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The burden of proving an unrestricted pedestrian and vehicular access rests on the Pursuer

13 September 2023

Read our summary of a case highlighting that the burden of proving an unrestricted pedestrian and vehicular access rests on the Pursuer.

Alasdair John Macnab v The Highland Council (FIRST) Iain Gilmour and Dawn Marie Gilmour (SECOND)

Background

The Pursuer owned a field near Dingwall which previously enjoyed access to the nearby public road, the A862. In 2002, the Highland Council procured parts of the Pursuer's land in order to carry out works on the public road (via a compulsory purchase process). The Pursuer then claimed that he held an unrestricted right of pedestrian and vehicular access over this access roadway to his field. 

The Pursuer sought declarator, amongst other things, that the right of access was unrestricted. This declarator was primarily sought on the premise that the Pursuer's parents had an agreement with the Council to include an unrestricted right of access to and from the field. 

In addition, the Pursuer argued that there was a public right of passage over the access road, and that registration of his title created a servitude right of access. 

The Council, represented by Emily Campbell and Ursula Currie from DWF LLP, did not dispute that a servitude may indeed be implied however the dispute was focused on the intention of the transaction to provide an equivalent right of access. The Council maintained and were ultimately successful in arguing that the servitude right of access to the roadway was limited to that of agricultural access only. 

Implied servitude

The Council was successful in arguing that use of the access road was not unrestricted. The Court stated that the scope of the servitude sought by the Pursuer "would impose a burden on the Council's land far in excess of anything that might reasonably have been in the contemplation of the parties".

It was also argued by the Pursuer that he would have sought more compensation (as part of the compulsory purchase) for the loss of an unrestricted right of access.  However, the Court commented that there was no evidence of the discussions between the Pursuer's father and the District Valuer on what considerations were taken into account before the purchase price was agreed.  

The Court concluded that:

" … if there was any agreement about access at all, it was not an agreement to provide the unrestricted pedestrian and vehicular access for which the Pursuer contends."

The Land Registered title

In addition, there was an argument by the Pursuer relating to the description of the Property within the Land Register, which referred to "together also with access and egress from the farm and lands of Kildun by means of all present accesses including that between the points lettered E and F on the said map."  

The Pursuer argued that registration of his title would create a servitude of access, as a result of the Keeper's so-called "Midas Touch", the Pursuer's title having been registered in 2005, before the coming into force of the Land Registration etc (Scotland) Act 2012. 

The Court held in this respect that the Land Register should not be interpreted as enlarging the scope of any rights of access that he already had.  The Court confirmed it had already been held that any servitude right of access down the access road was not so extensive as to amount to unrestricted right of pedestrian and vehicular access.

Public right of passage

It was accepted by the Court that the access road was a way over which there was a public right of passage, and the access road was therefore a "road" as defined under the Roads (Scotland) Act 1984.  However, it was further held that  public passage may be "by whatever means" and from the fact that there is a public right of passage by one specific means, it does not follow, therefore that there is a public right of passage by some other means, or by all means.  

It also did not follow from the fact that land has been acquired by a local authority in connection with the construction of a road, that it has been dedicated to unrestricted public passage.  There was no evidence of members of the public generally taking vehicular access down the access road, and it was not designed and built to facilitate routine vehicular access.

Contract

The Pursuer's case for the existence of an implied servitude was founded on contract, or at least an informal agreement between the Council and the Pursuer's parents.  The Court had already held that there was no agreement to grant an unrestricted right of pedestrian and vehicular access.  However, in addition, the Court held that any such contractual right would have now prescribed.

Interest of the Second defenders

The Second defenders, Mr and Mrs Gilmour, claimed that the Pursuer had no right of access at all and any access would involve crossing their land, bringing the issue of ownership into dispute. The Pursuer objected to the Second Defenders' right to defend the proceedings, on the basis that they did not own any part of the land over which the Pursuer sought to establish his access rights. It was held by Lord Harrower in this respect that:

"In my Judgment the council clearly own the solum of the access road between Access F and Access E, including its verges and proceeding down the access road towards the level crossing to the end of plot 15 on the CPO plan."

Lord Harrower held that the Second Defender had no title or interest to oppose the first and third conclusions for declarator sought by the Pursuers. However, it was held that the Pursuer's Second Conclusion was "premised on the existence of a public right of passage over the Council's land, and since the pursuer's exercise of any such right must be consistent with the rights exercised by others, including the Gilmours, it would be going too far to suggest that the Gilmours had no right to be heard in relation to this aspect of the dispute."

Conclusion 

Lord Harrower's decision is largely fact specific but nevertheless demonstrates that the burden of proving an unrestricted pedestrian and vehicular access rests on the Pursuer. In this case, the burden of proof could not be discharged and Lord Harrower declined to grant any of the decrees of declarator sought by the Pursuer. t

If assistance is required in any disputes relating to servitudes, please contact Ursula Currie or Emily Campbell in the DWF Commercial Litigation team.

Further Reading