The recent decision in the case of Hamilton v Nairn has clarified what constitutes a public road in Scotland, and may provide valuable support for developers in Scotland facing opposition to their development by third parties using "ransom strips" on the verges of public roads to prevent access to the developer's land.

The Hamiltons of the case had concluded a contract for the purchase of property adjacent to the Cutler House Road in Peterculter, Aberdeen. They had also obtained planning permission to redevelop the property as a cattery and livery stables (a business which the Hamiltons were relocating from their existing premises).

Access to the Cutler House Road property is taken by means of a track which opens into a bellmouth over the verge of the Culter House Road – a road which is adopted for maintenance by Aberdeen City Council as the local roads authority. Consent was also obtained from the Council to carry out road improvement works to the junction at this bellmouth.

However a neighbour, Mr Nairn, was opposed to the development. He owned the title to the verge at the junction and took steps to prevent the Hamiltons taking access over it. Mr Nairn claimed that as he owned the verge, he was entitled to use it as he desired, including refusing access over it and preventing the proposed works from being carried out.

The Hamiltons sought confirmation from the court that they were entitled to carry out the improvement works to the junction and, crucially, take access over it.

The Hamiltons were successful; the court gave that confirmation, and also granted an interdict against Mr Nairn, preventing him from thwarting access being taken over the verge.

In reaching its decision, the court considered the definition of a "road" in terms of the relevant legislation, the Roads (Scotland) Act 1984, which specifically includes the "road's verge" but, crucially, does not define "verge". The Court took the view that, as the road is included in the local list of public roads, it is a public road and, furthermore, that the land in question is all part of the verge of the road as listed (which was conceded by Mr Nairn during the court hearing), and therefore part of the public road. The listing of the road (for so long as it remains listed) gives rise to an inference that there is a public right of passage over the whole of the verge, thereby removing the rights of the owner of the verge to control or object to its use.

So the court found that, because the verge in this case was part of the public road, the roads authority was entitled to grant consent to the improvement works and allow access over the junction.

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