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

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

The petitioner, who has a place of business at Ganavan Pavilion, Ganavan, by Oban, owns and carries on a business at that address in the provision of various leisure facilities, including a caravan site. The petition concerns the status of a way at Ganavan, the use of which materially affects the conduct of the petitioner's business. The respondents are a local authority constituted under the Local Government (Scotland) Act 1994 and are the local roads authority for the area in which the way at Ganavan is situated, for the purposes of the Roads (Scotland) Act 1984.

The petitioner's business has been conducted in such a way as to involve the use of four separate areas of land at Ganavan. These areas can conveniently be seen approximately and in outline on the plan attached to the document 6/3 of process. Area 1 is in the ownership of the petitioner in terms of the Disposition in his favour dated 15 January 1996, 6/1 of process. Area 2 is held by the petitioner as tenant of the respondents, in terms of a Lease between Argyll and Bute District Council and Ganavan Leisure Oban Ltd, dated 25 March 1987, 6/2 of process, and an Assignation by Alexander William Smith and another in favour of the petitioner, dated 12, 15 and 17 January 1996. The Lease mentioned contains an option to the tenant to purchase the subjects thereof, which , I was informed, had been exercised by the petitioner. Area 3 is in the ownership of the respondents, but is managed by the petitioner, under and in terms of a Management Agreement between the petitioner and the predecessors of the respondents, Argyll and Bute District Council, dated 28 March 1996, 6/3 of process. Area 4 is also used by the petitioner in connection with his business, but is not relevant to the subject matter of the present petition.

As a result of various occurrences, principally acts of vandalism occurring during the hours of darkness on the land used by the petitioner in connection with his business, in 1997, he took steps to try to remedy this problem. In particular, by letter, dated 12 May 1997, 7/10 of process, the petitioner wrote to the Legal Services Department of the respondents seeking permission for the erection of a barrier at Ganavan during the hours of darkness. The reasons advanced for the making of that request are set forth in the letter. The respondents, after consultation with interested parties, granted the request sought, in consequence of which the petitioner erected a gate at or near the boundary of area 2 with land to the south. Arrangements were made that this gate would be closed during the hours of darkness. All of the emergency services were furnished with keys for the gate and did not object to the arrangements. The police force, in particular, approved of the arrangements. The gate, when closed, had the effect of preventing vehicular, but not pedestrian access to the site in question. The making of these arrangements resulted in the elimination of the major part of the problem of vandalism previously experienced.

However, in due course, the use of the gate in question evoked concern on the part of certain sections of the public in the area concerned, who considered that members of the public should be free to visit the area of Ganavan and Ganavan Sands at night. They formed an association known as the "Friends of Ganavan", which proceeded to lobby the respondents on the matter.

Thereafter, the petitioner received a letter, dated 15 September 1998, from the respondents concerning the proposed adoption of the way, to which I have referred, as a public road. That letter is 6/4 of process. It is indicated in it that the intention of the respondents was to exercise the powers conferred upon them as local roads authority under Section 16 of the Roads (Scotland) Act 1984. The precise dimensions of the area of the way proposed to be adopted are set forth in the letter, which also invited comments on the proposal which it contained. By letters dated 21 September 1998, 6/5 of process, and 24 September 1998, 6/6 of process, the petitioner commented upon the proposal concerned to the respondents. In addition, by letter dated 15 October 1998, 6/7 of process, the petitioner enquired of the respondents as to whether or not any formal application for adoption had been made and also as exactly what statutory authority was being exercised by the respondents. The respondents did not reply to any of this correspondence prior to 6 November 1998.

On 6 November 1998, the respondents wrote to the petitioner intimating that the way concerned had been adopted as a public road and enclosing a copy of the adoption certificate, dated 5 November 1998, a map showing the area of the way adopted and the entry relating to it which had been added to the list of public roads. Those documents are 6/8 of process. Subsequently the petitioner's solicitors received a letter from the respondents, dated 11 November 1998, making a number of points, which is 6/9 of process. Among the points made in it, it was stated that an application had been made to the local roads authority on behalf of a frontager for adoption, since the road was of a satisfactory standard. The frontager was said to be the respondents acting as Parks Authority.

Against the foregoing background, the petitioner now seeks judicial review of the respondents' decision to add the said way to the list of public roads maintained by them. In particular, the petitioner seeks reduction of the said purported entry in the list of public roads relating to the said way, suspension ad interim of the said purported entry, and interdict ad interim against the respondents taking any action to remove or regulate the use of the entrance gate referred to in the said purported entry. Interim suspension of the said entry was granted by interlocutor dated 19 November 1998.

When the petition came before me at a first hearing, counsel for the petitioner explained that there were three grounds of a challenge of the respondents' decision to add the said way to the list of public roads maintained by them. These were set forth in paragraphs 9, 10 and 11 of the petition. Dealing with the first ground of challenge, expressed in paragraph 9, it was submitted that the respondents' decision was ultra vires. Before a private road could be adopted as a public road, under Section 16 of the Act of 1984, it had to be a "road", as defined in that Act. In Section 151(1) thereof "road" was defined as meaning "subject to sub-section (3) below, any way (other than a waterway) over which there is a "public right of passage" (by whatever means) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof;" in the same sub-section, the expression "public road" was defined as meaning "a road which a roads authority have a duty to maintain"; and the expression "private road" was defined as meaning "any road other than a public road". Thus it could be seen that it was an essential ingredient in the concept of a "road" that there existed over it a "public right of passage". In the present instance, there was no suggestion that there had been an express grant of a "public right of passage" over the way concerned. Accordingly there was no means by which a "public right of passage" could exist other than by prescription. In this connection, reference was made to Viewpoint Housing Association Ltd v Lothian Regional Council 1993 S.L.T. 921, at page 923K to L. Thus the issue of prescriptive possession of a public right of way arose. However, regard had to be had to what was said by Lord President Emslie in Cowie v Strathclyde Regional Council, First Division, 8 July 1986, unreported. In that case, the Lord President had said that the definition of "road" in the Act of 1984 did not require that there had to exist over the way a public right of way. The "public right of passage" mentioned in the definition of the word "road" involved less exacting considerations than those which governed the existence of a public right of way over private land. Against that background, it was submitted that a "public right of passage" was a new category of right, which could be acquired by prescription. It was important to note that when the decision of the respondents under challenge was made, the gate in question had been in being for a year and had been used. That was inconsistent with the existence of a "public right of passage" existing when the adoption procedure began, unless it could be shown that the public had acquired a right of passage, by express grant or prescription prior to the date when the gate was put in place. If that approach were correct, then the question of whether there was a "public right of passage" down the way concerned would be a question of mixed fact and law. The factual element would involve the issue of the exercise by the public of the use of the way entirely unrestricted by the owner, or tenant of areas 2 and 3 for the prescriptive period. In the context of a judicial review, the existence of a "public right of passage" along the way went to the jurisdiction of the respondents. It was a precedent fact. If it did not exist, there was no power in the respondents to make the decision concerned under Section 16 of the Act of 1984. In connection with this part of his argument, counsel for the petitioner referred to Watt v The Lord Advocate&nbsp

Counsel for the petitioner next adopted what he called an alternative approach to the same matter, which was focused upon the decision making process. Matters referred to in paragraph 9 of the petition were also involved in this connection. It was submitted that, before a person or authority could have been said to have taken a valid decision based upon certain facts, there had to have been available to them some material on which the decision might reasonably have been reached. So far as was known, the petitioner had been the only person who had made any representations to the respondents regarding the issue of the existence of a "public right of passage" over the way concerned. That had been done in the letter of 21 September 1998, 6/5 of process. In that letter, circumstances were put before the respondents, showing that there was no such right. Yet, in the respondents' letter of 15 September 1998, 6/4 of process, there was an assertion of the existence of such a right, with no basis for it. These circumstances also showed a breach by the respondents of their duty to act fairly and to deliver legitimate expectations.

In examining the respondents' decision making process, it was legitimate to ask the question of what factors had been taken into account. It was submitted that the respondents ought to have considered two factors, which they had plainly not taken into account. These were, firstly, the implications of the erection and use of a gate across the way by their statutory predecessors in the past, which was the subject of an averment in paragraph 6 of the petition. Secondly, the respondents had failed to take into consideration the use of the gate erected in 1997, with their permission. That use must have proceeded upon the view that there was no "public right of passage" over the way.

A further criticism of the respondents' decision was based upon the existence of factors which they did take into consideration in reaching it, but ought not to have done. In particular, the respondents had made copious references to certain deeds and title conditions, apparently in support of their contention that there existed a "public right of passage". It was submitted that there was nothing in these documents which showed that. The Feu Disposition by Alexander J. MacDougall to the Provost, Magistrates and Councillors of the Burgh of Oban, dated 27 September 1905, 7/5 of process, was one such document. This deed appeared to be the title deed to the solum of part of the way, maybe in area 2. In this deed, there was no reference to public use. At the bottom of folio page 134 there was a declaration in favour of the granter and persons deriving right from him in relation to the free use of and access to the contemplated roadway. Such a reservation would have been unnecessary if the roadway was to have been available to the public in general. There were other passages in the same deed which were also inconsistent with the existence of a "public right of passage" over the way concerned. Accordingly, this deed did not assist the respondents in any way in the present context. Certain other title deeds contained passages referring to public recreation places or parks, but there were reservations to the granter in all of these deeds, which were inconsistent with public right. In any event, the existence of a public park or recreation area did not necessarily imply that there was an unrestricted right of access to it at all times and by any means. In all these circumstances, if the respondents had taken these deeds into consideration, as showing the existence of a "public right of passage", that was open to criticism, since the deeds were irrelevant to that issue.

At this point in the argument, the first hearing of the petition had to be adjourned, for lack of time. On the resumption of the hearing, counsel for the petitioner briefly summarised the arguments which he had already deployed. He contended that a crucial matter was the existence of a "public right of passage" over the way concerned. In this connection, he pointed out that in Land-Ownership, Rankine, at page 325, a "right of passage" was recognised. At page 327, the "public right of passage", was described in detail under reference to Thomson v Murdoch (1862) 24 D. 975. It was plain from that case that the "public right of passage" differed from a servitude of road; it also differed from a public right of way, which was a sub-category of a "public right of passage". In this connection reference was made to Cowie v Strathclyde Regional Council; First Division; 8 July 1986; unreported. It was plain from the authorities that a "public right of passage" did not require to run between two public places, whereas a public right of way required to do so. At page 329, Rankine suggested that a public right of way was a species of "public right of passage", which was difficult to reconcile with what had been said in Cowie v Strathclyde Regional Council. Rankine drew attention to a series of different types of public road, differentiated according to their origin or management. The way with which the court was concerned in this case was not a road of such a kind. It was instructive to examine what was said in Scottish Land Law, Gordon, 1^st Edition, at page 795. It was there explained that early legislation referred to public rights acquired by grant, prescriptive use, or otherwise. This latter category was perhaps intended to refer to dedication to public use, or to implied grant; however, there remained some doubt about that matter. In the present case, there was no question whatever of an express grant in any deed relating to the land concerned of a "public right of passage" or way. That was true of the Feu Disposition already referred to. There was a further Feu Disposition by Alexander J MacDougall in favour of the respondents predecessors, dated 26 May 1937, 7/7 of process, which was relevant for consideration. That deed granted certain areas of land for defined purposes specified in the Public Parks (Scotland) Act 1878 and the Burgh Police (Scotland) Act 1903, Section 44. The former enactment authorised the acquisition by a local authority of land for the purpose of its being used as "parks, public walks, or pleasure grounds". Neither the deed concerned, nor the legislative provisions referred to, had the effect of creating any "public right of passage" over a way, although the deed concerned referred to "the road from Oban to Ganavan Sands known as Ganavan Road". In summary, there was nothing to show an express grant of a "public right of passage" or way.

