Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 97
CA133/11	OPINION OF LORD MALCOLM in the cause MORSTON WHITECROSS LIMITED Pursuers; against FALKIRK COUNCIL Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: Martin, Q.C.; Burnet, advocate; Morton Fraser LLP

Defenders: Wilson, Q.C.; M E McKay, advocate; Brodies LLP

8 June 2012

[1] In this action the pursuers seek a declarator as to the extent of the A801 single carriageway public road at Whitecross (which is near Linlithgow) at a location where they wish to obtain vehicular access to the public road in order to serve a development to the east of the road. In particular, in respect of the road between the Union Canal and the main Edinburgh to Glasgow railway line the pursuers contend that the public road extends from fence line to fence line, and thus includes all of the embankment. If that is correct, the pursuers will be able to gain access to the public road without the need to negotiate a price with the defenders for crossing private land (commonly known as a "ransom strip"). The defenders claim that to the east of the carriageway the public road does not extend as far as the fence line.

The joint minute

[2] I heard a proof in the action. At its conclusion it was apparent that, to a very substantial extent, the salient facts are not in dispute - as opposed to what should be made of the facts. In a joint minute, amongst other things it was agreed that in 1969/70 the A801 between Lathallan interchange and Bowhouse roundabout was designed by Stirling County Council. Construction of the road was carried out between 1970 and 1972. Land acquisition for the scheme allowed sufficient width for the possibility of dual carriageway construction. The drawing 7/28 of process shows the widened earthworks and canal culvert, and how a "future carriageway" could be accommodated to provide a dual carriageway standard. It had been the aspiration of Stirling and West Lothian County Councils that the road should be a trunk road and that central government should fund a dual carriageway. This section of the A801 road was adopted on 16 May 1973 by Stirling County Council as recorded in the statutory list of public roads (7/15 of process). There have been no subsequent road orders in relation to the A801 at this location. Maintenance of the A801 changed in 1975 due to local government reorganisation and became the responsibility of Central Regional Council. In 1983 a proposal was put to the planning committee to support a project to improve access facilities at the Union Canal. Approval was given. The facility constructed on the eastern part of the embankment is described in the ordnance survey plan as a "picnic area". This area includes a car park (sometimes described as a lay-by).

The evidence

[3] The first witness for the pursuers was David Mason, a chartered geologist and chartered engineer. He spoke to his report (6/10 of process). He was asked to investigate the general construction of the road and the embankment at the location, and to determine whether it was likely to have been constructed in a single phase. Site investigation works were carried out, including boreholes at five locations. The configuration of the road at this section includes the carriageway, verges, and an associated lay-by, which is accessible from the road (the previously described picnic area). Mr Mason stated that the as-built drawing shows the entire embankment to have been constructed as a single entity. Comparison with the recent topographical survey of the road shows that the footprint of the road has not changed since its construction. The embankment is wider than would be required for a single carriageway. Mr Mason described the ground conditions in the area. Ultimately there was no dispute of any significance as to Mr Mason's conclusions, which are set out in section 5 of his report. At paragraph 5.7 he states: "In summary the investigations appear to confirm that the embankment has been constructed in the same materials and under controlled conditions of compaction. As such, the construction is consistent with our understanding that it was erected as a single entity as part of the construction of the A801."

[4] Evidence was led from Mr John McIlhagger, who is a chartered civil engineer. He spoke to his report (6/9 of process). In it he observes that highway engineers consider the outer limits of a public road to be the fence lines at each side. At this location the east embankment is set back from the edge of the carriageway. Its dimensions suggest that there was an intention to dual the A801 at a later date. Although a narrower embankment and verge could have supported a single carriageway A801, "a wider embankment was constructed". That wider embankment supports the A801. None of this is in dispute.

