OUTER HOUSE, COURT OF SESSION

A1497/02

 

 

 

 

 

 

 

 

 

 

OPINION OF LADY SMITH

in the cause

DUFFIELD MORGAN LIMITED

Pursuer;

against

THE RIGHT HONOURABLE COLIN BOYD, Q.C. LORD ADVOCATE AS REPRESENTING HISTORIC SCOTLAND

Defender:

 

________________

 

Pursuer: Campbell Q.C., Forsyth; Russel & Aitken, Solicitors

Defender: Cullen Q.C., Brodie; Solicitor to the Office of the Scottish Executive

13 February 2004

[1] The pursuer is heritable proprietor of Rowallan Estate, Ayrshire ("the estate"), an estate which includes an area of ground extending to about 0.603 hectares (1.491 acres) upon which is situated Rowallan Castle ("the castle"). The castle comprises a castle complex of the 15th - 17th centuries. There is a building and, in the area of ground around it, traces of activities associated with its construction and use, including formal gardens and grounds. In 1950, the estate was owned by the Right Honourable Thomas Godfrey Polson Corbett, Baron Rowallan of Rowallan ("Lord Rowallan").

[2] Since 1882, statutory schemes have existed which enable the owners of ancient monuments to enter into agreements with certain public officers whereby the ancient monument is placed under public guardianship. Such agreements do not divest the owner of title to the property but they impose upon the guardian an obligation of preservation and maintenance of the ancient monument for the benefit of the public.

[3] In 1950, Lord Rowallan entered into a guardianship agreement in respect of Rowallan Castle. The present action concerns a dispute between the pursuers, who are heritable proprietors of the estate as successors in title to Lord Rowallan, and Historic Scotland, an executive agency of the Scottish Executive which carries out functions on behalf of the Scottish Ministers, the present guardians of the castle. The issue between them relates to an access road. The pursuers assert that the public, due to the operation of prescription, no longer have any right to use that access road and seek declarator to that effect. The defender responds by asserting that prescription does not apply and that, even if it does, on the facts as averred by the pursuers, it has not operated so as to extinguish the public's right of access along the road.

The statutory scheme for guardianship of ancient monuments as at 1950:

[4] Parliament first legislated for the protection of ancient monuments in 1882. In the Ancient Monuments Protection Act 1882 ("the 1882 Act"), provision was made whereby the owner of any ancient monument could constitute the Commissioners of Works guardians of such monument. The effect of doing so was to make the Commissioners of Works responsible for maintenance of the monument thereafter. There was no provision in the 1882 Act for public access to ancient monuments.

[5] The next piece of relevant legislation was the Ancient Monuments Protection Act 1900 ("the 1900 Act") which, in terms of its section 5, made specific provision for the public to have access to any monument of which the Commissioners of Works were guardian provided the owner of the monument consented and subject to such regulations as were prescribed by the Commissioners.

[6] The relevant legislative provisions in force at the time that the guardianship agreement was entered into by Lord Rowallan were as follows:

[7] Sections 3 and 4 of the Ancient Monuments Consolidation and Amendment Act 1913 (c.32) ("the 1913 Act") repealed the 1882 and 1900 Acts and included the following provisions relating to the constitution of guardianship and the guardians' powers and responsibilities:

"3. (1) The owner of any monument which appears to the Commissioners of Works to be an ancient monument within the meaning of this Act may, with the consent of the Commissioners, constitute them by deed guardians of the monument..........

4. (1) where the Commissioners of Works ..... become guardians of any ancient monument under this Act, they shall......... maintain the monument, and shall, with a view to the maintenance of the monument, have access by themselves, their inspectors, agents, or workmen to the monument for the purpose of inspecting it, and of bringing such materials and doing such acts and things as may be required for the maintenance thereof."

Section 13 of the 1913 Act contained provisions to allow the public to have access to ancient monuments which reflect those that had been contained in section 5 of the 1900 Act. Its provisions included:

"The public shall have access to any monument of which the Commissioners of Works..... are guardians at such times and under such regulations as may from time to time be prescribed by the Commissioners......".