Turning to consider the possibility of an implied grant, counsel for the petitioner submitted that there was no basis for that here. According to what was said by Gordon, at page 795, there were strong opinions that neither dedication nor implied grant formed part of the law of Scotland in the matter of creation of public rights of way. In that connection reliance was placed upon Cumming v Smollett (1852) 14 D. 885, in which it was held that the doctrine of dedication of private property to the public use was not known in the law of Scotland. The same view was taken in Colquhoun v Paton (1859) 21 D. 996, at page 1003. Mere tolerance of use, under regulation, by the public did not result in a dedication to the use of the public.

Prescription was the only remaining method by which a "public right of passage" could have been created. There were difficulties concerning that possibility. In any event, it was for the respondents to show that that had been the means of creation of the rights concerned. It was evident from the material which had been produced here that there had been restriction on public access over the way concerned. The statutory predecessors of the respondents had erected a gate, which had been locked from time to time, at least with their consent. In this connection reference was made to paragraph 6 of the petition and Answer 6 for the respondents. A map, 6/13 of process, had been produced with a copyright date of 1975. It showed the existence of a gate/cattle grid on the way concerned. That was the earliest map that showed anything at or beyond that point. In the purported adoption certificate, 6/8 of process, there was a reference to the Ordnance Survey map, copyright 1996, which showed what appeared to be a gate across the way at the entrance to the site. In addition to these materials, there was certain photographic evidence of relevance in this connection. Those who had been in charge of the recreation area had stopped traffic there. There was a cash booth at the gate. There was also a "stop" sign and a line over the road. Persons wishing to go further required to pay. The booth was on part of the way purported to be adopted, although it had been constantly in operation. A charge had been imposed, selected by the respondents, by virtue of their ownership of area 3. These circumstances were inconsistent with the acquisition of a "public right of passage". Thus the respondents were not able to show that the necessary pre-condition of the exercise of the power which they had purported to exercise had been satisfied. That rendered their purported exercise of the power ultra vires.

Counsel for the petitioner next advanced further criticism of the respondents' decision-making process, based on Wednesbury principles. The position had been that the respondents had received a request from their Parks Department that they should exercise their statutory powers under Section 16 of the Act of 1984. The question was whether a public body, acting reasonably and properly instructed in the law, could have come to the conclusion that a "public right of passage" existed and that they should take action on the application made to them. The answer to that question was in the negative. There was no material of evidential value before the respondents which pointed to the existence of a "public right of passage". The only representation made to them had been by the petitioner, who claimed that there was no such right. The respondents appeared to have ignored the important fact that their statutory predecessors had authorised the establishment of a gate on the way and used it. The existence and significance of the pay booths had also been ignored. These important facts may not have been taken into account. If they were, it was plain that the respondents' decision was irrational. A further question arose of whether the respondents had taken into account the relevant matters. In this connection, the petitioner was hampered by the failure of the respondents to disclose the reasoning which they had undertaken. It appeared that the respondents may have thought that certain title deed gave a "public right of passage". It appeared that the respondents had also taken into account an alleged intention on the part of the petitioner to "privatise" the area, as appeared from the terms of Answer 5. That was an irrelevant consideration in relation to the exercise of a power under Section 16 of the Act of 1984. In relation to the issue of Wednesbury unreasonableness, it was necessary to look at the respondents' position, as disclosed in correspondence. In the letter dated 11 November 1998, 6/9 of process, it was said on behalf of the respondents that "the question of the historical use of the road is not relevant to the question of whether the road should be adopted." The inevitable inference from that statement was that the matter of prescription had been ignored by the respondents. Summarising his position on this aspect of the case, counsel for the petitioner submitted that there had been a jurisdictional error relating to a precedent fact. Furthermore, there had been errors in the decision-making process. In this connection, reliance was placed on Edwards v Bairstow [1956] AC 14.

Counsel for the petitioner next advanced a separate argument to the effect that the decision of the respondents purporting to adopt the way as a public road was ultra vires. Section 151(3)(c) of the Roads (Scotland) Act 1984, as amended, provided as follows:

Section 14 of the Local Government and Planning (Scotland) Act 1982 imposed a duty upon local authorities to make adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities. This provision was the statutory successor to the Public Parks (Scotland) Act 1878 and the Burgh Police (Scotland) Act 1903, Section 44. Areas 2 and 3 were held by the respondents by virtue of Section 14 of the Act of 1982. Thus the way in question at Ganavan formed part of land which was owned by a local authority, the respondents, and used by them, directly in the case of area 3 and, in the case of area 2 through the Lease to the petitioner, for recreational purposes. Areas 2 and 3 included the whole of the road or way purportedly adopted save for the verges which were situated in area 1. Therefore, at least in part, the adoption was incompetent by virtue of the exclusion expressed in Section 151(3)(c) of the Act of 1984. For that reason, in addition, the respondents' purported adoption of the road should be reduced. In any event, there was no suggestion in any material before the court that the respondents had ever considered the impact of Section 151(3)(c) of the Act of 1984.

Counsel for the petitioner next turned to a further separate ground of challenge of the respondents' decision to adopt. He submitted that the adoption process amounted to an abuse of the respondents' statutory powers. It was accepted that Section 16 of the Act of 1984 did impose a duty upon a local roads authority. However, it was artificial to differentiate between powers and duties when the application had been made by the respondents to themselves. There had been no duty to make the application. However, the submission was that the adoption process had been used for a purpose for which the powers concerned had not been conferred. If a statutory power was given expressly or implicitly for one purpose, it was an abuse to use it for another. In this connection reference was made to Laker Airways Ltd v The Department of Trade [1977] Q.B. 643 and Smith v East Elloe Rural District Council [1956] A.C. 736, at page 767. Applying the principles set forth in these cases to the present circumstances, it was submitted that there was nothing in the Act of 1984 which gave a local roads authority the power to vindicate a claimed right of way or passage by the use of the provisions of Section 16. The addition of a way to the list of public roads could not create new public rights, because the way could not properly be added to the list unless those rights already existed. In the circumstances of this case, the respondents had attempted to create a presumption of the existence of public rights by purporting to classify the way as a public road. The true purpose of provisions of Section 16 was to regulate responsibility for road maintenance. There was a substantial volume of material to show that the respondents' purpose in acting as they did was illegal. In the first place, as narrated in paragraph 7 of the petition, the respondents acted in response to the lobbying of a public pressure group formed to promote the creation of unrestricted public rights of access along the way at all times. In the letter from the respondents, dated 11 November 1998, 6/9 of process, it was claimed that "vehicular access requires to be maintained to the public car park and beach to the north east of the property your client tenants/manages." That statement amounted to an admission of an improper purpose in promoting the adoption. Further demonstration of the illegitimacy of the respondents' adoption could be got from the application made by the respondents in one capacity to themselves in another, dated 10 September 1998 7/9 of process. In that letter it was said that:

It was perfectly plain from that language that the respondents saw the adoption procedure as a means of establishing public rights in the way, which was an improper use of the power.

Counsel for the petitioner turned finally to his last ground of challenge of the respondents' decision, procedural irregularity. It was submitted that there had been a breach of the requirements of natural justice in the procedure which the respondents had adopted. These matters were explained in paragraph 11 of the petition. The starting point was that it was perfectly clear that the respondents had been aware of the petitioner's opposition to adoption and the reasons for that opposition. Those matters were expressed in detail in the petitioner's letters dated 21 and 24 September 1998, 6/5 and 6 of process. Among the reasons advanced by the petitioner was that the adoption proposed would have the effect of derogating from the grant contained in the Lease to the petitioner by the respondents of area 2. In the letter dated 5 October 1998, 6/7 of process, the petitioner asked for details of any application which might have been made for adoption. The background to that included the legal requirement that an application under Section 16(1) of the Act of 1984 had to be made by "the requisite number of frontagers". For a definition of that expression, it was necessary to look at Section 16(5) and Section 1(7) of the Act. The importance of the petitioner's request made in the letter of 15 October 1998 lay in the fact that, in this particular regard, the application, 7/9 of process, was not clear. There were references to "the final few hundred yards" of the road. It was impossible to conclude from the application that it was in fact made by "the requisite number of frontagers". Furthermore, the respondents, as landlords of area 2, had certain duties to the petitioner, as was apparent from Leases, Rankine, at page 213, which dealt with the tenant's right to be maintained in possession. There was nothing in the Lease held by the petitioner which required access to be granted to the public. Against this background, had the petitioner been made aware of the detail of the application, he would have sought to have had it reduced as being in breach of the provisions of his Lease. In order to have taken effective action, the petitioner would have had to have known exactly what was comprised in the application. That application might have related to the way, in so far as it affected area 2, or area 3. Had he been told that it affected only area 3, there would have been no "requisite number of frontagers". The petitioner had not even been sure that there had in fact been an application; in the letter of the respondents, dated 15 September 1998, 6/4 of process, the writer stated: "I have been asked therefore to commence the adoption arrangements ...". The principal ground of criticism of the respondents, in this connection, was that there was no reply to the petitioner's letter of 15 October 1998. The respondents merely issued the adoption certificate. Only after they had done that did they indicate that the application had been made by the Parks Department, as appeared from the letter of 11 November 1998, 6/9 of process. That letter, of course, post-dated the making of the adoption. No explanation had ever been offered as to why the letter of 15 October 1998 of the petitioner was not answered before the decision to adopt was made. The fact was that the failure of the respondents to reply to that letter stopped the petitioner from making an application to stop the process. That was a breach of natural justice. The respondents' conduct had not been "fair play in action". The petitioner had been a person whose interests were directly affected by the adoption procedure; he had been entitled to have been afforded the opportunity to scrutinise that procedure.

In Answer 11, it was admitted by the respondents that they did not respond to the petitioner's enquiry, under explanation that the petitioner suffered no prejudice thereby and in any event the respondents were under no obligation to respond. It was accepted that there had been no statutory formal obligation to respond, as appeared from Section 1(4) of the Act of 1984. However, the rules of natural justice supplemented statutory rules. In that connection reference was made to Regina v The Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1 A.C. 521 at page 598. The requirements of fairness implied a duty on the part of the respondents to reply to the letter of 15 October 1998 before completing the adoption procedure. A question arose as to whether the petitioner had been prejudiced by the procedure which had in fact been followed. The petitioner's submission was that the prejudice consisted in his loss of an opportunity to challenge what was being done before it was done. In any event, a lack of prejudice would not necessarily prevent the successful challenge of a step of procedure on the ground of breach of natural justice, as appeared from the General Medical Council v Spackman [1943] A.C. 627, at page 644.

In all of the foregoing circumstances, I was moved to grant decree of reduction, in terms of the petition.

Counsel for the respondents moved me to sustain plea-in-law one of the respondents and dismiss the petition; alternatively there should be a proof before answer on the petition and answers. Counsel for the respondents indicated that he would deal with the petitioner's submissions in the order in which they were made. Accordingly, he began by considering the issue of whether the way in controversy was a "road", for the purposes of Section 16 of the Act of 1984, which could be added to the list of public roads. That issue depended upon whether the way was one, "over which there is a "public right of passage" (by whatever means)", within the meaning of the definition of "road" in Section 151(1) of the Act of 1984. Counsel for the respondents emphasised that it had not been said on behalf of the petitioner that there had not been full and free pedestrian access along the way concerned in the past. All that had been said was that the gate which had been erected had affected vehicular traffic. However, the definition of "road" referred to "a public right of passage (by whatever means)". The petitioner's position on this matter had been made clear in his letter, dated 21 September 1998, 6/5 of process, in the last sentence of the first paragraph on page 2, where it was said:

Against this background it was submitted that the petitioner's position implied that the way was a "road". It was apparent from the terms of Section 151(2) that a "road", for the purposes of the Act of 1984, could have become so, by virtue only of the existence of a "public right of passage" by foot only. For these reasons therefore the submission made on this aspect of the case was ill-founded. It was submitted that the respondents did not require to show any prescriptive right, or right by grant, or implication, to demonstrate that the way was a "road". The expression "public right of passage", in the definition did not connote a legal right. It was sufficient to show that there had been public use.

