[2006] CSOH 1NUMBER30



in the cause







Pursuers: O'Brien; Digby Brown SSC

Defenders: Barne; Morisons

25 August 2006


[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 25 January 2006. The pursuers seek to extend the scope of that interim interdict while the defenders seek the recall of both orders.

[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 Melfort Village, comprising thirty-two cottages and a restaurant. The two holiday resorts adjoin each other. When, in August 2005, the pursuers sought planning permission for the development of the restaurant at their holiday resort, several of the defenders objected to their application. The local planning authority granted planning permission for the development notwithstanding the objections which included objections in relation to the inadequacy of access by road. Thereafter a disagreement has arisen between the pursuers and the defenders about the manner in which large vehicles obtain access to the pursuers' resort.

[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 (Scotland) Act 1973. While the defenders averred that the use of the driveway had been by tolerance, he submitted that Lord Sands in Rhins District Committee (above) was correct in holding (at p.171) that a judge is required to assume that a proprietor would be vigilant in protecting his rights and that he should not readily imply tolerance of significant encroachment by such a proprietor.

[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 (Scotland) Act 1984. Secondly, if there were sufficient material to support a prima facie case of a public right of way along the public road, that right of way was confined geographically to the physical limits of the public road. Where a public road was physically restricted by walls on either side or by the shape and size of a bridge, the law did not allow the public to encroach on private land to make the road passable to larger vehicles. Thirdly, it was not possible to constitute a public right of way over the driveway because a public right of way required two public termini. There were not two public termini in this case as the vehicles entered and exited the driveway at the same place.

[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.


[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 (Scotland) Act 1878, it may have been a statute labour road or one of the highland roads which was constructed at public expense before that Act reorganised the management of public roads by establishing county road trustees; but this matter was not explored before me.

[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, Ferguson (above), pp.12 and 105 and Bell's Law Dictionary s.v. "Road, Public" also note this distinction. But it appears to me that there is also considerable authority which supports the view that historically a highway conferred the most extensive public rights of way. Cusine and Paisley at paragraph 18.04 discuss the way in which the Institutional writers used the term "highway" or "the king's highway" as routes which were open to all and as routes between two burghs or between a burgh and a public port. See Stair II, vii, 10, Erskine II, vi, 17, Bankton II, vii, 21. The importance of the rights conferred on the public by a highway was recognised in Sutherland v Thomson (1876) 3 R 485, Lord Neaves at p.489. Interference with or obstruction of the highway was a crime: Bankton II, vii, 27. While in a public right of way, an owner may erect gates provided that they do not prevent the public exercising their rights of way, in highways the right to prevent any erection is absolute: Lord Donington v Mair (above), Lord Justice-Clerk MacDonald at p.832, Reilly v Greenfield Coal and Brick Co Ltd 1909 SC 1328, Lord President Dunedin at p.1338. Statutory provisions now protect public roads against obstruction, interference and damage: see Parts V and VIII of the Roads (Scotland) Act 1984. Unlike a public right of way, it has been suggested that a right of highway cannot be lost by non-use: see Will's Trustees v Cairngorm School Ltd 1976 SC (HL) 30, Lord Fraser at p.169. In Galbreath v Armour (above), Lord Brougham (at p.390) equated the concept of a highway with the most extensive right of way which was recognised by civil law, namely via. His approach is consistent with the view that historically a highway has been seen as the most extensive public right over a road. So while there are examples of the term "highway" being used as a term to cover different classes of roads (see Lord Skerrington in McRobert v Reid (above) at p.648) and the statutes and texts mentioned above equate "highway" with a public road which is publicly funded in contrast with a public right of way, I am not persuaded that a publicly funded highway has historically been seen as conferring less rights on its would-be users than a public right of way.

