Michael Hamilton And Another V. Robert Kennedy Nairn
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2009] CSOH 163 |
| Court | Court of Session |
| Published date | 09 December 2009 |
| Year | 2009 |
| Date | 09 December 2009 |
| Docket Number | CA90/09 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH | |
| CA90/09 | OPINION OF LORD GLENNIE in the cause MICHAEL and SARAH HAMILTON Pursuers; against ROBERT KENNEDY NAIRN Defender: ________________ |
Pursuers: R. Smith Q.C.; Paull & Williamsons LLP
Defender: Bartos; Drummond Miller LLP
9 December 2009
Introduction
[1] The pursuers are husband and wife. They carry on business in partnership. Their business includes the running of a cattery and livery stables at Park Hill, Dyce, Aberdeen which, according to the pursuers, is the largest cattery north of Edinburgh and Glasgow. Under threat of a compulsory purchase order in respect of all or part of their land for the purposes of a ring road in the area, the pursuers require to relocate their business to a new site. After an exhaustive search, they have now concluded missives for the purchase of subjects at Tillyoch, Peterculter, Aberdeen ("the subjects"). They have obtained planning permission for the establishment of the cattery and livery stables on the subjects, together with a dwelling house and associated car parking and other facilities. They have also obtained consent from Aberdeen City Council, the roads authority for the area, under s.56 of the Roads (Scotland) Act 1984 ("the 1984 Act"), to improve the junction from the subjects onto Culter House Road. Because of the dispute which is the subject matter of this action, the purchase of the subjects has not yet settled. However, the pursuers have obtained an assignation from the present owner (Mr Jamieson) in respect of any rights that he may have against the defender. In effect, therefore, the pursuers present their claim on the footing that they have all the rights of the owners of the subjects.
[2] Culter House Road is in a rural area to the north of Peterculter, on the western edge of Aberdeen. For much of its length it runs virtually east-west. A person joining the road somewhere to the north east of Peterculter, and following it westwards, would come to a point, approximately due north of the centre of Peterculter, where it takes a right turn of about 45˚, and then continues in a north-westerly direction. (If, at that 45˚ bend, instead of following Culter House Road in that north-westerly direction, he were to go straight ahead, he would then be on Bucklerburn Road, a road which continues towards the west, past a number of cottages known as Bucklerburn Cottages, past Bucklerburn Farm, and past a single cottage also, confusingly, known as Bucklerburn Cottage, until it meets Malcolm Road at a T-junction near to the north east corner of Peterculter.) This action, however, is concerned with Culter House Road. Staying on Culter House Road from the junction with Bucklerburn Road, and proceeding away from Peterculter, that road follows a north-westerly direction for just over 300 metres before taking a further turn (of approximately 30˚) to the right, after which it heads in a direction which is just to the west of northerly. The land of Tillyoch, which includes the subjects, lies to the north of Bucklerburn Road and to the west of Culter House Road.
[3] There is presently a track, which is used by Mr Jamieson for vehicular access and egress to and from Tillyoch, leading from Tillyoch to join Culter House Road at the point where Culter House Road takes that 30˚ turn. At that point, as it leaves Tillyoch, the track opens up into a "bellmouth" across the verge of the road, the open end of the bellmouth joining the carriageway of the road at the 30˚ turn. This is on the left hand side of the road heading north-west. At that same point, a footpath runs from the beginning of the track south to join Bucklerburn Road, effectively providing a shortcut from the 30˚ bend, across the subjects and through woodland within the land at Tillyoch, to Bucklerburn Cottages.
[4] Immediately to the north of where the track joins Culter House Road is Woodend Farm, which is owned by Mr James Adam. He lives there with his wife, Mrs Adam. They are the parents-in-law of the defender, who lives with his wife, Mrs Nairn, at Forest Cottage, on the east side of Culter House Road, almost directly opposite Woodend Farm, and just to the north of the 30˚ bend. Just to the south of Forest Cottage, on the inside of the bend, is another cottage, known as Cumbrae.