Elaborating his submissions in relation to this part of the case, counsel for the respondents pointed out that it appeared from the petition and the argument that, according to the petitioner, a "public right of passage" had to be created by some particular means, which it had not been, and that the respondents had proceeded upon the misapprehension that it had been. However, that submission itself proceeded upon a misapprehension. In this connection, reliance was placed upon Shetland Line (1984) Ltd v The Secretary of State for Scotland 1996 S.L.T. 653 at pages 656 and 658. In the light of the decision, it was not for the respondents to prove that the factual basis upon which they proceeded was correct. It was for the petitioner to make relevant averments of an error of fact and also of an opportunity available to the respondents to appreciate the correct situation. Such averments had not been made here and accordingly the petitioner's challenge in relation to this aspect of the case was irrelevant.

In paragraph 6 of the petition, it was averred that there was no public right of way or "public right of passage" over the way concerned, there having been no express grant of any such right, nor acquisition of it by possession for the prescriptive period. However, the position was that there was no rule of law requiring prescriptive possession for the establishment of a "public right of passage". The word "right" in that statutory expression did not connote an enforceable legal right. Indeed, having regard to the terms of the Prescription and Limitation (Scotland) Act 1973 and, in particular, Section 3 thereof, it was not possible to prescribe a "public right of passage". Section 3(3) of that Act referred to a "public right of way over land". Accordingly, the emphasis on prescription in the petitioner's submissions was misconceived.

The case of Viewpoint Housing Association Ltd v Lothian Regional Council was of importance in elucidating the nature of a "public right of passage". At page 927A-D of the report the Lord Ordinary took a view of the statutory expression, which coincided with that now advanced on behalf of the respondents. Reverting to the present case, it was apparent from the affidavit of the petitioner, 6/10 of process, that a pedestrian access had been allowed along the way at all times, although vehicular access had been restricted during the hours of darkness. That state of affairs had resulted in the way being a "road" within the meaning of Section 151(1) of the Act of 1984.

Dick v Walkingshaw 1995 S.L.T. 1254 was instructive as to the meaning of the term "road". It was there held that a car deck of a ferry was a "road" when the ferry was berthed, even though it could not be so when the ferry was at sea. The public had a right of passage on that part of the boat, although the class of public having that right was restricted and the right was exercised only when the ferry was berthed, the ramp was in place and embarkation or disembarkation was taking place. In Beattie v Scott 1990 S.C.C.R. 435, another criminal case, the issue was whether a parking area near the entry to a public house was a "road" within the meaning of Section 151(1) of the Act of 1984, since that definition had been incorporated into the Road Traffic Act 1988, in relation to Scotland. The court had concluded that there was a "public right of passage" in an area of way where habitually members of the public went without objection. In all these circumstances, having regard to the factual state of affairs described in the petitioner's affidavit, 6/10 of process, it was quite clear that there was at the material time a "public right of passage" over the way in question. The court did not require to reach a view as to how a "public right of passage" could be created. All that the court had to do was to recognise that the averments made in paragraph 6 of the petition were irrelevant, in respect that the creation of a "public right of passage" was assumed to be limited to the means specified. Upon the basis of the cases cited, in particular Viewpoint Housing Association Ltd v Lothian Regional Council, it appeared that there were other means, for example, toleration. The only contrary view derived from the fact that Parliament had used the word "right" in the expression under consideration. That word did not imply, in the context, the existence of some legally enforceable right.

On the assumption that the court did not agree with the foregoing submissions, it was then submitted that there did in fact exist a public right of way over the way in question. That was averred in the latter part of Answer 5. Since that matter was in dispute, there might require to be a proof on that aspect of the case. The fact that charges had been made on those visiting the area in motor vehicles over a period of time did not undermine the foregoing submission, since the charges had been made for parking rather than for access; in any event, pedestrians were not charged. Once again, that aspect of the matter might require to be explored in evidence.

There were a number of features of the case which confirmed the existence of a "public right of passage" over the way in question. In the first place, it was clear from the relevant titles that that was so. The map, 7/13 of process showed acquisitions in 1910, 1934 and 1958. In the Feu Disposition by Alexander J MacDougall to the Provost, Magistrates and Councillors of the Burgh of Oban, dated 30 January 1905, 7/5 of process, while there was no express grant of access, the feuers were held bound to construct a roadway, the object of which was "to provide an access to Ganavan Beach as a bathing and recreation ground for the community of Oban and their visitors", which was to have been completed in good order and opened for traffic on or before 30 May 1903. Furthermore, the Disposition by Angus John Campbell Esq. of Dunstaffnage in favour of the Provost, Magistrates and Councillors of the Burgh of Oban dated 8 November 1910, which carried area 3, showed the road previously referred to on the associated plan. In addition, at page seventh of the Disposition, it was contemplated that a further road might be made up on the area of land disponed. At pages third and fifth, this Disposition clearly indicated that the area of land disponed was so conveyed for the purposes of and in connection with a bathing place and pleasure ground or place of public resort and recreation for the inhabitants for the Burgh of Oban and their visitors. These were clear indications of longstanding public resort to the beach along the way in question. Further, the Feu Contract by Alexander James MacDougall Esq. of MacDougall and Dunolley in favour of the Provost, Magistrates and Councillors of the Burgh of Oban, dated 14 May 1934, etc., 7/7 of process, which carried the areas shown outlined in green on the plan, 7/13 of process, referred to the road from Oban to Ganavan Sands known as Ganavan Road, owned by the respondents' predecessors. In summary, these title deeds were clear evidence of the existence of a public road from early in the 20^th Century. In addition, the postcards and photographs of the area concerned, 7/15 of process, showed the road in being having been used by members of the public.

Much emphasis had been placed on behalf of the petitioner on the existence of gates across the road. Permission for the present gate had been sought in the letter, dated 12 May 1997, 7/10 of process, and granted. However, that was a matter of no significance, because pedestrian access was not affected by it. In relation to the earlier gate, the averments made regarding it were unspecific. It was apparently shown in the plan annexed to the letter of the respondents, dated 15 September 1998, 6/4 of process. In all these circumstances, it was clear that there had been for a very considerable period of time a "public right of passage" over the way in question. Upon the assumption that the court could not accept that proposition without enquiry, then an enquiry ought to be allowed in relation to the past use of the way in question.

Submissions had been made on behalf of the petitioner based on Wednesbury principles, in regard to the existence of a "public right of passage" and the existence of material demonstrating it. It was said that irrelevant matters had been taken into account and relevant matters ignored. Those submissions were misconceived. No statutory discretion had been exercised in the circumstances here. If a valid application had been made and there existed a factual basis for adoption, in the form of a way of the requisite standard, over which there existed a "public right of passage", that was the end of the matter.

Submissions had been made on behalf of the pursuer, based upon the terms of Section 151(3)(c) of the Act of 1984. That enactment provided that the Act of 1984 did not "confer any power or impose any duty as regards a road or proposed road which - (c) forms part of land owned or managed by a council and used by them for the provision of facilities for recreational, sporting, cultural or social activities in the discharge of their duties under Section 14 of the Local Government and Planning (Scotland) Act 1982." The position was that, in the titles to areas 1 and 2, the Feu Contract, 7/7 of process, it was specifically declared that the conveyance was "for purposes specified in the Public Parks (Scotland) Act 1878 and in Section 44 of the Burgh Police (Scotland) Act 1903", predecessors of Section 14 of the Act of 1982. However, in the conveyance of land for the purposes of the construction of the road, the Feu Contract, dated 30 January 1905, there was no reference to leisure. In that connection, it was submitted that the provision of a road leading to a recreational facility, in this case Ganavan Beach, was not itself the provision of "facilities for recreational ... activities ...", within the meaning of Section 151(3)(c) of the Act of 1984. In any event, there had been no "dedication" of the land in question under Section 14 of the Act of 1982. There was a further uncertainty in relation to this aspect of the case arising out of the provisions of Section 24 of the Caravan Sites and Control of Development Act 1960, which gave power to local authorities to provide sites for caravans. It might be that the provision in the area in question of a caravan site should be regarded as one made under that enactment. If that was so, then the petitioner's argument based upon Section 151(3)(c) of the Act of 1984 would fail. On any view of matter, if the court were unable, at this stage, to accept the respondents' submissions, an enquiry into the facts would be required.

Submissions had been made on behalf of the petitioner, based upon the matters referred to in paragraph 10 of the petition, which might be conveniently referred to as the abuse of power argument. It was submitted that this argument was unsound. If there was no "public right of passage" over the way in question, then the adoption of the way as a public road, in terms of Section 16 of the Act of 1984 would plainly be bad. If there was indeed such a "public right of passage" over the way in question, then it was submitted that the motives of the respondents in relation to the matter were beside the point. They would simply have been using the statutory provision for its proper purpose. It might be that what was truly in issue in this connection was the making of the application for the way or road to become a public road. However, that could not be challenged in the present proceedings, because no public law function was being exercised in that connection, as appeared from Section 1 of the Act of 1984. The position had been that the respondents' relevant committee had been faced with an application by a majority of frontagers, who wished adoption as a public road. The respondents were owners of the road and were in control of it. There were legitimate management reasons, though not averred, for the adoption of the road. In that connection it was submitted that the respondents' letter, dated 11 November 1998, 6/9 of process, contained nothing to suggest that there had been an abuse of power. The application itself was contained in the respondents' letter, dated 10 September 1998, 7/9 of process. It was submitted that there was nothing objectionable about the terms of that letter.

Counsel for the respondents next turn to deal with the petitioner's third ground of challenge, outlined in paragraph 11 of the petition. It was understood by the respondents that the petitioner's contention was that he had been denied the opportunity to make representations to them concerning the supposed derogation from the grant in the Lease of area 2. The particular criticism was that the respondents had failed to reply to the petitioner's letter of 15 October 1998 until 11 November 1998, by which time the adoption had been effected. Part of the background to the matter was that it was understood that the petitioner accepted that the application for adoption had been made by the requisite number of frontagers. On behalf of the respondents it was submitted that the averments in paragraph 11 of the petition and this part of the petitioner's challenge were irrelevant. In the first place, in so far as the petitioner's position depended on an alleged derogation from the grant in the Lease, it was submitted that there was in fact no derogation from that grant. The Minute of Lease, dated 25 March 1987, which had been assigned to the petitioner, described the subjects leased as being "bounded on the west by the road from Oban to Ganavan Sands in the united parishes of Kilmore and Kilbride and County of Argyll more particularly described in and disponed by and shown delineated and coloured pink on the Plan No. 1 annexed and subscribed as relative to the Feu Contract between Alexander James MacDougall of MacDougall and the Provost, Magistrates and Town Council of Oban dated 14 May 1934 and subsequent dates ...". This latter deed, which was 7/7 of process, showed the areas concerned as excluding the solum of the road. In these circumstances, it might be that there was a discrepancy between the wording of the Minute of Lease and the plan referred to therein. In that situation, it was submitted that the wording ought to prevail, based as it was upon the physical features on the ground. In that connection reference was made to Drumalbyn Development Trust v Page 1987 S.C. 128 at pages 137-138. In this case, there was no evident inconsistency because the plan attached to the Minute of Lease did not show the road. However, the Feu Contract of 18 May 1934 had annexed to it a plan which showed the road as distinct from the area of ground concerned, which was "bounded by" it. The result of these circumstances was that the petitioner did not hold a Lease of the solum of the road, since where land was "bounded by" a road, which was a private road, the presumption was that the boundary was the edge of the road, unless the medium filum was specified, which it was not. In this connection reference was made to Scottish Land Law, Gordon, 1^st Edition, paragraphs 4.35-4.36. Accordingly, for these reasons, nothing that had happened to the road derogated from the grant in favour of the petitioner in the Minute of Lease.