[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 Paisley (at paragraph 18.05) suggest that both highways and public rights of way lead from one public place to another. Nonetheless, I am not persuaded, in the absence of the citation of more authority, that this is necessarily the case. There are examples today of publicly maintained unclassified roads in rural areas which link farms or small groups of houses to classified public roads. There is also older case law which treated similar roads constructed by statute labour as public roads: Wilson v Jamieson (1827) 4 Murr. 364. Nor am I satisfied that the public road gives the public less rights than it would if it were a public right of way, which, it was submitted, it could not be as the public road terminated at a turning point and not at a public place. While it is clear that, where the public authority maintains a road but has not acquired the land on which the road is laid, the ground underneath a public road remains the property of the landowner, there are dicta that every point on a public road is a public place. See, for example, Jenkins v Murray (1866) 4 M 1046, Lord President McNeill at p.1047, McRobert v Reid (above), Lord President Strathclyde at p.639, Lord Skerrington at p.648, and Rhins District Committee (above) Lord Sands at p.170. Not having had further authorities cited to me, I proceed on the basis that every part of the public road is a public place. It appears therefore that a public road may confer extensive rights of passage on the public without having two public termini.

[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 (Scotland) Act 1984. In any event, I am not persuaded that the rights of passage of the public over a "public road" in terms of section 151 of the Roads (Scotland) act 1984 are less than those available to them in a public right of way, whatever was the status of the road before it was adopted by the roads authority. Accordingly, I do not accept the defenders' first submission.

[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 Murray (above), Duncan v Lees (1870) 9 M 274 and Winans v Lord Tweedmouth (1888) 15 R 540. Nor is there any doubt that one can have a public right of way from one part of a public road to another part of the same road (Jenkins v Murray (above)). It appears to me that the reason for the rule is that the right of the public to go on to private land does not extend to allowing the public to stroll across that land for recreation. See Mackintosh v Moir (1871) 9M 574, Lord President Inglis at p.575 and Lord Ardmillan at pp.578-9, and Duncan v Lees (above) Lord Ardmillan at p.278 and Lord Kinloch at p.279. As Lord Kinloch said in the latter case, "the legal object [of a public right of way] is transit, not amusement". Where, however there is a public road and the users of that road encroach upon a small area of private land when traversing the road for the prescriptive period, I consider that it is arguable that their so doing could create a public right of way over the area of private land. The right of way would be an adjunct to the public road. In the present case it is not likely that the wheels of large vehicles which enter the driveway to effect the manoeuvre will leave the driveway at exactly the same spot as they entered it. Thus, while it is a technical point, a vehicle will usually move from one public place on the public road to another. I am not persuaded therefore that it is a legal impossibility for there to be a public right of way over the driveway as an adjunct to the public's right of passage over the public road. I therefore do not accept the defenders' third submission.

[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 16 February 2006 requested the defenders to remove them. The defenders have not challenged the encroachment on the driveway by their neighbours and by public utility vehicles seeking to negotiate the bend. It may be that in a proof the defenders will be able to demonstrate that the local population and the Council had obtained their permission to use the entrance of the driveway for the manoeuvres and, as in Magistrates of Edinburgh v North British Railway Company (above), encroachment which had been tolerated had never become an assertion of right. Nevertheless it is not disputed that some vehicles have carried out the manoeuvres for many years. It would not be appropriate for me to assume at the interim stage that these manoeuvres have been carried out only with the permission of the defenders: Rhins District Committee (above). I consider that the balance of convenience favours the preservation of the status quo before the defenders sought to forbid large vehicles serving the pursuers' premises from encroaching on the driveway. While this will require the defenders to lower or remove the bollards which they have erected four metres into the driveway, they will be entitled to erect bollards at or beyond eleven metres into the driveway and to take reasonable steps to ensure the safety of users of their facilities. It will be incumbent on the drivers of vehicles using the driveway for the manoeuvres to take care for the safety of others in the vicinity of the driveway.

[20] I therefore refuse the defenders' motion and allow the pursuers to amend their first conclusion and I vary the interim interdict granted on 25 January 2006 by substituting "eleven metres" for "four metres" on the three occasions where those words appear.