[5] In the course of his evidence Mr McIlhagger drew attention to the key features in the drawing A801/01/19/52B/R, dated October 1969, (which is reproduced at both 6/4 and 6/28 of process). Particular reference was made to the plan at the top of the drawing. Mr McIlhagger states that given "the width of the top the embankment and the width of the canal culvert shown on the as-built drawings, it is evident that (the road) was designed with a possible future conversion to dual carriageway in mind." That the east side of the carriageway is higher than the west is consistent with that intention (on the basis that it was envisaged that ultimately the road would drain from the centre line to either side). Mr McIlhagger states: "In civil engineering terms it is easier to build a full embankment than to extend an existing embankment as it avoids creating a potential slip plane which could damage the integrity of the embankment."

[6] Although Mr McIlhagger discusses the function and use of the car park/picnic area subsequently constructed on the eastern part of the embankment, counsel for both parties were agreed that the present issue requires to be determined by reference to the situation in the earlier 1970's when the road was opened. All that has happened since then cannot derogate from whatever flows from the state of affairs at the initial adoption and listing. Counsel for the pursuers did not suggest that, if the relevant ground was private land in the 1970s, the construction of the car park altered that status. Likewise the defenders accept that if the land was part of the public road at the outset, there has been no de-listing and nothing has happened since then to alter its status.

[7] In cross-examination Mr McIlhagger explained that, at the time, the roads authority (then Stirling County Council) acquired sufficient land to accommodate all the necessary elements, including the embankment and drainage. He talked of the Pitlochry by-pass and Highland Council's general approach that the public road extends from fence line to fence line. When the road was first built, the eastern part of the embankment would "have looked like a wide verge." There would be some 38 feet of verge between the road barriers and the top of the eastern slope.

[8] The pursuers called the defenders' in-house solicitor with responsibility for the litigation. He was asked various questions about the terms of a letter he had written and his understanding of the Council's position so far as the road is concerned. He was asked questions which are matters for the court to judge in the light of the relevant facts and circumstances of the case. Without intending any disrespect to this witness, and through no fault of his own, I did not find his evidence of any real assistance.

[9] The defenders' case began with evidence from Mr Gregor Pender, the manager responsible for the engineering design unit of the defenders' development services. He provided a witness statement . He is of the view that the public road is defined by the road barriers, or "back of verge to back of verge". In his evidence Mr Pender illustrated the back of the verge by reference to photograph 46 in production 7/14. Regarding the extended embankment, Mr Pender emphasised that it accommodated excess excavated boulder clay (nearby the road goes into cutting), but by the end of the proof, counsel for the defenders made it clear that it was accepted that, from the outset, there was a desire to allow for future dualling of the road at this location. Insofar as Mr Pender said that the road embankment does not rely upon the extended works for its structural integrity and stability, I understood this to mean that a smaller embankment could have been constructed for the purpose of a single carriageway road. That is not in dispute. For the reasons given earlier, Mr Pender's evidence regarding the car park/lay-by is of little importance.

[10] Under cross-examination, at one point Mr Pender appeared to suggest that the eastern boundary of the public road is located underground at a point where a hypothetical narrower single carriageway embankment would reach ground level. In her submissions counsel for the defenders assured me that was not what he intended. Mr Pender described the drainage at the eastern fence as primarily "accommodation works" for the benefit of the adjacent farmland. Be that as it may, on any view the drainage is part of the works and is consequential upon the embankment construction. If it is important to categorise them, I would include the drainage elements shown in 6/28 as part of the construction of the road and associated works (in the widest sense). There was some discussion as to the correct classification of other roads and rights of way in the area, but none of that has been of any assistance in resolving the question at issues.

[11] The final witness for the defenders was Mr Gordon Gray, a chartered civil engineer, who spoke to his reports 7/10, 7/11 and 7/32. The first report refers to various manuals and guidance concerning the design of roads. Other witnesses commented upon the same material, none of which is directly relevant to identification of the true extent of the public road at Whitecross. 7/11 deals with the outcome of the borehole investigations. As noted earlier none of that material is contentious, and none of it is critical to the determination of the correct result.