Upon the assumption that the foregoing submission concerning the effect of the various deeds involved was wrong and assuming that the petitioner did have a Lease of the solum of the road, or part of it, it was submitted that the making of the application for adoption of the road as a public road did not derogate from the grant in itself. Derogation from the grant was not an appropriate description of any ground of reduction known to the law; there could be a ground of reduction only if what was alleged was a breach of warrandice. In this connection reference was made to Landlord and Tenant, Paton and Cameron, page 128. In any event, the adoption of a road as a public road, under Section 16 of the Act of 1984 did not involve the total or partial eviction from the subjects which would require to be shown by a tenant before any breach of the obligation of warrandice could be established. The only effect of such an adoption was to alter the status of the road. Furthermore, the tenant would have no remedy where some limitation upon the landlord's title should have been known to both parties at the date of the Lease, as appeared from Landlord and Tenant, Paton and Cameron, pages 128 to 129. Here, the Minute of Lease, 6/2 of process, and the Feu Contract, 7/7 of process, both made reference to a road. Accordingly the tenant must have been put on notice in relation to that matter.

Furthermore, in any event, the failure to reply to the petitioner's letter of 15 October 1998 had no practical result. The petitioner knew or ought to have known well before the date of the adoption that an application for adoption had been made by a majority of frontagers. The letter from the respondents to the petitioner, dated 15 September 1998 disclosed that an application had been made for adoption. There was only one other frontager than the petitioner who could have been the applicant, that is to say, the respondents.

Finally, in this connection, it was submitted that there was no common law or statutory duty incumbent upon the respondents which had required them to inform the pursuer regarding the matters which were the subject of his enquiry. Natural justice had been relied upon in this connection, but it did not have the effect contended for. In any event, there were no averments of deliberate delay on the part of the respondents. The letter of 15 October 1998, 6/7 of process, had been sent on that date. It had been preceded by the letter of 24 September 1998 from the petitioner's solicitors to the respondents. In any event, that letter had been proceeded by the petitioner's own letter, dated 21 September 1998, 6/5 of process. In that letter, the petitioner had clearly set forth his complaint regarding the alleged derogation of the grant in the Minute of Lease. The letter of 15 October 1998, 6/7 of process, had been received by the respondents on 19 October 1998. Thereafter advice had been sought from the respondents' legal department, in consequence of which the letter of 11 November 1998, 6/9 of process, was ultimately sent. In summary, the respondents had dealt with the petitioner's correspondence in ordinary course; no deliberate delaying tactics had been employed. In any event, even if, in some real sense, the adoption procedure did involve a derogation from the grant in the Lease, there was nothing which the petitioner could have done concerning that, assuming that the requirements for adoption had been satisfied.

Counsel for the respondents next proceeded to make two final submissions. He explained that the first of these was based upon the provisions of Section 16(3) of the Act of 1984. It provided that:

I ought to record that, at this point, counsel for the petitioner objected to the presentation of this submission, since no notice of it in any form had been given. Counsel for the respondents replied that it was regrettable that no notice of the point had been given, but the matter was one of competency. He contended that he was entitled to present the argument, especially in the context of a petition for judicial review, where the strictest adherence to the requirements of pleading was not insisted upon. I decided that I should hear the argument concerned, which then proceeded. Counsel for the respondents submitted that Section 16(3)(a) covered any dispute between a local roads authority and any frontager relating to the matters dealt with in sub-section (1). Thus any issue relating to the existence of a "public right of passage" had to be determined by arbitration. The purpose of that provision was set out in the commentary on the enactment at page 54-24 of Current Law Statutes. The consequence of this provision was that judicial review was not available as a remedy. In that connection reference was made to In re Preston [1985] 1.A.C. 835, at page 862C-D. A similar approach had been followed in Scotland, as appeared from Tarmac Econowaste Ltd v The Assessor for Lothian Region 1991 S.L.T. 77 at pages 78-80. Only the inadequacy of an alternative statutory remedy would be a sufficient reason for recourse to be had to judicial review.

Counsel for the respondents gave notice that, should any enquiry be ordered, the respondents would contend that the issues raised in the present petition were academic, since there were grounds to suppose that the road in question had always been public. In that connection, reference was made to the Lists of Highways, 7/1-3 of process. In the Argyll County Council List of Highways, as at 15 May 1949, there was an entry including the words "... Ganavan Road from route A85 George Street to Ganavan." That entry was repeated in the subsequent two lists. The word "Ganavan" included the beach and accordingly the whole length of the road in question had in fact previously been adopted as a public road.

Counsel for the respondents having thus concluded his submissions, counsel for the petitioner sought an adjournment because of the introduction of new matters in the course of submission on behalf of the respondents, in particular, the introduction of the contention that judicial review was not available to the petitioner, since he had not availed himself of the statutory remedy conferred by Section 16(3) of the Act of 1984. This application, which was not opposed, was granted.

At the adjourned hearing, counsel for the petitioner made certain general points. In the first place, he contended that, although counsel for the respondents had attempted to open up wider issues, there was but one issue with which the court was concerned, whether the entry in the register of public roads made on 5 November 1998 relating to the way concerned was lawfully made. Other questions were relevant only in so far as they bore on that question. Secondly, it had been said that there was confusion in the petitioner's case; that was not so. The whole adoption process was attacked, which had led to the making of the final entry. In particular that included (1) the making of the application by the respondents to themselves; (2) the acceptance and processing of that application; (3) the notification of the petitioner of the application; (4) the handling of correspondence; and (5) the making of the entry.

Counsel for the petitioner then proceeded to respond to the submission of the respondents. Dealing with the phrase "a public right of passage", it had been said on behalf of the respondents that that did not connote a legal right, but rather a factual state of affairs. It than connection, reliance had been placed upon Viewpoint Housing Association Ltd v Lothian Regional Council. It was submitted that that case did not support the respondents' contention. In it there had been no express or implied grant of any right, nor had there been public use for the prescriptive period. Accordingly the erection of the barrier concerned was lawful.

It had been argued here that there was a "public right of passage" over the way concerned because, as was accepted by the petitioner, there had never been any interference with the access of foot passengers along the way in question. That argument was erroneous. Section 151(2) of the Act of 1984 dealt with and defined the different kinds of "public right of passage". It had been argued that the way in question was a "footway" within the meaning of Section 151(2)(a)(i). However, it was plain from that enactment that a way could not be a "footway", unless it was associated with a "carriageway". As to that, Section 151(2)(c) contained the relevant definition. A way could only be a "carriageway", if the "public right of passage" over it included such a right by "vehicle, other than a right by pedal cycle only". It followed that, after the gate across the way was put into operation, there was no "carriageway" and hence no "footway"; rather there was a "footpath", within the meaning of Section 151(2)(a)(ii) of the Act of 1984. However, that was of no assistance to the respondents, because the provisions of Section 16(5) of the Act of 1984 provided that the word "road" did not include a "footpath". Accordingly, the submission that the continued use of the way for pedestrian traffic after the gate was erected and put into use justified adoption under Section 16 of the Act of 1984 was wrong. The petitioner's position was that usage by the public by tolerance of the owner of the solum of the road for any period short of the prescriptive period was not a basis upon which adoption could be undertaken in terms of Section 16 of the Act of 1984. Although Lord Cameron of Lochbroom had been uneasy regarding that matter in Viewpoint Housing Association Ltd v Lothian Regional Council, having regard to the implications for the criminal law, his unease was misplaced. In that connection, reference was made to Rodger v Normand 1995 S.L.T. 411. Sections 2 and 3 of the Road Traffic Act 1988, as amended, provided respectively that a person who drove a mechanically propelled vehicle dangerously, or carelessly, "on a road or other public place" was guilty of an offence. The public could still be protected by those provisions in an appropriate manner even if the meaning of the phrase "public right of passage" were to be interpreted in accordance with the petitioner's submissions. Cheyne v Macneill 1973 S.L.T. 27 was a case decided under the definition of "road" contained in Section 257 of the road Traffic Act 1960. It made clear that, in criminal cases, the court took a purposive approach to such matters. In the same connection, reference was also made to Brown v Braid 1985 S.L.T. 37. In connection with the criminal cases, it had to be appreciated that, for a period of 7 years from the coming into force of Schedule 9 of the Roads (Scotland) Act 1984, namely 1 January 1985, until the coming into force of Schedule 4 to the Road Traffic Act 1991, namely 1 July 1992, the definition of "road" for the purposes of Scottish criminal law was the definition contained in Section 151(1) of the Act of 1984. During that period, the courts followed the well known approach of considering whether there was actual public access to the area in question. When the Road Traffic Act 1991 came into force, namely 1 July 1992, the definition was altered by Parliament for the purposes of the criminal law. Subsequently the definition was that contained in Section 151(1) of the Act of 1984 together with the addition of the words "and any other way to which the public has access, an

Commenting on Dick v Walkingshaw, counsel for the petitioner submitted that the case was a puzzling one. The case must have arisen from circumstances which occurred after the coming into force of the Road Traffic Act 1991, yet the court appeared to have proceeded upon the basis that the definition of the word "road" to be applied was that contained in Section 151(1) of the Act of 1984 alone. That appeared from the opinion of the court at page 1255E. If the offence occurred after 1 July 1992, which seemed likely, then that approach would be wrong. Thus the decision may have been reached per incuriam.

The case of Aird v Vannet 1999 S.C.C.R. 322 was of assistance. The area concerned was a car park. It was clear that the court had applied current definition of "road" for the purposes concerned. This case demonstrated that the fears entertained by Lord Cameron of Lochbroom in Viewpoint Housing Association Ltd v Lothian Regional Council were to be seen only as an historical concern.

It had been argued that the title deeds before the court had created the right contended for by the respondents. It was submitted on behalf of the petitioner that they did not. The deeds recognised that the way or road was going to be used as part of a pleasure ground. It did not follow from that characteristic that a public right had been created or confirmed. Thus there was no express or implicit grant of public rights to be found in these deeds.

Turning to the matter of prescription, counsel for the petitioner emphasised that counsel for the respondents had not relied on prescriptive use as creating the necessary right; indeed, that appeared to be the expressed position of the respondents, in the letter dated 10 September 1998, 7/9 of process. If that was so, prescription disappeared from the picture. No enquiry into the establishment of a prescriptive public right would therefore be appropriate. However, it was recognised that prescription had been pled by the respondents in their Answers. The case of Shetland Line (1984) Ltd v The Secretary of State for Scotland showed that the process of judicial review involved the critical examination of decision-making. If an error of a relevant kind were to be detected in that process, then the decision would be quashed and a fresh decision made, as appeared from page 658 of the report. However, it would be wrong, in such a process, to regard the court as, in some sense, an appellate body reviewing the original decision. It followed from that fact that the respondents' averments of prescription were irrelevant, since the respondents appeared not to have relied on prescription in reaching their original decision. Summarising his position on the question of a "public right of passage", counsel for the petitioner submitted (1) that mere access by the public was insufficient as a basis for the establishment of this necessary ingredient; (2) the titles available to the court demonstrated no express or implied grant of any "public right of passage"; and (3) prescription had no part to play in the case. Therefore the decision of the respondents proceeded upon an error of law, was ultra vires and ought to be reduced.

