ALASDAIR JOHN MacNAB AGAINST HIGHLAND COUNCIL

Factual and Procedural Background

The Plaintiff contended that a public right of passage existed by foot, bicycle, and vehicle over a road connecting a main road (the A862) to part of his land at a farm near a town. The Defendant, a local council, acknowledged a public right of passage but limited it to foot and bicycle access only. The initial judge accepted the Defendant's position, prompting the Plaintiff to appeal.

The disputed road area was affected by road improvements undertaken by the Defendant, which involved compulsory purchase of parts of the farm and related properties, including relocation of a house and construction of a new road section replacing a pre-existing track. The Plaintiff acquired the farm in 2006 and later sought planning permission to develop part of the land for commercial purposes, requiring vehicular access via the disputed road. This led to the present dispute over the extent of access rights.

At first instance, other property owners participated in the litigation but did not appear in the appeal. The initial court refused the Plaintiff's declarators for unrestricted vehicular access, finding only a public right for pedestrian and bicycle access. The Plaintiff appeals solely the limitation of the right to exclude vehicular access.

Legal Issues Presented

1. Whether a public right of passage by vehicle exists over the disputed access road, in addition to pedestrian and bicycle access.
2. The nature and extent of public rights of passage under the Roads (Scotland) Act 1984, including whether such rights can be restricted by type of passage.
3. The effect of the Defendant’s construction and dedication of the new access road on the rights of passage, particularly regarding vehicular use.

Arguments of the Parties

Plaintiff's Arguments

• A public right of passage may include foot, bicycle, or vehicle access, and is created by the relevant public authority dedicating the way to the public.
• The initial court erred in restricting the right to foot and bicycle access, as the intended users included private landowners who required vehicular access.
• The existence of a limited group of users does not negate a public right of vehicular passage; such rights can exist over cul-de-sacs or roads serving single properties.
• The Defendant had not taken steps to restrict vehicular use, such as erecting barriers, implying acceptance of vehicular rights.
• The access road was designed and constructed for vehicular use, with features such as tarmacadam surface, junction markings, and traffic signs, inconsistent with a mere cycle track.
• The court confused the existence of a public right of passage with the management or regulation of that right; the Defendant could regulate use through statutory powers but had not done so.

Defendant's Arguments

• The initial court correctly found that the public right of passage was limited to pedestrians and cyclists.
• Public rights of passage can be restricted by the type of passage permitted, as provided under the Roads (Scotland) Act 1984.
• Acquisition of land by a local authority for road construction does not automatically dedicate land for unrestricted public passage.
• The access road was intended to replace a pre-existing track used by the public only on foot or bicycle; vehicular use was limited to private landowners.
• The Defendant did not intend to create a public right of vehicular access, and the use of tarmacadam does not imply such an intention.
• The public had no greater vehicular use of the track historically, and no positive act by the Defendant conferred a broader vehicular right.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hamilton v Nairn 2010 SLT 399	Public right of passage can exist over the whole road including the verge; right may exist over only part of a road.	Supported finding of public right of passage for pedestrians and cyclists over the track and access road.
McRobert v Reid 1914 SC 633	Private landowners bordering a road with a public right generally have access rights; public rights may exist over part of a road.	Referenced in discussion of access rights of landowners to the road.
Elmford Limited v Glasgow City Council (No 2) 2001 SC 267	Acquisition of land by local authority does not imply dedication to unrestricted public passage.	Used to support that the Defendant did not dedicate the access road for unrestricted vehicular use.
Hamilton v Dumfries and Galloway Council (No 2) 2009 SC 277	Public right of passage may be created by prescription or grant; distinction between private and public rights; rights may be limited to certain modes of passage.	Applied to analyze nature of rights over the access road and distinction between private servitude and public rights.
Melfort Pier Holidays v The Melfort Club [2006] CSOH 130	Public right of passage can exist over a cul-de-sac or road serving a single property; no requirement for two termini.	Supported argument that limited user group does not negate public right of vehicular passage.
Sheriff v Ferguson (1844) 6 D 530	Consideration of the scope of public rights of passage limited to particular types of passage.	Referenced in discussion of statutory interpretation of restricted public rights of passage.

Court's Reasoning and Analysis

The court distinguished between two types of rights over a road or track: private servitude rights and public rights of passage. The Lord Ordinary had found no private servitude right existed for the access road or track. Consequently, the rights exercised by the Plaintiff, neighbouring landowners, and other users must be public in nature.

The court recognized that public rights of passage may be limited to specific modes of travel, such as pedestrian or bicycle, under the Roads (Scotland) Act 1984. However, the court emphasized that the Defendant’s construction of the new access road was intended to replace an existing track that had vehicular use by private landowners and others. The Defendant did not establish a restricted private servitude to exclude vehicular rights.

Given the Defendant’s actions to preserve existing access, including vehicular use, and absence of evidence of restrictions on vehicular passage, the court concluded that a public right of vehicular passage must have been created over the new access road. The court rejected the Defendant’s argument that the public right was limited to pedestrian and bicycle access, reasoning that the Defendant’s conduct effectively granted a public vehicular right by preserving prior access rights.

The court noted that the Plaintiff’s and others’ vehicular use was consistent with a public right rather than a private servitude, and that the Defendant’s failure to impose restrictions or create limited servitudes reinforced this conclusion. The court found the Defendant’s reliance on the road surface and design insufficient to negate the existence of a public vehicular right.

Holding and Implications

The court allowed the Plaintiff’s appeal, overturning the initial decision insofar as it limited the public right of passage to pedestrian and bicycle access.

The court declared that there is a public right of pedestrian and vehicular access over the access road owned by the Defendant, extending between the junction with the main road and the north-west corner of the Plaintiff’s land.

The court adhered to the initial decision in all other respects and indicated that the question of expenses would be revisited. The decision directly affects the parties by confirming the Plaintiff’s entitlement to unrestricted public vehicular access over the relevant road. No broader precedent was established beyond the application of existing principles to the facts of this case.