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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hamilton, Re Judicial Review [2007] ScotCS CSOH_96 (12 June 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_96.html Cite as: [2007] ScotCS CSOH_96, [2007] CSOH 96 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 96 |
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P1165/05 |
OPINION OF LORD GLENNIE in the petition BRIAN GREGORY HAMILTON Petitioner; for Judicial Review of a Decision taken by the Planning and Environmental Services Committee of Dumfries & Galloway Council taken on 26 May 2005 in respect of a decision to "re-adopt" Road U62N ________________ |
Petitioner: Henderson; Lindsays, WS
Respondents: Olson;
[2] Section 16 of the Act provides that, provided a private road is of a certain standard, then, if application is made to the authority by the "requisite number of frontagers", the authority shall within 12 months of the application add the road to their list of public roads (i.e. adopt it). The "requisite number" of frontagers is identified in sections 16(5) and 1(7) of the Act, So far as is relevant here, the requisite number is (a) a majority of frontagers or (b) such number of frontagers as together own land which includes not less than half of the boundary fronting or abutting the road.
[3] The first and second respondents are the
[4] In these proceedings for judicial review, the petitioner challenges the decision to adopt the disputed section of road. The respondents, for their part, challenge the petitioner's title and interest.
[5] The case came before me at a continued First Hearing, there having already been a debate at First Hearing on certain issues, details of which can be found in the Opinion issued on 14 July 2006 by Lord Kingarth under case reference [2006] CSOH 110. At the continued First Hearing the petitioner contended that the decision to adopt the road under section 16 of the Act was ultra vires the respondents because the application made to them was not made by the "requisite number of frontagers". The respondents argued that the petitioner did not have title and interest since he did not own the disputed section of road or any land adjoining it.
[7] At the time when the new section of the A75 was constructed
and the above-noted changes to the B724 were made, there was a field to the
north of the new A75 and to the east and north-east of the disputed section of
road and of theU62N continuing on from it.
That field, measuring just over 8 hectares, directly abutted the road,
in the sense that there was no footway between it and the road. It has since been developed for housing. The houses are laid out around a road,
[8] Counsel who appeared before me were in agreement that
dispositions in 1995 - namely a disposition from various members of the Currie
family in favour of the developers, Robison & Davidson Limited, dated 13
and 15 May 1995 (but recorded in the Register of Sasines only on 2 June 1995), and
two dispositions from the developers in favour respectively of Mr Hyslop and Mr
and Mrs Marshall, dated respectively on 28 April and 26 May 1995 (but again
recorded in the Register of Sasines only on 2 June 1995) - bore to convey the
whole field (and therefore the whole area of the development) to the
developers. However, the prior
disposition in 1992, from Ronald MacDonald Currie to those members of the
Currie family, excluded a strip along the edge of the field adjacent both to
the disputed section of road and the U62N.
That excluded strip is the area now occupied by (a) that part of the
pavement or footpath which abuts the road and (b) the bell-mouth of
[9] I should add that the Scottish Executive claim to own the land to the south and west of the disputed section of road. The petitioner claims to own the solum of the disputed section of road, as well as the solum of a section of the U62N to the north of it and the grassed over section to which I have already referred.
Title and interest
(i) The relevant
dispositions and parties submissions
[10] The respondents questioned whether the petitioner owns any relevant land, i.e. land adjoining the disputed section of road. I use the word "questioned" advisedly, since the respondents' case was simply that the title produced by the petitioner was not clear. They accepted that the petitioner's title derived from the estate. However, they submitted that prior to his purchase of the residual part of the estate, the road that ran through the estate (including all of what is now the disputed section of road, the grassed over part of the road and the south-eastern end of the U62N) had been sold off with the surrounding fields. It was questionable whether the petitioner had ever acquired title either to the solum of the disputed section of road or the grassed over part or the near end of the U62N.
[11] It was agreed that this identified the relevant question and counsel were therefore able to develop their arguments simply by reference to the two dispositions and accompanying plans which, so the respondents contended, bore to remove these parts from the estate lands to which the petitioner acquired title. Those dispositions were, first, a disposition by Sir Robert Gilbert White dated May 1920 in favour of Thomas and Robert Dickson and, second, a disposition in 1926 by Thomas Dickson in favour of William Callander.
