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Verging on a ransom strip - Hamilton v Nairn

November 2010

The recent appeal decision in the case  of Hamilton v Nairn [2010] CSIH 77CA90/09 is a welcome result for developers who  face a possible ransom situation created by an adjoining land owner. 

The Initial Hearing

The Hamiltons petitioned the Court of Sessions for a declarator to confirm that they could take  access over a publicly adopted verge , the solum of which is owned by Mr Nairn. The Hamiltons had obtained consent from the Roads Authority under Section 56 of the Roads (Scotland) Act 1984 to carry out improvement works to a junction connecting the public road, Culter House Road, to a private access into their proposed development site. Although Mr Nairn acknowledged that the verge was part of the public road in accordance with Section 151 of the Roads (Scotland) Act 1984 ('the 1984 Act'), he asserted that his consent to the works would be required and had not been obtained.  He argued that the definition in Section 151 of the Act drew a distinction between the "way...over which there is a public right of passage" and the "verge" and that the reference to the verge being part of the road reflected the intention of Parliament only that the roads authority should be under an obligation of maintenance in respect of the verge as well as of the road. His reasoning was that the listing of the road as a "public road" under s.1(1) of the Act did not have the effect of giving the public a right of passage over the verge where none existed previously. As the as the owner of the solum of the verge he contended that  he had an exclusive right to use his property as he pleased subject only to agreement, servitude, public rights of way or limitation under statute in the public interest. . 

The Court in granting the declarator and interdict on behalf of the Hamilton's distinguished the facts of this case from those of cases in which there was some question as to whether there was  impropriety on the part of the Council to list the road and the verge as a public road with a consequent right of public passage thereover. The Court alluded to the fact that there was no dispute in this case as to whether the road is listed and whether the ransom strip formed part of the verge to the listed road and therefore part of the public road. The inference therefore was that so long as the road remains listed there would be a public right of passage over the whole of the verge and once it is established that a public right of passage exists, then there can be no reason why an owner of land adjoining that public right of passage should not take access to it, subject, of course, to the power of the roads authority to refuse consent or regulate the manner in which he does so.

The Appeal

Mr Nairn appealed the decision on inter alia the following grounds:

1. The Lord Ordinary erred in law in holding that any ground which is covered by the definition of the words 'road' in s. 151 of the Roads (Scotland) Act 1984 must as a consequence have over it, as a matter of law, a public right of vehicular passage and that as a consequence, where there is a way over which there is a public right of vehicular passage and that way has a verge, there must inevitably, as a matter of law, be a public right of vehicular passage over that verge whereas the true position is that public rights of passage otherwise known as public rights of way, vehicular or pedestrian, arise (with a few immaterial exceptions) under the general law of public rights of way and not by virtue of the definition of "road" under s. 151 and
2. he Lord Ordinary erred in law in holding that (a) the listing by a local authority under s. 1 of the Roads (Scotland) Act 1984 of a road as a public road is conclusive as a matter of law with regard to whether there is a public right of vehicular passage over any ground encompassed within it;  and (b) the question is whether the listing gives rise to an inference that there is a public right of vehicular passage over the whole of the verge element of any such road whereas the true position is that listing merely gives the local authority rights and duties of maintenance in relation to the ground covered by the listed 'road', and does not give any rights of way or passage to the public, and the question in each case is whether as a matter of fact the legal requirements for a public right of passage over verge element of any listed road are satisfied.

The Inner Houses in delivering their judgment distinguished "a public road which a local roads authority has an obligation to manage and maintain and a private road or public right of way, the management and maintenance of which remains with the heritable proprietor. It was pointed out that , unlike private roads or public rights of way, the heritable proprietor of the solum of a public road is deprived of the right to interfere with the road as long as it remains a public road. As there was no dispute over  the adopted status of Culter House Road and the verge the question for  determination is a narrow one, namely whether the verge is part of the public road over which there is a public right of passage. In the view of the Court, as long as Culter House Road, including its verges appears in the list of public roads, the owner of the solum of the verge has no power to interfere with the reconstruction, alteration, widening or improvement of the road, the responsibility for which has passed to the local roads authority. The Court accepted the view as stated in in Faulds and Others Scottish Roads Law (2^nd Edition) "that the statutory definition of a road includes the verge, which means that the public right of passage extends to the verge". In its view it was understandable why Parliament considered it appropriate to include the verge in the definition of a road, thereby conferring a public right of passage over the verge given that there will be many situations where it is in the interests of safety that road users should have a right of passage over verges and they cannot be deemed to be trespassers.

The Implications

Property developers would have received this ruling with a sigh of relief. However, the case does highlight the minute distinctions between legal arguments supporting or refuting the existence of ransom strips. Reference in the judgment of the Outer House to potential judicial review challenge to the Council's decision to list the verge as part of the adopted road further complicates the resolution of these matters. Protracted legal debates on these issues would undoubtedly result in cost escalation and aborted transactions. In the case of the Hamiltons timing was critical for the survival of their business. Title insurance cover for lack of a legal right of access over a ransom strip and for a judicial review challenge can be instrumental in enabling transactions to complete with the guarantee that all authorised costs of litigation will be absorbed by the policy.

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