Introduction

The case of Alasdair John MacNab against Highland Council ([2024] ScotCS CSIH_17) represents a significant judicial determination regarding public access rights. The dispute centers on the extent of the public's right to pass over a specific stretch of road adjacent to MacNab's land at Kildun Farm, near Dingwall, particularly whether this right encompasses vehicular access in addition to pedestrian and bicycle access. This commentary delves into the intricacies of the case, examining the background, key legal issues, the court's reasoning, and the broader implications for Scottish land and public access law.

Summary of the Judgment

In the reclaiming motion, the Scottish Court of Session, Inner House, considered whether Alasdair John MacNab (the pursuer) possessed an unrestricted vehicular right of access over a road between the A862 and his property at Kildun Farm. While Highland Council acknowledged a public right of passage, it contended that such access was limited to pedestrians and cyclists. The Lord Ordinary upheld the Council's position. However, upon appeal, the Inner House overturned this decision, declaring that the public right of passage indeed includes vehicular access. The court determined that the Council's actions in constructing and maintaining the access road inherently conferred a broader right of vehicular passage, aligning with existing usage patterns and legislative provisions.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents and statutory provisions that shaped the court's decision:

• Roads (Scotland) Act 1984, Section 151: This section outlines the creation and scope of public rights of passage over roads and paths. It distinguishes between different modes of access, such as pedestrian, bicycle, and vehicular.
• Hamilton v Nairn (2010) SLT 399: This case established that a public right of passage can exist over part of a road and clarified that such rights can be limited to specific modes of travel unless otherwise established.
• McRobert v Reid (1914) SC 633: Reinforced the principle that public rights of passage do not necessarily require multiple termini.
• Elmford Limited v Glasgow City Council (No 2) (2001) SC 267: Highlighted that acquisition of land by a local authority for road construction does not automatically confer unrestricted public passage rights.
• Hamilton (No. 2) (2009) SC 277: Further explored the nuances of public rights of passage, emphasizing the importance of the intended use and statutory powers in determining the scope of access rights.

Legal Reasoning

The court's legal reasoning pivoted on distinguishing between private law servitudes and public law rights of passage. Initially, it acknowledged that no private servitude existed that exclusively benefited the landowners and specific users. Consequently, the rights in question were interpreted as public law rights. The Lord Ordinary's initial limitation to pedestrian and bicycle access was scrutinized, with the appellate court arguing that the designed purpose and actual usage of the road inherently included vehicular access. The construction of a tarmacadamed road with features like a bellmouth junction and traffic signs further indicated an intent to facilitate vehicular movement, even if not for general public use.

Importantly, the court addressed the argument that limited vehicular access was intended solely for specific users. It determined that such an intention did not exclude the possibility of a broader, public vehicular right unless explicitly restricted. The absence of barriers or measures to restrict vehicular access, combined with the design and maintenance of the road, substantiated the conclusion that vehicular access was indeed part of the public right.

Impact

This judgment has profound implications for future cases involving public access rights over private or council-maintained roads in Scotland. It clarifies that the intended use, design, and maintenance of a road can extend public rights of passage beyond pedestrians and cyclists to include vehicular access. This broadens the interpretation of the Roads (Scotland) Act 1984, potentially affecting landowners, local councils, and the general public regarding access and usage rights. Future developments and road improvements by councils must carefully consider the implications for public access rights to prevent similar disputes.

Complex Concepts Simplified

Understanding the nuances of public access rights requires delving into legal terminologies:

• Public Law Right of Passage: This is a right granted to the public to use a specific path or road. It is not limited to certain individuals but is available to anyone unless explicitly restricted by law.
• Private Law Servitude: Unlike public rights, servitudes are private agreements that allow specific individuals or entities to use a path or road. These are typically limited to the landowners and associated users.
• Prescription: This refers to the acquisition of rights through long-term use. If a path or road has been used openly and continuously for a significant period, it may establish a prescriptive right of passage.
• Bellmouth Junction: A type of road junction designed to allow traffic from multiple directions to merge smoothly onto a road. Its presence indicates an infrastructure prepared for vehicular movement.

Conclusion

The judgment in MacNab v Highland Council underscores the judiciary's role in delineating and affirming public access rights in accordance with legislative intent and practical usage. By recognizing vehicular passage as part of the public right of passage, the court has set a precedent that balances infrastructure development with individual and public access needs. This decision not only resolves the immediate dispute but also serves as a guiding framework for similar cases, ensuring that public rights evolve in step with societal and infrastructural changes.