Elmford Ltd v City of Glasgow Council (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 12 September 2000 |
| Date | 12 September 2000 |
| Docket Number | No 14 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Clarke
Administrative lawJudicial reviewWhether remedy available only in respect of decision
Roads and streetsPublic passageWhether land dedicated to public passageWhether frontager had right of accessRoads (Scotland) Act 1970 (cap 20), sec 29(1)Roads (Scotland) Act 1984 (cap 54), sec 1(1)1
Section 29 of the Roads (Scotland) Act 1970 provided that a highway authority may acquire by agreement or compulsorily, land required in connection with the construction of a highway.2 Section 1(1) of the Roads (Scotland) Act 1984 obliges a local roads authority to manage and maintain all such roads in their area as are for the time being entered in a list maintained by them, and gives them power for the purposes of such management and maintenance to reconstruct, alter, widen, improve or renew any such road or determine the means by which the public right of passage over it, or any part of it, may be exercised.
The petitioners lodged a petition for judicial review seeking declarator (1) that they were entitled to take vehicular and pedestrian access and egress across a certain strip of land between the metalled surface of a link road owned by the respondents as roads authority and land belonging to the petitioners; and (2) that the respondents' actings in purporting to charge or obtain value from, or otherwise prevent, the petitioners in respect of taking such access and egress were ultra vires. The petitioners wished access over the strip for a proposed development of a road services station on their land. The petitioners considered they were entitled to such access as of right whereas the respondents' position was that the strip being in their sole ownership, access and egress over it was something which they had the right to prevent, control or grant for a consideration. The land comprising the metalled road surface and the strip had been acquired compulsorily by the respondents' statutory predecessors, who had constructed the road surface and made an entry in the list of roads under sec 1 of the 1984 Act. The petitioners argued that the land had been acquired for road purposes, and, not having been appropriated by the respondents for any other purpose, must be deemed to be part of the land constituting the road, and accordingly the petitioner as the owner of land fronting on a highway, had a right of access over the strip. The respondents argued that the strip was not part of the road.
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