[12] Mr Gray's third report deals with the original carriageway safety barriers as shown in plates A and B. Reference was made to the as-built drawing of the Union Canal culvert, which refers to the "future dualling" of the A801, and has an annotation "future carriageway." The drawing is appended to the report. Mr Gray agreed with the "fence to fence" analysis of the Pitlochry by-pass. This was because the widened verges serve the roads related function of providing improved visibility on a stretch of road with long sweeping bends. However he suggested that the widened eastern embankment at Whitecross served no function regarding the carriageway, other than in respect of the verge, which is some 12 feet in width, and which accommodated the safety barrier. Mr Gray referred to photograph 46 of 7/14. He expressed the view that the boundary of the public road to the east of the carriageway extends to the bushes, effectively an offset of some 12 feet. This is shown on the culvert drawing appended to his third report. Reference was also made to 7/16 at page 7 (the bottom cross section); 7/28; and to plates A and B of his third report. Mr Gray approached the assessment of the extent of the public road by reference to the function of the land in question.

[13] In cross-examination Mr Gray accepted that the initial works were designed to accommodate a second carriageway. He stressed that the extended embankment to the east of the carriageway was not required for a single carriageway road. As to the west side, Mr Gray offered the view that the public road extends to the western fence, since all that land to the west of the carriageway serves a function or purpose in respect of the A801, including the drainage and the berm (the area of land between the fence and the toe of the slope). After the close of the evidence I had the benefit of an accompanied inspection of the site.

The submissions, discussion and decision
[14] In the late 1960's, the then roads authority decided to construct a single carriageway A801, but, at least at this location, with sufficient embankment width as would allow for the subsequent addition of a second carriageway. As a result a large area was acquired and a wide embankment was constructed. To date the A801 remains a single carriageway. The question which arises in this case is this: does the public road at this location extend across the whole of the works from fence line to fence line, including the full width of the embankment, the embankment slope and the berm to the east of the carriageway? The pursuers wish to take access to the public road at this location for the purpose of a proposed development. If their contention is correct, they can do so without the need to negotiate a payment to the defender for access over land owned by them between the carriageway and the fence. Both counsel agree that this issue falls to be determined by reference to the state of affairs when the road was first adopted and opened in the early 1970s, there having been no subsequent stopping up orders nor any de-listing of the land.

[15] On a cross section from west to east, the evidence indicates that, at that time the topography and relevant features of the land after construction were as shown on the drawing 6/28. From the western fence line there is a berm containing toe of slope drainage, the western slope of the embankment, the A801 carriageway and associated drainage and barriers, an area of flat embankment extending to some 38 feet, the eastern slope, eastern berm and toe of slope drainage, and then the eastern fence.

[16] Although a number of cases and statutory provisions were cited, both counsel agreed that the issue raised in this action is a matter of fact for the court to determine by reference to the relevant circumstances on the ground, not least the character and function of the land. The fundamental question is: what is the extent of the land which was dedicated to the purpose of the public A801 road? Given that each case must be decided on its merits, earlier decisions are of limited assistance, other than pointing to the kind of considerations and features which might be relevant.

[17] Although making no formal concession, Ms Wilson QC offered no resistance to the proposition that to the west of the carriageway the public road extends to the verge, the embankment slope, the berm and up to the line of the western fence. This was consistent with the evidence of the defenders' expert, Mr Gray. There is no "extra" embankment to the west of the carriageway and the verge, slope and berm are all necessary for the purpose of the A801 at that location. As to the east of the carriageway, Ms Wilson conceded that a verge of some 12 feet in width, as shown on certain of the construction drawings (for example 7/28), would fall into the same category. That verge would include the original safety barrier, some of which can still be seen on site (part of it has been buried as a result of subsequent works which raised the height of the carriageway in the vicinity of the bridge over the canal to allow the canal to become navigable). The submission was that, beyond this verge the land was not and is not dedicated to the purpose of the A801, and thus is private land belonging to the council up to the limit of their title at or around the fence line to the east of the embankment.

