In Petition Of Alexander Mackinnon For Judicial Review Of A Decision Of Argyll And Bute Council V. Argyll And Bute Council
| Jurisdiction | Scotland |
| Judge | Lord Osborne |
| Docket Number | P21/14A |
| Date | 08 March 2000 |
| Court | Court of Session |
| Published date | 08 March 2000 |
| OUTER HOUSE, COURT OF SESSION | |
| P21/14A/1998
| OPINION OF LORD OSBORNE in Petition of ALEXANDER MacKINNON Petitioner; for Judicial Review of a decision of Argyll and Bute Council against ARGYLL AND BUTE COUNCIL Respondents: ________________ |
Petitioner: Sandison, Morison Bishop
Respondents: Clark; Balfour & Manson
8 March 2000
The petitioner, who has a place of business at Ganavan Pavilion, Ganavan, by Oban, owns and carries on a business at that address in the provision of various leisure facilities, including a caravan site. The petition concerns the status of a way at Ganavan, the use of which materially affects the conduct of the petitioner's business. The respondents are a local authority constituted under the Local Government (Scotland) Act 1994 and are the local roads authority for the area in which the way at Ganavan is situated, for the purposes of the Roads (Scotland) Act 1984.
The petitioner's business has been conducted in such a way as to involve the use of four separate areas of land at Ganavan. These areas can conveniently be seen approximately and in outline on the plan attached to the document 6/3 of process. Area 1 is in the ownership of the petitioner in terms of the Disposition in his favour dated 15 January 1996, 6/1 of process. Area 2 is held by the petitioner as tenant of the respondents, in terms of a Lease between Argyll and Bute District Council and Ganavan Leisure Oban Ltd, dated 25 March 1987, 6/2 of process, and an Assignation by Alexander William Smith and another in favour of the petitioner, dated 12, 15 and 17 January 1996. The Lease mentioned contains an option to the tenant to purchase the subjects thereof, which , I was informed, had been exercised by the petitioner. Area 3 is in the ownership of the respondents, but is managed by the petitioner, under and in terms of a Management Agreement between the petitioner and the predecessors of the respondents, Argyll and Bute District Council, dated 28 March 1996, 6/3 of process. Area 4 is also used by the petitioner in connection with his business, but is not relevant to the subject matter of the present petition.
As a result of various occurrences, principally acts of vandalism occurring during the hours of darkness on the land used by the petitioner in connection with his business, in 1997, he took steps to try to remedy this problem. In particular, by letter, dated 12 May 1997, 7/10 of process, the petitioner wrote to the Legal Services Department of the respondents seeking permission for the erection of a barrier at Ganavan during the hours of darkness. The reasons advanced for the making of that request are set forth in the letter. The respondents, after consultation with interested parties, granted the request sought, in consequence of which the petitioner erected a gate at or near the boundary of area 2 with land to the south. Arrangements were made that this gate would be closed during the hours of darkness. All of the emergency services were furnished with keys for the gate and did not object to the arrangements. The police force, in particular, approved of the arrangements. The gate, when closed, had the effect of preventing vehicular, but not pedestrian access to the site in question. The making of these arrangements resulted in the elimination of the major part of the problem of vandalism previously experienced.
However, in due course, the use of the gate in question evoked concern on the part of certain sections of the public in the area concerned, who considered that members of the public should be free to visit the area of Ganavan and Ganavan Sands at night. They formed an association known as the "Friends of Ganavan", which proceeded to lobby the respondents on the matter.
Thereafter, the petitioner received a letter, dated 15 September 1998, from the respondents concerning the proposed adoption of the way, to which I have referred, as a public road. That letter is 6/4 of process. It is indicated in it that the intention of the respondents was to exercise the powers conferred upon them as local roads authority under Section 16 of the Roads (Scotland) Act 1984. The precise dimensions of the area of the way proposed to be adopted are set forth in the letter, which also invited comments on the proposal which it contained. By letters dated 21 September 1998, 6/5 of process, and 24 September 1998, 6/6 of process, the petitioner commented upon the proposal concerned to the respondents. In addition, by letter dated 15 October 1998, 6/7 of process, the petitioner enquired of the respondents as to whether or not any formal application for adoption had been made and also as exactly what statutory authority was being exercised by the respondents. The respondents did not reply to any of this correspondence prior to 6 November 1998.
