Suthendran v Immigration Appeal Tribunal

A public right of passage on a non-tidal Scottish river requires both a natural capacity for useful public passage and actual public use over a substantial period. It is not constituted as a servitude or public right of way over land. It therefore requires neither two public termini nor strict prescriptive possession.

Once established, the right is not lost merely through non-use while the river remains physically unchanged. Its extent depends upon the river’s capacity and may accommodate ordinary modern forms of passage comparable with the historic use. A right established by floating timber rafts therefore extends to downstream passage by canoe. The purpose of the passage, whether commercial or recreational, is immaterial.

The appellants owned both banks, the bed and valuable salmon fishings in a non-tidal stretch of the River Spey at Knockando. The respondents operated a canoeing school upstream and regularly took canoeing parties downstream through that stretch. The appellants sought declarator and interdict, contending that the respondents possessed no public right of passage.

The Lord Ordinary rejected the claim. The First Division refused the appellants’ reclaiming motion, although it treated the respondents’ entitlement as a limited public right arising from the river’s capacity, actual use and public benefit. The appellants appealed to the House of Lords.

The central questions were whether historic use of the Spey for floating timber had established a public right of passage, whether that right had been lost through disuse, and whether it extended to recreational canoeing.

1. Appeal dismissed by a majority of four to one. Lord Wilberforce, Lord Hailsham of St Marylebone, Lord Salmon and Lord Fraser of Tullybelton held that the historic decisions concerning the Spey had recognised a public right of passage. Viscount Dilhorne dissented.
2. Per Lord Wilberforce and Lord Fraser, the decision in Grant v Duke of Gordon established a public right to use the Spey for downstream floating. The right was not a private servitude belonging only to upper riparian proprietors. The eighteenth-century restrictions reconciled that public right with the Duke’s previously adjudicated right of cruive fishing; they did not deprive the right of its public character.
3. Per Lord Wilberforce, Lord Hailsham and Lord Fraser, physical capacity alone does not make a non-tidal river public. The river must be naturally capable of useful public passage and must have been subjected to regular public use over a substantial period. In practice, use from time immemorial ordinarily means about 40 years. The use establishes or demonstrates the river’s public character rather than creating a servitude by prescription.
4. Per Lord Fraser, a public right of navigation does not require two public termini. A person with lawful access to the river may exercise the right downstream. The right confers no separate entitlement to cross privately owned banks or to land upon them.
5. Per Lord Wilberforce, Lord Hailsham and Lord Fraser, once the public character of the river has been established, the right is not lost by mere non-use while the physical condition of the river remains unchanged. The historic cessation of timber floating therefore did not extinguish the right.
6. The scope of the right is governed by the natural capacity and quality of the river. It is capable of adapting to ordinary modern uses comparable with the use by which the river’s public character was demonstrated. Since the Spey had carried large timber rafts, its public use extended to smaller, shallow-draught canoes. The law draws no distinction between commercial and recreational passage.
7. Lord Hailsham and Lord Fraser rejected the First Division’s separate public-benefit balancing test. Courts do not create new rights of river use by weighing the social or economic merits of one activity against competing private interests.
8. Viscount Dilhorne considered that Grant v Duke of Gordon had recognised only the restricted right to which the Duke had consented, rather than declaring a public navigable river. He would therefore have allowed the appeal.

1. House of Lords: The appeal was dismissed by a majority of four to one. The respondents’ public right of downstream passage extended to canoeing.
2. First Division of the Court of Session: The reclaiming motion was refused, except in relation to the conclusion seeking regulation. The court held that the respondents enjoyed a limited public right to canoe where they had lawful access to the river.
3. Lord Ordinary: The respondents were assoilzied from the principal conclusions. The Lord Ordinary held that the Spey was subject to a subsisting public right of navigation wide enough to include canoeing.