Hamilton v Dumfries & Galloway Council & Anor, Re Judicial Review [2008] ScotCS CSOH_65 (25 April 2008)

Hamilton v Dumfries & Galloway Council & Anor, Re Judicial Review [2008] ScotCS CSOH_65 (25 April 2008)

The disputed section of road is a 'road' within the meaning of s.151 of the Roads (Scotland) Act 1984 because a public right of passage has been established through substantial, continuous use as of right, and neither the 1983 Order nor subsequent delisting nor the petitioner's letters destroyed that right.

Citation
[2008] 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, Roads (scotland) Act 1984, Stopping Up of Roads, Personal Bar, Adoption of Roads
Administrative Law Property Law Public Law Public Right of Passage Roads (scotland) Act 1984 Stopping Up of Roads Personal Bar Adoption of Roads

Case Brief

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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 the Roads (Scotland) Act 1984
  2. 2 Whether a public right of passage exists over the disputed section of road
  3. 3 Effect of the 1983 Order and subsequent delisting on public rights

Ratio Decidendi

The disputed section of road is a 'road' within the meaning of s.151 of the Roads (Scotland) Act 1984 because a public right of passage has been established through substantial, continuous use as of right, and neither the 1983 Order nor subsequent delisting nor the petitioner's letters destroyed that right.

Court Disposition

Petition dismissed

Orders

  • Interlocutor pronounced dismissing the petition