Counsel for the petitioner next revisited his ground of criticism, based on the terms of Section 151(3)(c) of the Act of 1984. He emphasised that the appropriate question was one of fact; did the way form part of land owned and used by the respondents for recreational purposes in the discharge of their duties under Section 14 of the Act of 1982. The position was that Section 14 of that Act did not establish any register of land held by a local authority and dedicated to those purposes. It was therefore vain to look for any such documentation of dedication. The position was that the respondents did not regard the way as having been Leased to the petitioner for caravan site purposes; it would be quite unrealistic for them to say that the way was not part of recreational land. In that connection, it had to be recognised that, in the Feu Disposition of 30 January 1905, 7/5 of process, at folio 134 there was to be found the phrase:

That clearly showed the purpose for which the way had been established. The effect of Section 151(3)(c) was simply to take any road falling within its scope outwith the limits of the powers conferred by the Act of 1984. It therefore followed that the adoption procedure undertaken by the respondents was unlawful.

Counsel for the petitioner next turned to the so called "abuse of power" argument. It had been said that no abuse of power was involved, since the way or road was already public. The response to that was that the court could and should intervene, since there was an attempt to use powers for a wrong purpose, even though, on the assumption made by the respondents, that purpose was not fulfilled.

Counsel for the petitioner next revisited the natural justice argument. Because of the procedural unfairness which had emerged from the way in which correspondence between the petitioner and the respondents had been handled, the petitioner was denied his rights as a tenant to stop the application proceeding. The respondents' response to this submission had been that: (i) he did not have any rights as a tenant; (ii) there had not been any breach of natural justice. It was necessary to examine each of those contentions. As regards the first, it had to be borne in mind that prejudice, based upon deprivation of some right, did not require to be demonstrated by a person seeking the remedy sought by the petitioner. In that connection reference was made once again to General Medical Council v Spackman. If prejudice had to be demonstrated, it could be shown by the loss of an opportunity to the petitioner to argue a reasonable case. It was not necessary for him to show that he would have succeeded in that argument. However, examining the rights conferred upon the petitioner by the Lease which had been assigned to him of area 2, it was necessary to examine the Minute of Lease, dated 25 March 1987, 6/2 of process. It had been argued that that Lease did not include the solum of the road in question. That was not accepted. The wording of the operative clause, taken along with the plan and measured boundaries, concurred in granting a Lease of the solum of the road, which was now held by the petitioner. This submission was made despite the use of the words "bounded on the west by the road from Oban to Ganavan Sands" which appeared in the Minute of Lease. In construing the Minute of Lease, the court had to ascertain the intention of the granter, as appeared from Conveyancing Law and Practice, Halliday, 2^nd Edition, Volume II, page 267. If there existed inconsistencies between differing descriptions of boundaries, extrinsic evidence might require to be admitted to resolve the conflict, including evidence of possession. In the present case, the plan annexed to the Minute of Lease and the measurements shown on it concurred and resulted in the granting of the solum of the road to the lessee. Only the description of the area leased in the body of the Minute of Lease conflicted with that, in respect that it used the expression "bounded on the west by the road ...". In that situation, it was submitted that plan and the measurements, which concurred with it, should rule. That was in accordance with the proposition in Halliday at page 267, where the learned author said:

In support of that passage North British Railway Co v Moons Trustees (1879) 6 R. 640 was cited. The case of Drumalbyn Development Trust v Page had been relied upon by the respondents. In that case the suggestion had been made by the defender that a plan used in a conveyance had misrepresented the location of a physical boundary feature. That case could be distinguished from the present one, in respect that no suggestion had been made here that the plan annexed to the Minute of Lease did not accurately reflect features on the ground.

Upon the assumption that the foregoing submission was unsound, it became necessary to consider the effect of the language used in the Minute of Lease, already quoted. There was a presumption that the expression used excluded the road, where the road in question was a private one. If it was a public road, the presumption was that the grant extended to the medium filum. These presumptions were an attempt to elicit the intention of the parties. If the road had always been public and was so at the time of the grant of the Minute of Lease, the presumption operated so as to afford to the petitioner a Lease of the road extending to the medium filum. A tenancy of half of the road, it was submitted, would give the petitioner the necessary standing or interest in connection with the natural justice argument. Finally, it might be appropriate for extrinsic evidence to be heard to clarify any surviving ambiguity. There was material available to show that the respondents themselves had regarded the Lease as comprising the whole of the road. The petitioner had certainly maintained that position. Hitherto, the respondents' maintenance of the road had stopped at the gate of the whole site. The caravan site licence held by the petitioner presumed that the petitioner was tenant of the road. All of these things could be proved by evidence. Accordingly the petitioner did have a right and title to challenge the respondents in the decision-making process.

On behalf of the respondents it had been argued that the application for adoption of the road did not amount to a derogation from any grant in the Minute of Lease. That submission was wrong; the Lease did not require public access, as was apparent from its terms. It was perfectly plain that the application for adoption was intended to enable traffic to be forced along the road for 24 hours each day.

Turning to the issue of whether there had been a breach of natural justice, counsel for the petitioner made clear that the petitioner was not arguing that a late reply to a letter alone was a breach of natural justice. However, in the present circumstances, the respondents had had a very simple request for information made to them by the petitioner. It was information which any frontager faced with possible adoption of the road as a public road should have been given. The reality had been that there had been a failure of the respondents to reply to the request until it was too late for anything to be done by the petitioner in connection with the matter. That was a breach of natural justice; it could never be said that that conduct was "fair play in action". Whether the delay in replying to the petitioner's enquiry had been deliberate or not, there had been no necessity for the adoption procedure to have been completed prior to the respondents giving a response to the petitioner.

Counsel for the petitioner next turned to deal with matters which had been raised for the first time in the submissions of counsel for the respondents. The first of these was the alleged incompetence of the present proceedings for judicial review, based upon the alleged availability of the remedy of arbitration under Section 16(3) of the Act of 1984. In that connection, Tarmac Econowaste Ltd v The Assessor for Lothian Region had been relied upon. The context of that case was that occupants of land had been dissatisfied regarding an entry relating to it in the Valuation Roll. There was available to them a remedy of appeal to the Valuation Appeal Committee, or to the Lands Tribunal. There would have been a further right of appeal to the Lands Valuation Appeal Court. These tribunals had powers to put right the wrong complained of. The remedies available in those proceedings would have been judicial and effective. Those remedies had been ignored and, in that context, it was held that judicial review was incompetent. That was quite a different situation from the one in the present case. In Pyx Granite Co Ltd v The Minister of Housing and Local Government [1960] A.C. 260 Viscount Simonds had said that access to the court will be denied only where there was express provision or a clear implication to that effect. That was not the case here. Where an act or decision was claimed to be a nullity, as here, the court's jurisdiction would not be excluded. That was the effect of what had been said by Lord Wilberforce in Anisminic Ltd v The Foreign Compensation Commission and Another [1969] 2 A.C. 147 at page 208. Thus the fundamental nullity of a decision was always a matter for the courts. That was what was in issue in the present case. That view was also supported by the decision in Regina v Inland Revenue Commissioners, ex parte Preston [1985] 1 A.C. 835 and in particular by what was said by Lord Templeman at page 862. Thus what might be called nullity cases were outwith the alternative remedy rule. Accordingly the existence of the procedure for arbitration in Section 16(3) did not oust the jurisdiction of the court, where the allegation was that the proceedings of the respondents were a nullity. The petitioner's position was supported by the decision in Leech v The Deputy Governor of Parkhurst Prison [1988] 1 A.C. 533 at pages 562 and 580. In any event, the court would always look at the adequacy of any alternative remedy. If that was done here, it was quite plain that the machinery created by Section 16(3) of the Act of 1984 was of a very limited nature. It was concerned with disputes of fact relating to the quality of a road, with the quality of road construction, the requisite number of frontagers and other such matters of fact. An arbiter established under sub-section (3) plainly would not have the power to reduce a decision of the local roads authority. Nor could he afford an interim remedy. It was perfectly plain that the issues raised in the present proceedings were outwith the scope of Section 16(3) of the Act of 1984.

The second and the final matter upon which counsel for the pursuer wished to make submissions related to the suggestion made on behalf of the respondents that there were two potential areas for a factual inquiry. The first of these was prescriptive use. It was submitted that enquiry in that issue was irrelevant for the reasons already given. The second of these was the issue of whether or not the way in question had already been comprehended in the pre-existing list of public roads kept by the respondents. It had been said that that enquiry would have been in the nature of a measurement exercise. Counsel for the petitioner indicated that that proposal was resisted for several reasons, in the first place the entry existing before the disputed entry was fatally vague. The earlier entries related to a road with a starting point at "Alexandra Road". That location was unidentifiable and did not apparently now exist. The termination of the road was expressed simply as "Ganavan". That was an area not a precise location. Furthermore, the road in question had been realigned before the making of the disputed entry. Accordingly any inquiry into the commencement and end point of the earlier adopted road would be quite futile. In any event, as appeared from the letter of the respondents dated 15 September 1998, 6/4 of process, there had been uncertainty as to the extent of the road which had previously been entered in the list of public roads. Furthermore, it was interesting to note that the new entry purported to have been made contained the express statement that the public road had previously had a "termination at the entrance gate to Ganavan". In all of these circumstances, it was unclear what could be achieved by any inquiry into these matters.

Secondly, even if, somehow, it could be demonstrated that the way concerned had been on a list of public roads, that would not necessarily affect the issues raised in the present proceedings. Prior to the enactment of the Act of 1984, the presence of a road on a list of public roads carried no implication regarding any public right of way; its only significance lay in maintenance obligations. In that connection reference was made to The Stewartry Dairy Association Ltd and Others v The Provost, Magistrates and Councillors of the Royal Burgh of Kirkcudbright 1956 S.C. 488. It was clear from that case that the list of public streets kept under the Burgh Police (Scotland) Act 1903 simply listed those streets for the maintenance of which the local authority had responsibility. It connoted nothing concerning public rights of passage. Furthermore in Laing v Morton (1893) 20 R. 345 it had been held that the list of roads required to be made up and kept under Sections 41 and 42 of the Roads and Bridges Act 1878 was merely a list of the effective roads for the time being upon which public funds were to be expended. In any event, on the assumption that the way concerned in this case was a public road before 5 November 1998, the date of the purported certificate of adoption, then the procedure undertaken leading to that adoption was a nullity. That would be the result of the language used in Section 16(1) of the Act of 1984, which referred to applications made in relation to "a private road". So for these reasons also an enquiry of the kind suggested by the respondents would be futile. In the whole circumstances, the respondents' pleas-in-law should be repelled and the court should sustain the petitioner's pleas 1, 2 and 3, or one or other or more of them.

Counsel for the respondents replied. Reverting to the issue of "a public right of passage", an ingredient of the definition of the word "road" in Section 151(1) of the Act of 1984, counsel for the respondents acknowledged that his submissions had gone too far, in respect that he had suggested that pedestrian use was enough to establish "a public right of passage" in the circumstances of the present case. He now accepted that, because of the provisions of Section 151(2), that submission, which he withdrew, was not tenable. However, he adhered to the submission that it was for the petitioner to demonstrate a relevant case of error in relation to the issue involved. It had been contended for the petitioner that a "public right of passage" was the same as a "public right of way". No authority had been cited for that proposition and, indeed, it was in conflict with certain authorities. He also adhered to his submission that whether "a public right of passage" existed was a matter of fact. The case of Viewpoint Housing Association Ltd v Lothian Regional Council showed that the expression "a public right of passage" did not connote a legally enforceable right. Upon the basis that the existence of "a public right of passage" was a question of fact, it was possible that it could be established that there was a "carriageway" on the way concerned.

