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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 110
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P1165/05
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OPINION OF LORD KINGARTH
in the Petition of
BRIAN GREGORY
HAMILTON
Petitioner;
against
DUMFRIES
AND GALLOWAY COUNCIL
Respondents:
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Henderson;
Lindsays, W.S.
Respondents: Olson;
Anderson Strathern, W.S.
14 July 2006
[1] On
26 May 2005 the Planning and Environmental Services Committee of the
respondents, having considered a report prepared by officials dated 17 May
2005 ("the report"), agreed that a short length (extending to about
36 metres) of what until about 1989 formed part of the B724 road between
Collin and Annan ("the disputed section of road") be added to their list of
public roads. The disputed section of
road was shown as cross-hatched on the plan appended to the report. They purported to do so under section 16
of the Roads (Scotland)
Act 1984 ("the 1984 Act"). The
petitioner, who claims to be heritable proprietor of the solum of the disputed
section of road, seeks inter alia
reduction of that decision.
[2] It
became clear during the course of the first hearing that the central question
which the parties sought (under reference to the pleadings and documents
lodged) to have resolved, was whether the decision was one the respondents had
power to make under and in terms of section 16 of the 1984 Act - in
particular the two critical questions being (first) whether at the time of the
decision the disputed section of road was a private road and (second) whether
the respondents made their decision on the basis of an application to them by
the requisite number of frontagers - all within the meaning of the section.
[3] In
particular, although the petition refers to a number of other alleged grounds
for seeking to set aside the decision, (e.g. that the respondents had no power
to "re-adopt" any road) it became clear during the hearing that none were
insisted on as such grounds. Although,
in particular, some averments are made about the respondents being aware of and
taking into account potential litigation between the petitioner and residents
of properties served by the disputed section of road and the risk of potential
claims against themselves for maladministration if they did not take the
decision they did, in the event, all that was submitted was that such averments
pointed, in the view of the petitioner, to a possible explanation as to how it
came to be that the respondents "took their eye of the ball" when they came to
make the decision which, for the two reasons referred to above, it is claimed
they had no power to make. Given the
limited reference which was thus made to these averments, I do not see any need
to refer to them in detail. Further, although
the petitioner wished to argue (as a fall-back position) that even if the
disputed section of road was a private road the planning and environmental
services committee of the respondents did not have sufficient information
before them to decide that it was (and thus that the decision was unreasonable),
the main focus of the petitioner's attack on the decision was one of vires.
I should add also that although averments are made to the effect that
the relevant decision was incompatible with the petitioner's human rights under
Article 6(1) and the First Protocol, it was accepted by counsel that these
avements (apparently related to the claim for damages which the petitioner
makes and to a question in connection with expenses) would only require to be
considered if the decision was otherwise held to have been unlawful. Both counsel, however, were content that
these averments be left over meantime for consideration later, if
necessary.
[4] The
respondents' answer to the petitioner's averments to the effect that he is the
owner of the solum of the disputed section of road, is that these averments are
not known and not admitted. Counsel for
the respondents was content to leave for later consideration, if necessary, his
related plea that the petitioner has no title to sue, the question of title
being, it was said, potentially one of some complexity involving proof of a
number of matters. In addition, counsel
for the respondents expressly departed from any insistence on his third
plea-in-law to the effect that the petition is incompetent.
[5] Section 16
of the 1984 Act provides (so far as relevant):
"16.-(1) If a
private road -
(a) is of such standard as
has last been required by relevant notice under section 13(1) of this
Act; or
(b) where no such standard
has been so required, is of a standard satisfactory to the local roads
authority,
then, if
application is made to them under this subsection by the requisite number of
frontagers for such addition, the authority shall, ... within 12 months of
the application add the road to their list of public roads:
...
(5) In the foregoing provisions of this
section -
...
'the requisite
number' has the same meaning in relation to that road and the land fronting or
abutting the road as it has in section 1(7) of this Act in relation to the
road and land mentioned in that section."
[6] In
terms of section 151 of the 1984 Act "road" means (so far as relevant)
"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 reference to a road
includes a part thereof." "Private road"
means "any road other than a public road".
"Public road" means "a road which a road's authority have a duty to
maintain". Section 1,
sub-section (1) of the Act provides that a local road's authority "shall
manage and maintain all such roads in their areas 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 the section.
