Melfort Pier Holidays Limited V. The Melfort Club And Others
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2006] CSOH 130 |
| Date | 25 August 2006 |
| Docket Number | A40/06 |
| Court | Court of Session |
| Published date | 25 August 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 1 | |
| A40/06 | OPINION OF LORD HODGE in the cause MELFORT PIER HOLIDAYS LIMITED Pursuers; against THE MELFORT CLUB AND OTHERS Defender: ________________ |
Pursuers: O'Brien; Digby Brown SSC
Defenders: Barne; Morisons
25 August 2006
Background
[1] These are two motions relating to an interim interdict and interim order under section 47(2) of the Court of Session Act 1988 which Lord Menzies pronounced on 25 January 2006. The pursuers seek to extend the scope of that interim interdict while the defenders seek the recall of both orders.
[2] The pursuers wish to develop a restaurant at the holiday resort, known as Melfort Pier and Harbour and comprising fifteen self-catering houses, which they own and operate at Loch Melfort near Kilmelford, by Oban, Argyll. The first to eighth defenders are an unincorporated association, its office bearers and three individuals who, it is averred, act on behalf of the association. The association is responsible for the management of a timeshare resort known as Melfort Village, comprising thirty-two cottages and a restaurant. The two holiday resorts adjoin each other. When, in August 2005, the pursuers sought planning permission for the development of the restaurant at their holiday resort, several of the defenders objected to their application. The local planning authority granted planning permission for the development notwithstanding the objections which included objections in relation to the inadequacy of access by road. Thereafter a disagreement has arisen between the pursuers and the defenders about the manner in which large vehicles obtain access to the pursuers' resort.
[3] The disagreement has arisen in the following way. Vehicles travel to and from the pursuers' resort on an unclassified single track public road ("the public road") which starts on the A816 public road about three hundred metres south of Kilmelford. The public road runs for about one and a half miles until it crosses a bridge over the river Oude. When one approaches from the south there is, shortly before one reaches the bridge, a farmyard on the right hand side of the public road at Melfort Mains Farm. Immediately after the bridge there is a sharp left hand bend in the road which then proceeds in a westerly direction. To the right of the road at this point is the entrance to the driveway to the first defenders' resort ("the driveway"). The driveway is owned by the ninth defenders in trust for the first defenders. The road layout therefore resembles a T-junction, with the lower arm and the left arm being the public road and the right arm being the driveway. The left hand bend is so sharp that large vehicles are unable to negotiate the bend without encroaching upon the driveway and manoeuvring within it. The public road then runs in a westerly direction past the pursuers' resort towards Degnish Point and ends at a turning point without connecting to any other public road. There are to the west of the bridge the pursuers' resort, two houses owned by or on behalf of the first defenders, approximately fourteen other houses and a farm.
[4] The method by which large vehicles negotiated the bend when approaching from the south was that they turned into the farmyard before reaching the bridge and then reversed over the bridge before reversing into the driveway. Thereafter they manoeuvred on the driveway in order to proceed forwards in a westerly direction on the public road. The distance for which the vehicles reversed on the public road was approximately 80 metres. When large vehicles came in the opposite direction they drove into the driveway before reversing out of the driveway, over the bridge, down the public road and into the entrance of the farmyard from where they proceeded forwards in a southerly direction.
[5] When the pursuers obtained the interim interdict in January 2006 they averred that long vehicles encroached upon the driveway for a distance of around two metres. They sought and obtained an interdict against the first to eighth defenders from obstructing, preventing or impeding the use of the driveway by, among other things, placing any physical obstruction across the driveway within four metres of the public road. The interim order which Lord Menzies granted ordered that members of the public might encroach onto the driveway so far as was reasonably necessary for the purpose of traversing the public road. The basis on which the pursuers sought and obtained the interim interdict and the interim order was their contention that a public right of way had been constituted over the driveway by the operation of positive prescription.
The motions
[6] After they obtained the interim interdict, the pursuers discovered that the large vehicles needed to encroach on the driveway for a distance of eleven metres and that the interdict which they had obtained did not preserve the status quo which they had sought to maintain. By this time the defenders had constructed bollards on the driveway at about four metres from its junction with the public road. The bollards prevent larger vehicles from encroaching further onto the driveway while allowing smaller vehicles to use the driveway. The pursuers adjusted their pleadings to aver that the vehicles had used eleven metres of the driveway to effect their manoeuvres and now seek to amend their conclusion for interdict accordingly. The defenders oppose the amendment and the related motion for an amended interim interdict and seek recall of the interim interdict and interim order which Lord Menzies granted.
[7] In support of his motions Mr O'Brien for the pursuers submitted that the law allowed the public to extend the use made of a public right of way so long as the route was reasonably navigable. He referred to Ferguson "The Law of Roads, Streets and Rights of Way in Scotland", Galbreath v Armour (1845) 4 Bell's App 374, 389, Mann v Brodie (1885) 12 R (HL) 52, Forbes v Forbes (1829) 7 Shaw 441 and (1829) 4 Fac Dec 563, Mackenzie v Bankes (1868) 6 M 936 and Rhins District Committee v Cunninghame 1917 2 SLT 169. In any event, he submitted that the pursuers had averred a relevant prima facie case of the constitution of a public right of way over the driveway by positive prescription. He referred to section 3(3) of the Prescription and Limitation (Scotland) Act 1973. While the defenders averred that the use of the driveway had been by tolerance, he submitted that Lord Sands in Rhins District Committee (above) was correct in holding (at p.171) that a judge is required to assume that a proprietor would be vigilant in protecting his rights and that he should not readily imply tolerance of significant encroachment by such a proprietor.
[8] Counsel submitted that the balance of convenience favoured the amended interim interdict which would maintain the status quo as the defenders had not objected to other road users using the driveway. He questioned the defenders' concern about safety to the public or damage to the driveway. If larger vehicles were not able to reach the pursuers' resort by the public road, the pursuers would face higher fees from Shanks & McEwan Limited for waste disposal and materials for the construction of the restaurant would require to be brought by boat to Melfort pier and then transported in smaller vehicles. The pursuers no longer claimed that the closure of the driveway to large vehicles would frustrate their construction of the restaurant but it would make it more expensive.
[9] Mr Barne for the defenders referred me to correspondence which appeared to show that some lorries had travelled over one hundred metres up the driveway before turning round and returning to the public road. He submitted that the pursuers' "reasonable navigability" test was not an appropriate test as otherwise people would be entitled to drive large vehicles for long distances up a private driveway which would thereby become a public road. In support of his motion to recall the interim orders, he advanced three propositions. First, he submitted that the public had a right of highway over the public road and not a public right of way, arguing that the latter was a more extensive right than the former. The western end of the public road was only a turning point and did not terminate in a public place; it could not be a public right of way because there were not two public termini. He accepted however that the public road was a "public road" in terms of section 151 of the Roads (Scotland) Act 1984. Secondly, if there were sufficient material to support a prima facie case of a public right of way along the public road, that right of way was confined geographically to the physical limits of the public road. Where a public road was physically restricted by walls on either side or by the shape and size of a bridge, the law did not allow the public to encroach on private land to make the road passable to larger vehicles. Thirdly, it was not possible to constitute a public right of way over the driveway because a public right of way required two public termini. There were not two public termini in this case as the vehicles entered and exited the driveway...
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