Brian Gregory Hamilton V. Dumfries And Galloway Council And Another For Judicial Review

JurisdictionScotland
JudgeLady Smith
Neutral Citation[2008] CSOH 65
CourtCourt of Session
Published date25 April 2008
Date25 April 2008
Year2008

OUTER HOUSE, COURT OF SESSION

[2008] CSOH 65

OPINION OF LADY SMITH

in the cause

BRIAN GREGORY HAMILTON

Petitioner;

against

DUMFRIES AND GALLOWAY COUNCIL

First Respondents:

PLANNING AND ENVIRONMENTAL SERVICES COMMITTEE OF DUMFRIES AND GALLOWAY COUNCIL

Second Respondents:

For Judicial Review

________________

Petitioner: Haddow QC; Henderson ; Lindsays WS

Respondents; Olson; Anderson Strathern LLP

25 April 2008

INTRODUCTION

[1] This case is about a stretch of road extending to some 36 metres ("the disputed section of road"). The petitioner's sole interest in this stretch of road is to seek to exploit it for financial gain; he sees it as a "ransom strip". It used to be part of the B724 road between Collin and Annan, in the County of Dumfries. It was, however, transected by the A75, a new trunk road bypassing the village of Collin on its south side which was constructed some time after 1983. When that happened, a section at the southern end of the disputed section of road was grassed over and became part of the verge to the A75. There was, accordingly, physical stopping up at that southern end, over that short distance, which was about 8 metres. The issues raised in this petition concern a 36 metre stretch extending, broadly speaking, to the north of that grassed over part.

[2] At present, access to a housing development, Townhead Park, is taken from the disputed section of road. That has been the access to the housing development since its construction in 1999. There is no other access to Townhead Park. There are fourteen houses in it.

[3] The disputed section of road is used by the public. It is agreed between parties that use of it has included use by the proprietors of the houses in Townhead Park, by other members of the public going there, by members of the public going to the village hall who turn and park there and by buses, to turn there.

[4] The petitioner is heritable proprietor of Rockall Estate in the County of Dumfries. His title is a barony title and he acquired it without paying any consideration therefor, in 2001. His title includes the disputed section of road. He asserts that the public have no right of passage over it. He has sought to persuade the proprietors of Townhead Park to purchase servitude rights of access from him in return for substantial payments. Alternatively, he seeks to have the respondents acquire it from him by way of compulsory purchase, a course of action which would also, of course, involve him receiving payment.

BACKGROUND

[5] On 27 October, the "Gretna-Stranraer-Glasgow-Stirling Trunk Road (A75) (Collin Diversion Side Roads) Order 1983 ("the 1983 Order") was pronounced. It was in the following terms:

"The Secretary of State, in exercise of the powers conferred by section 14(1) of the Special Roads Act 1949 and now vested in him, and of all other powers enabling him in that behalf and having complied with the provisions of Schedule 2 to the Trunk Roads Act 1946 hereby makes the following order : -

1. This order may be cited as The Gretna - Stranraer - Glasgow - Stirling Trunk Road (A75) ( Collin Diversion Side Roads) Order 1983, and shall come into operation on 11 November 1983.

2. The following works are hereby authorised:-

i. the construction of those lengths of road (hereinafter referred to as "the new roads") along the routes described in Schedule 1 to this order.

ii. the improvement of those lengths of road described in schedule 2 to this order.

iii. the stopping up of those lengths of road described in Schedule 3 to this order when the new roads are open for the purposes of through traffic.

3. The new roads will be transferred to Dumfries and Galloway Regional Council as highway authority therefor on the date upon which notice is given by the Secretary of State to that Council that the new roads are open for the purposes of through traffic.

Given under the Seal of the Secretary of State for Scotland.

M I P CUNLIFFE

Assistant Secretary

Scottish Development Department

New St Andrew's House

Edinburgh

27 October 1983."

[6] Schedule 3 to the order included, in its list of roads to be stopped up, the disputed section of road and the 8 metres stretch, to which I have already referred. It had formerly been part of the B724 but once it was transected by the new road it became an unclassified road, the U62n.

[7] In about 1989, the then Regional Council formally amended the list of Public Roads kept by it under and in terms of section 1 of the Roads (Scotland) Act 1984 ("the 1984 Act"). After amendment, the entry in respect of the U62n was:

"U62n Low Road (from) C8n at Collin to termination 6m south east of Collin Village Hall, Collin."

