Case Report: 1995 SLT 507

Key points: Right of way over de-commissioned public road – whether rights of access to intermediate points lost – use of access route for commercial purposes – effect of works on ‘character’ of right of way.

The facts: An old road ceased to be used as a through route in the early 1900s. Mackay owned the ground on the north side of part of the road, and Lord Burton owned the ground on the south side and also the road itself. Mackay had, for many years, used the road as an access to his property, and this fact was accepted by Lord Burton. Mackay obtained planning permission to erect houses on his ground, but this was conditional on access to the houses being available from the road in question.

Legal arguments: Lord Burton claimed that no vehicular access rights remained along the road; he sought Interdict against Mackay’s encroaching on his property and surfacing part of the road and using it for motor vehicles.

Decision: The evidence is not included in the case report, but the Court held it proved that: (1) the road was formerly a public road; (2) its use had included vehicular use; and (2) it had ceased to be a continuous route from one public place to another. Reference was made to the 1914 case of McRobert v Reid, which decided that, where a right of way was established as public, its use need not always be from end to end, but its intermediate frontagers had the right to use it for access. There was no legal authority as to the rights of such intermediate proprietors if end-to-end use of the route became impossible as was the case here. The Court declared that it would be extraordinary if intermediate proprietors’ rights were to be lost if a right of way ceased to be capable of end-to-end use, perhaps because of some catastrophe or natural change. Accordingly, Mackay was entitled to continue to use the road for access to his property. Lord Burton also claimed that re-surfacing operations carried out by Mackay on the road had changed its character and, by potentially attracting more traffic, had increased the burden on his (Burton’s) property. The Court disagreed and did not consider that any such re-surfacing materially affected the character of the road or increased the burden referred to; Lord Burton’s claim was, therefore, rejected.

Comments: The importance of this case is that, if a right of way exists and then becomes blocked (such blocking could be due to landslide or flooding, for example), then the rights of frontagers to the route as an access to their properties is not affected, even though the route is not useable from end to end.

Cases referred to:
(1) McRobert v Reid 1914 1 SLT 434 and 1914 SC 633
2) Carstairs v Spence 1924 SC 380 and 1924 SLT 300

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