[12] The 1920 disposition bore to dispone "all and whole the lands and farm of Braehead ... as presently occupied by the said Thomas Dickson and Robert Dickson as tenants thereof ... all as the said lands and farm and said cottages are separately delineated and coloured pink on the sketch or plan annexed and subscribed as relative hereto". The plan showed the area of land to be delineated as one whole and coloured pink, but the public roads running through it was not coloured in. Mr Olson, who appeared for the respondents, submitted that the disposition was of one piece of land. The roads were within the area delineated on the plan and must have been intended to pass with the disposition even though they were not coloured pink. Since the roads cut the land into separate parcels, had it been intended that the roads should not be disponed with the land, the disposition would have been of five separately delineated areas. He submitted that the failure to colour the roads should be regarded as an omission which did not affect the grant. He pointed out that the disposition expressly stated that "the accuracy [of the plan] is not warranted". Mr Henderson, for the petitioner, relied upon the fact that the roads were not coloured pink. He also took a more fundamental point. He pointed out that the description of the land disponed was that it was land "presently occupied" by the Dicksons as tenants. It was difficult, he submitted, to see how a tenant could occupy a public road running through the farm. The right of ownership is in the solum. It is an incident of the law of landlord and tenant that to be able to lease subjects the landlord had to be able to grant the tenant a right to use the subjects. The road being a public road, it would be impossible for the owner of the solum to grant a tenant any such right. Since the road could not have been leased to or occupied by the tenants, it could not have formed part of the lands disponed by the disposition.
[13] The 1926 disposition bore to dispone to William Callander certain lands "all as the said subjects hereby disponed are delineated and coloured pink on the Plan thereof hereunto annexed and subscribed by me ...". The Plan consisted of a sheet from the Ordnance Survey Map and was held to be "descriptive merely and not taxative". The disposition went on to say that the lands hereby disponed "consist of and comprehend enclosures Numbers 475, 476, 477, 478, 480, 481, 490, 491 and 493 on the foresaid Ordnance Sheet ...". Mr Olson argued, by reference to the Plan, that since the relevant part of the road running through the land did not have a separate enclosure number, in contrast to another stretch of public road on a different part of the Plan, that part of the road appeared to be treated as though it were part of the field and covered by the same enclosure number. Mr Henderson disputed this construction. He also pointed out that the 1926 disposition went on to describe the lands disponed as being the lands described in the 1920 disposition. If the 1920 disposition did not convey the roads running through the land, neither could the 1926 disposition.
(ii) Discussion
[14] On this question, I prefer the submissions of Mr Henderson. It is true, as Mr Olson submitted, that the delineation on the plan attached to the 1920 disposition encloses a single area of land to the disponed, and that within the single area there are a number of roads. However, the terms of the disposition show that the subjects intended to be disponed were not only delineated on the plan but were also coloured pink. Whilst the farm tracks within the delineated area are coloured pink, the public roads running through it are not. It is impossible, in my opinion, to regard this as an accidental omission. The pink colouring has been carefully carried out up to the edges of the size of the public roads running through the land. There can be no doubt, in my opinion, that the roads were deliberately excluded from the colouring on the plan so as to indicate that no interest in the roads was disponed. I do not think that anything turns on the wording in the disposition to the effect that the accuracy of the plan is not warranted. Such a disclaimer is intended to cover errors in the plan and also to make it clear, for example, that field boundaries may not be precisely drawn. But it does not to remove altogether the relevance of the plan. The plan is important, for example, to identify which fields are disponed. By the same token, it is relevant for the purpose of identifying that there is no intended disposition of any interest in the public roads running through the land.
[15] In light of this conclusion, it is unnecessary for me to reach any concluded view about Mr Henderson's more fundamental submission that a tenant cannot be said to occupy the solum of a public road running through the subjects, and that therefore the disposition, which describes the land disponed as being "occupied" by the then tenants, could not have been intended to include the public roads. Clearly the solum of a public road is capable of ownership. However, I think that Mr Henderson is correct in drawing a distinction between the ownership of the title holder and occupation by a tenant. It is difficult to see how a tenant under a lease can occupy the solum of a public road running through the land. He may use it, but if he uses it he does so by virtue of its being a public road. His use of the road is not suggestive of occupation. If it were a private farm road, there would be no such difficulty. He could park a tractor blocking the road, if he so chose, or use it for feeding livestock. He cannot lawfully use a public road in the same way. No other attributes of occupation were suggested. In terms of the 1920 disposition, therefore, it is difficult to see that the reference to lands "occupied" by the tenants could have been intended to include the public roads running through the land or the solum of those roads. For this reason also, had I had to decide the point, I would have found in favour of the petitioner.
