Melfort Pier Holidays Ltd v. The Melfort Club & Ors [2006] ScotCS CSOH_130 (25 August 2006)

Melfort Pier Holidays Ltd v. The Melfort Club & Ors [2006] ScotCS CSOH_130 (25 August 2006)

The law does not permit users of a public road to encroach on private property for navigability unless a public right of way has been constituted by positive prescription. In this case, there is an arguable case that such a right may have been established over the driveway as an adjunct to the public road due to long-standing use. The balance of convenience favours varying the interim interdict to allow encroachment up to eleven metres, preserving the status quo until proof.

Citation
[2006] ScotCS CSOH_130
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 / Interlocutory (motions to Amend/vary Interim Interdict and Recall Orders)
Outcome
Pursuers' motion granted; defenders' motion refused.
Legal Topics
Public Right of Way, Positive Prescription, Interim Interdict, Access to Property, Highways and Public Roads
Property Law Civil Procedure Public Right of Way Positive Prescription Interim Interdict Access to Property Highways and Public Roads

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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 / Interlocutory (motions to Amend/vary Interim Interdict and Recall Orders)

Legal Issues

  1. 1 Whether the public has a right to encroach on a private driveway to negotiate a bend in a public road
  2. 2 Whether a public right of way can be constituted over the driveway by positive prescription
  3. 3 Whether the interim interdict should be varied to extend the area of permitted encroachment

Ratio Decidendi

The law does not permit users of a public road to encroach on private property for navigability unless a public right of way has been constituted by positive prescription. In this case, there is an arguable case that such a right may have been established over the driveway as an adjunct to the public road due to long-standing use. The balance of convenience favours varying the interim interdict to allow encroachment up to eleven metres, preserving the status quo until proof.

Court Disposition

Pursuers' motion granted; defenders' motion refused.

Orders

  • Pursuers allowed to amend their first conclusion to extend the area of permitted encroachment to eleven metres.
  • Interim interdict varied to substitute 'eleven metres' for 'four metres' where applicable.