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OUTER HOUSE, COURT OF SESSION [2006] CSOH 110 |
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P1165/05 |
OPINION OF LORD KINGARTH in the Petition of BRIAN GREGORY HAMILTON Petitioner; against Respondents: ญญญญญญญญญญญญญญญญญ________________ |
Petitioner: Henderson;
Lindsays, W.S.
Respondents: Olson;
Anderson Strathern, W.S.
14 July 2006
[1] On
26 May 2005 the Planning and Environmental Services Committee of the
respondents, having considered a report prepared by officials dated 17 May
2005 ("the report"), agreed that a short length (extending to about
36 metres) of what until about 1989 formed part of the B724 road between
Collin and Annan ("the disputed section of road") be added to their list of
public roads. The disputed section of
road was shown as cross-hatched on the plan appended to the report. They purported to do so under section 16
of the Roads (
[2] It became clear during the course of the first hearing that the central question which the parties sought (under reference to the pleadings and documents lodged) to have resolved, was whether the decision was one the respondents had power to make under and in terms of section 16 of the 1984 Act - in particular the two critical questions being (first) whether at the time of the decision the disputed section of road was a private road and (second) whether the respondents made their decision on the basis of an application to them by the requisite number of frontagers - all within the meaning of the section.
[3] In particular, although the petition refers to a number of other alleged grounds for seeking to set aside the decision, (e.g. that the respondents had no power to "re-adopt" any road) it became clear during the hearing that none were insisted on as such grounds. Although, in particular, some averments are made about the respondents being aware of and taking into account potential litigation between the petitioner and residents of properties served by the disputed section of road and the risk of potential claims against themselves for maladministration if they did not take the decision they did, in the event, all that was submitted was that such averments pointed, in the view of the petitioner, to a possible explanation as to how it came to be that the respondents "took their eye of the ball" when they came to make the decision which, for the two reasons referred to above, it is claimed they had no power to make. Given the limited reference which was thus made to these averments, I do not see any need to refer to them in detail. Further, although the petitioner wished to argue (as a fall-back position) that even if the disputed section of road was a private road the planning and environmental services committee of the respondents did not have sufficient information before them to decide that it was (and thus that the decision was unreasonable), the main focus of the petitioner's attack on the decision was one of vires. I should add also that although averments are made to the effect that the relevant decision was incompatible with the petitioner's human rights under Article 6(1) and the First Protocol, it was accepted by counsel that these avements (apparently related to the claim for damages which the petitioner makes and to a question in connection with expenses) would only require to be considered if the decision was otherwise held to have been unlawful. Both counsel, however, were content that these averments be left over meantime for consideration later, if necessary.
[4] The respondents' answer to the petitioner's averments to the effect that he is the owner of the solum of the disputed section of road, is that these averments are not known and not admitted. Counsel for the respondents was content to leave for later consideration, if necessary, his related plea that the petitioner has no title to sue, the question of title being, it was said, potentially one of some complexity involving proof of a number of matters. In addition, counsel for the respondents expressly departed from any insistence on his third plea-in-law to the effect that the petition is incompetent.
[5] Section 16 of the 1984 Act provides (so far as relevant):
"16.-(1) If a private road -
(a) is of such standard as has last been required by relevant notice under section 13(1) of this Act; or
(b) where no such standard has been so required, is of a standard satisfactory to the local roads authority,
then, if application is made to them under this subsection by the requisite number of frontagers for such addition, the authority shall, ... within 12 months of the application add the road to their list of public roads:
...
(5) In the foregoing provisions of this section -
...
'the requisite number' has the same meaning in relation to that road and the land fronting or abutting the road as it has in section 1(7) of this Act in relation to the road and land mentioned in that section."
[6] In terms of section 151 of the 1984 Act "road" means (so far as relevant) "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 reference to a road includes a part thereof." "Private road" means "any road other than a public road". "Public road" means "a road which a road's authority have a duty to maintain". Section 1, sub-section (1) of the Act provides that a local road's authority "shall manage and maintain all such roads in their areas 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 the section. In terms of section 1(4) and (5) the local roads authority may add to or delete from their list of public roads, provided inter alia they give notice of their intention in that regard to "the requisite number of frontagers". By virtue of section 151. "frontager", in relation to a road or proposed road, means "the owner of any land fronting or abutting it". Section 1(7) of the Act provides, so far as relevant:
"(7) In subsection (5) above, 'the requisite number' - means -
(a) a majority; or
(b) such member as together owns land which either -
(i) includes not less than half of the boundary between the land fronting or abutting the road mentioned in subsection (4)(a) above and that road; or..."