[18] While this area now includes a car park constructed at a later date as part of the enhancement to this section of the canal, at the time of adoption of the road it was simply an open stretch of ground being put to no purpose other than to be there in case a decision was taken to construct a second carriageway. At the eastern side of the embankment the arrangement was and is similar to that at the west, namely a slope, berm with toe of slope drainage, and a fence, which generally, though not exactly, marks the extent of the council's title. I would assume that if there had been no extended embankment, the authority would have acquired less land, and that, in those circumstances, it would have been conceded that the developers could take access from the eastern fence line, which, on this hypothesis would have been positioned to the west of the current fence. It is the fact of the extended area of embankment which is the cause and focus of the current dispute.

[19] For the pursuers Mr Martin QC submitted that the whole land from the carriageway to the eastern fence line was dedicated to the purpose of the A801 and was thus part of the public road. He referred to the opinion of Lord Clarke in Elmford Ltd v Glasgow City Council (No.2) 2001 SC 267 at paragraphs 11/12. It is not necessary to demonstrate actual passage over every part of the public road. An embankment can be part of a public road. The whole of the embankment was constructed at the same time. The carriageway rests on the embankment, albeit it is wider than necessary for a single carriageway. The eastern slope is part of the embankment. The eastern berm accommodates the toe of slope drainage, which takes run off from the embankment. When adopted the eastern part of the embankment was not put to any use which is inconsistent with the pursuers' contention. This remains the position even having regard to the current car park/lay-by. The extra embankment was for a roads related purpose, namely the possible future dualling of the A801. The road was designed to be on an embankment which was constructed to support the carriageway. The land to the east of the carriageway was built as part of the works concerning the public road. The land is held on the Council's roads account (evidence of Mr Pender). Mr Martin submitted that the whole embankment performs the function of supporting the A801 carriageway. It was not built for any other purpose. Reference was made to the evidence concerning the Pitlochry by-pass and the "fence to fence" approach of Highland Council. That approach is consistent with that adopted by Lord Murray in County Council of Perth and Kinross v Magistrates of Crieff 1933 SC 751. In the evidence there was general agreement that the western fence marks the boundary of the public road. In all these circumstances, and by reference to its character and function, the court should hold that all of the land east of the carriageway up to the fence was dedicated for public passage and is therefore part of the public road.

[20] According to Ms Wilson, the problem with this submission is that there has never been any public passage over the eastern part of the embankment. Whatever the possibilities for the future, at adoption public passage was limited to the western section of the embankment. The relevant land dedicated to that use was the carriageway and the limited verge extending a few feet to the east of the carriageway. The disputed land performs no necessary role or function in respect of the A801. Reference was made to Clarke v Kato [1998] 1 WLR 1647, especially the speech of Lord Clyde at 1653, and to sections 1(2) and 151 of the Roads (Scotland) Act 1984.

[21] This is the kind of issue which is more a matter of impression than deduction. There is no obviously correct answer. The statutory provisions and the case law do not provide an answer, nor any clear guidance to the answer. Much can be said in favour of both sides of the argument. None of the expert and other evidence, nor the references to design standards and the approach of other roads authorities, point to the correct resolution of the dispute. Various witnesses expressed their opinions - but they are no more than that. The experts and other witnesses have provided assistance on the facts, none of which, so far as material, are the subject of significant dispute. I do not consider that the key issue is truly a matter for expert opinion. It is a matter for the court. However I have taken account of all the evidence in the case.

[22] The question to be resolved is this - has the disputed ground been dedicated to public passage? This is to use the language of Lord Murray in County Council of Perth and Kinross v Magistrates of Crieff, which was adopted by Lord Clarke in Elmford Ltd v City of Glasgow Council (No 2). It is a simple question, but, in the present case at least, the answer is not straightforward. Both sides can mount powerful arguments in support of their respective positions. The disputed area is the land between the eastern fence and the edge of the verge to the east of the carriageway. When the road opened, this area consisted of an expanse of flat grassed embankment leading to a slope, a berm and toe of slope drainage. If there had been no widening of the embankment to allow for possible future dualling of the A801, the current question would not have arisen. The fences would have been closer together and would have defined the public road. The defenders can say that only the single carriageway and the immediate environs are used for public passage. The flat part of the embankment was put to no use at all (until the later construction of a car park). It served no function other than to be there to facilitate any second carriageway. On the other hand the pursuers can say that the wider embankment was constructed for a roads related purpose and did, and continues to support the A801, albeit it is wider than required for a single carriageway.

