Act: Johnston, Q.C.; Anderson Strathern

Alt: Haddow, Q.C.; Lindsays

26 October 2007

[1] This matter is concerned with an attempt by the respondent reclaimers to readopt a length of road at Townhead Park, Collin, near Dumfries categorised as "U62N". It had previously been a minor road prior to the development of the area surrounding it, when it was stopped off and declassified.

[2] The decision in question was taken at a meeting of the respondents'

Planning and Environment Services Committee held on Thursday 26 May 2005. The decision as minuted is in the following terms:

"AGREED to add the length of road from 6M southeast of Collin Village Hall to the A75 trunk road boundary to the list of public roads".

[3] There happen to have been a number of issues relating to this matter ventilated over the years, but this case at the present time is entirely concerned with whether or not that decision was ultra vires in respect of the Council's powers. This in turn depends upon the competency in legal terms of the request being made by persons who were said to be the frontagers in terms of the Roads (Scotland) Act 1984.

[4] The relevant requests were made by two householders whose houses, to use a neutral phrase, adjoin the road at its extreme end on each side of a hammerhead junction forming part of the development. Their respective names are Hyslop and Marshall. They were joined in the application by the Scottish Executive, having regard to their ownership of the A75.

[5] Before us the detailed examination of the respective titles of Marshall and Hyslop and their predecessors took place. However, it is sufficient for our purposes, since the matter is not in dispute, that between the relevant part of the road and the respective properties of Hyslop and Marshall was a narrow strip of ground approximately a metre wide which, although encompassed by the description of the land disponed respectively to the Marshalls and Hyslops, was in fact a non domino having regard to the fact that it was not contained in the title of the disponer to each of these parties, namely the developer. The important, therefore, and salient fact which bases this case is that between the road and the respective properties of Hyslop and Marshall was a narrow strip of land belonging to somebody else, which was said to be the petitioner. We simply refer to that as "the strip". Against that background the issue is whether or not the Hyslops and Marshalls should be regarded as frontages within the meaning of the Act at the time they made their request. In terms of the statute these are inter alia persons who have a right to demand that a road be taken over by the local authority.

[6] The relevant legislation is in the following terms:

"Section 151(1) of the Roads (Scotland) Act defines a frontager in this way.

Frontager in relation to a road or proposed road means the owner of any land fronting or abutting it.

'Owner' is also defined in the section which reads as follows:

'Owner' - A (in relation to land means ... the person for the time being being entitled to receive or would if the same were let be entitled to receive the rents of the land and include as a trustee, factor, tutor or curator ... )."

[7] Parties were agreed that in general terms a person apparently infeft in land which is a non domino in terms of the relevant disposition can fortify his title by means of prescription after peaceful possession of that land for a period of ten years. Again it was not disputed that in respect of their properties both Hyslop and Marshall had occupied or possessed the strip, the prescriptive period of ten years at the time of the relevant decision which is the operative date had not expired. In simple terms, therefore, as the Lord Ordinary held, neither Hyslop nor Marshall were owners in respect of an unchallengeable title of the strip.

[8] Mr. Johnston for the reclaimers submitted what he described as two arguments against the decision of the Lord Ordinary although on one view the second could be regarded as a mere elaboration of the first.

[9] In essence he submitted that on the face of the title registered both Hyslop and Marshall had an ex facie valid disposition which included the strip which had not been subjected to challenge by the time the local authority made the decision and accordingly they should be properly regarded as owner on the face of the register. They would be entitled to claim rent if such were feasible for the strip and thus met that the definition in the statute. He further went on to submit in terms of certain English cases that the proper way to regard the matter was for whose benefit or advantage would the making up of the road into a public road accrue and in this respect he submitted it was plainly that of the Hyslops and the Marshalls, although he recognised that in accordance with those English cases while the issue of beneficial advantage was discussed, equally there was authority that unless there was a physical abutment of the relevant property claiming to be a frontager the legislation did not operate. In this respect he referred us to Lightbound v Higher Bebbington Local Board 1995 Q.B. 577 and Buckinghamshire County Council v Trigg 1963 1 WLR 155. He also referred us to two Scottish cases Magistrates and Town Council of Leith v Gibb 1882 9 R. 627 and Stewart v Greenock Corporation 1957 SLT (Sh. Ct.) 21.

[10] In the final analysis he submitted that the Lord Ordinary in deciding the matter purely as a question of ownership had taken a too narrow view and failed properly to identify the policy of the Act which was to benefit the persons with most to gain from the makeover, which in this case was obviously the Hyslops and the Marshalls who were therefore properly to be regarded as frontagers.

[11] Counsel for the respondents and petitioner submitted that the Lord Ordinary's approach was entirely correct. The issue was purely one of actual ownership as determined by the titles. While he accepted that the prescriptive period had now expired at the material time, namely the date of the decision, it had not. Therefore both proprietors were not infeft in the strip which separated physically their property from the road and that meant, since there could not be two frontagers in respect of the same piece of road, that the only frontager could be the owner of the strip and whoever that was, even if it was the petitioner, it certainly was not either the Hyslops or the Marshalls. Accordingly, the Lord Ordinary was correct that the local authority had not received a competent application from frontagers which would enable them lawfully to grant the application.

[12] In seeking to resolve this matter we confess to having some difficulty as to what distinction should be found in terms of meaning to the respective words "fronting" and "abutting". However, there is clear authority that where there is no physical abutment the property in question should not be said to be capable of rendering its owner a frontager. This is the basis of the decision of Sheriff McLean in Stewart whose reasoning we find impeccable.

[13] It has at once to be recognised that the English cases are dealing with a different legislation which can be immediately contrasted with that of the Scots which in our view imposes a much stricter test, effectively one of conveyancing as regards who is the rightful owner of the land physically adjoining, to use a neutral phrase, the road in question.

[14] In these circumstances we feel compelled to accept the argument that the Lord Ordinary upheld to the effect that at the material time the properties of the Hyslops' and Marshalls' being physically separated by the strip from the road could not render them frontagers. As Mr. Haddow pointed out to us there cannot be two frontagers and to find otherwise than in favour of the Lord Ordinary's position would either mean that that was the case or that the owner of the strip had to be disregarded. We do not consider that that can be achieved in the context of the Scottish legislation.

[15] In these circumstances we are persuaded that not being infeft owners with an unchallengeable title of the strip at the time of the decision neither the Hyslops nor Marshalls can be regarded as frontagers. We are therefore of the view that the Lord Ordinary came to the correct decision and that this reclaiming motion requires to be refused.

[16] We shall so order, adhere to the interlocutor of the Lord Ordinary and remit the case back to the Outer House to proceed as accords.