[8] That is a description of the U62n from Collin village travelling southwards but only to a point some 36 metres north of the new road. The disputed section of road was, accordingly, no longer included in the list of public roads. Notwithstanding that, on 12 September 1993, construction consent for the Townhead Park housing development was issued on the basis that the only access to and from it would be taken via the disputed section of road.

[9] By letter dated 15 April 2005, the petitioner's solicitors wrote to the residents of Townhead Park on behalf of the petitioner indicating that the solum of the disputed section of road vested in him and he would be prepared to grant them a servitude right of access each in return for payment of £5,000 plus expenses. The letter also warned them that if they did not agree to that proposal he reserved the right to instruct the commencement of proceedings.

[10] The residents evidently placed the matter before the respondents and they had a report prepared. That report was presented to a meeting of the Respondents' Planning and Environment Services Committee on 26 May 2005 and included the following:

"2.5 Townhead Park does not connect to a public road, and so it is debatable whether a construction consent should have been issued by the former Regional Council for its construction. Having done so, both the developer and residents have been given the impression that Townhead Park would be adopted as a Public Road. Townhead Park is not adopted and, currently could not be adopted as it does not connect to the Public Road network.

2.6 The failure to physically alter the road, as had been originally planned by the then Scottish Office, and the continued use of the road, initially for bus turning and later by the residents of Townhead Park, means that the affected length of road continues to be a road, and because of the amendment to the List of Public Roads, is a private road.

2.7 A local landowner, having bought the Rockall Estate, has laid claim to the solum of the road. Solicitors acting for the landowner have contacted residents of Townhead Park requiring them to agree to make a payment to allow access over the length of road that was to have been stopped up."

[11] The report also recorded that the respondents had received requests for them to adopt the disputed section of road and contained a recommendation that that was what the respondents should do. At the meeting, the committee:

"AGREED to add the length of road from 6m south east of Collin Village Hall to the A75 Trunk Road Boundary to the List of Public Roads."

[12] The respondents followed that recommendation but their adoption of the disputed section of road was challenged by the petitioner within the present Judicial Review process. By interlocutor dated 12 June 2007, following a continued First Hearing, Lord Glennie declared the decision to adopt to have been ultra vires, the application for adoption not having been presented by the requisite number of frontagers (see: section 16(1) of the 1984 Act). The householders who had presented the application for adoption had not, at the time the applications were made, been infeft owners with an unchallengeable title that qualified them as frontagers. I understand that that may now have changed. The respondents reclaimed but by interlocutor dated 26 October 2007, the Inner House adhered to Lord Glennie's interlocutor and remitted the case back to the Outer House to proceed as accords though on the basis that since the disputed section of road was taken off the section 1 list in 1989 there has been no valid adoption of it since then.

[13] The "frontager" argument was not, however, the only argument presented by the petitioner by way of challenge. At the original first hearing before Lord Kingarth in March 2006, the petitioner submitted that the decision of 26 May 2005 was ultra vires because the disputed section of road was not a 'road' within the meaning of the 1984 Act. Lord Kingarth rejected that submission and gave effect to his decision that the disputed section of road did qualify as a "road" under the 1984 Act by deleting the petitioner's averments in support of the plea that reflected that submission, all by interlocutor dated 14 July 2006.

[14] The existence and effect of the 1983 Order was discussed in Lord Kingarth's opinion. At paragraph 9 he recorded the following, which is of some significance in the light of the petitioner's arguments before me:

" By the end of the hearing before me it was, as I understood it, agreed that all the 1983 Order authorised was "works" to stop up the relevant length of road, and that the Order itself did not then immediately "stop up" the relevant length of road."

[15] The facts remain as they were when this case was before Lords Kingarth and Glennie with one exception. It is referred to in averments that have been added by way of minute. The petitioner, through his solicitors, has sent two further letters to all the residents of Townhead Park. The first was a letter dated 24 May 2007 i.e. pending the issuing of Lord Glennie's opinion. It stated:

"Our purpose in writing to you at this time is twofold.

Firstly, it is to confirm that unless the Court determines otherwise, it remains Mr Hamilton's contention that he is...

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