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OUTER HOUSE, COURT OF SESSION [2006] CSOH 1 |
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A40/06 |
OPINION OF LORD HODGE in the cause MELFORT PIER HOLIDAYS LIMITED Pursuers; against THE MELFORT CLUB AND OTHERS Defender: ญญญญญญญญญญญญญญญญญ________________ |
Pursuers: O'Brien; Digby Brown SSC
Defenders: Barne; Morisons
Background
[1] These
are two motions relating to an interim
interdict and interim order under
section 47(2) of the Court of Session Act 1988 which Lord Menzies
pronounced on
[2] The
pursuers wish to develop a restaurant at the holiday resort, known as Melfort
Pier and Harbour and comprising fifteen self-catering houses, which they own
and operate at Loch Melfort near Kilmelford, by Oban, Argyll. The first to eighth defenders are an unincorporated
association, its office bearers and three individuals who, it is averred, act
on behalf of the association. The
association is responsible for the management of a timeshare resort known as
[3] The disagreement has arisen in the following way. Vehicles travel to and from the pursuers' resort on an unclassified single track public road ("the public road") which starts on the A816 public road about three hundred metres south of Kilmelford. The public road runs for about one and a half miles until it crosses a bridge over the river Oude. When one approaches from the south there is, shortly before one reaches the bridge, a farmyard on the right hand side of the public road at Melfort Mains Farm. Immediately after the bridge there is a sharp left hand bend in the road which then proceeds in a westerly direction. To the right of the road at this point is the entrance to the driveway to the first defenders' resort ("the driveway"). The driveway is owned by the ninth defenders in trust for the first defenders. The road layout therefore resembles a T-junction, with the lower arm and the left arm being the public road and the right arm being the driveway. The left hand bend is so sharp that large vehicles are unable to negotiate the bend without encroaching upon the driveway and manoeuvring within it. The public road then runs in a westerly direction past the pursuers' resort towards Degnish Point and ends at a turning point without connecting to any other public road. There are to the west of the bridge the pursuers' resort, two houses owned by or on behalf of the first defenders, approximately fourteen other houses and a farm.
[4] The method by which large vehicles negotiated the bend when approaching from the south was that they turned into the farmyard before reaching the bridge and then reversed over the bridge before reversing into the driveway. Thereafter they manoeuvred on the driveway in order to proceed forwards in a westerly direction on the public road. The distance for which the vehicles reversed on the public road was approximately 80 metres. When large vehicles came in the opposite direction they drove into the driveway before reversing out of the driveway, over the bridge, down the public road and into the entrance of the farmyard from where they proceeded forwards in a southerly direction.
[5] When the pursuers obtained the interim interdict in January 2006 they averred that long vehicles encroached upon the driveway for a distance of around two metres. They sought and obtained an interdict against the first to eighth defenders from obstructing, preventing or impeding the use of the driveway by, among other things, placing any physical obstruction across the driveway within four metres of the public road. The interim order which Lord Menzies granted ordered that members of the public might encroach onto the driveway so far as was reasonably necessary for the purpose of traversing the public road. The basis on which the pursuers sought and obtained the interim interdict and the interim order was their contention that a public right of way had been constituted over the driveway by the operation of positive prescription.
The motions
[6] After they obtained the interim interdict, the pursuers discovered that the large vehicles needed to encroach on the driveway for a distance of eleven metres and that the interdict which they had obtained did not preserve the status quo which they had sought to maintain. By this time the defenders had constructed bollards on the driveway at about four metres from its junction with the public road. The bollards prevent larger vehicles from encroaching further onto the driveway while allowing smaller vehicles to use the driveway. The pursuers adjusted their pleadings to aver that the vehicles had used eleven metres of the driveway to effect their manoeuvres and now seek to amend their conclusion for interdict accordingly. The defenders oppose the amendment and the related motion for an amended interim interdict and seek recall of the interim interdict and interim order which Lord Menzies granted.
