Michael and Sarah Hamilton v. Robert Kennedy Nairn

Case considering extent of the public right of passage over a public road and whether the owner of a strip of verge adjoining the metalled road surface was entitled to restrict access over the verge.

The Hamiltons had concluded missives for the purchase of property in Peterculter, Aberdeen and obtained planning permission for the establishing of a cattery and livery stables on it together with consent to improve the junction giving access to the property.

Mr Nairn was opposed to the Hamiltons' planned development and following the grant of the consents purchased a strip of land forming part of the verge which would be required for improving the junction. He then argued that there was no right of way or passage over the section of verge and that the Hamiltons had no right to carry out the junction improvement works.

Although he accepted that the road was a public road and there was a public right of passage over the road he argued that, even if the verge fell within the definition of a road, it did not necessarily mean that there was a public right of passage over the verge arguing that just because a road is listed, it does not follow that there is a public right of passage over everything which has been listed.

An extra division of the Inner House refused Mr Nairn’s appeal. “Road” is defined in s151 of the Roads (Scotland) Act 1984 as being “a way… over which there is a public right of passage (by whatever means).” The right of passage is necessary if a road is to fall within the statutory definition. However, it is related to the existence of the way rather than the area of the road itself. Once established, the right of passage may then be exercised over any part of the area occupied by the road and, in this case, the area extended from the boundary wall on one side of the road to the boundary wall on the other side and included the strip of verge in question.

Scottish Courts, 7 September 2010