The definition of ancient monument was set out in section 22 of the 1913 Act which provided:

"In this Act the expression 'monument' includes any structure or erection, other than an ecclesiastical building which is for the time being used for ecclesiastical purposes; and the expression 'ancient monument' includes any monument specified in the schedule to the Ancient Monuments Protection Act, 1882, and any other monuments or things which, in the opinion of the Commissioners of Works, are of the like character, and any monument or part or remains of the monument, the preservation of which is a matter of public interest by reason of the historic, architectural, traditional, artistic, or archaeological interest attaching thereto, and the site of any such monument, or of any remains thereof; and any part of the adjoining land which may be required for the purpose of fencing, covering in, or otherwise preserving the monument from injury and also includes the means of access thereto."

[8] The Ancient Monuments Act 1931(c.16) ("the 1931 Act") amended the law relating to ancient monuments in some respects. References within it to "the principal Act" are references to the 1913 Act. The powers of the guardian were extended in terms of section 3, which included the following provisions:

"(1) The powers conferred by section four of the principal Act upon the Commissioners ........ with respect to the maintenance of an ancient monument of which they are the guardians shall, except in so far as may be otherwise expressly provided by the deed constituting the Commissioners..., include power to do all such things as may be necessary for the maintenance of the monument and the exercise of proper control and management with respect thereto by the Commissioners ..... and in particular (without prejudice to the generality of the foregoing provision or of the provisions of the said section four) power to make any examination of the monument, and to open up the monument or make excavations therein for the purpose of examination or otherwise.

(2) The Commissioners.... shall, for the purpose of exercising any of their powers under the said section four in relation to any ancient monument of which they are the guardians, have access to the monument by any person authorised by them to act on their behalf as well as by themselves, their inspectors, agents, and workmen."

[9] The 1931 Act also amended the provisions regarding public access to ancient monuments. The provisions of section 7 included the following:

"(1) The power conferred on the Commissioners...... by section 13 of the principal Act to prescribe regulations under which the public shall have access to ancient monuments of which the Commissioners....... are the ....... guardians, shall include power to make such regulations as appear to the Commissioners...... to be necessary for the preservation of the monument or of any property of the Commissioners..... or for prohibiting or regulating any act or thing tending to injury or disfigurement of the monument or the amenities thereof, and without prejudice to the generality of the foregoing provisions, regulations as to the fees to be charged for admission; and the Commissioners shall have power to prescribe such regulations with respect to any monument which is under their control or management notwithstanding that they are not the owners or guardians thereof."

[10] The expressions "monument" and "ancient monument" were again defined in the 1931 Act. The definitions are contained in section 15, the provisions of which included the following:

"(a) the expression 'monument' shall include any building, structure or other work, whether above or below the surface of the land, other than an ecclesiastical building for the time being used for ecclesiastical purposes, and any cave or excavation;

(b) .........the expression 'ancient monument' shall include any land comprising or adjacent to an ancient monument as hereinbefore defined which, in the opinion of the Commissioners or the local authority, as the case may be, is reasonably required for the purpose of maintaining the monument or the amenities thereof, or for providing or facilitating access thereto, or for the exercise of proper control or management with respect thereto."

The Guardianship Agreement:

[11] Lord Rowallan constituted the Minister of Works guardian of the Castle in terms of a Minute of Agreement between them dated 6 and 17 January 1950 and registered in the division of the General Register of Sasines for the County of Ayr on 7 February 1950 ("the 1950 Agreement")(7/2 of process). The 1950 Agreement includes the following narrative:

"CONSIDERING that the First Party is the owner within the meaning of section five of the Ancient Monuments (Consolidation and Amendment) Act 1913 of Rowallan Castle in the parish of Kilmarnock and County of Ayr and is of opinion that the Second Party should become the Guardian in terms of and under the powers conferred on him by the Ancient Monuments Acts 1913 and 1931 and that the first party has accordingly requested the second party to become the Guardian of the said Castle in terms of said Acts and the second party being of opinion that the preservation of the said Castle is a matter of public interest by reason of the historic, traditional and architectural interest attaching thereto has consented to comply with such request and to accept the Guardianship of the said Castle as an ancient monument in order to provide for the preservation and maintenance of the same in virtue of the powers conferred on him by the said in Ancient Monuments Acts THEREFORE the First Party for himself and his heirs and successors whomsoever hereby CONSTITUTES and APPOINTS the Second Party in terms of said Acts and under the powers thereby conferred on him to be Guardian of ALL and WHOLE Rowallan Castle with the solum thereof and the irregular area of ground surrounding the same extending to one acre and four hundred and ninety one decimal or one thousandth parts of an acre.........."