[23] It might help to imagine standing on the disputed area of the embankment in the early 1970's and asking, has this been dedicated to public passage? To the west one would see the barriers with the carriageway beyond. To the east there would be the top of the slope of the embankment with fields beyond. One would be standing on a relatively large expanse of flat grassland, which was being put to no use whatsoever. For myself I consider it doubtful that one would conclude that the land had been dedicated to public passage. As the subsequent use for enhancement of and improved access to the canal has demonstrated, the flat area was available for a wide variety of potential purposes, so long as they did not thwart any possibility of future dualling, assuming that the authority wished to retain that as a live possibility. If one knew the full facts surrounding the design and construction of the road and embankment and asked oneself - what has this area been dedicated to? - I think it likely that the answer would be - it has had been dedicated to the possibility of the construction of a second carriageway. Unless and until that carriageway was constructed, I doubt if one would say that the extended embankment area had been dedicated to public passage in the sense contemplated in the case law. It was not directly involved in nor was it facilitating the exercise of public passage on the single carriageway A801. A much smaller embankment could have done that. Unlike the extended verges of the Pitlochry by-pass, the wider area was not required for the safe use of the carriageway. It was there for no purpose other than to facilitate the construction of a second carriageway, should a decision to that effect be taken in the future.

[24] If, mirroring the approach of Lord Clyde in Clarke v Kato at page 1653, one concentrates on the character and the function of the widened part of the embankment, in my view the link with the carriageway of the A801 is too tenuous to justify categorisation as part of the public road. In character the land is simply an expanse of embankment set aside for the possibility of the future dualling of the A801. As to function, it serves no greater purpose. If a car was driven off the carriageway onto the embankment, assuming that was possible, I doubt if it would be described as still being on the road. It would not be on the verge of the road. It would be on the embankment area to the side of the road.

[25] In Elmford Lord Clarke said that the public can gain free access and egress over land if "it can be said to have been publicly dedicated as part of the highway". In my opinion that cannot be said of the disputed area of land. That will not happen until the second carriageway is built, if it is built. The area "dedicated to public passage" (using the language of Lord Murray in County Council of Perth and Kinross at 761) did not extend to the disputed area. On the listing and opening of the A801, that land was simply being held in readiness for possible future development. Lord Murray was not laying down any fixed or even general rule that the public road will extend from "fence to fence." No doubt in that case all the land between the fences was dedicated to public passage, but every case will depend upon its own facts and circumstances.

[26] Only the happenstance of the need for an embankment at this location has allowed the dispute to occur. If the A801 was at ground level and an area was held in reserve for a possible second carriageway, I very much doubt that the action would have been raised. In the course of the submissions I raised with Ms Wilson the hypothetical cases of wider than necessary tunnels or bridges constructed to allow for a possible second carriageway. Intuitively one would tend to associate all of the tunnel or all of the bridge with the public road. However, especially having visited the site, I find it difficult to equiperate the present with the hypothetical cases, perhaps because a stretch of flat land upon an open embankment is quite different from part of a bridge or a tunnel, not least in the possibility for a variety of uses. It is simply less associated with or more divorced from the public passage use of the carriageway. If one was walking through the tunnel or over the bridge, I can readily understand that one might gain a different opinion as to the extra space. The tunnel or the bridge would, in all probability, create the impression that all of it had been dedicated to public passage, even though it was wider than required for the current use. That both sides of the present case can present persuasive arguments may suggest that a widened embankment falls somewhere between, on the one hand, land held in reserve beside a carriageway running at ground level, and, on the other hand, a widened bridge or tunnel.

[27] I can readily see the attractions in the argument that having built a widened embankment for the purpose of holding the land in reserve for possible future use as a highway, the roads authority dedicated that land for public passage. However, my understanding of the authorities is that the matter is tested by the use, character and function of the land at the time, not by future intentions. At no time has the land in question been put to use as a highway, or as part of a highway. I therefore absolve the defenders from the conclusions of the summons.