In terms of section 1(4) and (5) the local roads authority may add
to or delete from their list of public roads, provided inter alia they give notice of their intention in that regard to
"the requisite number of frontagers". By
virtue of section 151. "frontager",
in relation to a road or proposed road, means "the owner of any land fronting
or abutting it". Section 1(7) of
the Act provides, so far as relevant:
"(7) In subsection (5) above, 'the
requisite number' - means -
(a) a majority; or
(b) such member as together owns land which
either -
(i) includes not less than
half of the boundary between the land fronting or abutting the road mentioned
in subsection (4)(a) above and that road;
or..."
[7] In
the report the "Background" to the proposed decision was described as follows:
"2.1 The construction of the Collin By-pass
necessitated the Gretna-Stranraer-Glasgow-Stirling Trunk Road (A75) (Collin
Diversion Side Roads) Order 1983, which was made on 27 October 1983 and came into effect on 11 November 1983. Amongst other things, the Order stopped up a
length of the B724 on the north west
side of the new By-pass and resulted in the remaining length of the B724 on the
north west side of the new
By-pass becoming an unclassified road (U62n).
2.2 The length of the former B724 between the
new By-pass and the Village Hall (approximately 36m) was, however, not
physically stopped up and still looks as if it forms part of the U62n.
2.3 The then Regional Council formally
amended its List of Public Roads to reflect the description of the stopped up
length of road and the entry now reads:
U62n Low Road (from) C8n at Collin to
termination 6m south east of Collin Village Hall, Collin.
Having been
removed from the List of Public Roads, the length of road which was to have
been stopped up is not a Public Road.
2.4 On 12 May 1993, Robison and Davidson Ltd applied for a
Construction Consent for Townhead Park
and this was issued on 12 September
1993. Road construction was
completed in August 1999 and adoption applied for in March 2000.
2.5 Townhead
Park does not connect to a public
road, and so it is debatable whether a construction consent should have been
issued by the former Regional Council for its construction. Having done so, both the developer and
residents have been given the impression that Townhead
Park would be adopted as a Public
Road. Townhead
Park is not adopted and, currently
could not be adopted as it does not connect to the Public
Road network.
2.6 The failure to physically alter the road,
as had been originally planned by the then Scottish Office, and the continued
use of the road, initially for bus turning and later by the residents of
Townhead Park, means that the affected length of road continues to be a road,
and because of the amendment to the List of Public Roads, is a private road.
2.7 A local landowner, having bought the
Rockall Estate, has laid claim to the solum of the road. Solicitors acting for the landowner have
contacted residents of Townhead Park
requiring them to agree to make a payment to allow access over the length of
road that was to have been stopped up."
[8] In
the course of the hearing before me, I did not understand the basic factual
position referred to in the report to be disputed. Certain qualifications or additions to it
were, as I understood it, also agreed.
[9] As
regards paragraphs 2.1 and 2.2 of the report, the 1983 Order (a copy of
which was lodged) authorised certain works including, in particular, the
construction of a section of the A75, running broadly in an east to west,
direction bypassing Collin to the south-side of the village. It cut right across the former B724 road which
ran between Collin and Annan in a broadly north-west to south-east
direction. Included in the "works"
authorised by the 1983 Order was "the stopping up" of certain lengths of road
described in a schedule to the Order.
One of these lengths of road was the disputed section of road, which ran
to the northwest of the new bypass, together with a short further section at
its southern end (of about 8 metres) which extended right to the edge of
the new A75. By the end of the hearing
before me it was, as I understood it, agreed that all the 1983 Order authorised
was "works" to stop up the relevant length of road, and that the Order itself
did not then immediately "stop up" the relevant length of road. In the event, however, once the A75 bypass
was completed the 8 metre section at the southern end of the relevant
length of road was grassed over and did physically stop up that part of the
B724 at it southern end.
[10] As regards paragraph 2.3 of the report, the list of public
roads was amended in the way described in or about 1989 shortly after the A75
bypass opened, which was on 1 June 1989. It was (as I understood it) agreed that at
least then any public right of passage derived from the fact that that section
of the B724 was a public road ended. It
was submitted on behalf of the petitioner that that public right of passage
ended, under and in terms of the Order properly construed, shortly before that
when the new bypass was opened (with the relevant section of the B724 being
stopped up at its southern end). This,
it was argued, was consistent with the approach of the court (albeit to
different statutory provisions) in Hope
Vere v Young 1887 14 R. 425, to
which reference was made by the sheriff in an unreported decision dated
20 November 2002 in respect of two actions brought by the pursuer against
J & J Currie Limited and Others in relation to different stretches of road
in the vicinity of Collin. These
arguments were not accepted by counsel for the respondents. For present purposes there is, I think,
nothing of significance which turns on this dispute. That is because not only was there apparently
little or no time difference between the opening of the A75 and the removal of
the disputed section of road from the list of public roads but, more
importantly, it was agreed that the fact that the 1983 Order was made in
relation to the relevant length of road did not mean that the section of it
which was not grassed over or physically stopped up otherwise, could not
thereafter be used as a road (as, it seems, is recognised in section 115
of the 1984 Act, and, before it, in section 16 of the Roads (Scotland) Act
1970). Whether it was so used (in
particular after June 1989) is the central issue in this case.