[7] In the report the "Background" to the proposed decision was described as follows:
"2.1 The construction of the Collin By-pass
necessitated the Gretna-Stranraer-Glasgow-Stirling Trunk Road (A75) (Collin
Diversion Side Roads) Order 1983, which was made on
2.2 The length of the former B724 between the new By-pass and the Village Hall (approximately 36m) was, however, not physically stopped up and still looks as if it forms part of the U62n.
2.3 The then Regional Council formally amended its List of Public Roads to reflect the description of the stopped up length of road and the entry now reads:
U62n Low Road (from) C8n at Collin to termination 6m south east of Collin Village Hall, Collin.
Having been
removed from the List of Public Roads, the length of road which was to have
been stopped up is not a
2.4 On
2.5
2.6 The failure to physically alter the road, as had been originally planned by the then Scottish Office, and the continued use of the road, initially for bus turning and later by the residents of Townhead Park, means that the affected length of road continues to be a road, and because of the amendment to the List of Public Roads, is a private road.
2.7 A local landowner, having bought the
Rockall Estate, has laid claim to the solum of the road. Solicitors acting for the landowner have
contacted residents of
[8] In the course of the hearing before me, I did not understand the basic factual position referred to in the report to be disputed. Certain qualifications or additions to it were, as I understood it, also agreed.
[9] As regards paragraphs 2.1 and 2.2 of the report, the 1983 Order (a copy of which was lodged) authorised certain works including, in particular, the construction of a section of the A75, running broadly in an east to west, direction bypassing Collin to the south-side of the village. It cut right across the former B724 road which ran between Collin and Annan in a broadly north-west to south-east direction. Included in the "works" authorised by the 1983 Order was "the stopping up" of certain lengths of road described in a schedule to the Order. One of these lengths of road was the disputed section of road, which ran to the northwest of the new bypass, together with a short further section at its southern end (of about 8 metres) which extended right to the edge of the new A75. By the end of the hearing before me it was, as I understood it, agreed that all the 1983 Order authorised was "works" to stop up the relevant length of road, and that the Order itself did not then immediately "stop up" the relevant length of road. In the event, however, once the A75 bypass was completed the 8 metre section at the southern end of the relevant length of road was grassed over and did physically stop up that part of the B724 at it southern end.
[10] As regards paragraph 2.3 of the report, the list of public
roads was amended in the way described in or about 1989 shortly after the A75
bypass opened, which was on
[11] This last matter was addressed at paragraph 2.6 of the
report.
"The road
continued to be used as a turning area by buses from 1983, by vehicles for
parking and turning when using the village hall and by British Telecom and
Scottish Water. The road was used as a
way in the course of the construction of
By the end of the hearing before me, I did not understand that these averments were disputed as a matter of fact. The village hall referred to is situated on the south-west side of the U62n immediately to the north-west of the disputed section of road.
[12] In relation to paragraph 2.7 of the report it is averred
on behalf of the petitioner that on or after
[13] In a section in the report headed "Key Points", it is said, inter alia, "Requests for the council to
adopt this length of road have been received from two residents of
Submissions for the petitioner
[14] Although it was accepted that at
the time the respondents took the relevant decision the disputed section of road
could be described as a way, it could not be said that it was a way over which
there was a public right of passage, within the meaning of the 1984 Act. It could not therefore competently be added
to the list of public roads under section 16. A road was more narrowly defined in the 1984
Act than it had been in the Roads (
[15] Further, it appeared that application had not been made to the respondents by the requisite number of frontagers. It was not clear from the plan produced (Production 7/5) that either Mr Hyslop or Mr Marshall could be described as a frontager given the presence between their apparent properties and the disputed section of road of the apparent pavements, the ownership of which was not known. It could not in these circumstances be said that a majority of frontagers (within the meaning of section 1(7)(a)) had applied to have the road adopted. Although parties were given some time after the hearing to discover whether ownership of the relevant strips could be agreed, this proved impossible and the petitioner's position was that further investigation suggested that Messrs Hyslop and Marshall did not own the relevant strips of pavement. Further, so it was argued, it was clear that Mr Hyslop, Mr Marshall and the Scottish Executive did not own more than half of the boundary between the land fronting or abutting the disputed section of road and the road itself. The respondents could therefore not seek to rely on section 1(7)(b)(i) either.
