taking steps to assert or record his right of exclusion will result in the constitution of a public right of way against him. If acquiescence in these circumstances produces such a result encouragement can even more readily be said to have the same consequences. However, not only is there no basis in law for the proposition of senior counsel for the appellants but it also lacks basis in fact having regard to the obvious disadvantage to the development corporation in having to spend substantial sums repairing vandalised property. As the Lord President said, "on the evidence in this case the development corporation were as liable to be affected in their ownership of the property by the assertion of a public right of way as any other proprietor".

My Lords, both the Lord Ordinary and the First Division have reached a particular view of the facts which has not been challenged. In drawing inferences from those facts they have applied long-established principles of law which have also not been challenged. The appellants' proposition that there must be a conflict of interest between the proprietor and the users is wholly unsustainable in law and in any event lacks a basis in fact. It follows that this hopeless appeal, in which their Lordships did not find it necessary to call upon the respondents, must be dismissed. Had leave to appeal been required in this case it would indubitably have been refused. The appellants will pay the respondents' costs before this House.

LORD BROWNE-WILKINSON —My Lords, I have read in draft the speech to be delivered by my noble and learned friend, Lord Jauncey of Tullichettle. For the reasons which he gives I too would dismiss the appeal.

LORD MUSTILL —My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Jauncey of Tullichettle, and for the reasons he gives I, too, would dismiss the appeal.