(Inner House) An application was made objecting to the registration of a title to a foreshore. The title applicant objected that this was a matter of private law, and that they had no standing to object.
Held: To apply for the alteration of the register kept under the 1979 Act, a person had to show a private interest. The application for alteration of the register was not a vindication of a public right even though, on the facts of the case, it was right to use the foreshore that was in issue.
Lord McCluskey said: ‘In our opinion, there is no answer to this fundamental preliminary point. The scheme of the Act is clear from the full discussion in Short’s Trustee, not only in the House of Lords but also in the Court of Session . . and it need not be discussed here. There is nothing in the present case to suggest that we are here concerned with a vindication of public right of the kind considered by Lord Clyde in Scottish Old People’s Welfare Council, petitioners [1987] SLT 179. This is not a true actio popularis in the sense discussed by Lord Clyde at the passage referred to. The fact, if it be a fact, that the appellants have been interdicted from encroaching upon the subjects or part of the subjects included in the two land certificates in question does not appear to us to give them any title to seek a rectification under the provisions of the 1979 Act. We consider that it is clear that those in unchallenged possession of the subjects (even if not proprietors) have a right to exclude others from encroaching upon them. A proprietor in possession never needed to produce a complete feudal title in order to obtain interdict against encroachments upon his property . . The appellants have never claimed that they had any title whatsoever to the subjects; they claim no competing title. As the appellants themselves acknowledge, persons who were total strangers to Greenock could not have a title to seek rectification under section 9.’
Judges:
Lord McCluskey
Citations:
[1999] SCLR 872
Statutes:
Land Registration (Scotland) Act 1979
Jurisdiction:
Scotland
Cited by:
Persuasive – Pilling Parish Council v Stephen Wells (Practice and Procedure) LRA 6-Mar-2008
LRA The council challenged the grant of a possessory title to the respondent. He, acting for English Nature had claimed ownership of a section of foreshore of special scientific interest. The respondent argued . .
Cited – Walker and Another v Burton and Another CA 14-Oct-2013
The Burtons had purchased the former Hall of the village of Ireby, and been registered as proprietors of the Lordhsip of the Manor. The villagers had successfully challenged the registration. The Court now considered the circumstances in which the . .
Lists of cited by and citing cases may be incomplete.
Registered Land
Updated: 06 May 2022; Ref: scu.509112