It then continues by setting out a bounding description of the 1.491 acre site following which there appears the following clause:

"DECLARING as it is hereby declared (FIRST) that the second party, his representatives, workmen and others and members of the public visiting the Castle shall have free right of access to the said Castle and surrounding area of ground for foot and vehicular traffic at all times by the avenue leading northwards to Rowallan House from the public road between Kilmaurs and Fenwick and by the said approach road to said Castle leading westward therefrom immediately to the north of the Cardrum Mill Burn as said access road is delineated and coloured yellow on the said annexed plan;"

[12] The annexed plan shows the castle together with a surrounding area coloured pink, all comprising the site of 1.491 acres referred to in the deed. Leading to the pink area is an access road coloured yellow. The access road continues westwards into the pink area and is marked as leading, within it, to the castle buildings.

[13] As can be observed from the extract from the 1950 Agreement narrated above, Lord Rowallan declared his heirs and successors bound by its terms. Section 3(3) of the 1913 Act was to similar effect, providing that anyone deriving title to a monument under guardianship should be bound by the deed executed by the owner for that purpose. The pursuers in the present action are, accordingly, bound by the terms of the 1950 Agreement.

The current statutory scheme:

[14] Subsequent to the 1950 Agreement, the law relating to ancient monuments was consolidated and amended in terms of the Ancient Monuments and Archaeological Areas Act 1979 (c.46) ("the 1979 Act"). The fundamental principle whereby the owner of an ancient monument is able, with the appropriate agreement, to place the monument into guardianship remains enshrined in the legislation. The statutory scheme is, however, developed in the 1979 Act. Those developments include an expansion of the guardians' powers and the definition of 'ancient monument' is altered. In particular, as regards public access to the monument, section19 of the 1979 Act includes the following provisions:

"(1) ...... the public shall have access to any monument under the... guardianship of the Secretary of State... by virtue of this Act.

(2) The Secretary of State ...... may nevertheless control the times of normal public access to any monument under their.... guardianship by virtue of this Act and may also, if they consider it necessary or expedient to do so in the interests of safety or for the maintenance or preservation of the monument, entirely exclude the public from access to any such monument or to any part of it, for such period as they think fit.......

(6) Notwithstanding subsection (1) above, any person authorised in that behalf by the Secretary of State...... may refuse admission -

    1. to any monument under the... guardianship of the Secretary of State...

(9) In relation to any monument under guardianship, subsection (1) above is subject to any provisions to the contrary in the guardianship deed."

Accordingly, the principle that members of the public should have access to ancient monuments is retained as is the provision that such access is, however, subject to the control of and regulation by the guardian, to the extent that access may infact be refused.

The functions of the Secretary of State in relation to guardianship of ancient monuments have since been taken over by the Scottish Ministers.

As regards the definition of ' ancient monument' the provisions of the interpretation section of the 1979 Act (s.61) are to the effect that where, as in the present case, the ancient monument is a building, the term refers only to the building itself. However, in terms of section 15 of the 1979 Act, there may be placed into guardianship not only such a building but any land in the vicinity of it which is 'reasonably required' for any one of a list of specified purposes including the purpose of ' providing or facilitating access to the monument'.

[15] Further, section 16 of the 1979 Act makes provision whereby even although the Secretary of State, as guardian, has not become heritable proprietor of the ancient monument, he can acquire, for the benefit of it, a servitude right of access in the same way as if the ancient monument was under his ownership, if it appears necessary to do so. Such right of access can be acquired by agreement or by compulsory purchase provided the acquisition is for one of the purposes set out in section 15. Accordingly, if the pursuers are correct in their contention that the right of access conferred when the castle was placed into guardianship in 1950 has prescribed, the Scottish Ministers would be entitled to acquire a right of access to the castle by means of compulsory purchase, provided it appeared to them necessary to do so. Since the castle would, otherwise, be locked within land belonging to the pursuers, it would be surprising if it did not appear necessary to them that such access be acquired.

[16] It should be noted that, in terms of section 14 of the 1979 Act, guardianship is only capable of termination by agreement between the owner and the guardian. No such agreement has been entered into in this case, there is no suggestion in the pleadings that such termination is likely to be agreed upon nor was any such suggestion made in the course of submissions.

