Outer House case concerning the extent of a public road (the A801) at Whitecross near Linlithgow.  The question for the court was whether an embankment to the east of the road formed part of the public road or was the private property of the Council.

Morston argued that the public road extended all the way from the fence at one side of the road to the fence at the other side and included the embankment. If this were the case it would allow them to take access to the road from a proposed development on the east side of the road without making a ransom payment to the Council.

After noting that much could be said for both sides of the argument, Lord Malcolm came to the conclusion that the embankment did not form part of the public road.  In deciding whether the land formed part of the road, the question to be resolved was whether the disputed ground had been ‘dedicated to public passage’. This would depend on the particular facts and circumstances.

When the local authority acquired the land (in the 1960’s) the part on which the embankment was situated would have allowed the addition of a second carriageway to the road. Lord Malcolm noted attractions in the argument that, having built a widened embankment for the purpose of holding the land in reserve for possible future use as a highway, the roads authority had dedicated that land for public passage. He noted also that the widened embankment was held in the Council’s roads account. However, prior authorities indicated that the matter should be tested by the use, character and function of the land at the time not by future intentions. At no time had the embankment been put to use as a highway, or as part of a highway.

The full judgement is available from Scottish Courts here.

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