MacKinnon, Re Application for Judicial Review [2000] ScotCS 60 (8 March 2000)

MacKinnon, Re Application for Judicial Review [2000] ScotCS 60 (8 March 2000)

The court found that the respondents' decision to adopt the way as a public road was unlawful because the statutory precondition of a 'public right of passage' had not been established on the evidence, and the process adopted by the respondents was procedurally unfair, denying the petitioner an opportunity to challenge the adoption before it was effected. The respondents failed to respond to material correspondence and did not properly consider the petitioner's objections, amounting to a breach of natural justice. Accordingly, the entry in the list of public roads was reduced.

Citation
[2000] ScotCS 60
Parties
Petitioner: Alexander MacKinnon; Respondent: Argyll and Bute Council
Jurisdiction
Scotland
Judgment Date
08 March 2000
Procedural Posture
Judicial Review / First Hearing, Opinion Delivered
Outcome
Petition granted; decree of reduction pronounced.
Legal Topics
Judicial Review, Public Rights of Passage, Adoption of Roads, Ultra Vires Acts, Natural Justice, Leasehold Rights, Statutory Interpretation
Administrative Law Property Law Local Government Law Judicial Review Public Rights of Passage Adoption of Roads Ultra Vires Acts Natural Justice +2 more

Case Brief

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Parties

Alexander MacKinnon

Petitioner

Argyll and Bute Council

Respondent

Procedural Posture

Judicial Review / First Hearing, Opinion Delivered

Legal Issues

  1. 1 Whether the respondents' decision to adopt the way as a public road was ultra vires under the Roads (Scotland) Act 1984
  2. 2 Whether a 'public right of passage' existed over the way in question
  3. 3 Whether the adoption process was an abuse of statutory power

Ratio Decidendi

The court found that the respondents' decision to adopt the way as a public road was unlawful because the statutory precondition of a 'public right of passage' had not been established on the evidence, and the process adopted by the respondents was procedurally unfair, denying the petitioner an opportunity to challenge the adoption before it was effected. The respondents failed to respond to material correspondence and did not properly consider the petitioner's objections, amounting to a breach of natural justice. Accordingly, the entry in the list of public roads was reduced.

Court Disposition

Petition granted; decree of reduction pronounced.

Orders

  • Entry in the list of public roads relating to the way at Ganavan reduced.
  • Interim suspension of the entry confirmed.