ALASDAIR JOHN MacNAB AGAINST HIGHLAND COUNCIL [2024] ScotCS CSIH_17 (02 July 2024)

ALASDAIR JOHN MacNAB AGAINST HIGHLAND COUNCIL [2024] ScotCS CSIH_17 (02 July 2024)

Since there is no private servitude right and the right currently exercised by various users is public, and since the public right admits vehicular use by at least the pursuer and others, the right of vehicular passage must be available to the public generally. The Council's actions in replacing the pre-existing access with the new road necessarily involved the grant of a public right of vehicular access.

Citation
[2024] ScotCS CSIH_17
Parties
Pursuer and Reclaimer: Alasdair John MacNab; Defenders and Respondents: Highland Council
Jurisdiction
Scotland
Judgment Date
02 July 2024
Procedural Posture
Reclaiming Motion (appeal) in Civil Action for Declarator / Appeal (inner House, Court of Session)
Outcome
Reclaiming motion allowed. Lord Ordinary's interlocutor recalled in part. Declarator granted that a public right of pedestrian and vehicular access exists along the access road between access E and access F.
Legal Topics
Public Right of Passage, Vehicular Access, Roads (scotland) Act 1984, Servitude Rights, Dedication of Roads
Property Law Administrative Law Public Right of Passage Vehicular Access Roads (scotland) Act 1984 Servitude Rights Dedication of Roads

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Parties

Alasdair John MacNab

Pursuer and Reclaimer

Highland Council

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) in Civil Action for Declarator / Appeal (inner House, Court of Session)

Legal Issues

  1. 1 Whether a public right of passage by vehicle exists over the access road between the A862 and Field 3 at Kildun Farm
  2. 2 Whether the right of passage is limited to pedestrian and bicycle access or extends to vehicular access

Ratio Decidendi

Since there is no private servitude right and the right currently exercised by various users is public, and since the public right admits vehicular use by at least the pursuer and others, the right of vehicular passage must be available to the public generally. The Council's actions in replacing the pre-existing access with the new road necessarily involved the grant of a public right of vehicular access.

Court Disposition

Reclaiming motion allowed. Lord Ordinary's interlocutor recalled in part. Declarator granted that a public right of pedestrian and vehicular access exists along the access road between access E and access F.

Orders

  • Recall of Lord Ordinary's interlocutor of 31 August 2023 in so far as it repelled the pursuer's second plea-in-law and refused declarator in terms of the second conclusion.
  • Repel first defenders' sixth plea-in-law.