A number of criminal cases had been considered in the course of the argument and an attempt had been made to distinguish them. However, in certain instances, they involved exactly the same statutory language as was involved in the present case. The same words ought to be construed in the same way, whether the context of the construction was a criminal case or a civil case. These authorities supported the respondents' position. The case of Cowie v Strathclyde Regional Council made it clear that "a public right of passage" was a different concept from a public right of way. It could be established by reference to less exacting requirements. Counsel for the respondents was unable to offer any explanation as to why Parliament had enacted schedule 4, paragraph 78(2)(b) of the Road Traffic Act 1991. If there required to be an express or implied grant or prescriptive possession to establish "a public right of passage", the consequence would be that whenever adoption was contemplated in terms of Section 126 of the Act of 1984, there would require to be some enquiry as to the origin of the right; that might involve an elaborate enquiry into the existence of a public right of way. That did not happen in practice. The inescapable fact was that in Section 151(1) of the Act of 1984, in defining "road", Parliament had used the expression "a public right of passage", not a public right of way, which was a recognised legal concept. Had Parliament intended to refer to a public right of way, then that is what it would have said.

Turning to the significance of Section 151(3)(c) of the Act of 1984, it was submitted that this raised a question of fact. The passage already discussed in the Feu Disposition, dated 30 January 1905, 7/5 of process, at folio 134, while it referred to the purpose of the road as providing "an access to Ganavan Beach as a bathing and recreation ground for the community of Oban ...", was not conclusive. There remained the issue of whether the road fell within the category defined by Section 151(3)(c) of the Act of 1984.

In relation to the natural justice argument, the construction of the Minute of Lease, dated 25 March 1987, 6/2 of process, was important. If any conclusion was to be reached as to whether the petitioner had a tenancy of the solum of the road, measurements would be necessary and accordingly so would a factual enquiry. However, it was submitted that the verbal description of the property leased, which referred to it as being bounded "on the west by the road from Oban to Ganavan Sands", ought to be preferred to the plan annexed the deed. If the road was a private road at the material time, that would mean that the road was not the subject of the tenancy. If, however, the road was already a public road, the petitioner would be tenant of it to the medium filum. It was accepted that if the road was already a public road when the procedure for adoption was undertaken, that procedure would have been incompetent and inept. In relation to the state of knowledge of the petitioner of the proceedings for adoption prior to adoption being made, it was pointed out that the letter dated 15 September 1998, 6/4 of process, must have made him aware that an application under Section 16 of the Act of 1984 was being made. Given that the petitioner was fully acquainted with the identity and the extent of the rights of the only other frontager involved, he knew or ought to have known that the adoption process was under way.

Turning to the argument as to the competency of the present proceedings, based on the terms of Section 16(3) of the Act of 1984, reliance was placed on the general principle expressed in Tarmac Econowaste Ltd v The Assessor of Lothian Region. It was wrong to say that, because reduction of the decision in question was sought, the point was bad. An arbiter could have dealt with the areas of factual dispute relating to "a public right of passage" and the dispute based on the terms of Section 151(3)(c) of the Act of 1984. In the whole circumstances, the court was invited to dismiss the petition alternatively a proof before answer ought to be allowed on the petition and answers.

In the light of the foregoing arguments, and having regard, in particular, to the fact that the competency of the present petition for judicial review has been challenged by the respondents, it appears to me appropriate to deal, first of all, with that aspect of the case. It is worth observing that this matter is the subject of no averments by the respondents, nor have they tabled any plea-in-law directed to the issue of the competency of the petition. Indeed when the matter was raised in the course of argument, objection was taken on behalf of the petitioner to the court entertaining the argument, upon that very ground. However, it appeared to me that, despite the lack of any notice that the point was to be taken, the question of the competency of the petition should be considered by the court, since it is pars judicis to address issues of competence. Furthermore, after a period of adjournment, counsel for the petitioner was fully prepared to address the court on the matter.

The basis of the respondents challenge the present petition is to be found in Section 16(3) of the Roads (Scotland) Act 1984. It provides:

The general principle underlying the submission made was said to have been expressed in In re Preston, at page 862 where Lord Templeman said:

The same principle was discussed, somewhat more fully, in Scotland in Tarmac Econowaste Ltd v The Assessor for Lothian Region. At page 78L Lord Clyde said:

It is, however, well recognised that there are exceptions to this principle. At page 79I of the same case Lord Clyde said this:

The relationship between an extra-judicial determinative body and the courts, in a situation in which it was provided by statute that the determination of the body in question should not be called in question in any court of law, was considered in the well know case of Anisminic Ltd v The Foreign Compensation Commission and Another. In that case Lord Wilberforce at page 208 said:

Reverting to In re Preston, at page 62F, Lord Templeman said this "the present circumstances are exception in that the appeal procedure provided by Section 462 cannot begin to operate if the conduct of the Commissioners in initiating procedures under Section 460 was unlawful." In Leech v The Deputy Governor of Parkhurst Prison, relied upon by the petitioner at page 562 Lord Bridge of Harwich discussed the relationship between judicial review and statutory remedial procedures, saying:

Although they figured prominently in the arguments before me, I have some reservations concerning the helpfulness of these observations in a Scottish context, where distinctions between private and public law do not play a part in the definition of the court's jurisdiction in matters of judicial review, so I do not think it right to attempt to try to apply them in the present circumstances. It appears to me that the guidance given by Lord Clyde in Tarmac Econowaste Ltd v The Assessor for Lothian Region is of more direct assistance. Thus I consider it necessary to identify whether the statutory remedy provided for in Section 16(3) of the Act of 1984 can be considered as providing an adequate remedy in the context of the issues which have arisen in the present petition and answers. My conclusion is that it cannot. While I acknowledge that the issue of whether the way involved in this case is a "road", in relation to which an application can properly be made under Section 16(1) of the Act of 1984, may be said to fall within the category of "any dispute in relation to (a) sub-section (1) above, between the local roads authority and any frontager", which itself might be properly the subject of an arbitration, the scope of the present petition goes far beyond that matter. In particular, as is apparent from paragraph 9 of the petition and from my narrative of the arguments, the respondents' action is challenged upon the basis that the provisions of Section 151(3)(c) of the Act of 1984 have the effect that, in particular circumstances of this case, the power or duty provided for in Section 16(1) of the Act is not available to or incumbent upon the respondents. It appears to me that the issue raised by that challenge cannot be said to fall within the description of "any dispute in relation to (a) sub-section (1) above, between the local roads authority and local frontager", the words used in Section 16(3). In my opinion the issue or dispute which arises from that challenge is one relating to the applicability, in the circumstances of the case, of Section 151(3)(c) of the Act. Furthermore, whatever may be the merits of the matter raised in paragraph 10 of the petition, it raises an issue relating to the purpose for which the decision of the respondents complained of was taken. The contention made is that the respondents have exercised a statutory power for a purpose for which it was not conferred; in other words, the allegation is of an abuse of statutory power. I have grave doubts as to whether that issue can properly be described as falling within the provisions of Section 16(3) of the Act. Turning next to the matters raised in paragraph 11 of the petition, what is described as material procedural impropriety, it is plain that the petitioner is founding upon what he claims to be objectionable procedures prior to the purported adoption of the way concerned under Section 16(1) of the Act. It appears to me to be impossible to say that that complaint and the denial of it is a dispute falling within the terms of Section 16(3) of the Act.

In the present petition, the petitioner seeks reduction of the decision of the respondents to add the way in question to their list of public roads, embodied in the document dated 5 November 1998, 6/8 of process. I have the greatest difficulty in understanding how an arbiter appointed under Section 16(3) of the Act could provide that remedy. No explanation was given to me as to how that could be achieved. What the arbiter may plainly do is resolve "any dispute in relation to - (a) sub-section(1) above ...". It appears to me that the scope of that provision may well have been intended by Parliament to be confined to the resolution of disputes arising in relation to the requirements of Section 16(1), between the local roads authority and any frontager, before the local roads authority take the step of adding the road to their list of public roads. So, for example, if, prior to the taking of that step, a dispute were to be identified as to whether a way was indeed a "private road", within the meaning of Section 151(1) of the Act of 1984, that dispute would appear to be capable of resolution by an arbiter appointed under Section 16(3). However, there appears to me to be nothing in that provision which would empower an arbiter, so appointed, to declare the act of the local roads authority, already taken, to add a road to their list of public road, invalid. It is for these various reasons therefore that I have concluded that the present petition is competent. Accordingly I now proceed to consider the merits of the issues raised in it.

The petitioner's first broad ground of challenge of the respondents' action, contained in paragraph 9 of the petitioner is, of course, that it was ultra vires of the respondents. There are two distinct elements in that broad attack. Firstly, the contention is that the way concerned was not a "road" within the meaning of Section 151(1) of the Act of 1984 at the time when the respondents purported to add it to their list of public roads. Secondly, it is contended that, on account of the provisions of Section 151(3)(c) of the Act, in the circumstances of this case, the respondents had no power to take the step which they purported to take under Section 16(1) of the Act. I deal with these contentions separately and in turn.

The word "road" is defined in Section 151(1) of the Act as meaning, unless the context otherwise requires, "subject to sub-section (3) below, any way (other than a waterway) over which there is a "public right of passage" (by whatever means) and includes the roads verge, and any bridge whether permanent or temporary, over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof." In the context of the argument before me, the focus of controversy emerged as the expression, used in this definition, "a public right of passage". Looking at these words in isolation, one might be tempted to suppose that there was no substantial difference between the meaning of those words and the well known concept of a public right of way. However, it is necessary to examine the way in which the phrase concerned has been interpreted in the relevant authorities. The first of these is Cowie v The Strathclyde Regional Council; First Division; 8 July 1986, which unhappily has never been reported. This case concerned an appeal by the heritable proprietor of a house at the end of a terrace. To the side and rear of the appellant's house there was a lane. For many years until some time before the appellant purchased the subjects there was a gate across the lane. For some years the appellant had attempted to prevent the use of the lane by vehicles. In November 1983 he erected a gate where the former gate had hung across the lane and placed bollards where there had formerly been a wall. These actions provoked the response from the respondents' assistant divisional engineer that the appellant's actions were in contravention of inter alia Section 24 of the Roads (Scotland) Act 1970. The appellant was required to "reinstate the road to the satisfaction of the highway authority". The appellant reacted to this by bringing an action in the sheriff court craving interdict against the respondents from doing what they had threatened to do. The contention of the respondents was that the lane was a "road" within the meaning of Section 50(1) of the Act of 1970. After sundry procedure, the respondents' pleadings having been amended, the Sheriff Principal allowed a proof before answer. It was against that interlocutor that the appellant appealed to the Court of Session. By that stage, the respondents' contention was that the lane was a "road" within the meaning of the Roads (Scotland) Act 1984. In support of that contention, the respondents had averred a state of facts concerning the use which had been made of the lane in question over a period of time. The statutory background, including the transitional provision applicable upon the coming into force of the Act of 1984 entailed that it was necessary for the respondents to show that the lane in question was not only a "road" as defined in Section 50(1) of the Act of 1970, but also was a "road" as defined in Section 151(1) of the Act of 1984. The appellant contended inter alia that the definition of "road" in the Act of 1984 was synonymous with public right of way at common law. The First Division rejected that submission. In doing so Lord President Emslie, delivering the opinion of the court, said this:

The averments under consideration were of use of the lane by vehicular traffic as a public access to and egress from the premises in the lane for several decades prior to the appellant's interference with it after 1979. However, no attempt was made in the averments to show that a public right of way existed, nor could it, in view of the private nature of the destinations mentioned.