Submissions for the respondents
[16] The disputed section of road
plainly was a road within the meaning of the 1984 Act at the relevant time. The petitioner had made no relevant averments
or presented any relevant arguments to the contrary. The Lord Ordinary in Viewpoint Housing Association Limited v Lothian Regional Council had been right to suppose that there was
no true distinction in the difference of language used in the 1984 Act and in
the Roads (
[17] As regards the question of the requisite number of frontagers, it was accepted, ultimately, by the respondents (after some time was given to both parties to consider the position more fully) that they could not rely on section 1(7)(b)(i). Nevertheless, the respondents' position was that the relevant applications had been made by a majority of frontagers, being the Scottish Executive, Mr Hyslop and Mr Marshall. If the petitioner was allowed to challenge the title of Mr Hyslop and Mr Marshall to the pavement strips, the matter could only be decided after evidence. It was the respondents' position that Messrs Hyslop and Marshall did own the relevant pavement strips. The petitioner, however, should not be allowed to develop this line attack of the decision, it not being properly focused in the pleadings. If it was to be developed, further averments would be necessary and possibly re-service on Mr Hyslop and Mr Marshall. It was too late for such a change of front to be introduced at this stage.
Discussion
[18] Although I was referred to
(and it may be, as counsel assured me, that there is) limited authority on the
matter, and there is thus some uncertainty as to what is meant in
section 151 by "public right of passage", I have come to the view that the
disputed section of road was, on the information before me, a (private) road
within the meaning of the 1984 Act when it was added by the respondents to
their list of public roads.
[19] In the first place, I am not persuaded (any more than was the Lord Ordinary in Viewpoint Housing Association Ltd v Lothian Regional Council) that, although the language used in the definition of road in the 1984 Act is different, there was truly intended to be any material distinction from previous definitions such as in the Roads (Scotland) Act 1970, which referred to ways "to which the public has access". These words were, of course, understood to refer to more than mere access in fact. As was said by Lord Justice General Emslie in Cheyne v Macneill 1973 S.L.T. 27 at p.30:
"... it is not difficult to infer that the words 'to which the public has access' are necessarily referable to a situation in which it is found in fact that the public has access - access for the purpose of which a road is intended or designed, i.e. passage on foot or in a vehicle. But when the statute refers to access it cannot be assumed that this means access which is obtained unlawfully, e.g. by climbing over or opening gates, or by surmounting walls or fences, designed to exclude potential intruders. In our opinion, 'access' as the word is used in the definition, covers access for passage by permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road. The degree or extent of use necessary to bring a particular road within the definition will necessarily be a question of fact in every case. Where there is such permission, acquiescence or tolerance demonstrated by use or otherwise it can properly be said that there is nothing illegal or unlawful in such access as the public has proved to enjoy, and therefore that the public has access lawfully to the road."
Comparing similar language then
applicable in relation to
"I am not certain there is truly any distinction in this difference. It is true that the definition which now applies in Scotland for the purposes of the Road Traffic Act 1988 is that in the Roads (Scotland) Act 1984, and that the earlier definition which makes reference to 'highway and any other road to which the public has access' is no longer applicable. However the new definition makes no reference to the word highway which, as noted in Cheyne v Macneill, was a road upon which the public right of passage was secured by law and whose maintenance was the responsibility of the statutory authority. In these circumstances it was not surprising that Parliament employed the phrase 'public right of passage' in the substituted definition. If counsel for the pursuer contended the word 'right' is to be read as a real legal right, and not something which is obtained by virtue of permission express or implied from, or acquiescence or toleration by person or persons with legal right to control the use of the road, the consequences would be startling. It would mean, for instance, that where a road was not a public road but a private road, unless and until the public right of passage had been demonstrated by continuance over the prescriptive period, no such road would fall within the definition and thus a person driving on such a road, albeit the public had access to it, could not be convicted on evidence which would secure his conviction in England and Wales."
It is perhaps not unreasonable to
suppose that the amendment, by the Road Traffic Act 1991, Schedule 4,
paragraph 78, of the definition of road in relation to
"Since that date anyone using said Road has committed an offence. Reference is made to section 71(5) of the Act. The public could not acquire a right of way by virtue of illegal actings."