Background:

[17] Having averred that Lord Rowallan entered into the 1950 Agreement, the pursuers then explain, in the pleadings, that planning consents have been sought for various proposed works to be carried out on the estate including change of use of Rowallan House and Castle so as to provide hotel accommodation. It is then averred that whilst, since the 1950 Agreement was entered into, Historic Scotland and its predecessors have taken access to the castle from time to time, members of the public have never exercised, enjoyed nor taken free access to the castle. They aver that Historic Scotland has never opened the castle to members of the public, nor arranged for, encouraged, caused, permitted or facilitated public access "as of right" to members of the public. There is no suggestion in the averments nor was there any suggestion in the submissions before me that Historic Scotland has been acting other than intra vires in excluding the public from the castle.

[18] Those averments form the basis for the case that is thereafter advanced in the pursuers' pleadings as encapsulated in article VII of Condescendence in the following terms:

"Any rights of access bestowed on members of the public by said Acts of 1913 and 1979, or by the said Minute of Agreement have long prescribed. Reference is made to the Prescription and Limitation (Scotland) Act 1973 section 8. The right of access granted to members of the public is not an imprescriptible right in terms of the said Act of 1973. The title of Rowallan Estate does not contain nor refer to any public right of way into or across the Estate."

[19] The case came before me on the Procedure Roll in respect of the defender's first two pleas-in-law, which were pleas to the relevancy and specification of the pursuers' averments and to the effect that the rights inherent in guardianship, including the right of access to the castle, were imprescriptible.

[20] The principal question that arises for determination in this case is: what is the nature of the right of access detailed in the 1950 Agreement? The pursuers seek to have it regarded as being a public right of access that is capable of prescription. The defender refutes that proposition, arguing that it is an incident of guardianship, terminable only by termination of the guardianship agreement and not separable from it.

The defender's submissions:

[21] Under reference to the statutory scheme for guardianship of ancient monuments and to the terms of the 1950 Agreement, counsel for the defender submitted that properly understood, the right of access was a guardianship right. No separate public right of access was created by the deed or by the legislation. Rather, the effect of the 1950 Agreement was that the access road was, along with the castle and adjoining ground, placed under guardianship. On a proper interpretation of the relevant provisions of the1913 and 1931 Acts, the access road was included within the definition of 'ancient monument' and was thus subject to the powers and control of the guardian in the same way as was the castle. That being so, it had always been in the power of the guardian to restrict public access to the castle or even exclude the public altogether. Thus, the 1950 Agreement did not create, in favour of the public, a 'right relating to property' within the meaning of section 8 of the Prescription and Limitation (Scotland) Act 1973 and no questions of prescription arose. In the event that they did, the pursuer's averments did not amount to any case that the public's right of access had ever become exercisable or enforceable. That was because it arose in the context of a statutory scheme which, whilst it provides for the public to have access to ancient monuments also empowers the guardian to exclude the public entirely, and the pursuers averred that the castle had never been opened to the public at any time since the 1950 Agreement was entered into. Separately, the defender submitted that the pursuers did not plead a relevant case of non use of the right of access for the 20 year period. That was because, on the one hand, it was accepted that the defender had used the access in the course of exercising guardianship powers and duties and, on the other, they accepted that various members of the public had used the access road. It did not matter that use by members of the public was said to have been by invitation. It was still enough to interrupt the running of prescription. The rights of access conferred for the purposes of guardianship were conferred on both the guardian and members of the public. The public's right of access was not capable of separation.

[22] The defender's submissions were, further, to the effect that section 8 of the 1973 Act could not apply because the access right in dispute was not a right relating to property. Rather, properly understood, it was an incident of guardianship. If prescription could apply to the public access to the castle, the twenty year period referred to in section 8 of the 1973 had not elapsed. Indeed, it had not even started to run since if, as the pursuers averred, Historic Scotland had never opened the castle to the public, then the public had never yet been in a position of being able to exercise or enforce any right of access. Junior counsel for the defender made detailed submissions to the effect that, if section 8 of the Prescription and Limitation (Scotland) Act 1973 Act applied, the public right of access was imprescriptible because it was either a form of res merae facultatis or a right extra commercium, both of which are excluded from the operation of prescription in terms of Schedule 3 to the 1973 Act. Those submissions were adopted by senior counsel without further elaboration. The argument was to the effect that the law of Scotland recognises that rights of access over heritable property may be implied as being res merae facultatis (Bowers v Kennedy 2000 SC 555) and that the right of access which was an incident of guardianship could be regarded as analogous thereto. Further, since the right of access inherent in guardianship was conferred upon the public for its benefit by the state, it could also be regarded as a right extra commercium (Waddell v Earl of Buchanan 1868 6M 690).