The matter was next raised in Viewpoint Housing Association Ltd v Lothian Regional Council. In that case Lord Cameron of Lochbroom considered the definition of a "road" in the Act of 1984, but found it unnecessary to express a concluded view on the issue, deciding the case on other grounds. However, at page 927 of the report, of the phrase "public right of passage" he said this:

He then went on to consider consequences of the pursuers' contention for the criminal law which, on account of changes in definition used for criminal purposes, are now of historical interest only.

During the course of argument, my attention was drawn to a number of criminal cases in connection with this issue. To these I now turn. In Cheyne v Macneill 1973 S.L.T. 27 the court was concerned with the definition of "road" in Section 257(1) of the Road Traffic Act 1960, in which it was defined to mean "any highway and any other road to which the public has access ...". In my opinion, this definition is so different from that with which I am now concerned that the case is of no assistance. Brown v Braid was a case in which the issue was whether a garage forecourt was a "public place" within the meaning of Section 6(1) of the Road Traffic Act 1972. Once again, in my opinion, the resolution of that issue can be of no assistance in the present context. In Beattie v Scott, the court was concerned with the definition of "road" in Section 151(1) of the Act of 1984, since Section 192(2) of the Road Traffic Act 1988 had, in relation to Scotland, introduced that definition into that Act. In view of the findings in fact of the sheriff, it was not disputed that there existed a "way" in the relevant area, where a vehicular collision had occurred. Accordingly, the Lord Justice General observed, at page 437:

I take it from this case, firstly, that prescriptive rights have no part to play in the definition and, secondly, that actual public use is an important consideration. Rodger v Normand was a case in which again the definition of "road" in Section 192(2) of the Road Traffic Act 1988 was under consideration; however, by the time of the decision that definition had been amended by Schedule 4, paragraph 78(2)(b) of the Road Traffic Act 1991, so that it read as follows:

The allegation made was that the accused had driven dangerously in the grounds of a school. The decision turned on whether the grounds were a "public place", within the meaning of Section 2 of the Act of 1988, it having been conceded that it was not a "road" for the purposes of that Act. Accordingly, in my opinion, this decision is of no assistance in the present context. Dick v Walkingshaw is of a different nature. In argument, it was suggested that there was some doubt as to whether the court had proceeded on the basis of the correct statutory definition of "road", although the part of the report in which applicable statutory provisions are narrated contains a correct formulation of Section 192(1) of the Road Traffic Act 1988 as amended by the Road Traffic Act 1991. The facts involved a ferry which had berthed at a harbour where the quayside ramp had been lowered to make contact with the surface of the ferry car deck through he open bow doors of the ferry. A minibus was driven from the quay onto the car deck and parked. The accused then got into the minibus and after the driver had left it the accused moved into the driver's seat and released the handbrake, causing the minibus to roll forward down the car deck. The accused faced a summary complaint which alleged contravention of Section 143(1) of the 1988 Act, that is, driving without insurance on a "road". On appeal, the accused argued that the car deck was not a road, as it could not be a "way" when the ferry was at sea and the public had no right of passage over it. Referring to the appellant's argument, the Lord Justice Clerk at page 1255, said:

Referring to what the sheriff had said, with approval, the Lord Justice Clerk went on:

It appears to me to be confirmed by this decision that prescriptive rights have no necessary part to play in the resolution of the issue of whether a way is a "road". Furthermore, much depends on the question of whether the public use of the way is or is not practicable. I should make clear that, having examined the details of this case, I am not persuaded that the criticisms of it made by counsel for the petitioner are justified; even if they are, it does not appear to me that they affect the value of the authority in relation to the definition of "road" which appears in Section 151(1) of the Act of 1984. Finally, in this connection, my attention was drawn to Aird v Vannet. It was concerned with that part of the definition of "road" in Section 192(1) of the Act of 1988 which contains the words "and any other way to which the public has access". For that reason, it does not appear to me to be of assistance in the present context.

On the basis of the foregoing material, I have reached the conclusion that the word "right" in the expression "a public right of passage" in the definition of "road" in Section 151(1) of the Act of 1984 does not connote a legal right in the ordinarily understood sense. I also conclude that a "a public right of passage" is to be distinguished from the concept of a public right of way. I consider, furthermore, that "a public right of passage" cannot and need not be established by prescriptive possession. Section 3(3) of the Prescription and Limitation (Scotland) Act 1973 refers to "a public right of way over land", not "a public right of passage". No doubt, as was conceded, however, if a public right of way is established by the requisite prescriptive possession, "a public right of passage" will inevitably have come into being. In my view, "a public right of passage" may properly be described as a permission, express or implied, derived from those having legal right to control the use of the way concerned, for public use of that way; or established acquiescence or tolerance by those persons of such public use. In my opinion, a "public right of passage," so defined, may be terminated by those having such legal right, unless it has come to be associated with a public right of way, as normally understood, or with some statutory public right, which would prevent termination.

During the course of the argument counsel for the petitioner relied upon a passage in Rankine on Land-Ownership at pages 325-329, where the learned author uses the expression "a public right of passage". Having looked at that passage in its context, I am not persuaded that that expression is used there in a sense comparable with its use in the definition with which I am concerned. Rankine equiparates it with a highway, a common law concept, the usefulness of which has largely disappeared in the face of modern statutory provision concerning roads. In this connection I refer to what is said in Scottish Land Law, Gordon, 1^st Edition, paragraph 27.06. It is there considered that highways were a part of the regalia majora and meant ways open to public use, usually as a result of prescription or immemorial use. In these circumstances, I do not find the passage in Rankine relied upon as of assistance in construction of the relevant definition in the Act of 1984. For similar reasons I do not find the case of Thomson v Murdoch, relied upon by counsel for the petitioner, as of assistance.

It was submitted on behalf of the petitioner that if the step taken by the respondents of adding the alleged road to their list of public roads was to be valid, it had to be shown that the factual state of affairs defined in Section 16(1) of the Act of 1984 existed. In particular, it had to be shown that the way concerned was a "private road". In the circumstances of this case, the necessity was to show that the way was one over which there was "a public right of passage". That was a precedent fact. Under reference to Watt v The Lord Advocate, it was submitted that if that fact was not established, the respondents simply had no power to take the step which they had purported to take, which would be a nullity. With that primary submission of the petitioner I agree. In those circumstances, it appears to me to be unnecessary for me to reach a view upon what counsel for the petitioner described as his alternative approach to this part of his argument.

It is appropriate at this stage that I deal with a submission made by counsel for the respondents, based upon the decision in Shetland Line (1984) Ltd v The Secretary of State for Scotland. As I understand that case, the observations made by the court in relation to the significance of errors of fact in the context of a judicial review were made against the background of an undisputed statutory power conferred upon the Secretary of State for Scotland under the Highlands and Islands Shipping Services Act 1960. Decisions by the Secretary of State under that Act fixing certain rates, etc were sought to be reduced upon the basis that the decisions were irrational, unfair and based on errors of fact. It appears to me that those circumstances can readily be distinguished from the facts of the present case. Here the issue is whether the respondents had the power to take the step which they purported to take in the circumstances existing at the material time. That power would be available to them only if it could be demonstrated that the way concerned was a "road" within the terms of the definition already discussed; it appears to me therefore that I am not dealing with a situation in which the respondents indisputably possessed a power to take the step concerned and, in doing so, proceeded upon some error of fact. However, having said that, I agree with counsel for the respondents in his submission that, for this part of the petitioner's case to be relevant, there must be relevant averments of fact, from which it could be shown that the power conferred by Section 16(1) of the Act of 1984 was not available in relation to the way concerned, it not being a "road" within the meaning of the statutory definition. Accordingly, attention must now be focused upon the averments made by the petitioner.

In paragraph 9 of the petition, the petitioner avers in general terms that the way concerned is not a "road", within the statutory definition, since there is no "public right of passage" over it. Reference in there made to the earlier paragraphs of the petition. As I understand it, that is reference essentially to paragraph 6. It is there averred that, at the end of the public road referred to, there is an entrance gate, which, when closed, prevents vehicular access to the said way. It is claimed that there is no public right of way or "public right of passage" over the said way. Reference is then made to the absence of any express grant of any such rights. Furthermore, it is averred that no such right has been acquired by use for the prescriptive period. It is then averred that members of the public taking passage down the said way have done so with the permission of the owners of the way from time to time. The respondents' statutory predecessors as local authority for the Oban area, when owners of the entire Ganavan Sands area, themselves erected and operated an entrance at or around the same place as the present gate. The reference in that paragraph to "the present gate" is plainly a reference to the gate erected by the petitioner mentioned in paragraphs 6 and 7. In paragraph 7, the petitioner explains in averment that acts of malicious mischief and vandalism created a situation in which he decided to close and lock the entrance gate at times, especially at night, in order to prevent a ready means of escape for the perpetrators of such acts. He also avers that nothing in the petitioner's Lease of area 2 or his Management Contract in respect of area 3 requires him to keep the way accessible at all times, or at any time, to vehicular traffic. He claims that clause 8 of the Lease involved requires him to permit the respondents, their agents or representatives only to obtain access to area 2 upon reasonable notice, except in case of emergency. He also avers that clauses 4, 6(1), 6(2) and 6(4) of the Management Contract grant the petitioner the power to control use of area 3 by vehicles and to make charges for vehicles parking there.

Against the foregoing background of averments by the petitioner, it appears to me that the question arising in assessing their relevance at this stage is whether, if these averments were proved, the petitioner would be bound to fail in his contention that there was no "public right of passage" over the way at Ganavan at the material time. I consider that the answer to that question must be in the negative. The pursuer has averred a variety of restrictions upon access, in paragraph 7 of the petition. I do not feel able to conclude that a "public right of passage" as I have held it to be, necessarily exists over the way in question. Nothing said in the course of the debate has caused me to depart from that view. Accordingly I cannot conclude that this part of the petition is irrelevant.

Of course, the position of the respondents in relation to these matters, as it is set forth in paragraphs 5 and 9 of their answers, is quite different. In those paragraphs, for a variety of reasons it is averred that there existed at the material time a "public right of passage" over the way in question and in any event a public right of way over it. In these circumstances, had I not taken the view which I have in relation to other parts of the petitioner's case, I would have ordered a factual inquiry in relation to the matters which are the subject of the averments which I have just considered.

During the course of the debate, in connection with the petitioner's first ground of reduction set forth in paragraph 9 of the petition, certain submissions were made to me based upon the well known requirements for the taking of administrative decisions set forth in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223. I am not persuaded of the force of these submissions. It appears to me that Section 16(1) of the Act of 1984 imposes a duty upon a local roads authority to add a private road to their list of public roads, if the road achieves the specified standards and if an application is made to them under the enactment concerned by the requisite number of frontagers for such an addition, subject, of course, to the provisions of sub-section (4). Thus, if the appropriate factual situation comes into being, the authority concerned comes under a statutory duty to take the step mentioned. It appears to me that this is not a situation in which there is any element of administrative discretion available to the authority concerned. In these circumstances, I cannot see how the Wednesbury principles could apply to the taking of the step concerned by the relevant authority. In any critical examination of the actions of the authority, it appears to me that the only question which arises is whether the necessary state of facts referred to in Section 16(1) existed or not. If they existed, then the authority was bound to act; if they did not, then the authority had no power or duty to act. In other words, under Section 16(1), the relevant authority is not so much taking an administrative decision as performing a duty imposed upon them in a certain state of facts.

I turn now to deal with the second element in that part of the petitioner's challenge of the respondents' actings set forth in paragraph 9 of the petitioner, based upon the provisions of Section 151(3)(c) of the Act of 1984. That provision is in the following terms:

Section 14 of the Local Government and Planning (Scotland) Act 1982, so far as relevant, provides as follows:

It appears that Section 14 of the Act of 1982 is the successor, in certain respects, to the provisions of the Public Parks (Scotland) Act 1878 and, in particular, the provisions of Section 3 thereof, which authorised local authorities to provide places of public recreation; also Section 44 of the Burgh Police (Scotland) Act 1903.

