Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd

A public right of way may arise where public use throughout the prescriptive period is of a degree and quality consistent with the assertion of a public right. The proprietor must make clear that such use occurs by leave or licence if that is the intended position.

There need be no conflict between the interests of the public and those of the proprietor. A proprietor’s acquiescence may permit the right to arise, and active encouragement of public use may do so even more readily.

A development corporation constructed Tay Walk as part of a pedestrian system through Cumbernauld town centre. The public used it without restriction from 1966. After acquiring the town-centre structures, the appellants began locking the walkway at night.

The respondent planning authority sought a declarator that a public right of way existed. The Lord Ordinary granted declarator after finding extensive general public use as a town-centre pedestrian thoroughfare. The First Division refused the appellants’ reclaiming motion.

The appellants accepted that the preliminary requirements concerning public use had been satisfied. The central issue was whether use encouraged by the proprietor could be use as of right, or whether a conflict between the interests of the proprietor and the public was required.

1. The appeal was dismissed unanimously. Lord Jauncey of Tullichettle delivered the leading speech. Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Browne-Wilkinson and Lord Mustill agreed with his reasons.

2. Per Lord Jauncey, the governing question was whether public use throughout the prescriptive period was of a degree and quality consistent with an undisputed public right of way. Where the amount and manner of use would reasonably be regarded as asserting a public right, the proprietor cannot rely merely on tolerance. A proprietor wishing to characterise the use as occurring by leave or licence must make that position known to the public.

3. Lord Jauncey approved the relevant dicta of Lord President Normand in Marquis of Bute v McKirdy and McMillan Ltd 1937 SC 93. A proprietor who acquiesces in qualifying public use throughout the prescriptive period, without asserting or recording a right to exclude the public, may become subject to a public right of way.

4. There is no legal requirement for conflict between the interests of the users and those of the proprietor. Acquiescence can produce a public right of way, and encouragement of public use can even more readily have that consequence. The statements in Macpherson v Scottish Rights of Way and Recreation Society Ltd (1888) 13 App Cas 744 and Richardson v Cromarty Petroleum Co Ltd 1982 SLT 237, concerning use as of right rather than by permission or tolerance, did not support the proposed conflict requirement.

5. The development corporation was treated, without argument, like any other proprietor when applying the common-law principles. The unchallenged findings established general public use of Tay Walk as a town-centre pedestrian thoroughfare. The Lord Ordinary and First Division had drawn the appropriate inferences from those facts by applying established law.

6. The suggested conflict requirement was wholly unsustainable in law and lacked a factual basis. The appeal was dismissed without calling upon the respondents, and the appellants were ordered to pay the respondents’ costs in the House.

1. House of Lords: Dismissed the appeal unanimously and affirmed the declarator that a public right of way existed over Tay Walk.

2. First Division of the Court of Session: Refused the reclaiming motion and adhered to the Lord Ordinary’s interlocutor.

3. Lord Ordinary: After proof, granted decree of declarator that a public right of way existed over Tay Walk.