Hamilton v Dumfries and Galloway Council [2008] ScotCS CSOH_65 (25 April 2008)

Hamilton v Dumfries and Galloway Council [2008] ScotCS CSOH_65 (25 April 2008)

The disputed section of road is a 'road' within the meaning of section 151 of the Roads (Scotland) Act 1984 because it is a way over which a public right of passage has been established by long, regular, and unrestricted public use as of right, and neither the 1983 Order, delisting, nor the petitioner's subsequent letters extinguished that right.

Citation
[2008] ScotCS CSOH_65
Parties
Petitioner: Brian Gregory Hamilton; First Respondent: Dumfries and Galloway Council; Second Respondent: Planning and Environmental Services Committee of Dumfries and Galloway Council
Jurisdiction
Scotland
Judgment Date
25 April 2008
Procedural Posture
Judicial Review / Final Judgment After Outer House Hearing
Outcome
Petition dismissed
Legal Topics
Public Right of Passage, Definition of 'road' Under Roads (scotland) Act 1984, Stopping Up of Roads, Personal Bar, Compulsory Purchase, Servitude Rights
Administrative Law Property Law Roads and Highways Law Public Right of Passage Definition of 'road' Under Roads (scotland) Act 1984 Stopping Up of Roads Personal Bar Compulsory Purchase +1 more

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Parties

Brian Gregory Hamilton

Petitioner

Dumfries and Galloway Council

First Respondent

Planning and Environmental Services Committee of Dumfries and Galloway Council

Second Respondent

Procedural Posture

Judicial Review / Final Judgment After Outer House Hearing

Legal Issues

  1. 1 Whether the disputed section of road is a 'road' within the meaning of section 151 of the Roads (Scotland) Act 1984
  2. 2 Whether a public right of passage exists over the disputed section of road
  3. 3 Whether the 1983 Order or subsequent delisting extinguished the public right of passage

Ratio Decidendi

The disputed section of road is a 'road' within the meaning of section 151 of the Roads (Scotland) Act 1984 because it is a way over which a public right of passage has been established by long, regular, and unrestricted public use as of right, and neither the 1983 Order, delisting, nor the petitioner's subsequent letters extinguished that right.

Court Disposition

Petition dismissed

Orders

  • Interlocutor pronounced dismissing the petition.