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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Messrs David Runciman and Sons, Re Petition for Judicial Review [2003] ScotCS 287 (20 November 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/287.html Cite as: [2003] ScotCS 287 |
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OUTER HOUSE, COURT OF SESSION |
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P150/03
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OPINION OF LORD DRUMMOND YOUNG in the Petition MESSRS DAVID RUNCIMAN & SONS and the partners thereof Petitioners; for Judicial Review of a decision of Scottish Borders Council to issue a notice under section 87(1) of the Roads (Scotland) Act 1984, and for suspension of such notice
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Petitioner: Sir Crispin Agnew Q.C.; Bell & Scott, W.S.
Respondent: Upton; Edward Bain
20 November 2003
[1] The petitioners are a firm of farmers and the partners thereof. They own and occupy Edington Mains Farm, Chirnside. The respondents are the roads authority acting under the Roads (Scotland) Act 1984 for the area that includes Edington Mains Farm. The D74/6 classified road runs through the petitioners' land, from its junction with the A6105 road to Edington Mill, situated on the Whiteadder Water. It was accepted by parties that that road had been adopted by the defenders under section 1 of the Roads (Scotland) Act 1984. Consequently it is a public road maintained by the local roads authority. [2] For most of its length, the D74/6 road consists of a tarmacadam surface with a grass verge on either side. That grass verge is bounded by an old beech hedge on each side of the road. The petitioners aver that they have maintained the verges by cutting the grass, and have trimmed the hedge over the years as and when required. At some time prior to 17 January 2003 the petitioners erected a post and wire fence on each side of the road; each fence runs parallel to the road along most of its length, and parallel to the hedge on its roadward side. The petitioners aver that the fence lies under the growth of the hedge that reflects the mean average maximum growth before the hedge is trimmed. They further aver that it lies along a line where a pedestrian would be unlikely to walk if he made his way along the grass verge with his shoulder brushing the outer mean maximum growth of the hedge. Photographs of the hedge and fence were lodged in process, and from those I conclude that the petitioners' averments about the hedge are broadly accurate. Nevertheless parts of the fence appear to lie outwith the overhang of the hedge and in other places the fence probably lies well within the mean maximum growth. A pedestrian could not easily walk along the line of the fence owing to the presence of the hedge. I was further informed that the owner of Edington Mill had applied for planning permission for a housing development. The petitioners had objected to the development, largely because, if the development proceeded, passing places would be required on the D74/6 road. The respondents had specified dimensions for the necessary passing places, and these would impinge on land that the petitioners claim is not part of the road. In consequence the petitioners put up fences to demarcate what they maintained to be the boundary of the road. [3] On 17 January 2003 the respondents issued a notice under section 87(1) of the Roads (Scotland) Act 1984 requiring the removal of the fences from the verge of the D74/6 road. That notice was subsequently served on the petitioners. The petitioners have now raised proceedings against the respondents seeking declarator that the decision to issue the notice was ultra vires and is consequently null, void and of no effect. They further seek reduction of the notice, and suspension ad interim of the notice. The basis on which those orders are sought is that the fence has been erected in the area that lies underneath the branches of the hedge when it is at its mean maximum growth. That area is not part of either the road itself or the verge of the road. The respondents' power to issue notices under section 87(1) is limited to areas that form part of a road, including its verge. Consequently they had no power to order the removal of the fence in question. In reply, the respondents contend that the verge of a road extends underneath the branches of a hedge, as far as the roadward side of the trunks of the hedge. The area where the fence was erected is accordingly part of the verge of the road, and thus forms part of the road. That entitles the respondents to exercise the statutory power in section 87(1). The question in dispute between the parties is accordingly how far the verge of a road extends. The petitioners claim that it extends only as far as a line that represents the mean annual greatest growth of the hedge on its roadward side, prior to any trimming of the hedge. The respondents claim that the verge extends to the mid-line of the hedge, or more precisely to the roadward side of the trunks of the hedge. The petitioners have a secondary argument that, to the extent that the road is a public road, the court can determine its width from the area that the roads authority have in fact maintained. The petitioners aver that they, rather than the respondents, have cut and maintained the hedge and the grass area at the side of the road. Consequently the grass area and hedge are not part of the public road maintained by the respondents; only the tarmacadam surface falls into that category. [4] The notice that is under challenge was issued under section 87(1) of the Roads (Scotland) Act 1984. That subsection provides as follows:"... where a structure has been erected, deposited or placed on a road otherwise than under or by virtue of an enactment the roads authority may, by notice, require that within such period as may be specified in the notice the person having control or possession of the structure --
(a) shall remove it;...".
The power in that subsection only extends to structures that have been erected on a "road". The term "road" is defined for the purposes of the Act in section 151(1) as follows:
"'road' means... any way... 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".