[11] This last matter was addressed at paragraph 2.6 of the
report. Townhead
Park, referred to therein, is a
residential development on the northeast side of the disputed section of
road. An internal estate road opens, in
a bell mouth, onto the disputed section of road. Certain supplementary averments are made by
the respondents in their Answers, to the following effect:
"The road
continued to be used as a turning area by buses from 1983, by vehicles for
parking and turning when using the village hall and by British Telecom and
Scottish Water. The road was used as a
way in the course of the construction of Townhead
Park from about 1993 to 1999. The road has been used as a way by the owners
and residents of Townhead Park,
and by members of the public and providers of services such as utilities from
about 1999."
By the end of the hearing before
me, I did not understand that these averments were disputed as a matter of fact. The village hall referred to is situated on
the south-west side of the U62n immediately to the north-west of the disputed
section of road.
[12] In relation to paragraph 2.7 of the report it is averred
on behalf of the petitioner that on or after 7 October 2004 the petitioner intimated his
concerns to the residents of Townhead
Park that they were taking access
over his property without his permission.
The respondents, in their answers, effectively admit these averments,
and explain that in or about April 2005 the petitioner demanded payment of
ฃ5,000 plus reasonable expenses from each of the 14 properties in Townhead
Park for a servitude right of
access to Townhead Park
over the road. I did not understand
counsel for the petitioner to dispute these averments. Indeed, as counsel expressly accepted, the
petitioner's sole interest in the disputed section of road is to exploit his
claimed ownership of the solum for financial gain, effectively using it as a
ransom strip.
[13] In a section in the report headed "Key Points", it is said, inter alia, "Requests for the council to
adopt this length of road have been received from two residents of Townhead
Park whose property fronts the
former B724. The Scottish Executive, who
is also a frontager in this context, has agreed that the U62n should be
extended by adopting the length of the former B724." The respondents' position in averment is that
they received requests from Simon A Hyslop, 1 Townhead Park, Collin, Thomas
Scott Marshall, 2 Townhead Park, Collin and the Scottish Executive
requesting that the road should be adopted as a public road. A plan was produced in the course of the
hearing (Production 7/5) showing, cross-hatched, the house and garden
ground of No.1 Townhead Park (said to be owned by Mr Hyslop) and the house
and garden ground of No.2 Townhead Park (said to be owned by Mr Marshall). The areas of land forming 1 and
2 Townhead Park are shown on the plan as being separated from the disputed
section of road on its east side by short strips of (so far as appears)
pavement. The same plan shows land to
the south and southwest of the disputed section of road (including the grass
verge of the A75) as owned by the Scottish Executive.
Submissions for the petitioner
[14] Although it was accepted that at
the time the respondents took the relevant decision the disputed section of road
could be described as a way, it could not be said that it was a way over which
there was a public right of passage, within the meaning of the 1984 Act. It could not therefore competently be added
to the list of public roads under section 16. A road was more narrowly defined in the 1984
Act than it had been in the Roads (Scotland)
Act 1970, where it was defined as including "any highway and any other road to
which the public has access...". The
difference was noted in Cowie v Strathclyde Regional Council, an
unreported decision of the First Division dated 8 July 1986, and in Young v Carmichael
1991 S.C.C.R. 332. The Lord Ordinary in Viewpoint Housing Association Limited v Lothian Regional Council 1993 S.L.T. 921
had been wrong to suggest that there was not truly any distinction in this
difference. Although the definition of
the word "road" in the 1984 Act involved less exacting considerations than
those governing the constitution of a public right of way over private land (Cowie v Strathclyde Regional Council), certain requirements for the
creation of a public right of way remained relevant. In particular, the public had to exercise
access as of right. It was not enough
that they exercised access lawfully, in the sense of having the express or
implied permission, or with the tolerance, of the person with the legal right
to control the road. This might have
been enough under the former definition which spoke of the public having
access. Whatever the position had been
before, it was clear from the intimation of the petitioner's concerns to the
residents of Townhead Park that any tolerated use was about to cease. This was enough to bring any lawful exercise
of access, or exercise as of right, to an end.
