Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd

The House of Lords dismissed the appeal and upheld the declarator that Tay Walk was a public right of way. The court accepted the factual findings that, throughout the prescriptive period, the walkway was used extensively by the public for access to shops, places of worship, the railway station, schools and other town-centre facilities. The Lords applied established Scottish law on prescription and acquiescence: prolonged public user of a degree and quality consistent with use as of right, without the proprietor asserting a right to exclude or taking steps to make the public aware that use was by leave, may give rise to a public right of way. The court rejected the appellants' submission that there must be a conflict between the users' interests and the proprietor's interests for user to be 'as of right'; encouragement or acquiescence by the proprietor can equally lead to the constitution of a public right of way. The respondents relied on section 46(1) of the Countryside (Scotland) Act 1967 in pursuing declarator.

This was an appeal from interlocutors upholding a first-instance decree that a walkway (Tay Walk) in the Cumbernauld town centre had become a public right of way by prescription. The walkway had been constructed by the Cumbernauld Development Corporation under the New Towns Act 1946 and the New Towns (Scotland) Act 1968 and was completed in 1966. The enclosed part of Tay Walk connected residential developments with the town centre and, for many years, was freely used by the public for multiple purposes (shopping, travel to the railway station, access to church, schools, leisure and other amenities). After the development corporation sold the property to the appellants, the appellants locked the doors at night and the local planning authority (the respondents), under their duty in section 46(1) of the Countryside (Scotland) Act 1967 to protect and keep open public rights of way, sought declarator that Tay Walk was a public right of way.

Procedural history: the Lord Ordinary at first instance granted the declarator (interlocutor dated 22 February 1991). The appellants reclaimed; the First Division refused the reclaiming motion and adhered to the Lord Ordinary's interlocutor. The appeal to the House of Lords followed.

Issues framed: (i) whether the character, amount and manner of public user over the prescriptive period amounted to use 'as of right' rather than mere tolerance or licence; (ii) whether encouragement of public use by the original proprietors or lack of conflict between users and proprietor precluded propagation of a public right of way; (iii) whether the status of the original proprietor as a statutory development corporation affected the analysis.

Reasoning: the House of Lords accepted the unchallenged factual findings of extensive public use. Drawing on established Scottish authorities (including Marquis of Bute v. McKirdy & McMillan), the court held that where user over the prescriptive period is of such degree and quality as would be expected if the way were an undisputed right of way, and the proprietor has not during that period asserted or recorded a right to exclude, the public user may be taken as of right. There is no legal requirement that user be accompanied by conflict between users and proprietor; acquiescence or encouragement by the proprietor can have the same legal consequence. The appellant's contention that permissive encouragement negated user as of right was rejected. The House dismissed the appeal and ordered the appellants to pay the respondents' costs before the House.

Appeal dismissed. The House affirmed the findings below that Tay Walk had been used by the public throughout the prescriptive period in a manner and to a degree consistent with use "as of right"; because the original proprietor did not assert a right to exclude and in some respects encouraged public use, that acquiescence/encouragement enabled the constitution of a public right of way. The appellant's argument that a conflict of interest between proprietor and users was required was rejected.

Lord Ordinary granted decree of declarator (interlocutor dated 22 February 1991). The appellants' reclaiming motion to the First Division was refused and the Lord Ordinary's interlocutor was adhered to. The appeal to the House of Lords was dismissed ([1993] UKHL 15).