Thus the basic concept of a road is that it involves a way over which there is a public right of passage. The term "road" is defined in such a way as to include the verge of the road. That term, however, is not further defined. Prima facie, therefore, the word must be given its ordinary meaning. While dictionary definitions are generally of limited utility in a legal context, it may be useful in this case to quote the material part of the definition given in the Oxford English Dictionary: "a (grass-covered) edging to a road". The definition in Chambers' Dictionary is very similar. It is thus clear that the word "verge" in ordinary usage refers to an area at the side of a tarmacadam or other road, generally in grass, which functions as the edging to that road. In determining how far the verge extends, I am of opinion that two considerations are particularly relevant. The first of these is the natural meaning that can be given to the word "verge", used in the above sense, when applied to the physical features that occur on the ground. The second is the functions that the verge may fulfil in the particular circumstances of the case.
[5] In relation to features on the ground, the position is reasonably straightforward where a road is bounded by an established wall or fence or by a building. In such cases the boundary of the verge will normally be taken as the roadward face of the wall, fence or building; this situation is discussed by Lord Murray in Perth and Kinross County Council v Magistrates of Crieff, 1933 SC 751, at 761, and it seems clear that the same analysis applies to the 1984 Act. In such cases there exists an obvious physical barrier that stretches upwards from the ground and is obviously designed to separate the road and its verge from the property beyond. At the other extreme are cases where there is no barrier of any sort, and the road extends into unenclosed fields, rough grazing or moorland; in the absence of a barrier, the verge must clearly be reasonable in extent, and what is reasonable will depend on function rather than any physical barrier on the ground. Where a road is bounded by a hedge, it is obvious that the hedge functions as a physical boundary for the road and its verge. The critical question, however, is where in the hedge that boundary lies. The two alternatives suggested by counsel were the mid-line of the hedge, consisting of the trunks of the shrubs or trees that make up the hedge, and the roadward face of the branches of the shrubs or trees. In my opinion the boundary must lie along the roadward side of the trunks of the shrubs or trees that make up the hedge. That provides a reasonably clear and definite boundary; in many respects it is similar to the boundary provided by a post and wire fence. It is also a boundary that can be ascertained at ground level with reasonable clarity. The only alternative suggested by counsel is a boundary defined by reference to the extent of the branches of the shrubs or trees that make up the hedge. Such a boundary is inevitably extremely difficult to determine. There is no marker on the ground, and the extent of the branches is likely to be highly irregular. Moreover, it is a boundary that moves with the growth of the shrubs or trees that make up the hedge and as they are cut back. Counsel for the petitioners was obviously conscious of this difficulty for his argument, and he submitted that the boundary should be the mean annual greatest growth of the hedge on its roadward side. That in itself presents difficulties, however. It is not obvious how the mean annual growth is to be determined; it does not represent the growth in any particular year, but is presumably the average over a number of years. It is most unlikely, however, that anyone will take the trouble to record the line to which the hedge has grown each summer, at the point before it is cut back. Thus in practice it will not be possible to determine the petitioners' suggested boundary with any precision whatsoever. No doubt in some instances the law must tolerate imprecision, sometimes to a considerable degree, and make the best distinction that it can in the circumstances. Nevertheless I am of opinion that a fluctuating and essentially unascertainable line such as is proposed by the petitioners is too uncertain to form a satisfactory boundary. That is especially so when there is a clearly workable alternative, namely the roadward side of the trunks of the shrubs and trees making up the hedge. [6] The view that the boundary of a verge is the line of the trunks of the shrubs or trees making up a hedge is in my opinion supported by consideration of the function of a verge. That function will obviously include permitting the passage of pedestrians, but it extends much more widely. A number of purposes to which a verge may be put are set out in the Roads (Scotland) Act 1984. Thus section 28 provides that a roads authority may construct fences and other barriers for the purpose of safeguarding persons using a public road. In terms of section 28(d), such fences or barriers may be constructed along the sides of bridges, embankments or other dangerous parts of the road. It is obvious that fences and barriers would not normally be constructed on the roadway itself but at the side of the road, on the verge. Section 49, read with the Local Government (Omnibus Shelters and Queue Barriers) (Scotland) Act 1958, authorises a roads authority to construct bus shelters, and section 51 authorises it to plant trees, shrubs and the like within the boundaries of a public road. In each case, because bus shelters, trees and shrubs are obstructions, the reference must be to the verge of the road or to a central reservation rather than the roadway itself. Section 52 of the Act empowers a roads authority to carry out on a road works for mitigating any adverse effect that the road will have on its surroundings; in effect this authorises the construction of sound barriers and the like. Section 54 authorises a roads authority to maintain in a road bins for the collection of refuse and waste paper or for the storage of sand, grit or other materials. In each of these cases, once again, the sound barriers and bins will typically be constructed on the verge rather than the roadway itself. Finally, although the matter is not dealt with in the 1984 Act, it is obvious that road signs will typically be placed on the verge