[16] Since the description of the land disponed by the 1926 disposition expressly describes it as being the land disponed by the 1920 disposition, it must follow that, on its proper construction, the 1926 disposition bears to dispone no more than was disponed by the 1920 disposition. Since I have concluded that the 1920 disposition did not dispone this public road running through the land, it must follow that the 1926 disposition did not dispone the road either.
[17] Quite apart from that, however, it seems to me that there are other reasons why the 1926 disposition did not bear to dispone this road. Admittedly the road is coloured pink on the plan annexed to the 1926 disposition, but that plan (unlike the plan annexed to the 1920 disposition) is held to the "descriptive merely and not taxative". With such wording, any inference that might be drawn from the colouring of the plan is very weak. Of greater importance is the fact that the lands disponed by the disposition are said to consist of and comprehend certain enclosure numbers on the Ordnance Sheet on which the plan is drawn. Those enclosure numbers are Ordnance Survey numbers, and they refer to particular parcels of land identified on the Ordnance Survey map. Mr Olson pointed out that one of the public roads on the map has its own enclosure number, whereas the road containing the disputed section of road does not. The inference to be drawn, he submitted, is that since the road leading out of Collin to the south east (which includes the disputed section of road) does not have its own enclosure number, it is to be regarded as part of the field having enclosure number 491, and therefore as part of the land disponed. I cannot agree. The plan is drawn on a section only of the Ordnance Survey Map. Without seeing the whole Sheet, and maybe such neighbouring Sheets as are necessary to cover the whole length of the Collin to Annan road, one cannot say whether the public road in question has an Ordnance Survey enclosure number. There might be a number given for the road on another Sheet. But even if the road does not have such a number, the fact is that it is separated by lines from the fields either side. I accept, as Mr Olson pointed out, that the line on one side of the road is bolder than that on the other, but this means nothing, since the same is true of the road which does have its own enclosure number. Taking the disposition and plan as a whole, I do not think that it can possibly be said that the road is identified in the plan as part of one of the fields so as to be conveyed by the 1926 disposition.
[18] I therefore find for the petitioner on the question of title and interest.
Was the respondents' decision ultra vires
(i) The issue
[19] The decision to adopt the disputed section of road was taken
under section 16 of the Roads (
[20] The issue is, therefore, whether, at the material time, Mr Hyslop and Mr and Mrs Marshall were "frontagers" within the meaning of the Act.
(ii) The relevant statutory provisions
[21] Section 151(1) of the Roads (
"'frontager', in relation to a road or proposed to road, means the owner of any land fronting or abutting it".
The word "owner" also has its own definition in that section. Only the first part is relevant. This reads as follows:
"'owner' -
(a) in relation to land means, subject to paragraph (b) below, the person for the time being entitled to receive, or who would, if the same were let, be entitled to receive, the rents of the land, ..."
It was not suggested that other provisions of that Act are relevant for present purposes.
[22] I was also referred to section 1 of the Prescription and
Limitation (
"1(1) if the land has been possessed by any person, or by any person and his successors, for a continuous period of 10 years openly, peaceably and without any judicial interruption and the possession was founded on, and followed -
(a) the recording of the deed which is sufficient in respect of its terms to constitute in favour of that person a real right in -
(i) that land ...
...
then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge."
The submissions on this section focused particularly on the meaning of "possessed" and what was meant by "shall be exempt from challenge".
(iii) Submissions
[23] Mr Henderson advanced two
submissions on the half of the petitioner.
His first was that, as at
[24] His second submission was that, whether or not 10 years had
elapsed, Mr Hyslop and Mr and Mrs Marshall had not "possessed" the relevant
strip of land so as to bring section 1 of the Prescription and Limitation (
[25] Mr Olson, for the respondents, submitted that any act of
possession had to be viewed against the nature of the land possessed. In certain circumstances, relatively minor
acts, occasional in nature, might suffice: see
[26] Mr Olson submitted that the person with recorded title was the
owner of the land for the purpose of the definition in the Roads (
[27] Mr Olson further argued that none of that mattered, because
section 1(1) of the Prescription and Limitation (
[28] In a brief reply to Mr Olson's submission that it was enough simply to look to see who had the recorded title, Mr Henderson drew my attention to Trade Development Bank v David W. Haig (Bellshill) Ltd 1983 SLT 583 to vouch the point that the public registers gave public notice of what was contained in them. It was not enough simply to look at a disposition recorded less than 10 years before the relevant date. Everyone knew that it was necessary to look back beyond the 10 years. The information was all in the Register.