The pursuers' submissions:

[23] Counsel for the pursuer agreed that the principal issue for determination was that of the characterisation of the right of access referred to in the 1950 Agreement. It was the pursuer's submission that that deed granted a public right of way which had now prescribed in terms of section 8 of the Prescription and Limitation (Scotland) Act 1973. They submitted that the rights of access inherent in guardianship involved separate rights to be at the guardianship property and to exercise access to it. Those rights should be regarded as divided between the public and the guardian. They submitted that the statutory provisions did not indicate that the access road to the castle had been taken into guardianship. Rather, all that was taken into guardianship was the castle and the surrounding land, which was coloured pink on the plan annexed to the deed. Statutes which encroach on rights of property were subject to strict construction and such an approach ought to be followed in this case. The result of doing so would be to favour the pursuers' right to use the property free of encumbrance. It was unlikely that Lord Rowallan would have granted guardianship over the access road since that would mean his giving up control of it. The public had acquired an independent right of access in 1950. It was ludicrous to suggest that that right of access was part of the same bundle of rights and duties that arose upon the creation of guardianship. Reference was made to the case of Inverness Seafield Development Co. 2001 SLT 118 as approving what had been determined in the case of Bowers v Kennedy. Reference was also made to volume 18 of the Stair Encyclopaedia of the Laws of Scotland paragraphs 502, 503 and 510 for a discussion of public rights of way. The public had had access rights vested in them at the date of the 1950 Agreement and those rights should be regarded as having been enforceable or exercisable since then. They had not, however, exercised their right of access. It did not matter if their non exercise of the right of access was the result of control by the guardian. Loss of the right was the inevitable consequence on a proper analysis which was not a matter of concern given that the guardian could compulsorily acquire a fresh servitude right of access. Section 8 of the Prescription and Limitation (Scotland) Act 1973 applied so as to extinguish the public right of access to the castle since, notwithstanding the effects of guardianship, a right of access was vested in the public at the time the 1950 Agreement was entered into. A right of access was vested in the public at the time the 1950 Agreement was entered into. Time, for the purposes of section 8, started to run when access was capable of being exercised which was from the time that the 1950 Agreement came into effect. It was not a right that was never capable of exercise. Rather, it was a right that had not been exercised and so was capable of prescription.

Discussion:

[24] To determine the nature of the right of access in granted by Lord Rowallan in 1950, consideration first has to be given to the question of whether or not the access road referred to in the deed was taken into guardianship. Insofar as that access road is, as it is described in the first declaration in the 1950 Agreement, contained within the area coloured pink on the plan annexed to the deed, there would seem to be no dispute between the parties that it was taken into guardianship, even although the road is the subject of the parties' dispute. It was not clear how, in these circumstances, the pursuer sought to maintain the general submission, which underpinned their whole approach, that the access road had not been taken into guardianship at all. The dispute concerns the part of the access road marked yellow on the plan which leads from the public road to the edge of the pink area. For completeness, I should add that the pink area does not, at any point, abut the public road. Rather, it is bounded by the Balgray Mill Burn, other land belonging to the pursuers and by the Carmel Water. Clearly, it can only be accessed by means of a route through the pursuers' land.

Whether or not the access road was taken into guardianship:

[25] To ascertain whether or not the access road was taken into guardianship, resort must first be had to the statutory provisions that were in force at the time the 1950 Agreement was entered into. Under the 1913 Act, the Commissioners of Works were empowered to take ancient monuments into guardianship. Section 22 of that Act defined 'ancient monument' as including its site, any part of the adjoining land required for the purpose of fencing, covering in or otherwise preserving the monument and injury, and also the means of access to the monument. There was thus introduced a statutory definition which, at first blush, may have seemed a little odd since the reader might not normally have expected the term ' ancient monument' to fall to be construed as including the means of access to it.