of a road, and that the verge may be used to provide a drainage ditch for the road. In each of these cases the verge is used for a purpose associated with the road and the right of passage along the road, but the nature of the use is such that the right of passage cannot in fact be exercised over the part of the verge that is taken up by the use in question, whether that is a barrier, bus shelter, bin, sign or drainage ditch. [7] Any of the foregoing functions may require a roads authority to make use of part of the verge. Where the verge is bounded by a hedge, it is obvious that the branches of the hedge are likely to overhang the adjacent ground to a significant extent. Indeed, in the case of the traditional hawthorn and beech hedges found in country districts the overhang is likely to be considerable, and may come close to the tarmacadam roadway. The roads authority have power under section 91 of the 1984 Act to order the cutting back of the hedge to prevent obstruction or interference with the use of the road, but the petitioner's submission was that the boundary should be the mean annual growth before cutting back. Where there is a large overhang, if the roads authority are to be able to perform their statutory functions adequately it is obviously necessary that in many cases they should be able to make use of the area overhung by the hedge. That might apply to basic safety measures such as barriers and road signs, and also to works such as ditches that are necessary for the proper maintenance of the road. It would in my opinion be wholly unsatisfactory if a roads authority were prevented from carrying out such works underneath the overhang of a hedge; in many cases it would in practice make the fulfilment of their statutory functions impossible. That practical consideration provides strong support in my opinion for the view that the boundary of the verge is the roadward side of the trunks of the hedge. [8] If that is so, the roads authority will obviously have statutory powers over the area that is overhung by the hedge. That will entitle them in certain circumstances to cut back the branches or roots of the hedge in order to fulfil their statutory functions. I am of opinion, however, that the roads authority are under an obligation to keep any interference with the hedge to the minimum that is required to enable them to perform their functions. If interference with the hedge is necessary, I consider that the roads authority must keep in mind that the hedge acts not merely as a boundary but also as a means of fencing a field or garden; thus the authority must ensure that fencing is maintained. I further consider that the roads authority must take into consideration that a fence may act as a windbreak or to stop soil erosion, and may also serve an important aesthetic purpose. It follows that if, for example, a road sign or barrier is sited in an area overhung by a hedge, the necessary excavations should do as little damage as possible to the roots of the hedge, and damage to the branches should be kept to a minimum. In this way the interest of the owner of the hedge will be protected in a manner consistent with the roads authority's statutory functions. [9] The main argument for the petitioner was that, if the definition of a road in section 151 of the 1984 Act is to be satisfied, there must exist a public right of passage. If passage is impossible, the statutory definition cannot be satisfied. Consequently, if the public are unable to walk on the area overhung by a hedge, there can be no right of passage and that area cannot be part of the road. In my opinion this argument is not well founded. It is true that a public right of passage is necessary if a road is to fall within the statutory definition. It does not follow, however, that it is necessary that passage should be possible, or even practicable, over every part of the area of such a road. That is clear from the powers of a roads authority, discussed in paragraph [6] above, to place objects such as road signs, barriers, bus shelters and bins within the area of a road. Public passage through the areas occupied by such objects is clearly impossible, or at least impracticable. Nevertheless, it is obvious that the existence of such objects does not prevent the area occupied by them from forming part of the road, including its verge. Moreover, section 151 defines a road as any "way" over which there is a public right of passage. The right of passage is thus related to the existence of the way rather than the area of the road itself. That in my opinion tends to confirm that it is sufficient that there is a right of passage along the road in general, as that is all that is required for a "way" to exist. It is not necessary that passage should be possible over every part of the area occupied by the road. [10] Counsel for the petitioner made reference to a number of authorities in support of his argument. On the whole I did not find these of assistance in reaching a conclusion on the matter in dispute. The first was Rankine on Landownership, at pages 325-326,327 and 329. The passages cited indicate that a highway involves a right of passage, an incorporeal right, and does not of itself affect the ownership of the land across which it lies. Consequently the landowner is entitled to exercise all rights of ownership that are not inconsistent with the public right of passage. In the present case it was accepted that the petitioners were the owners of the land on which the D74/6 road had been constructed. Nevertheless, the principle stated by Rankine does not in my opinion help the petitioners. Under modern statutory regulation, the public right in a highway entails all of the rights and powers conferred on a roads authority by the Roads (Scotland) Act 1984 and other highways legislation. Consequently the landowner's rights of ownership are subject to all of those rights, as well as the basic public right of passage. Moreover, the definition of a road under the 1984 Act includes the verge, and those rights and powers of a roads authority extend to the verge as well as the surfaced part of the road. [11] The next authority referred to was MacKinnon v Argyll and Bute Council, 2001 SLT 1275. That case concerned the access road to Ganavan beach, near Oban. The critical issue was whether that road was a "road" within the meaning of section 151(1) of the 1984 Act, and