Hamilton v Nairn [2010] ScotCS CSIH_77 (07 September 2010)

Hamilton v Nairn [2010] ScotCS CSIH_77 (07 September 2010)

The verge between the metalled carriageway and the boundary dyke is part of the public road as defined by the Roads (Scotland) Act 1984, and is subject to a public right of passage. The listing of the road is conclusive for management, maintenance, and rights of passage. The roads authority's consent under section 56 is sufficient for works on the verge, and the heritable proprietor cannot interfere. The interdict should be precise and not overly broad.

Citation
[2010] ScotCS CSIH_77
Parties
Pursuers and Respondents: Michael and Sarah Hamilton; Defender and Reclaimer: Robert Kennedy Nairn
Jurisdiction
Scotland
Judgment Date
07 September 2010
Procedural Posture
Civil Appeal / Appeal From Lord Ordinary's Interlocutor Granting Declarator and Interdict
Outcome
Appeal refused; interlocutor of Lord Ordinary adhered to, subject to amendment of interdict wording.
Legal Topics
Public Right of Passage, Definition of 'road' and 'verge' Under Roads (scotland) Act 1984, Rights of Adjoining Proprietors, Road Construction Consent, Extent of Public Road, Interdict Scope and Precision
Property Law Administrative Law Roads and Highways Law Public Right of Passage Definition of 'road' and 'verge' Under Roads (scotland) Act 1984 Rights of Adjoining Proprietors Road Construction Consent Extent of Public Road +1 more

Case Brief

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Parties

Michael and Sarah Hamilton

Pursuers and Respondents

Robert Kennedy Nairn

Defender and Reclaimer

Procedural Posture

Civil Appeal / Appeal From Lord Ordinary's Interlocutor Granting Declarator and Interdict

Legal Issues

  1. 1 Whether the verge between the metalled carriageway and the boundary dyke is part of the public road over which there is a public right of passage
  2. 2 Whether listing under the Roads (Scotland) Act 1984 is conclusive of the extent of the public road and rights of passage
  3. 3 Whether a landowner can prevent works on the verge for private access where roads authority has granted consent

Ratio Decidendi

The verge between the metalled carriageway and the boundary dyke is part of the public road as defined by the Roads (Scotland) Act 1984, and is subject to a public right of passage. The listing of the road is conclusive for management, maintenance, and rights of passage. The roads authority's consent under section 56 is sufficient for works on the verge, and the heritable proprietor cannot interfere. The interdict should be precise and not overly broad.

Court Disposition

Appeal refused; interlocutor of Lord Ordinary adhered to, subject to amendment of interdict wording.

Orders

  • Declarator granted that pursuers are entitled to carry out works and take access over the verge as specified in the section 56 consent.
  • Interdict granted against defender from impeding pursuers, with wording amended for precision.