Further any exercise of access by the public would require to have been
for the prescriptive period of 20 years, which it had not been, given the
relevant starting point in 1989. In any
event, on the information before them, the respondents' Committee could not
reasonably have decided that the disputed section of road was a road.
[15] Further, it appeared that application had not been made to the
respondents by the requisite number of frontagers. It was not clear from the plan produced
(Production 7/5) that either Mr Hyslop or Mr Marshall could be
described as a frontager given the presence between their apparent properties
and the disputed section of road of the apparent pavements, the ownership of
which was not known. It could not in
these circumstances be said that a majority of frontagers (within the meaning
of section 1(7)(a)) had applied to have the road adopted. Although parties were given some time after
the hearing to discover whether ownership of the relevant strips could be
agreed, this proved impossible and the petitioner's position was that further
investigation suggested that Messrs Hyslop and Marshall did not own the
relevant strips of pavement. Further, so
it was argued, it was clear that Mr Hyslop, Mr Marshall and the
Scottish Executive did not own more than half of the boundary between the land
fronting or abutting the disputed section of road and the road itself. The respondents could therefore not seek to
rely on section 1(7)(b)(i) either.
Submissions for the respondents
[16] The disputed section of road
plainly was a road within the meaning of the 1984 Act at the relevant time. The petitioner had made no relevant averments
or presented any relevant arguments to the contrary. The Lord Ordinary in Viewpoint Housing Association Limited v Lothian Regional Council had been right to suppose that there was
no true distinction in the difference of language used in the 1984 Act and in
the Roads (Scotland)
Act 1970 and its predecessors. The court
in Young v Carmichael had proceeded on an erroneous Crown
concession to the contrary. In Beattie v Scott 1990 SCCR 435 the fact of public access was regarded as
significant in establishing that the parking area in question was a road within
the meaning of the 1984 Act. In any event, the exercise of access without
apparent challenge over the substantial period from 1989 (after the disputed
section of road ceased to be a public road) was entirely consistent with
exercise of access as of right. The
communication by the petitioner to certain residents of Townhead
Park of his concerns did not alter
that. Public access continued until the relevant
decision, without physical interference or interdict. There was, in addition, no statutory or other
basis for the petitioner's claim that public access required to be exercised
for the prescriptive period of 20 years.
By contract, special and specific provision was made in respect of
public rights of way by section 3(3) of the Prescription and Limitation (Scotland)
Act 1973. The Committee of the
respondents plainly had enough information before them to decide that the
disputed section of road was indeed a road.
[17] As regards the question of the requisite number of frontagers,
it was accepted, ultimately, by the respondents (after some time was given to both
parties to consider the position more fully) that they could not rely on
section 1(7)(b)(i). Nevertheless,
the respondents' position was that the relevant applications had been made by a
majority of frontagers, being the Scottish Executive, Mr Hyslop and
Mr Marshall. If the petitioner was
allowed to challenge the title of Mr Hyslop and Mr Marshall to the
pavement strips, the matter could only be decided after evidence. It was the respondents' position that
Messrs Hyslop and Marshall did own the relevant pavement strips. The petitioner, however, should not be
allowed to develop this line attack of the decision, it not being properly
focused in the pleadings. If it was to
be developed, further averments would be necessary and possibly re-service on
Mr Hyslop and Mr Marshall. It
was too late for such a change of front to be introduced at this stage.
Discussion
[18] Although I was referred to
(and it may be, as counsel assured me, that there is) limited authority on the
matter, and there is thus some uncertainty as to what is meant in
section 151 by "public right of passage", I have come to the view that the
disputed section of road was, on the information before me, a (private) road
within the meaning of the 1984 Act when it was added by the respondents to
their list of public roads.
[19] In the first place, I am not persuaded (any more than was the
Lord Ordinary in Viewpoint Housing
Association Ltd v Lothian Regional
Council) that, although the language used in the definition of road in the
1984 Act is different, there was truly intended to be any material distinction
from previous definitions such as in the Roads (Scotland) Act 1970, which
referred to ways "to which the public has access". These words were, of course, understood to
refer to more than mere access in fact.