[7] In
support of his motions Mr O'Brien for the pursuers submitted that the law
allowed the public to extend the use made of a public right of way so long as
the route was reasonably navigable. He
referred to Ferguson "The Law of Roads, Streets and Rights of Way in Scotland",
Galbreath v Armour (1845) 4 Bell's App 374, 389, Mann v Brodie (1885) 12
R (HL) 52, Forbes v Forbes (1829) 7 Shaw 441 and (1829) 4
Fac Dec 563, Mackenzie v Bankes (1868) 6 M 936 and
Rhins District Committee v
Cunninghame 1917 2 SLT 169. In any event, he submitted that the pursuers
had averred a relevant prima facie case
of the constitution of a public right of way over the driveway by positive
prescription. He referred to
section 3(3) of the Prescription and Limitation (
[8] Counsel submitted that the balance of convenience favoured the amended interim interdict which would maintain the status quo as the defenders had not objected to other road users using the driveway. He questioned the defenders' concern about safety to the public or damage to the driveway. If larger vehicles were not able to reach the pursuers' resort by the public road, the pursuers would face higher fees from Shanks & McEwan Limited for waste disposal and materials for the construction of the restaurant would require to be brought by boat to Melfort pier and then transported in smaller vehicles. The pursuers no longer claimed that the closure of the driveway to large vehicles would frustrate their construction of the restaurant but it would make it more expensive.
[9] Mr Barne
for the defenders referred me to correspondence which appeared to show that
some lorries had travelled over one hundred metres up
the driveway before turning round and returning to the public road. He submitted that the pursuers' "reasonable
navigability" test was not an appropriate test as otherwise people would be
entitled to drive large vehicles for long distances up a private driveway which
would thereby become a public road. In
support of his motion to recall the interim
orders, he advanced three propositions.
First, he submitted that the public had a right of highway over the
public road and not a public right of way, arguing that the latter was a more
extensive right than the former. The
western end of the public road was only a turning point and did not
terminate in a public place; it could not be a public right of way because
there were not two public termini. He accepted however that the public road was
a "public road" in terms of section 151 of the Roads (
[10] In support of his first submission Mr Barne referred me to PIK Facilities Limited v Watson's Ayr Park Limited [2005] CSOH 132, Rankine "Landownership", (4th ed), Chapter 19, McRobert v Reid 1914 SC 633, MacKinnon v Argyll and Bute Council 2002 SLT 1275, and Cusine and Paisley, "Servitudes and Rights of Way", paragraphs 18.03 and 18.05. In support of his second submission he referred me to Forbes v Forbes (above), MacKenzie v Bankes (above), Kenneth Reid's "Law of Property", paragraph 505, Cusine and Paisley (above), paragraph 20.31 and Lord Donington v Mair (1894) 21 R 829. He supported his third submission by referring to PIK Facilities Limited (above), Cusine and Paisley (above), paragraph 20.01, and Magistrates of Edinburgh v North British Railway Company (1904) 6 F 620.
[11] He submitted that the balance of convenience favoured recall of the interim orders. The status quo had been that the defenders were trying to prevent lorries from encroaching on their property. Large vehicles which carried out the manoeuvres in the driveway without supervision posed a risk to the safety of members of the first defenders, their children and domestic pets. Damage had been caused to the defenders' property and no compensation had been paid. The defenders needed to control access to their driveway to ensure the safety of persons and property.
Decision
[12] The public road is a road which the roads authority maintains
at public expense; that was a matter on which the parties were agreed. I was not informed of its origins beyond the
pursuer's averment that the public road was constructed before 1873. As it predated the Roads and Bridges (
[13] I am not persuaded that the pursuers are correct in their submission that, absent the operation of prescription, a public road can be extended into a private driveway as a matter of right when larger vehicles start to use the road, simply because it is possible for such vehicles to use the public road, which otherwise would not be passable, by encroaching on to and manoeuvring on the driveway. That is the substance of the pursuers' "reasonable navigability" test. I am satisfied that the law does not countenance that. It is clear from Forbes v Forbes, MacKenzie v Bankes and McRobert v Reid (above), that the public are not entitled to alter a public road or a public right of way to make it passable when otherwise it is not. Where in the past a public road or public right of way was of a nature that it was used by all means of transportation known to a district, the judges' opinions in Forbes v Forbes and MacKenzie v Bankes support the view that the public were entitled to bring new methods of transportation on to the public road or public right of way when such methods were introduced into the district. Thus in certain highland areas when, in the nineteenth century, carts were introduced as a method of transporting goods where before horses with panniers were the only method of such transportation, it was held that the use of the public roads could be extended to include the new means of transportation. But as Lord Glenlee stated in Forbes v Forbes (1829 4 Fac Dec 563 at p.566), "if the road had been lined and marked off by walls and fences, and were so narrow that no cart could use it, the public might have no right to make it broader, and thus be confined to the use of it as a horse or foot road". And in Mackenzie v Bankes other obstructions and difficulties, which prevented carts and carriages from traversing the road from end to end and which could be removed only by engineering operations, were sufficient for the court to hold that the road was incapable of being a public road for use by such means of transport.