[26] The provisions of section 22 of the 1913 Act were repealed by the 1931 Act which, in terms of terms of its section 15 introduced a new definition of 'ancient monument'. It again defined what it was that the Commissioners of Works were empowered to take into guardianship. I have already set out the terms of that section. Its provisions made it clear, in my opinion, that there was conferred upon the Commissioners of Works, power to take into guardianship not only the building, structure or other work of special historical interest but also any land adjacent to such building which was reasonably required for the purpose of facilitating access to it. That power was, in terms of the statute, conferred, by including in the definition of 'ancient monument' any access road so required repeating the approach taken in section 22 of the 1913 Act. No doubt the drafters of the 1979 Act felt that there was a certain linguistic clumsiness in that approach. Hence the introduction of a new analysis in the 1979 Act whereby the term 'ancient monument' encompasses only the building concerned but owners of monuments are also empowered to place into guardianship adjoining land including the means of access to the monument. However, that is not to say that, clumsy though they may seem, the provisions of section 15 of the 1931 Act were not apt to confer upon the Commissioners of Works the power to take into guardianship, an access road lying between a public road and the boundary of the monument itself or between a public road and any land around the monument that had been taken into guardianship. In my opinion, it is clear that they were.

[27] Turning then to the terms of the 1950 Agreement, I am satisfied that they had the effect of placing the access road referred to in the first declaration into guardianship. For the avoidance of doubt, that is that the whole access road referred to, both within and leading to the area coloured pink, were, in my opinion, taken into guardianship as a result of the 1950 Agreement. I so conclude because the declaration is within a deed prefaced by a narrative which explains that the reason it is being entered into is in furtherance of an agreement that Rowallan Castle should be placed into guardianship and it is clear from the terms of the declaration itself that, so far as public access is concerned, what parties have in mind is members of the public 'visiting the Castle'. The public right of access is not, for instance, simply a right to visit the site but is defined specifically as being a right to visit the castle. Hence, it would seem, the fact that the declaration specified the right as extending not only over the part of the access road coloured yellow that lies outwith the area coloured pink but also over the part of the road that continues within and can be seen, on the plan, as leading up to the buildings. Further, by specifying that the public are to have access for the purpose of the public visiting the castle, the question is raised as to the circumstances in which they might be doing so. The answer to that is found within the earlier part of the 1950 Agreement which refers to the 1913 and 1931 Acts as being its legislative basis. Then, if the relevant provisions of that legislation are examined, it is clear that whilst the public are stated as having a right of access to ancient monuments taken into guardianship, that right is subject to the control of the guardian who may, in certain circumstances, decide not to allow public access at all.

Whether the 1950 Agreement created an independent public right of access:

[28] The pursuers' approach requires that the 1950 Agreement be regarded as creating not only rights, duties, powers and privileges falling within the statutory scheme for guardianship and as between landowner and guardian but also a separate, public right of access as between the landowner and members of the public. Once so created, so proceeds the logic of the pursuers' argument, that right would stand or fall according to the normal rules applicable to an ordinary public right of access, including the rules of prescription.

[29] However, it seems clear to me that the right of access for the public that is described in the 1950 Agreement can only be regarded as falling within the guardianship scheme and thus subject to control and regulation by the guardian. I find nothing to support the proposition that, notwithstanding the statutory guardianship context, the deed achieved, as between Lord Rowallan and members of the public, the creation of a separate and independent public right of access. Unlike a public right of way, what is referred to in the 1950 Agreement is not a right that could be enforced against the landowner because it is always subject to control by the guardian. Unlike a public right of way granted in a deed, it is impossible for members of the public to predict, from the terms of the deed when, if at all, they will get access along the road to visit the castle. If, in the proper exercise of the discretion afforded to him by the statutory scheme, the guardian were to reach the view that it is never going to be safe to allow the public to visit the castle, they will never be able to exercise the access described in the first declaration. These characteristics serve to highlight the fact that the declaration does not create, as the pursuer sought to argue, a separate and independent public right of access. Infact, since the public may never be able to exercise access along the road, it seems wrong to refer to the 1950 Agreement as conferring any right on the public at all. The road is placed into guardianship but the use of it by the public is subject to their being afforded the right to do so by the guardian, in the exercise of his discretion.