As was said by Lord Justice General Emslie in Cheyne v Macneill 1973
S.L.T. 27 at p.30:
"... it is not
difficult to infer that the words 'to which the public has access' are
necessarily referable to a situation in which it is found in fact that the
public has access - access for the purpose of which a road is intended or
designed, i.e. passage on foot or in a vehicle.
But when the statute refers to access it cannot be assumed that this
means access which is obtained unlawfully, e.g. by climbing over or opening
gates, or by surmounting walls or fences, designed to exclude potential
intruders. In our opinion, 'access' as
the word is used in the definition, covers access for passage by permission
express or implied from, or acquiescence or toleration by, the person or
persons with legal right to control the use of the road. The degree or extent of use necessary to
bring a particular road within the definition will necessarily be a question of
fact in every case. Where there is such
permission, acquiescence or tolerance demonstrated by use or otherwise it can
properly be said that there is nothing illegal or unlawful in such access as
the public has proved to enjoy, and therefore that the public has access
lawfully to the road."
Comparing similar language then
applicable in relation to England
and Wales in
terms of section 192(1) of the Road Traffic Act 1988 with the definition which
applied in relation to Scotland
derived from the Roads (Scotland)
Act 1984 Lord Cameron of Lochbroom in Viewpoint
Housing Association Limited v Lothian
Regional Council said,
"I am not
certain there is truly any distinction in this difference. It is true that the definition which now
applies in Scotland for the purposes of the Road Traffic Act 1988 is that in
the Roads (Scotland) Act 1984, and that the earlier definition which makes
reference to 'highway and any other road to which the public has access' is no
longer applicable. However the new
definition makes no reference to the word highway which, as noted in Cheyne v Macneill, was a road upon which the public right of passage was
secured by law and whose maintenance was the responsibility of the statutory
authority. In these circumstances it was
not surprising that Parliament employed the phrase 'public right of passage' in
the substituted definition. If counsel
for the pursuer contended the word 'right' is to be read as a real legal right,
and not something which is obtained by virtue of permission express or implied
from, or acquiescence or toleration by person or persons with legal right to
control the use of the road, the consequences would be startling. It would mean, for instance, that where a
road was not a public road but a private road, unless and until the public
right of passage had been demonstrated by continuance over the prescriptive
period, no such road would fall within the definition and thus a person driving
on such a road, albeit the public had access to it, could not be convicted on
evidence which would secure his conviction in England and Wales."
It is perhaps not unreasonable to
suppose that the amendment, by the Road Traffic Act 1991, Schedule 4,
paragraph 78, of the definition of road in relation to Scotland
in the 1988 Road Traffic Act by the addition of inter alia "any other way to which the public has access" was made ob majorem cautelam in light of such
observations. Although Lord Cameron of
Lochbroom laid stress on the object of the Road Traffic Act to secure public
safety, a similar object could be said to underline the provisions of the 1984
Act. One of the factors which persuaded
the court that the parking area in question was a road within the meaning of
the 1984 Act in Beattie v Scott was, apparently, simple lawful use
by members of the public who drove their cars to the parking area to park there. If that is right, it seems clear, on the
information, that there had for a substantial number of years been lawful
access by the public to the disputed area of road. In his pleadings the position which, it
appeared, the petitioner wished to adopt was that, although there had been use
by the public after 1983,
"Since that date
anyone using said Road has committed an offence. Reference is made to section 71(5) of
the Act. The public could not acquire a
right of way by virtue of illegal actings."
This contention - apparently the
main basis upon which the petition was brought - was accepted, in the course of
submissions, to be unfounded and was not insisted upon. And although the petitioner apparently
intimated, at least to certain members of the public, that previous apparent
permission might be withdrawn, there is nothing to suggest that it had been at
the relevant date.
[20] In the second place, if, contrary to the above, the different
language used in the definition of road in the 1984 Act is to be taken to have
added something different, the question remains as to what. It is clear from Cowie v Strathclyde Regional
Council that the definition "involves less exacting considerations than
those which govern the existence of a public right of way over private
land." In that case it was recognised
that although there required to be a "way", since it was well known that roads
within the meaning of the Act included cul-de-sacs and that some existed to
provide access and egress to private property, at least two of the requirements
for the acquisition of a public right of way - use from end to end on a
continuous journey and public termini - were not involved. What of the remaining conditions for the
constitution of the public right of way, namely continuous use as of right and
use for the prescriptive period?