[14] In this case the larger vehicles cannot negotiate the bend at the bridge by remaining within the confines of the public road. The fact that the road is a public road does not of itself entitle the drivers of those vehicles to encroach on to the driveway which is the property of the ninth defenders. I therefore do not accept the pursuers' contention that there is a test of reasonable passableness (which, absent inundation of the road, may be the correct way to describe the ability to use a road in preference to navigability) which entitles users of a public road to encroach upon private property which is not fenced off or walled or otherwise inaccessible. In this respect I agree with Mr Barne's second submission set out in paragraph 9 above. On the information before me it appears that the only relevant case that the pursuers have for asserting a right to drive and manoeuvre on the driveway is that the entrance to the driveway has become part of a public right of way by means of public use during the period of positive prescription. That is the pursuers' pleaded case on Record.
[15] Against that case Mr Barne advanced the other two of the
three propositions which I set out in paragraph 9 above. In relation to the submission that the public
road was a highway and did not have the rights which a public right of way
entailed, I am not satisfied that the authorities which he cited vouch that
distinction. The case law and textbooks
use expressions such as "highway" and "public road" in contexts which reveal
that the terms have no fixed meaning as to the rights associated with each. In many statutory provisions, cases and texts
a distinction is drawn between a highway or public highway that is maintained
at public expense and a public right of way which is not: see the statutory
provisions referred to in Magistrates of
Perth v Earl of Kinnoull 1909 SC
114, Corporation of Glasgow v Caledonian Railway Co 1908 SC 244 and
1909 SC (HL) 5, and Evans v Magistrates of Edinburgh 1916 SC (HL)
149. Rankine (above), p.329,
[16] In support of his submission, Mr Barne submitted that the
public road could not be a public right of way because it did not have two
public termini. I discuss the need for two public termini in relation to a public right of
way below. But where a public road has
been recognised as a highway, I doubt if it is necessary for there to be two
public termini. No doubt in most cases the older highways
which were publicly funded did connect two public places such as two burghs or
a burgh and a port. I note that Cusine
and
[17] I recognise that a local authority may, under the Roads
(Scotland) Act 1984, adopt a road over which there is no public right of way
but the use of which by the public has merely been on tolerance by the
landowner (see MacKinnon v Argyll and Bute Council (above)). That may be the basis of Mr Barne's
submission that the public road is a highway that gives the public less rights than a public right of way. But I have no information before me which
suggests that the public have enforceable rights of passage over the public
road only by virtue of the adoption of the road by the roads authority under
the Roads (
[18] Mr Barne's third submission was that the averred use of
the driveway during the prescriptive period could not establish public rights
of way over the driveway because there were not two public termini. There is no doubt
as to the rule that in order to set up a route as a public right of way the
route must have two public termini. See, for example, Young v Cuthbertson (1854)
1 Macq 455, Burt v Barclay (1861) 24 D 218, Jenkins v
[19] The remaining question is whether I should extend the interim interdict as the pursuers request. I
am satisfied on the information before me that it is appropriate to do so. While there is a dispute between the parties
as to whether the prior use of the driveway was an assertion of right or by
tolerance, it appears that for many years the people living to the west of the
bridge and public utilities have used the driveway to effect
the manoeuvres to negotiate the bend. I
was informed by Mr O'Brien that the parties were agreed that large
vehicles had encroached on the driveway for eleven metres when effecting the manoeuvres to negotiate the bend. Also while the defenders aver that Council's
normal refuse collection vehicles are able to negotiate the bend, the pursuers
(in as yet unanswered adjustments) aver the contrary and that, after the
defenders erected the bollards on their driveway, the Council at a meeting on
[20] I therefore refuse the defenders' motion and allow the pursuers
to amend their first conclusion and I vary the interim interdict granted on