Pik Facilities Ltd V. Watson Ayr Park Limited
| Jurisdiction | Scotland |
| Judge | R.F.Macdonald, Q.C. |
| Neutral Citation | [2005] CSOH 132 |
| Date | 04 October 2005 |
| Court | Court of Session |
| Published date | 04 October 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 132 | |
|
| OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause PIK FACILITIES LIMITED Pursuers against WATSON'S AYR PARK LIMITED Defenders ________________ |
Pursuers: Tyre QC, EMC MacLean; McClure Naismith
Defenders: Stephenson; Balfour & Manson
4 October 2005
Introduction
[1]The issue in this case is whether the defenders, who operate an off-site car park near Prestwick Airport, have the right to drop off and pick up their customers in a shuttle bus outside the airport terminal.
[2]The pursuers are the heritable proprietors of Glasgow Prestwick International Airport ("the airport") in terms of a Feu Disposition in their favour recorded in the Division of the General Register of Sasines for the County of Ayr on 3 April 1992. The ground comprised within the airport, lying generally south west of the apron, ("the airport ground") is covered by, inter alia, terminal buildings, roads, pavements, car parks and other airport facilities. The roads running over such ground to the junction at the roundabout on the A79 road ("the airport roads") are owned and maintained exclusively by the pursuers.
[3]Since about November 2001 the defenders have operated secure car parking facilities at Shawfarm, Prestwick for passengers departing from the airport. As Shawfarm is some distance from the airport terminal, the defenders transport their customers to and from the airport terminal by shuttle bus, which travels over the airport roads. The customers pay a charge to the defenders for the car parking facilities and the bus trips to and from the airport terminal.
[4]The action was raised in the Sheriff Court and subsequently, on the unopposed motion of the pursuers, remitted to the Court of Session. The pursuers seek interdict against the defenders, their servants and agents from trespassing on the airport roads, and that by driving buses and motor cars over such roads for the purpose of (1) collecting members of the public to be conveyed to, and (2) dropping off members of the public being conveyed from, car parking facilities operated by them outwith the curtilage of the airport without the express prior consent of the pursuers. The case called on the procedure roll on the pursuers' fourth plea-in-law seeking decree de plano.
The Pleadings
[5]It is averred by the pursuers that, as heritable proprietors of the airport ground, they have the exclusive right to determine who enters upon it and to regulate the purposes for which it is used, that if the defenders wish to use any part of the airport ground, including the airport roads, for the purpose of their business, their (the pursuers') consent is required, that such consent has never been granted, that the defenders therefore have no right, warrant or justification to intrude upon the airport ground and that by so doing they have trespassed on the airport ground.
[6]In response the defenders aver that the pursuers, a property management company who are heritable proprietors of the airport ground, do not have the exclusive right to determine who enters upon it. They go on to aver that the airport is operated by Glasgow Prestwick International Airport Limited ("the operators"), who occupy and control the airport and its curtilages and are holders of a public use Aerodrome Licence No P766 issued by the Civil Aviation Authority on 5 October 1995, condition 1 of which requires that the aerodrome shall at all times when it is available for the take-off or landing of aircraft be so available to all persons on equal terms and conditions. Condition 8 provides that, without prejudice to condition 1, nothing in the licence is to be taken to confer on any person the right to use the aerodrome without the consent of the licensee. The airport is subject to economic regulation by the Civil Aviation Authority in terms of the Airport Act 1986 and regulations made thereunder. The operators hold a permission from the Civil Aviation Authority to levy airport charges.
[7]The defenders also aver in answer that the airport concourse is a public place to which members of the public have had recourse for more than twenty years. The passenger terminal and adjacent concourse, situated generally north of the A79 road, were officially opened in September 1964, the concourse is a public place to which members of the public have had recourse for more than twenty years and a public right of way exists over the private roads owned by the pursuers which connect the A79 to the concourse. Reference is made to section 3(3) of the Prescription and Limitation (Scotland) Act 1973 as amended. (Some degree of confusion has been introduced into the pleadings by the use by the defenders of the word "concourse", a word not used by the pursuers. I do not know exactly what the defenders are referring to when they use the word "concourse", the relevant definition of which is given in the Shorter Oxford English Dictionary (5th Ed, 2002) as "an open central area in a large public building, railway station etc". It is difficult to apply that definition to the expression "passenger terminal and adjacent concourse" used by the defenders. The concourse can properly mean only the open central area within the terminal, and for the purpose of this action I proceed on the basis that the terminal and the concourse are one and the same thing.)
