Inner House finds public vehicular access right exists in stretch of road adjacent to Dingwall farm

About this case:

• Citation:
  [2024] CSIH 17
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

Alasdair MacNab, the owner of Kildun Farm, contended that he had vehicular access over a stretch of road running between the A862 road and part of his land. It was accepted by Highland Council that there was a public right of access of over the road, but they argued successfully before the lord ordinary that the right was restricted to access by foot and bicycle.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Boyd of Duncansby and Lady Wise. D Thomson KC and T Young, advocate, appeared for the pursuer and reclaimer and Burnet KC and D Blair, advocate, for the defenders and respondents.

Designed for use

Between 1995 and 2000, parts of Kildun Farm, then owned by the pursuer’s parents, were compulsorily purchased by Highland Council to construct a new section of the A862, running parallel to the old road, which later became a cycle path. After the construction of the new road, no direct access could be taken from the A862 directly into a field, Field 3, which the pursuer wished to develop as a site for commercial tractor repairs and sales.

In order to provide access to Field 3 and other nearby properties, a new junction was created on the A862, with a new road laid from the junction to facilitate this. This new road was completed in 2002, with the pursuer acquiring the farm from his parents in 2006. The Lord Ordinary rejected a contention that there was an implied servitude over the new road but held there was a public right of access restricted solely to pedestrians and cyclists.

On appeal, it was submitted for the pursuer that it was an error for the Lord Ordinary to hold that there was no public right of passage by vehicle because the intended beneficiaries and users of the access road were a limited number of private landowners. The access road was designed for vehicular use and had a wide junction with a busy main road including “give way” markings. If the Council had wished to restrict access, they had the power to do so under legislation.

For the respondents it was submitted that, before the access route was built, members of the general public had taken access by foot and bicycle only. The Council had not intended to create a broader right than that, and the use of tarmac did not imply that there was an intention for people to drive over the road.

Inevitable consequence

Delivering the opinion of the court, Lord Carloway began by noting: “The Lord Ordinary found that no servitude right exists in respect of the access road and the track under consideration. That begs a question of the nature of the right which the pursuer and the other present users of the road and track, actually have. In that connection, the Lord Ordinary held that they all have a right to use the track and road, including by vehicle, yet that right cannot be a private one.”

He continued: “A public right of passage can be created by, inter alia, prescription or by grant of the landowner. What is clear, from the public nature of the right, is that it cannot normally be confined to a restricted class of persons, at least in the absence of the use of statutory powers which have not been invoked here. Once it is accepted, as it is, that there is no private right, the right currently used by the neighbouring proprietors, the fishers and others must be a public one.”

Considering the intentions of the respondent, Lord Carloway said: “Highland Council maintain that they did not intend to create a public right of vehicular access. However, in order to avoid doing so, at least in practical terms, they would have had to have given all the landowners (and perhaps others with an interest) a servitude right of a restricted nature. They did not do so.”

He concluded: “The pre-existing right, which the new section of the A862 cut across, was vehicular access to Field 3 and the other properties and to those interests at and beyond the railway level crossing. That was a public right of passage. If, as the Lord Ordinary found, what the Council were endeavouring to do was to replace that access it must have involved the grant of a public right of vehicular access over the new junction and access road. That is the inevitable consequence of the Council’s actions to preserve the existing public right of passage, including by vehicles, such as tractors.”

The reclaiming motion was therefore allowed, and the court declared that a right of pedestrian and vehicular access existed over the road.