In view of the terms of Section 151(3)(c), it is appropriate to consider the ownership of the solum of the road and the land surrounding it, with a view to seeing whether the way, at the time of the purported adoption of it as a public road under Section 16(1) of the Act of 1984, formed "part of land owned or managed by a local authority ...". As I understood it, it was a matter of agreement that the solum of the road was, at the material time, in the ownership of the respondents, by virtue of the fact that it came into the ownership of their predecessors under and in terms of the Feu Disposition, dated 30 January 1905, 7/5 of process, to which reference has already been made. It is apparent from folio 133 of that deed that the purpose of the conveyance was to achieve the construction of a roadway from the Corran Esplanade to the beach at Ganavan. The purpose of the construction of the roadway, as is apparent from folio 134, was "to provide an access to Ganavan Beach as a bathing and recreation ground for the community of Oban and their visitors", it being contemplated that "the said roadway will be held as part of the said recreation ground".

So far as the area which has been referred to as area 3 is concerned, it is a matter of agreement that the respondents are heritable proprietors of that land having succeeded to it indirectly from the Provost, Magistrates and Councillors of the Burgh of Oban, to whom it was feud by the Feu Charter by Angus John Campbell Esq of Dunstaffnage, dated 8 November 1910, 7/6 of process. That deed provided and declared, on page third, "that the said area or piece of ground shall, (together with the said foreshore ex adverso of it) be used in all time coming as and for a bathing place and pleasure ground or place of public resort or recreation for the inhabitants of the Burgh of Oban and their visitors". That Feu Charter, at page fifth, also contains the following prohibition:

So far as the lands which include areas 1 and 2 are concerned, the respondents' predecessors became heritable proprietors thereof by virtue of the Feu Contract containing Feu Disposition by Alexander James MacDougall in favour of the Provost, Magistrates and Councillors of the Burgh of Oban, dated 14 May 1934. In that deed it is narrated that the pieces of ground concerned were conveyed "for purposes specified in the Public Parks (Scotland) Act 1878 and in Section 44 of the Burgh Police (Scotland) Act 1903". That conveyance was effected on the conditions set forth in the deed. Those conditions included inter alia the following condition:

It should also be narrated that the respondents are heritable proprietors of a car park situated at the end of the way in question, near to the beach. The land forming this car park was disponed to them expressly for that purpose by the trustees of Angus John Campbell of Dunstaffnage by a Feu Disposition dated 4 and 10 November 1958, 7/8 of process. It should also be recorded that by a Disposition by the Provost, Magistrates and Councillors of the Burgh of Oban, dated 23 November 1970, the respondents' predecessors disponed an area of land, which formed part of one of the areas which they had acquired under the Feu Contact containing Feu Disposition by Alexander James MacDougall, dated 14 May 1934, to Hugh Kinnoch McLachlan, who already owned certain heritable subjects in Ganavan Road, Oban. That disposition is 7/12 of process. Furthermore, it should be recorded that by a disposition by Argyll and Bute District Council in favour of Ganavan Leisure (Oban) Ltd, dated 25 March 1987, the respondents' predecessors disponed to that company a part of the subjects which they had acquired, as successors to the Provost, Magistrates and Councillors of the Burgh of Oban, by virtue of a Feu Contract containing a Feu Disposition by Alexander James MacDougall dated 14 May 1934. After a period of years, Ganavan Leisure (Oban) Ltd went into liquidation. Thereafter the interim liquidator thereof, by Disposition dated 15 January 1966, 6/1 of process, conveyed that area of ground to the petitioner. Against the background of the foregoing transactions, in my opinion, it is quite clear and indeed was not disputed that the way concerned "forms part of land owned ... by a local authority", namely the respondents and did so at the material time, 5 November 1998. The land which is the solum of the way is contiguous with what has been described as area 2 and also area 3.

The next issue which arises in connection with the possible impact of Section 151(3)(c) is whether the land just referred to was, at the material time "used by (the respondents) for the provision of facilities for recreational, sporting, cultural or social activities in the discharge of their duties under Section 14 of the Local Government and Planning (Scotland) Act 1982". As I understand it, it is not disputed that the land concerned was, at the material time, and is used by the respondents for the provision of facilities for recreational activities. That is actually averred by the respondents themselves in paragraph 5 of their answers. In any event, consideration of the arrangements in being which regulated the use of the land concerned demonstrates that that is so. As regards area 2, in the ownership of the respondents and leased to the petitioner, it is provided in clause fourth of the Lease, 6/2 of process, that "The area of ground let shall be used by the Second Parties as a caravan site only for no other purpose without the consent in writing of the First Parties ...". While this area is held by the petitioner as a tenant, in my opinion, having regard to the foregoing restriction, it can properly be seen as "used by (the respondents) for the provision of facilities for recreational ... activities ...", within the meaning of Section 151(3)(c) of the Act of 1984. As regards area 3, also in the ownership of the respondents, it is of course, managed by the petitioner on behalf of the respondents, as successors to Argyll & Bute District Council, in terms of the Management Agreement, dated 20 and 28 March, 1996, 6/3 of process. It is plain from that Agreement that the use of the area is to be as a car park and amenity ground in connection with the beach and slipways ex adverso of it. In my opinion, that is plainly use "by (the respondents) for the provision of facilities for recreational ... activities ..." within the meaning of the above mentioned statutory provision. It appears to me to follow from this state of affairs that the use of the land concerned for the provision of facilities for recreational activities must be seen as in the discharge of the respondents' duties under Section 14 of the Act of 1982. Indeed, I did not understand it to be suggested otherwise. The only point made concerning that was that there was no indication that the land had been "dedicated" to that use, whatever that might mean; no explanation of the word used was offered. In particular, no suggestion was made that any formal register of such land is maintained. The fact of the matter is that, as I have sought to show, by virtue of the conditions under which the land concerned is held, no other use than for the provision of facilities for recreational activities is permissible.

In all of these circumstances, I have reached the conclusion that, at the time of the purported adoption of the way as a public road under Section 16(1) of the Act of 1984, the way fell within the description contained in Section 151(3)(c) of that Act. That being so, then it plainly follows that the Act of 1984 did not confer upon the respondents any power of adoption under Section 16(1) of the Act of 1984 in relation to that way or road. Thus, the respondents did not have the power which they purported to exercise at the relevant time. Accordingly, the purported adoption of the way as a public road was ultra vires.

I turn next to consider that part of the petition which is set forth in paragraph 10 thereof. It is a ground of challenge of the respondents' action on the basis that the decision concerned was taken for a purpose other than the legitimate purpose for which the power and duty to add roads to the list of public roads was conferred upon them. I have already narrated the arguments which were focused upon this ground of challenge. I have come to the conclusion that there is no merit in this particular ground. As I have already indicated in another connection, in my view, the provisions of Section 16(1) of the Act of 1984 operate in this way; if a private road is of a requisite standard and if application is made to the local roads authority under the provision in question by the requisite number of frontagers for addition of the private road to the list of public roads, then the authority, subject to certain qualifications which have no relevance to the circumstances of this case are obliged to add the road in question to the list of public roads. Against that background, it appears to me that the purpose or intention of the authority in making such an addition is quite simply irrelevant. It appears to me that, if the authority have no choice in the matter and when faced with an appropriate application in relation to an appropriate road they must make the addition concerned, then their motivation or intention or purposes do not enter into consideration. They are simply performing a mandatory statutory duty. Although I have formed no concluded view about the matter, it may be that the purposes desired to be achieved by a person who makes such an application, supported by the requisite number of frontagers, may, in certain circumstances, be open to examination, but, in this case, no attempt is made in the petition, nor was it made in the argument, as I understood it, to focus upon that aspect of the case.

Finally, I come to consider the ground of challenge set forth in paragraph 11 of the petition, which was to the effect that the respondents' action was taken as a result of material procedural inpropriety. The background to this matter was that following the opening of correspondence between the respondents and the petitioner with the letter of 15 September 1988, 6/4 of process, the petitioner expressed his opposition to the course proposed on a variety of grounds, which are set out in the petitioner's own letter to the respondents dated 21 September 1988, 6/5 of process, and that of his solicitors, dated 24 September 1988, 6/6 of process. Among the several reasons advanced for opposition to the course proposed was the suggestion that it would involve a derogation from the grant made in the Lease of area 2 contained in the Minute of Lease, 6/2 of process, the tenants part of which had been assigned to the petitioner. Following the correspondence, to which I have referred, the respondents did not reply to either of the letters written by or on behalf of the petitioner. Accordingly, the petitioner wrote again to the respondents by letter dated 15 October 1988, 6/7 of process. In that letter the petitioner wrote as follows:

What happened thereafter was of course that the adoption was made, the certificate thereof being dated 5 November 1998, as appears from 6/8 of process. Only after the adoption had in fact been made did the respondents reply to some of the points which had been raised by the petitioner, in their letter of 11 November 1998.

In my opinion, the manner in which this matter was handled by the respondents left much to be desired. In their original letter of 15 September 1998 it was not made clear whether an application for adoption had been made and, if so, by whom. The author of the letter wrote "I have been asked therefore to commence the adoption arrangements". In my view, that statement is ambiguous and obscure. It does not indicate whether an application had been made and, if so, by whom. Thereafter, in the letters from the petitioner to which I have referred, a number of points were raised timeously in accordance with the time limit set out in the letter of 15 September 1998. Following that, the respondents simply proceeded to take the step of adoption without responding in any way to the petitioner's inquiries.

Although there was considerable argument before me as to the merits of the petitioner's contention that the adoption of the way in question amounted to a derogation of the grant in the Lease to which I have referred, I do not consider that it is necessary for me to form any concluded view about those matters, or any of the other matters which were raised by the petitioner in the correspondence prior to purported adoption. It appears to me sufficient for the present purposes that the petitioner had shown in the correspondence that he had a number of objections to the course proposed and queries concerning the procedure being followed. In these circumstances, the course followed by the respondents, at least in certain material respects, prevented the petitioner from setting before the respondents all of the various objections which he could have advanced. In my view, the respondents' failure to address the matters which the petitioner had raised to any extent until after the purported adoption was made deprived the petitioner, in certain material respects, from seeking to persuade the respondents that their proceedings were inept and ultra vires. It does not appear to me to matter whether the cause of the respondents' silence was a deliberate attempt to obfuscate, or simply mere dilatoriness.

In Regina v The Secretary of State for the Environment ex parte Hammersmith & Fulham London Borough Council at page 598 Lord Bridge of Harwich said this:

It appears to me that, in the present case, the respondents did not observe the standards required of them in the handling of this matter, in respect that the legitimate questions raised in the letter of 15 October 1998, which were of a fundamental nature, were not answered prior to the purported adoption being made, or, in the case of some of them, even later. It appears to me that that deprived the petitioner of the opportunity of making representations to the respondents concerning their vires in this matter. I regard that shortcoming as constituting a breach of natural justice. In these circumstances, on this ground also, I conclude that the respondents' action must be quashed.

In all of these circumstances I shall sustain pleas-in-law one and three for the petitioner, grant decree of reduction of the purported entry in the list of public roads kept by the respondents for their area relating to Ganavan Road, Oban - extension, made on 5 November 1998, and repel pleas-in-law, two, three and four for the respondents.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacKinnon, Re Application for Judicial Review [2000] ScotCS 60 (8 March 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/60.html Cite as: [2000] ScotCS 60

Scottish Court of Session Decisions