(iv) Discussion
[29] Section 16 of the Roads
(Scotland) Act 1984 imposes a duty on the respondents to adopt a road, assuming
it to be of the required standard, if the application is by either a majority
of the frontagers, i.e. a majority of the owners of land fronting or abutting
the stretch of road in question; or by frontagers owning between them at least
half of the land fronting or abutting the road or stretch of road. It is agreed that for either requirement to
be satisfied in the present case, it must be shown that both Mr Hyslop and Mr
and Mrs Marshall were frontagers.
[30] The answer to that question depends, in terms of the definition
of owner in section 151 of the Act, upon whether they were the persons who, "for
the time being", were entitled to receive the rents of the land or who would
have been entitled to receive such a rents if the land were let. It seems to me that the phrase "for the time
being" is intended to indicate that the inquiry must focus upon the particular
time when, in terms of the Act, frontagers are called upon to act or their
actions are to the assessed. The inquiry
must, therefore, be whether on
[31] Nor does it seem to me that any extended construction ought to
be placed upon the words in the section to take account of practical difficulties
which might be encountered by those wishing to know to whom they should pay
rent. Mr Olson accepted that the
ordinarily prudent solicitor wishing to find out who was the owner of land or
to whom rent should be paid would look in the Register of Sasines as far as the
last title recorded more than 10 years before his inquiry. This makes obvious sense. Such a solicitor would have discovered not
only that the dispositions in favour of Mr Hyslop and Mr and Mrs Marshall,
recorded less than 10 years before, bore to show that they had title to
the whole land; but also that the disposition recorded immediately prior to
that cast some doubt upon their titles to the strip of land immediately
adjoining the disputed section of road.
In other words, such a solicitor would have discovered without
difficulty that, to put it at its lowest, the titles recorded in favour of Mr Hyslop
and the
[32] On the other hand, there are great practical difficulties with the construction advanced by Mr Olson. It would be open, if he were correct in his argument, for an unscrupulous frontager who wished a road to be adopted over the opposition of his neighbours to grant a non domino dispositions over small sections of land to enough individuals to constitute a majority of frontagers, and to record the dispositions in the Register of Sasines. The weakness of their titles would be irrelevant. The roads authority would be obliged to adopt the road and a person aggrieved by the act would be met by the answer that the recording of their title in the Register was conclusive on the point. This cannot be right. It would, in effect, allow the recording of an a non domino title to be conclusive for certain purposes even short of the 10-year prescription period set out in section 1 of the 1973 Act.
[33] It seems to me, if this analysis is right, that the discussion
about whether or not Mr Hyslop and Mr and Mrs Marshall subsequently gained the
benefit of prescription is beside the point.
The effect of their having done so would be to make their titles exempt
from challenge from that point on. But
it would not have the effect of retrospectively validating actions which took
place before the expiry of 10 years.
Insofar as it is necessary to examine what occurred before the expiry of
10 years, that examination must proceed upon the basis of what the
position was then. Otherwise one would
have the absurd situation that the validity of a decision by the roads
authority to adopt a road would alter merely by the passage of time. In the present case, the decision taken on
[34] Having reached this conclusion, it is not strictly necessary
for me to consider whether Mr Hyslop and Mr and Mrs Marshall did in
fact "possess" the narrow strip of land abutting the disputed section of road
so as to bring section 1 of the 1973 Act into play. The difficulty is in finding some act of "possession"
which can be said to the "unequivocally referable" to their claimed titles of
ownership. Driving out through
Disposal
[35] For the reasons which I have set out, I consider that the respondents' challenge to the petitioner's title and interest fails. The petitioner has made good his contention that the adoption of the road by the respondents was ultra vires. I shall therefore grant declarator that the decision of the Dumfries and Galloway Council and the Planning and Environmental Services Committee thereof on 26 May 2005 to add to their list of public roads the section of road set out in the plan annexed to the report prepared by their officials on 17 May 2005 was ultra vires; and I shall reduce the said decision. I was asked to make other orders but it seems to me that the more appropriate course is to put the case out By Order to discuss whether any and, if so, what further procedure is necessary. I shall reserve all questions of expenses, in particular because the point on which the petitioner has been successful was raised only recently and it does not, therefore, follow that his success should carry with it the expenses of the whole action.