in the cause







Pursuers: G. M. Henderson; Lindsays WS

Defender: R. N. Thomson; Anderson Strathern WS

26 November 2004

1. Pleadings and Documents

[1]The pursuers are the local authority for Eskbank. They have a duty under section 46 of the Countryside (Scotland) Act 1967 (c 86): "to assert, protect and keep upon and free from obstruction or encroachment any public right of way" in that area. The defender owns the heritable subjects known as Bellfield House at 118 Bonnyrigg Road, Eskbank. The House is on the north side of Bonnyrigg Road, immediately to the east of what is now the A7 Western Dalkeith By-Pass. The By-Pass was built sometime after 1989, when a Compulsory Purchase Order was made in respect of ground formerly occupied by Broomieknowe Golf Club. The Golf Club owned a triangle of land, to the north of Bellfield House and to the east of the A7, which was formerly part of the sixth hole. This triangle became detached from the rest of the course by the construction of the A7. The Golf Club took access to this triangle, and hence to the rest of the golf course, by means of a track or road from Bonnyrigg Road along a strip of ground owned by the Club on the eastern boundary of the House. This road exited onto Bonnyrigg Road between the House and 116 Bonnyrigg Road, one of several houses running east along that Road (see the plan attached to No. 7/4 of process). To the north of those houses, and immediately to the east of the Golf Club's access road and the triangle of land, is a large tract of open space, extending to about 3.15 acres. This is now known as Cortleferry Park (see plan Pro 6/6). The Park separates the houses on Bonnyrigg Road and the triangle of ground (i.e. formerly the Golf Club) on the one hand from the houses on Walker Crescent and related streets, on the other hand. The latter houses form part of a housing development built on ground owned by Messrs Gunn in or about 1970. The ground occupied by the Park is privately owned. By offer dated 8 July 1970 (Pro 6/2), the then owner (Mrs EH Calder) offered to lease the area to the pursuers' predecessors, Dalkeith Town Council, on certain terms including the following:

"3. Access to be by a roadway to be formed through Messrs. Gunn's adjoining ground, which access will be formed, fenced and maintained by the Town Council. It is understood that the location of such access has been adjusted direct between Messrs. Gunn and the Town Council. There will be no access from the main Bonnyrigg Road.

4. The ground will be used by the Town Council as a Children's Playground or similar purpose and for no other purpose without our...permission, but not for any purpose which will cause a nuisance or cause annoyance to neighbouring feuars.

5. The Town Council to maintain the ground and cut the grass and erect and maintain fences necessary for the purpose for which the ground is used..."

It is understood that the resultant agreement still subsists. The access formed is at the northernmost end of the Park and comes off Beechgrove Avenue, one of the streets of the Gunn development (see the plan Pro 6/6 and 6/3 photo 1). Also at that end is a children's playpark, i.e. a dedicated play area with swings etc.

[2]Although there remains some dispute regarding the existence and condition of a fence running along the boundary between the Golf Club and the Park, it was not ultimately contested, no doubt in the face of the photographic evidence, that such a fence had existed at one time (see the letter from the Golf Club dated 28 May 2004, Pro 7/7 and the Affidavit from the Golf Club secretary Pro 7/1). The fence probably ended at about the north western corner of the walls of the house at 116 Bonyrigg Road (see Pro 7/13 photo 13, with the walls on the right). The fence as constructed had no gate, stile or gap in it to permit access to the Park. The Golf Club's access road, which ran parallel to the driveway of the House, does not appear to have been closed by a gate or other barrier at the Bonnyrigg Road end (Pro 6/3 photo 2). The Golf Club used the access road for vehicular traffic, such as tractors and other green-keeping machinery. It would have been possible for persons on Bonnyrigg Road to gain access to the Park by simply walking a short distance up the Golf Club's access road and then climbing over the boundary fence beyond 116 Bonnyrigg Road. It seems clear that this is what a number of people did. After the construction of the A7, the Golf Club ceased to use their access road to any great extent as the triangle of ground had become redundant. The triangle could not be used as part of the course in practical terms. It seems that the area was neglected and the boundary fence became so dilapidated that in some places it lay flat on the ground (see Pro 7/13 photos 1.5-8). One of these places was at the point referred to above where people were taking access along the Golf Club's access route, across the fence line and into the Park. An alternative version is that the fence had not so much become flattened at this point but a part of it had been folded back (Pro 7/8). In any event, ultimately, over the recent past, people could walk from Bonnyrigg Road into the Park without having to negotiate a fence (Pro 7/13 photo 1.3).