On 6 November 1998, the respondents wrote to the petitioner intimating that the way concerned had been adopted as a public road and enclosing a copy of the adoption certificate, dated 5 November 1998, a map showing the area of the way adopted and the entry relating to it which had been added to the list of public roads. Those documents are 6/8 of process. Subsequently the petitioner's solicitors received a letter from the respondents, dated 11 November 1998, making a number of points, which is 6/9 of process. Among the points made in it, it was stated that an application had been made to the local roads authority on behalf of a frontager for adoption, since the road was of a satisfactory standard. The frontager was said to be the respondents acting as Parks Authority.
Against the foregoing background, the petitioner now seeks judicial review of the respondents' decision to add the said way to the list of public roads maintained by them. In particular, the petitioner seeks reduction of the said purported entry in the list of public roads relating to the said way, suspension ad interim of the said purported entry, and interdict ad interim against the respondents taking any action to remove or regulate the use of the entrance gate referred to in the said purported entry. Interim suspension of the said entry was granted by interlocutor dated 19 November 1998.
When the petition came before me at a first hearing, counsel for the petitioner explained that there were three grounds of a challenge of the respondents' decision to add the said way to the list of public roads maintained by them. These were set forth in paragraphs 9, 10 and 11 of the petition. Dealing with the first ground of challenge, expressed in paragraph 9, it was submitted that the respondents' decision was ultra vires. Before a private road could be adopted as a public road, under Section 16 of the Act of 1984, it had to be a "road", as defined in that Act. In Section 151(1) thereof "road" was defined as meaning "subject to sub-section (3) below, any way (other than a waterway) over which there is a "public right of passage" (by whatever means) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof;" in the same sub-section, the expression "public road" was defined as meaning "a road which a roads authority have a duty to maintain"; and the expression "private road" was defined as meaning "any road other than a public road". Thus it could be seen that it was an essential ingredient in the concept of a "road" that there existed over it a "public right of passage". In the present instance, there was no suggestion that there had been an express grant of a "public right of passage" over the way concerned. Accordingly there was no means by which a "public right of passage" could exist other than by prescription. In this connection, reference was made to Viewpoint Housing Association Ltd v Lothian Regional Council 1993 S.L.T. 921, at page 923K to L. Thus the issue of prescriptive possession of a public right of way arose. However, regard had to be had to what was said by Lord President Emslie in Cowie v Strathclyde Regional Council, First Division, 8 July 1986, unreported. In that case, the Lord President had said that the definition of "road" in the Act of 1984 did not require that there had to exist over the way a public right of way. The "public right of passage" mentioned in the definition of the word "road" involved less exacting considerations than those which governed the existence of a public right of way over private land. Against that background, it was submitted that a "public right of passage" was a new category of right, which could be acquired by prescription. It was important to note that when the decision of the respondents under challenge was made, the gate in question had been in being for a year and had been used. That was inconsistent with the existence of a "public right of passage" existing when the adoption procedure began, unless it could be shown that the public had acquired a right of passage, by express grant or prescription prior to the date when the gate was put in place. If that approach were correct, then the question of whether there was a "public right of passage" down the way concerned would be a question of mixed fact and law. The factual element would involve the issue of the exercise by the public of the use of the way entirely unrestricted by the owner, or tenant of areas 2 and 3 for the prescriptive period. In the context of a judicial review, the existence of a "public right of passage" along the way went to the jurisdiction of the respondents. It was a precedent fact. If it did not exist, there was no power in the respondents to make the decision concerned under Section 16 of the Act of 1984. In connection with this part of his argument, counsel for the petitioner referred to Watt v The Lord Advocate 1979 S.C. 120. On the basis of what was said by the Lord President at page 130, it was submitted that, for their decision to be intra vires, the...
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