The dispute
[5] The dispute between the pursuers and the defender concerns the right of the pursuers to take vehicular access from Culter House Road to the subjects (and specifically for the purpose of the development and operation of the cattery and livery business) by crossing the bellmouth to join the track into Tillyoch. The dispute in court is confined to the question of access. Underlying the dispute, however, is a hostility on the part of the defender to the proposed development. That does not, of course, affect the legal rights of the parties. If the pursuers have no legal right of vehicular access to Culter House Road at this point, and the defender is entitled to refuse permission, so be it. But the relations between the parties, and the actions which the defender has taken to prevent the pursuers using this track to obtain access to the subjects, are explained, to a large extent, by the fact that the real issue between the parties is something rather more substantial.
The defender's case in outline
[6] In May 2009 the defender purchased from the Culter Estate the whole strip of land between the carriageway of Culter House Road and the dry stone dyke which marks the edge of the Tillyoch land. It is not in dispute that the land which he now owns is the whole of the strip to the south western side of the carriageway, running up from the junction with Bucklerburn Road to and including the bellmouth at the point where the track gives access from Tillyoch to Culter House Road. The defender's case is very simple. He says that he owns the verge at that point, including the bellmouth, and is entitled to refuse permission for vehicular access across it. The proposed access from Tillyoch to the road crosses his land. He has an exclusive right to use his property as he pleases, subject only to agreement, servitude, public right of way or limitation under statute in the public interest: Bell's Principles at para.939, Ferguson, The Law of Roads, Streets, and Rights of Way etc. at p.8. It is common ground that there is no servitude right of access across that land. He is therefore entitled to prevent the pursuers using the existing entrance way into Tillyoch for vehicular access; and he is also entitled to stop the pursuers widening and improving the bellmouth, which is on his land. This is regardless of the fact that the pursuers have been granted consent by the Aberdeen City Council under s.56 of the 1984 Act to improve the junction between the track and the road.
[7] It is agreed between the parties that Culter House Road is a "public road" within the meaning of the 1984 Act. The definition of "public road" in s.151 is:
"a road which a roads authority have a duty to maintain".
Such roads are listed by a roads authority in accordance with obligations placed on them under s.1. This provides, so far as relevant, as follows:
"1 Powers and duties of local roads authorities
(1) Subject to subsection (10) below, a local roads authority shall manage and maintain all such roads in their area as are for the time being entered in a list (in this Act referred to as their "list of public roads") prepared and kept by them under this section; and for the purposes of such management and maintenance (and without prejudice to this subsection's generality) they shall, subject to the provisions of this Act, have power to reconstruct, alter, widen, improve or renew any such road or to determine the means by which the public right of passage over it, or over any part of it, may be exercised.
(2) Subject to subsection (10) below, the list of public roads prepared by the local roads authority shall, at the date of commencement of this section, comprise all public roads which immediately prior to that date were required to be entered by the local highway authority for the area in a list of the roads highways and bridges under their management and control under section 41 of the Roads and Bridges (Scotland) Act 1878 or in a register of streets under section 5 of the Burgh Police (Scotland) Act 1903 or any corresponding local enactment.
(3) The list of public roads shall be open for inspection free of charge at such reasonable times and places as the local roads authority may determine.
(4) The local roads authority may, subject to the provisions of this Act, add to or delete from their list of public roads; but before any entry for a road which for the time being is a private road is so added or any entry for a public road is so deleted they shall-
(a) give notice of their intention in that regard to the frontagers of that road; and
(b) publish a notice of such intention in at least one newspaper circulating in the area,
and, where any representation is made within 28 days after the requirements of paragraphs (a) and (b) above have been fulfilled, the authority shall consider that representation and give notice to the person making it and, with a note or copy of the representation, to the frontagers (or to the other frontagers if it was a representation by a frontager) of the authority's decision as regards whether or not to proceed with the addition or deletion following the representation:
Provided that-
(i) any addition or deletion giving effect to a decision under subsection (5) below;
(ii) any deletion in consequence of the stopping up of a public road under this Act; or
(iii) any deletion on transfer of such a road to another roads authority,
shall not require such intimation or publication as is mentioned in paragraphs (a) and (b) above.
...
(9) Subject to subsection (10) below, every road which is entered in the list of public roads kept by a local...
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