[8]The pursuers respond to the defence that the concourse is a public place and that there is a public right of access over the roads leading to it from the A79 by making the following averments. The airport roads are private accesses whose layout has been almost the same since the terminal opened and which form a one-way circuit running clockwise from the roundabout on the A79 to the terminal and back, also allowing access off the circuit to car parks and other parts of the airport. They start at the south western entrance from the roundabout and run initially in a generally north westerly direction, then south easterly in a straight section in front of the terminal, then south westerly between car parks 1 and 2 and then again north westerly to the south west exit to the roundabout, where vehicles can either exit or continue on the circuit. The section in front of the terminal is known as Younger Drive ("the drive"), and consists of four lanes of carriageway and a pavement which runs between the edge of the carriageway and the front elevation of the terminal. Pedestrian crossings run over the carriageway between the pavement and car park 2. The primary function of the drive is as a means, in conjunction with the other airport roads, of vehicular and pedestrian access to and egress from the terminal, car parks and other parts of the airport. Those using the terminal can be dropped off in the lane adjacent to the pavement but, in general, vehicles are not permitted to park on the airport roads or to wait in the drive. By arrangement with, and regulation of, their operators, particular public service buses and taxis are allowed to wait for passengers at identified locations in the dropping-off lane. Access to the bay off the drive, forming Hudson Place, is restricted to authorised vehicles, such as coaches, which are sometimes allowed to wait there. Signs, road markings and gates publicise and enforce such restrictions and control use of the drive and other airport roads. Offending vehicles are frequently required to move or are served with civil penalty notices. Use of the terminal by the public is controlled. Members of the public can be, and sometimes are, removed and excluded from the terminal. Access to the airside of the terminal from the landside is strictly limited to those identified as passengers and others authorised to have such access. Access from aircraft is limited to passengers and personnel from flights that have been permitted to land. Such permission can be, and sometimes is, refused. The terminal is closed each day, usually between about midnight and 5 am. The precise timing and length of such nightly closure vary according to circumstances, such as flight times and delays. Signs publicise such nightly closure. There is usually no use of the airport roads by the public while the terminal is closed. Those using the terminal, drive and other airport roads are, predominantly, passengers, or other customers, employees and contractors of the pursuers or others granted rights or otherwise permitted to conduct business at the airport and others fulfilling public duties or exercising public rights, such as Police, Fire, Medical, Customs, Postal, Civil Aviation Authority, Department for Transport, Central Government, Local Authority and other Officers. Use of, and control over, the terminal, drive and other airport roads has been persisted in a similar manner for more than twenty years. Over that period the public has not, therefore, had unrestricted use of the terminal, drive or other airport roads: they have exercised such use, not as of right, but by tolerance. Such use has not been exercised by the public as such. No part of the terminal, drive or other airport roads has become a public place. (The layout of the airport ground and roads as above described is shown in the plan no 5/2 of process, the aerial photograph no 5/3 of process and the photographs no 5/3 of process.)
[9]Secondly, the defenders aver that the pursuers are not entitled to use their ownership of the airport to exclude the defenders from it in the manner and for the reasons sought as such exclusion would constitute an infringement of section 18(1) of the Competition Act 1998 ("the 1998 Act"), which, so far as relevant, provides that "...... any conduct on the part of one or more undertakings which amounts to the abuse of dominant position in a market is prohibited if it may affect trade within the United Kingdom". The defenders' business is that of providing secure car parking, including long-stay car parking for air...
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...at the same place. [10] In support of his first submission Mr Barne referred me to PIK Facilities Limited v Watson's Ayr Park Limited [2005] CSOH 132, Rankine "Landownership", (4th ed), Chapter 19, McRobert v Reid 1914 SC 633, MacKinnon v Argyll and Bute Council 2002 SLT 1275, and Cusine an......