In the 1990s, the Council proposed to acquire some land from the pursuer’s family as part of the A862 Dingwall-Maryburgh Road Improvement Scheme. The pursuer’s parents objected, but ultimately withdrew their objection, having reached an agreement with the Council on compensation and other matters. According to the pursuer, that agreement included access to and from the field lying closest to the north-eastern boundary of their farm over adjacent land also being acquired by the Council as part of the road improvement project. The Council claimed that access was limited to agricultural use only.
The pursuer has an outstanding planning permission application for a tractor retail and servicing development on the land and it was submitted by Counsel for the pursuer that the clear intention in the overall transaction was to provide Kildun Farm with an equivalent right of access to the field to the one enjoyed at its previous access. The consensus between the parties that a separate access would be provided had never changed, was intended to have serious commercial consequences, and was intended to be binding.
In written submissions, Alasdair argued that there was no evidence that the Council and the pursuer’s family had entered into any contract for field access, and any such contract would certainly not have been for unrestricted vehicular access. The negotiations were about the design of the road, not access rights, and the Council had reasonably proceeded on the basis that the pre-existing track would be used for access.
Terra Firma’s Denis Garrity represented the second respondents who claimed that the pursuer had no right of access at all since any such access would involve crossing over what they claimed to be their land. Meanwhile, the pursuer objected to the second respondents right to defend the proceedings, on the basis that they did not own any part of the land over which he sought to establish access rights.
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