The Trustees of The Grange Trust v City of Edinburgh Council: Q: Could a wall be part of a road? A: Maybe….
The decision in Trustees of the Grange Trust v City of Edinburgh Council is notable for two points: (i) the question of title and interest to sue and (ii) the extent of a road under Scots law. For comment re the title question, please click here. This update will focus on the issues that the court dealt with in relation to the second question, and, in particular, whether a boundary wall formed part of the “road”.
Planning permission had been granted for a large development on Comely Bank Road in Edinburgh. Against that background a question arose as regards whether land underneath a boundary wall (which prevented access to a cricket pitch) was part of the “road” or whether it remained part of the playing fields.
In Scotland a “road” is any way over which there is a public right of passage. This includes the road’s verge, bridges and tunnels.
The Council’s position was that the listing of the wall in the list of public roads in Edinburgh was explicit and overrode any other rights to the land which the landowner might have and separately, it was not necessary for the public to have a right of passage over the whole road. Furthermore, the Council’s legal obligation to maintain the wall (in terms of the deed under which it was built) was indicative that the wall formed part of the road itself.
The Trustees claimed that a road was “the whole area dedicated to public passage from fence to fence or building line to building line”. This, they argued, meant that a boundary wall could not form part of a road. The purpose of the wall was to prevent access to the playing fields; that being so the wall itself did not then form part of the road. As such the Council, having destroyed the wall, should be liable to replace it.
The court was not persuaded that including the wall in the list of public roads was conclusive that the wall was, in fact, part of the road. Should such a listing be rendered conclusive, this would negate the possibility that the Council acted in excess of their powers by doing so.
Listing not being conclusive, other factors had to be considered. To that end the court suggested that by protecting pedestrians and traffic from stray cricket balls, the wall may have had a function in protecting road-users and, as such, may have been properly listed in the list of public roads.
The Court was not willing to make a final decision on this point at this time and Lord Boyd confirmed that he would have held a proof before answer on this point.
This case provides a steer on the law of the extent of a road in ordinary circumstances. If the wall had merely provided a boundary function then Lord Boyd’s opinion would have been that it would not have formed part of the road.
The saving grace (so far) for the Council was that the wall may have had a protective function for road users, therefore, the ground that the wall sat on may well be considered a road. The evidence will determine the matter.
Watch this space.