more specifically whether there was a public right of passage over the road; if there were no public right of passage the definition in section 151(1) would clearly not be satisfied. The argument for the petitioner was that the concept of a public right of passage in section 151(1) required a public right of way, in the ordinary private law sense of that expression. Lord Osborne rejected that contention. Thus the case was concerned with whether a public right of passage extended along the road as a whole, and not with the question of how extensive the road was, or whether passage was possible along every part of the road. Counsel then referred to Perth and Kinross County Council v Magistrates of Crieff, supra, which I have discussed above, and Elgin County Road Trustees v Innes, 1886, 14 R 48. The latter case concerned the right of a landowner to place a barbed wire fence along the side of a road. It was held that the particular fence in question involved a danger to road users, and the landowner was compelled to modify it in certain respects. Counsel relied on this case for the proposition that, provided that there is no danger, a landowner is entitled to erect a fence along the side of a road, and is assumed to abandon everything outside the fence to the use of the public for the time being. I agree that that proposition is supported by the case. The fence in question, however, was clearly erected outwith the area of the road itself, and no question arose as to the width of the road or verge. The next case referred to was Elmford Ltd v Glasgow City Council, 2001 SLT 725, where the issue was whether a strip of land owned by the respondent authority which ran between a public road and land owned by the petitioners had been publicly dedicated as part of the highway. The land had been acquired by the respondents specifically for road purposes, and not been dedicated to any other purposes. Lord Clarke held that the land had not been dedicated as part of the highway, and that consequently there was no public right of passage over the area in question. This case accordingly turned on the question of whether any public right of passage had been created over a particular area of land, with particular reference to whether the roads authority, having acquired the land for road purposes, had created such a right. That is different from the issue in the present case; there was no discussion in that case of the width that a road and its verge should have in the absence of any express limitation. Thereafter reference was made to R v United Kingdom Electric Telegraph Company Ltd, (1862) 3 F & F 73, where it was held in England that, where fences had been placed on either side of a road, the right of passage prima facie extended to the whole space between the fences. I did not find that this case assisted with the question that I had to decide; in the present case the established boundary was a hedge, not a fence. Finally, counsel referred to Viewpoint Housing Association v Lothian Regional Council, 1993 SLT 921, where it was affirmed that dedication to the purposes of a road was for the time being rather than permanent. While that is clearly so, before land can be withdrawn from the area of a public road there must normally be either agreement with the roads authority or some sort of change of circumstances from which it can be inferred that land has been withdrawn from the road with the acquiescence of the authority. That has not happened in the present case. [12] The second argument for the petitioners was that the width of a public road can be determined from the area that is in fact maintained by the roads authority. They aver that, in the case of the D74/6, they and not the respondents have maintained the grass area at the side of the road and the hedges that overhang that area, that being the area where the petitioners' fences have been constructed; consequently that area cannot be part of the road or its verge. In my opinion this argument is not well founded. It involves a confusion between two distinct concepts, the rights and obligations of the parties in a area of land and the manner in which those rights and obligations are implemented. The question at issue in the present case is whether the grass area at the side of the road is part of the verge, and if so to what extent. If that question is decided in favour of the respondents, they will be under an obligation, in terms of section 1(1) of the 1984 Act, to maintain that area. Logically, however, the obligation relating to maintenance depends on the prior question as to whether the grass area is part of the verge and hence the road. The fact that the respondents have consistently maintained the grass area might be of evidential value in a doubtful case, but that is all. I did not consider the present case to be doubtful, and consequently I regard the averments of maintenance as irrelevant. In support of this part of his argument counsel for the petitioners referred to the English case of Hanscombe v Bedfordshire County Council, [1938] Ch 944, where a highway authority had laid pipes in a ditch on land adjoining a highway and had filled in the ditch. It was held that they were entitled to do so by virtue of certain statutory powers. One of the issues that arose in the case was whether the ditch was part of the highway and therefore belonged to the local authority. Farwell J held that the ditch was not adapted for the exercise by the public of their right of passage, and that consequently the presumption was that it did not form part of the highway. He then considered the evidence that might rebut that presumption, and held that it was insufficient to do so. He pointed out that a ditch was of importance to the landowner rather than the highway authority, and therefore that it was unlikely that the landowner would have parted with it to the authority. Counsel for the petitioners relied on this case to indicate that the court had regard to the actings of the parties in relation to the ditch. The judgment certainly refers to works of maintenance, but I do not think that those played any significant part in the decision. I accordingly consider that the case does not assist the petitioners. [13] For the foregoing reasons, I am of opinion that the petitioners' averments are irrelevant. I will accordingly sustain the respondents' first plea in law and dismiss the petition.
