The precise extent of all land that is included within the extent of a public road can be a critical issue for developers where a proposed development site requires an access route to be constructed between the development site itself and the public road, over an area of land that arguably could be within the extent of the public road. While the formal definition of a "road" includes the road's verge, the extent of a public road may not be as far as you might think. The recent case of Morston Whitecross Limited v Falkirk Council  CSOH 97 has shown that the Scottish courts may take a relatively restricted view regarding the extent of a public road.
The importance of categorisation of the relevant area as part of the public road is that the public can take access over land that has been “publicly dedicated as part of the highway” (see Lord Clarke in Elmford Ltd v Glasgow City Council (No. 2) 2001 SC 267). The risk lies where the extent of the public road does not meet the extent of the title to the development site, resulting in a “ransom strip” i.e. an area of private land for which the owner demands a high price to sell or grant rights of access to the developer.
It was made clear in Morston Whitecross that a court would consider each case on its own facts and circumstances, and that the statutory provisions and case law do not provide an answer, nor any clear guidance. That said, the case provides produced some useful guidelines for similar circumstances and indicates that the “fence line to fence line” assumption often adopted (i.e. that the limits of the public road extend to the fences bounding adjacent land) will not always be appropriate.
Identifying the extent of the verge
Land was acquired by Stirling County Council in the early 1970s for the construction of the A801. The embankment on the east side of the relevant section was wider than necessary for a single carriageway, and was sufficient to support a dual carriageway. It was ascertained in the case that the intention at the time of construction of the road and embankment was to allow for conversion to a dual carriageway in the future. A single carriageway was built and adopted as recorded in the statutory list of public roads.
Morston Whitecross Limited (MW) sought a declarator from the court as to the extent of the A801 at a location where they wanted to obtain vehicular access to the public road to serve their proposed development to the east of the road. MW claimed the eastern extent of the road reached as far as the fence line which bounded their development site, and therefore included all of the wide embankment, the down slope and the area between the bottom of the slope and the fence line. Falkirk Council (statutory successors to Stirling County Council) claimed that the road only went as far as the edge of the verge adjacent to the east side of the A801, extending to 12 feet, and did not include the embankment beyond that, which was accordingly the Council’s private land.
There was 38 feet of flat embankment between the eastern roadside barriers and the top of the eastern embankment slope. The verge immediately beside the road accommodated the safety barrier.
Embankment not part of the public road
The court agreed with the Council that the extent of the public road on the eastern side went only as far as the 12 foot verge. It did not include the eastern wide embankment, the down slope and the area between the bottom of the slope and the fence line. It therefore did not meet up with the boundary of MW’s development site, so the disputed area was land privately owned by the Council.
Some guidelines for identifying the extent of the public road
Emerging from this decision are some general guidelines which should be considered when attempting to determine the extent of the public road:
- It is the factual situation at the stage of initial adoption and listing of the relevant road that is important, and not what has happened since (unless of course there has been any stopping-up orders or de-listing). The fact that the disputed area of eastern embankment had been partly converted for use as a picnic area and car park around 10 years after construction and opening of the road was therefore not taken account of in the decision. Future intentions are irrelevant.
- The “fence line to fence line” assumption that has been used elsewhere will not apply in all cases. Highland Council was identified as having used the “fence line to fence line” assumption in the past, for example in connection with the Pitlochry By-Pass. However, this could be distinguished from the present case, by the fact that the widened verges of the Pitlochry By-Pass serve the roads-related function of providing improved visibility on a stretch of road with long sweeping bends. The wide embankment on the A801, in contrast, was constructed that way for the purpose of serving a potential future dual carriageway, but that embankment was not required for the single carriageway road as constructed and adopted.
- The issue in Morston Whitecross arose because the Council chose to construct an embankment that would support a dual carriageway, with future development in mind, and by doing so rendered the extra embankment area to the fence line on the east superfluous to the road that was actually constructed.
- The character and function of the disputed area of land is important. In the current case the connection between the eastern embankment and the road was considered to be “too tenuous to justify categorisation as part of the public road”.
- The important question to answer is whether or not the relevant area of land over which access rights to a development site is sought can properly be said to be “dedicated to public passage”.
- It was considered doubtful that the disputed land in this case (between the edge of the eastern verge and the fence line bounding MW’s site) had been dedicated to public passage; it had instead been dedicated to the possibility of construction of a second carriageway. Unless and until that carriageway was constructed then the embankment, down slope and area between the bottom of the slope and the fence did not serve a roads-related purpose. It was not directly involved in nor was it facilitating the exercise of public passage on the single carriageway, and had not been “dedicated to public passage”. The embankment, which was wider than was necessary for a single carriageway, could not be said to be “publicly dedicated as part of the highway” unless and until the second carriageway was built and the embankment then became necessary to support that dual carriageway.
- It should be noted that the same principles may not apply to a tunnel or bridge that had been built to take a dual carriageway in the future because (i) a tunnel or bridge could not be put to the same wide variety of uses that an expanse of land could be, and (ii) the tunnel or bridge would “create the impression that all of it had been dedicated to public passage, even though it was wider than required for the current use”.
To read the decision in Morston Whitecross Limited v Falkirk Council click here.