[30] In the course of submissions, junior counsel for the pursuers referred to Volume 18 of the Stair Encyclopedia, which covers the law of property, and in particular paragraphs 502, 503 and 510 thereof. Those paragraphs contain a discussion of the circumstances in which, under the Countryside (Scotland) Acts 1967 and 1981, local authorities may enter into public path creation agreements with landowners. The reference to these passages was to support a submission that there was nothing unusual about the concept of a public right of way being subject to prescription, something which was not a matter of dispute between the parties. However, as was pointed out by senior counsel for the defender, what is explained in paragraph 510 is that non use does not have the effect of extinguishing rights of way which exist as a result of public path creation orders since they are entered into in the exercise by a local authority of its statutory powers. Hence, the references infact supported the defender's case in respect that an analogy could be drawn between the position of the guardian in the present case and a local authority in the case of paths created under such orders, given that both are in the position of simply fulfilling their statutory function. I agree.

Prescription:

[31] Having considered the nature of the public's right of access to the castle, the next question that arises is that of whether or not, if the pursuers' pleadings do amount to a case that the public have never exercised access to the castle along the road described in the 1950 Agreement, prescription has operated so as to extinguish their right to do so. The pursuers accepted that guardianship could not prescribe. Their argument was, rather, to the effect that the 1950 Agreement had established a separate and distinct public right of access which, the castle never having been opened to the public, had never been used and so had prescribed.

[32] In short, as it was cogently put by senior counsel for the defenders, the pursuers' argument was to the effect that the public's right of access, which was part of an established statutory scheme, had been defeated as a result of the state exercising, for good reasons, its statutory powers to exclude the public. The result would be that the owners of the castle, the pursuers, would continue to enjoy the benefits and advantages of guardianship, in terms of being relieved of the burden of maintenance and preservation in a manner which imposes that burden on the public purse yet would be able to deny the public access to the ancient monument even if Historic Scotland were satisfied that it was appropriate to allow it. Or they would, at least, be able to do so until Historic Scotland acquired a right of access by exercise of the guardian's powers of compulsory purchase.

[33] These observations do not, of themselves, determine the question of whether prescription could apply to the public's right of access referred to in the 1950 Agreement but they do, I agree, show the pursuers' approach to be, as was submitted by senior counsel for the defender, artificial, incongruous and unattractive. They also, in my view, serve to show that the outcome contended for by the pursuers is not one which Parliament is likely to have intended.

[34] I have already determined that the 1950 Agreement did not create an independent public right of access. That being so, whilst there is no doubt that a public right of access, like a servitude right of access, will be extinguished if not used for a period of twenty years, I do not see that the public access referred to in the 1950 Agreement is liable to suffer the same fate. I am satisfied that the public means of access referred to in the first declaration is not capable of prescription. Rather, insofar as it can properly be described as a right at all, it will subsist so long as the agreement is not terminated even if the public do not use it. It is, I agree, imprescriptible. Hence, the question of whether it has, on the pursuers' averments, prescribed, does not arise. I should, however, for completeness, deal briefly with the submissions that were made in that respect.

[35] Section 8 of the Prescription and Limitation (Scotland) Act 1973 ('the 1973 Act'), which parties agreed was the relevant section for consideration in the circumstances of this case, provides:

"(1) If, after the date when any right to which this section applies has become exercisable or enforceable, the right has subsisted for a continuous period of twenty years unexercised or unenforced, and without any relevant claim in relation to it having been made, then as from the expiration of that period the right shall be extinguished.

(2) This section applies to any right relating to property, whether heritable or moveable, not being a right specified in Schedule 3 to this Act as an imprescriptible right ..........."

The provisions of the statute reflect the prior law. It has always been inherent in the principle underlying negative prescription that the person whose right is extinguished could, had they chosen to do so, have 'exercised' it or could have sought to 'enforce' their right to do so, during the period of non-use that is founded on. If, in those circumstances, they have failed to do so, then it can fairly and properly be inferred that they have abandoned the right in question.