[3]In November 2003 the defender bought the triangle of ground and the strip of ground along which the Golf Club's access road had run (see Land Register Certificate dated 2 December 2003, Pro 6/1). By that time, the road had become overgrown, at least beyond the point at which members of the public turned into the Park. The defender does not require to use this access as the House lies immediately to the south of the triangle and access can be taken through the House's grounds. In about February 2004 the defender erected a temporary wooden fence across the point at which persons used to cross the fence line into the Park (see Pro 7/13 photo 1.2 centre left; opposite view 6/3 photo 3). He also built a fence at the mouth of the former access road where it joined Bonnyrigg Road (see Pro 6/3 photo 2). These fences, and their ultimate permanent replacements, had been discussed with and eventually agreed with the pursuers' planning officials. As a result of the defender's actions, persons could no longer use what they had, no doubt, come to think of as a convenient access to the Park from Bonnyrigg Road. Judging from the defender's findings in the area blocked off, many of those gaining access had been accompanied by dogs. Some complained to the pursuers, who carried out an investigation into the use of the access. The pursuers wrote to the defender by letter dated 25 February 2004 (Pro 7/9) stating that, although the access was not on their register of rights of way, it did seem to fulfil the criteria for such a way. The pursuers wrote to the defender's law agents on 15 March 2004 (Pro 7/10) asserting that there was no doubt that a right of way existed and that they had statements from eighteen people who asserted that they had used the access for over twenty years.

2. Submissions

[4]On 3 November 2004, prior to calling and in the absence of a caveat and hence opposition, the pursuers obtained interdict ad interim prohibiting the defender from impeding or obstructing access by the public along the route to and from Bonnyrigg Road and the Park. However, the pursuers' motion for an order ad interim ordaining the defender to remove the fences was not granted but continued until 10 November to allow the defender to be represented if he wished. It was this motion, and the defender's opposition to it, that came before the court on that date. Although the defender had also enrolled for recall of the interdict, that motion was dropped at the Bar.


[5]The pursuers accepted that for a public right of way to exist, it had to form a way, or part of a way, leading from one public place to another (Gordon: Land Law (2nd ed) para 24-112; e.g. Cumbernauld and Kilsyth District Council v Dollar Land 1993 SC (HL) 44). They maintained that the Park is a public place, albeit that it is privately owned and only leased by the local authority (see Smith v Saxton 1927 SN 98). A piece of private property, it was said, could be a public place even if the public nature of the place could be discontinued. The public had used the route for over twenty years and a defined path could be seen on the ground (Pro 7/13 photographs 1.1 and 2; 6/3 photo 3). Although the Golf Club may have used the access prior to the CPO in 1989, the Club had clearly not used it or maintained the boundary fence since then. The existence of a fence did not preclude the establishment of a right of way. The pursuers accordingly had a strong prima facie case.

[6]The balance of convenience favoured the pursuers since, if the fences were removed and required to be put back up in the event of failure in the action by the pursuers, the defender would have a remedy in the form of an action for damages. If the obstructions were allowed to continue, those members of the public, who had taken access from Bonnyrigg Road, would have a long and circuitous walk up to the Beechgrove Avenue entrance. Although the pursuers had taken some time to seek an order, that was not critical (Class 98 v Hogg, Lord Macfadyen, 14 December 2000, unreported, para [16]).