[21] It is possible to envisage that Parliament intended that
something similar to the former of these conditions apply - that is that there
should have been substantial, as opposed to occasional, use as of right - as opposed
to use by tolerance or by permission. In
relation to public rights of way, it is well known that while occasional use might
be tolerated, regular open use, if not challenged, is generally taken to imply
a right (see e.g. Gordon, Scottish Land Law, 2nd ed. at p.775).
In these circumstances it seems clear that the use by the public of the
disputed section of road since 1989 could be said to have been as of
right. Again, there is nothing in the petitioner's
averments, nor was there in submission on his behalf, to suggest the
contrary. Indeed at one point in his
submission, counsel appeared to accept this, insofar as he suggested that such public
use as had been made of the disputed section of road could have been made in
the belief that it remained a public road.
Rather, the emphasis of counsel was on what he maintained was the
additional requirement of use for the prescriptive period. Nor could it be said that the mere intimation
of his concerns by the petitioner to residents of Townhead
Park could be said to have
interrupted any continuous use as of right.
[22] I am not persuaded that it can have been intended that any such
use as of right required to be for the prescriptive period. This, ultimately, was counsel's main
submission - although once more it is not clearly foreshadowed in the
pleadings. Prescriptive use was not
apparently thought to be necessary in Beattie
v Scott. I was not referred to any authority in which
it was. The 1984 Act itself makes no
specific requirement to this effect. Section
3(3) of the Prescription and Limitation (Scotland)
Act 1973 relates specifically to public rights of way only.
[23] Counsel for the respondents argued that, in any event, if
regard was had to use by the public prior to 1989, it could be said that there
had been continuous use for a period of over 20 years by the relevant
date. Although having some sympathy for
that argument, it seems to me that it would be difficult to look for this
purpose at any period other than the 16 years or so since 1989. The public right to use the disputed section
of road because it was a public road ended in 1989, after which the use was plainly
different in nature and degree.
[24] On this branch of the case I would only add that I was not
persuaded by the alternative submission made by counsel for the petitioner
(which was only faintly pressed) that in any event the respondents' Committee
had insufficient information before them to decide that the disputed section of
road was a road. Even if it was
legitimate to assume that the elected members who made the decision only had
such information about local use as was contained in the report (as in my view
it is not), there was in my view
sufficient in the report to entitle them to reach the conclusion they did.
[25] I shall give effect to my decision on the matters covered thus
far by sustaining the respondents' first plea in law in relation to such
averments in the petition as may be taken to support the claim that the
decision of the Planning and Environmental Service Committee of the respondents
on 26 May 2005 was ultra vires by
virtue of the fact that the disputed section of road was not a private road
within the meaning of section 16 of the Roads (Scotland) Act 1984, or at
least that it could not reasonably have been made on the basis that it was.
[26] The other matter argued before me was whether it could be said
that the respondents' decision had followed application made to them by the
requisite number of frontagers. As
narrated above the petitioner's position now is that it cannot be said that
Messrs Hyslop and Marshall (two of the applicants) were frontagers since
they do not own the apparent pavement strips between their properties and the
disputed section of road (all as shown on Production 7/5 produced for the
hearing by the respondents). This was
not the basis of challenge which, judging by the averments and what I was told,
he intended originally to make. Rather,
it seems clear, that it was intended to suggest that neither could be said to
be frontagers because (if I understood it correctly) of the way their houses
faced (and it was also to be suggested that the Scottish Executive could not be
described as a frontager at all) - positions no longer insisted on. The respondents accept that the matter now
raised will require proof (perhaps after re-service of the petition on
Messrs Hyslop and Marshall) if the petitioner is allowed to
maintain the argument at all. Although I
have considerable sympathy for the position of the respondents on this matter,
I have come to the view that since the basis for the petitioner's argument was
suggested by the respondents' own production produced shortly before the
hearing, and since the general question of whether the respondents had had the
necessary relevant applications was at least raised in the petition, it would
be wrong to deny the petitioner the opportunity to make the challenge which he
does. I shall - as agreed by counsel in
that eventuality - put the case out By Order to determine how this matter
should be progressed, if the petitioner still seeks to insist upon
it. I say if the petitioner still seeks
to insist upon it, because it was said more than once in the course of the
hearing that the real question which he was interested to resolve was the
question of whether the disputed section of road was a road at all. It may be, in light of my decision that it
was, that he would not wish to take this peripheral point any further.
