ALASDAIR JOHN MACNAB AGAINST THE HIGHLAND COUNCIL AND OTHERS [2023] ScotCS CSOH_59 (31 August 2023)

ALASDAIR JOHN MACNAB AGAINST THE HIGHLAND COUNCIL AND OTHERS [2023] ScotCS CSOH_59 (31 August 2023)

The Council owns the solum of the access road between Access F and Access E, including verges, and proceeding to the end of plot 15. The pursuer has an implied servitude right of access for agricultural purposes only, not unrestricted access. The Gilmours have no title or interest to oppose the action. There is no public right of passage for vehicles, only for pedestrians and cyclists as previously enjoyed.

Citation
[2023] ScotCS CSOH_59
Parties
Pursuer: Alasdair John MacNab; First Defender: The Highland Council; Second Defenders: Iain Gilmour and Dawn Marie Gilmour
Jurisdiction
Scotland
Judgment Date
31 August 2023
Procedural Posture
Civil Declarator / Proof Before Answer
Outcome
Declarator granted in part; servitude right of access for agricultural purposes only; Gilmours have no title or interest to oppose; no public vehicular right of passage.
Legal Topics
Implied Servitude, Public Right of Passage, Ownership Dispute, Prescription, Compulsory Purchase
Property Law Servitude Public Rights of Way Implied Servitude Public Right of Passage Ownership Dispute Prescription Compulsory Purchase

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Parties

Alasdair John MacNab

Pursuer

The Highland Council

First Defender

Iain Gilmour and Dawn Marie Gilmour

Second Defenders

Procedural Posture

Civil Declarator / Proof Before Answer

Legal Issues

  1. 1 Whether an implied servitude right of access exists over the access road in favour of Kildun Farm
  2. 2 Whether the servitude is restricted to agricultural purposes
  3. 3 Whether there is a public right of passage over the access road

Ratio Decidendi

The Council owns the solum of the access road between Access F and Access E, including verges, and proceeding to the end of plot 15. The pursuer has an implied servitude right of access for agricultural purposes only, not unrestricted access. The Gilmours have no title or interest to oppose the action. There is no public right of passage for vehicles, only for pedestrians and cyclists as previously enjoyed.

Court Disposition

Declarator granted in part; servitude right of access for agricultural purposes only; Gilmours have no title or interest to oppose; no public vehicular right of passage.

Orders

  • Declarator that pursuer has servitude right of access for agricultural purposes over access road owned by Council between Access F and Access E.
  • Declarator that Gilmours have no title or interest to oppose the action.