[7]The defender contended that the pursuers' action failed on all the requisite criteria for a public right of way. It was plain from the affidavits produced, especially that of the Golf Club Secretary, that a stob and wire fence had existed all along the boundary of the Park and the Golf Course, even if it was sometimes bent and flat. There was no gate or broken section. This was the position when the defender bought the land. The fence had been maintained at least until the construction of the A7 some time between 1989 and 1994. Since then there had been usage of parts of the Golf Course land all along the fence line and not just at the point where some people might have taken access to and from Bonnyrigg Road.

[8]The Park is not a public place. It is private land let to the pursuers for the restricted purpose of a children's playground. The public are not entitled to use it generally. If there was a restriction on the public's right, it could not be a public place (Ayr Burgh Council v British Transport Commissioners 1955 SLT 219, per Lord Patrick at 225; Love-Lee v Cameron of Lochiel 1991 SCLR 61, per Sheriff Principal Ireland at 67-68). The pursuers could prohibit anyone they wished from entering the Park. Furthermore, the pursuers' own lease said there was to be no access from Bonnyrigg Road. A public right of way could not be created where the use of that way was expressly prohibited. There was no sign indicating that the Park was a public one and it was not so designated on the local Ordnance Survey maps.

[9]There had been no open use of the route as was required by the terms of the statute (section 3 of the Prescription and Limitation (Scotland) Act 1973 (c 52), on which see Richardson v Cromarty Petroleum 1982 SLT 237, per Lord Cowie at 238). There was little evidence produced on the frequency of use as distinct from the numbers claiming to use the route (see Macpherson v Scottish Rights of Way and Recreation Society (1888) 15 R (HL) 68). Such use as there had been was minimal and clandestine. It had not been as of right and there was no evidence to suggest that those members of the public using the route considered that they had a right to do so. There had been a fence over the route. This had not been placed simply as a demarcation line, but to prevent persons crossing over it. The very idea of a right of way suggests the absence of a barrier, such as a fence. Even if the fence had ceased to be maintained in 1989, there had still not been open and peaceable use for twenty years. The pursuers had no record of this route as a right of way because they were unaware that it was one. Not only was there no right of way, there had not even been any permission by either the pursuers or the defender's predecessors in title to use the route for access. Thirdly, the access was not over a defined route, as distinct from persons strolling generally over the land. Fourthly, where there was another designated access to the Park, it should not readily be inferred that a right of way had been created elsewhere.

[10]The balance of convenience favoured the defender. It was not enough for the pursuers simply to say that, if they were wrong, the defender could seek damages. There was presently access available to the Park, and indeed at a point near where the playpark had been built. The defender was not prohibiting access to the Park. Removal of the fences would be burdensome. Furthermore, the delay in the pursuers taking action was a relevant factor of which the court could take account.

3. Decision

[11]The motion comes before the court at the interim stage, when the pleadings have not been fully developed (indeed defences have not yet been lodged). The facts are not all readily ascertainable and certainly not all agreed. Prior to making an interim order against a defender, for the removal of the fences erected on what is admittedly his own land, the court would have to be satisfied that the pursuers have a prima facie case that a public right of way exists over the defender's land, which has been obstructed by the fences. In particular, in this case, it would have to be satisfied that this right of way exists to permit the passage of persons to and from Bonnyrigg Road and the Park. I am not satisfied that such a case exists.

