Melfort Pier Holidays Ltd v. The Melfort Club And Others [2006] ScotCS CSOH_1 (25 August 2006)

Melfort Pier Holidays Ltd v. The Melfort Club And Others [2006] ScotCS CSOH_1 (25 August 2006)

The court held that the pursuers had established a prima facie case for the existence of a public right of way over the driveway by positive prescription, and that the balance of convenience favoured extending the interim interdict to allow encroachment up to eleven metres, preserving the status quo pending proof.

Citation
[2006] ScotCS CSOH_1
Parties
Pursuer: Melfort Pier Holidays Limited; Defender: The Melfort Club and Others
Jurisdiction
Scotland
Judgment Date
25 August 2006
Procedural Posture
Interim Interdict and Interim Order Under Section 47(2) of the Court of Session Act 1988 / Motion Hearing
Outcome
Pursuers' motion granted, defenders' motion refused
Legal Topics
Public Right of Way, Positive Prescription, Interim Interdict, Access to Property
Property Law Civil Procedure Public Right of Way Positive Prescription Interim Interdict Access to Property

Case Brief

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Parties

Melfort Pier Holidays Limited

Pursuer

The Melfort Club and Others

Defender

Procedural Posture

Interim Interdict and Interim Order Under Section 47(2) of the Court of Session Act 1988 / Motion Hearing

Legal Issues

  1. 1 Whether the public has a right to encroach upon a private driveway as an adjunct to a public road
  2. 2 Whether a public right of way can be constituted over the driveway by positive prescription
  3. 3 Whether the route must have two public termini to constitute a public right of way

Ratio Decidendi

The court held that the pursuers had established a prima facie case for the existence of a public right of way over the driveway by positive prescription, and that the balance of convenience favoured extending the interim interdict to allow encroachment up to eleven metres, preserving the status quo pending proof.

Court Disposition

Pursuers' motion granted, defenders' motion refused

Orders

  • Pursuers allowed to amend their first conclusion
  • Interim interdict varied to permit encroachment up to eleven metres