[36] The pursuers aver that Historic Scotland has never, since the 1950 Agreement was entered into, opened the castle to the public. The pursuers seems to accept that Historic Scotland have been acting intra vires in refraining from doing so. Whilst a submission was advanced to the effect that, for the control of public access in terms of the powers conferred by section 13 of the 1913 Act, it was necessary that subordinate legislation containing regulations be promulgated and none had been, it was not pressed and it is not, in any event, the correct interpretation of the section, in my opinion. It seems clear to me that in providing for public access 'at such times' as were prescribed, the section itself conferred on the Commissioners of Works the power to refrain from permitting the public to have access to the monument. Overall, though, the pursuers did seem to accept, both in terms of the pleadings and in terms of the submissions advanced that the reason why the public have not had access is that the guardian of the castle has, in implement of guardianship powers and duties, determined that it is not appropriate for the public to have access and has, accordingly, regulated their right of access by excluding them altogether. That is something that he was, between 1950 and 1979, empowered to do in terms of the 1913 and 1931 Acts and, since 1979, has been empowered to do in terms of section 19(2) of the 1979 Act. I do not see that where, as in the present case, the persons whose rights are being questioned could not, during the twenty year period founded upon, have exercised or enforced them, it would be fair or proper to regard them as having abandoned those rights. That being so, I agree with the defender that on a proper construction of section 8 of the 1973 and in the light of the circumstances as averred by the pursuers, the twenty year period referred to in it, has not elapsed. Not only has it not elapsed, it has not infact yet started to run.

[37] I do not, however, agree that the public right of access in question cannot be characterised as being a right relating to property. Thus, if the circumstances had come within the provisions of section 8(1) of the 1973 Act, the requirement under section 8 (2) that the right in question be a 'right relating to property' would have been satisfied. Although the right could only arise if and when the guardian allowed the public to exercise it, it would, in its exercise, constitute a right to pass over land belonging to another. That being so, it appears to me to involve only a natural use of the statutory language to describe it as a right relating to property, the property in question being the land over which the public will pass.

[38] Nor am I persuaded that the public right of access would be excluded from the application of s.8 of the 1973 Act as being either a res merae facultatis or a right to recover property extra commercium. The former arises as an incident of the right property. The defender's submission was, however, that the public right of access was not a right relating to property. Whilst it may well be that, had Lord Rowallan not already owned the land over which the road marked yellow on the plan attached to the 1950 Agreement, he could have insisted on taking access over it if his property would otherwise have been landlocked (see: Bowers v Kennedy) in accordance with the principle that a right of access to his property would have been implied as res merae facultatis, that does not mean that such a right would so arise in favour of members of the public seeking to gain access to land that is not owned by them. Nor was I persuaded that the defender's case amounted to the assertion of a right of members of the public to recover property extra commercium.

[39] It was also submitted on behalf of the defenders that, if section 8 of the 1973 Act applied and the public were to be regarded as having had an exercisable right of access since the 1950 agreement was entered into, since the pursuers had made averments to the effect that persons have visited the castle by invitation of the owner at times, most recently in 1995, it was evident that there had been relevant public use of the access road during the period up to at least 1995. The defender's approach was that all visitors to the castle were members of the public and the fact that their visits were the result of invitation did not matter. The pursuers' approach was to the contrary. Their position was that such visits were simply by licence of the owner. The pursuers' approach to this matter is, in my opinion, to be preferred. Landowners are not deprived of the rights and privileges of ownership by reason of the statutory guardianship scheme. If there was any doubt about that, the fact that the 1950 Agreement specifically reserves to Lord Rowallan and his successors in title and any person authorised by him, a right of access to the castle at all reasonable times (see: declaration '(SEVENTH)'), confirms that that is the position in the present case. Thus, even if Historic Scotland had determined to exclude the public from the guardianship subjects, it would seem always to be open not only to the owner of them to take access to them but to any person authorised by him to do so. In these circumstances, I do not see that a person visiting the castle by the invitation of the owner and thus authorised by the owner to do so, would fall to be regarded in the same light as a person who visits (and takes access over the road) by way of exercise of or insistence on a right of access vested in them. However, as I have already determined, section 8 of the 1973 Act does not, in my opinion, apply in this case and the public do not fall to be regarded as having had an exercisable or enforceable right of access, so the question of the status of an invited visitor, for the purposes of prescription, does not require to be determined.

Result

[40] For the reasons which I have given in the above discussion, I shall repel the pursuers' plea in law and grant decree of absolvitor by sustaining the defender's second plea in law.