[12]A public right of way must connect two public places, that is to say two places where the public are entitled to be at all times as of right (Ayr Burgh Council v The British Transport Commission (supra) per Lord Patrick at 225). Bonnyrigg Road is a public place. The first question then is whether there is a prima facie case that the Park is also such a place. There is no doubt that the public do go to the Park and use it as such, although it would seem not solely as a children's playground. However, the mere fact that the public use the Park does not mean that they have an unrestricted legal right to do so. On the contrary, this Park is privately owned land (see Love-Lee v Cameron of Lochiel (supra) per Sheriff Principal Ireland at pp 67-68). It is simply leased to the pursuers for use as a children's playground. The pursuers appear to have permitted a much wider use than that, but that is of little moment. The landowners would be quite entitled to fence around the Park, if they wished to do so, leaving only the designated access specified in the lease. Indeed, in terms of the lease, the pursuers would be able to fence the ground too. The pursuers, as the tenants of the Park, would be entitled to prohibit persons trespassing onto the ground, if they did not wish them to use the Park, for whatever reason. The owners could take proceedings against the pursuers, in terms of the lease, to ensure that the Park was only used for its designated purpose and to enforce the clause that specifically states that there is to be no access from Bonnyrigg Road. It is not enough for a place to become public that it happens to be owned by a central or local government authority and that authority permits its use by the public for certain purposes. A place is even less likely to be determined public where it is privately owned and is furthermore leased only for a specific restricted purpose. This Park is simply a piece of land which the pursuers privately rent and permit members of the public to use. They can prohibit or restrict that use at will. There is no basis for the proposition that the public have any legal right to use the Park beyond that simple permission. There is then no prima facie case that it is a public place.

[13]In order to establish a public right of way, it has to be demonstrated that the right has been exercised for twenty years openly and peaceably (section 3(3) of the 1973 Act (supra)). If a fence exists between two points and it requires to be overcome, in the sense of climbed in a manner which it is not intended to facilitate, then it is difficult to argue that the climber is exercising a right "peaceably". It is different if there is a gate or stile in the fence, since then it is clear that some passage may be permitted. The existence of a fence is a clear indication that no right of way exists and this must be evident to anyone faced with such an obstruction. Generally, the presence of a stob and wire fence is inconsistent with a right of way. In this case, although there does remain some factual conflict, it is tolerably clear that such a fence did exist across the path of any member of the public attempting to enter the Park from Bonnyrigg Road. The remnants of that fence at the relevant point appear to have been visible even when the defender bought the House in 2003. From the information provided, it seems likely that the fence certainly existed in a reasonable state in 1989 and probably much later. In these circumstances, there are two further obstacles in the way of the pursuers' claim. First, the existence of the fence, even in a dilapidated state, detracts from the idea of members of the public exercising a right peaceably or thinking that they were exercising any right at all. Secondly, there does not appear to have been such exercise for the prescriptive period. Furthermore, the route of the right of way is over a very small piece of ground. Its use, with the members of the public walking a very short distance, crossing a fence or fence line and going immediately into the Park, appears to be by way of a brief shortcut. It would take seconds to traverse. Although it may not be appropriate to describe the use of the route as "clandestine", it is difficult to assert that a prima facie case of "open" possession of a right has been made out by the occasional pedestrian's quick exit from Bonnyrigg Road, rapid transit over the route and entrance into the Park or vice versa.

[14]For these reasons, on an interim basis, I will refuse the motion. I should add two matters. First, if I had otherwise been in favour of the pursuers, the route from Bonnyrigg Road to the Park is, at least prima facie, sufficiently well defined for the purposes of a right of way. The existence of an alternative access is not a particularly significant feature in the situation here where it is so distant from the access route sought. Secondly, had a prima facie case of public right of way been made out, I would have determined that the balance of convenience did favour removal of the fences. In that regard, the removal would have restored the status quo prior to the recent innovations on the route of the way. The balance would have favoured continuing to allow the public to use the route until final determination of the case. This is particularly so where the pursuers are a local authority and, it can reasonably be assumed, would be able to pay damages in the event of their failure after appropriate debate or inquiry. The decision on the balance of convenience would have had regard to the delay between the erection of the fences and the commencement of this action, but that delay would not have been determinative given that the pursuers did make their position clear from at or about the time when the fences were erected. They were entitled to take some time to investigate the issues before launching upon legal process.