This contention - apparently the main basis upon which the petition was brought - was accepted, in the course of submissions, to be unfounded and was not insisted upon. And although the petitioner apparently intimated, at least to certain members of the public, that previous apparent permission might be withdrawn, there is nothing to suggest that it had been at the relevant date.
[20] In the second place, if, contrary to the above, the different language used in the definition of road in the 1984 Act is to be taken to have added something different, the question remains as to what. It is clear from Cowie v Strathclyde Regional Council that the definition "involves less exacting considerations than those which govern the existence of a public right of way over private land." In that case it was recognised that although there required to be a "way", since it was well known that roads within the meaning of the Act included cul-de-sacs and that some existed to provide access and egress to private property, at least two of the requirements for the acquisition of a public right of way - use from end to end on a continuous journey and public termini - were not involved. What of the remaining conditions for the constitution of the public right of way, namely continuous use as of right and use for the prescriptive period?
[21] It is possible to envisage that Parliament intended that
something similar to the former of these conditions apply - that is that there
should have been substantial, as opposed to occasional, use as of right - as opposed
to use by tolerance or by permission. In
relation to public rights of way, it is well known that while occasional use might
be tolerated, regular open use, if not challenged, is generally taken to imply
a right (see e.g. Gordon,
[22] I am not persuaded that it can have been intended that any such
use as of right required to be for the prescriptive period. This, ultimately, was counsel's main
submission - although once more it is not clearly foreshadowed in the
pleadings. Prescriptive use was not
apparently thought to be necessary in Beattie
v Scott. I was not referred to any authority in which
it was. The 1984 Act itself makes no
specific requirement to this effect. Section
3(3) of the Prescription and Limitation (
[23] Counsel for the respondents argued that, in any event, if regard was had to use by the public prior to 1989, it could be said that there had been continuous use for a period of over 20 years by the relevant date. Although having some sympathy for that argument, it seems to me that it would be difficult to look for this purpose at any period other than the 16 years or so since 1989. The public right to use the disputed section of road because it was a public road ended in 1989, after which the use was plainly different in nature and degree.
[24] On this branch of the case I would only add that I was not persuaded by the alternative submission made by counsel for the petitioner (which was only faintly pressed) that in any event the respondents' Committee had insufficient information before them to decide that the disputed section of road was a road. Even if it was legitimate to assume that the elected members who made the decision only had such information about local use as was contained in the report (as in my view it is not), there was in my view sufficient in the report to entitle them to reach the conclusion they did.
[25] I shall give effect to my decision on the matters covered thus
far by sustaining the respondents' first plea in law in relation to such
averments in the petition as may be taken to support the claim that the
decision of the Planning and Environmental Service Committee of the respondents
on 26 May 2005 was ultra vires by
virtue of the fact that the disputed section of road was not a private road
within the meaning of section 16 of the Roads (Scotland) Act 1984, or at
least that it could not reasonably have been made on the basis that it was.
[26] The other matter argued before me was whether it could be said that the respondents' decision had followed application made to them by the requisite number of frontagers. As narrated above the petitioner's position now is that it cannot be said that Messrs Hyslop and Marshall (two of the applicants) were frontagers since they do not own the apparent pavement strips between their properties and the disputed section of road (all as shown on Production 7/5 produced for the hearing by the respondents). This was not the basis of challenge which, judging by the averments and what I was told, he intended originally to make. Rather, it seems clear, that it was intended to suggest that neither could be said to be frontagers because (if I understood it correctly) of the way their houses faced (and it was also to be suggested that the Scottish Executive could not be described as a frontager at all) - positions no longer insisted on. The respondents accept that the matter now raised will require proof (perhaps after re-service of the petition on Messrs Hyslop and Marshall) if the petitioner is allowed to maintain the argument at all. Although I have considerable sympathy for the position of the respondents on this matter, I have come to the view that since the basis for the petitioner's argument was suggested by the respondents' own production produced shortly before the hearing, and since the general question of whether the respondents had had the necessary relevant applications was at least raised in the petition, it would be wrong to deny the petitioner the opportunity to make the challenge which he does. I shall - as agreed by counsel in that eventuality - put the case out By Order to determine how this matter should be progressed, if the petitioner still seeks to insist upon it. I say if the petitioner still seeks to insist upon it, because it was said more than once in the course of the hearing that the real question which he was interested to resolve was the question of whether the disputed section of road was a road at all. It may be, in light of my decision that it was, that he would not wish to take this peripheral point any further.