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4 The Definition of a Road?

This is the index to Scottish Roads Law (Bloomsbury Professional), which brings together the legislation and case law relevant to the operation of roads law in Scotland. This guide offers analysis of and guidance on roads issues that arise in development control or management such as road construction consent, road adoption, stopping up orders and traffic regulation orders. This edition takes account of legislative and case law changes in recent years. It includes a section on Road Traffic Regulation Orders made under the Road Traffic Regulation Act 1984. Coverage includes changes brought about by the Transport (Scotland) Act 2005 to the environmental legislative framework, to the administration and management of road works as well as the creation of new Regional Transport Partnerships. Other topics include the statutory definition of a "road", road construction and maintenance and the management and control of road works; environmental impact assessment; the planning and development process and road ownership.

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Ann Faulds, Trudi Craggs and John Saunders

4 The Definition of a Road?

Table of Contents

4.1 INTRODUCTION

Roads are and always have been an essential part of society's infrastructure and the public right to use the road network has been respected over the centuries; from the early drove roads, to General Wade's system of military roads, to Telford's roads and bridges, to the construction of turnpike roads with tolling regimes, to the modern day network of public and private roads and bridges. What might have started as some form of servitude or right to drive cattle across private land to market has evolved into a complex statutory framework of modern roads law centred on the legal concept of a 'public right of passage.'

The legal concept of a public right of passage is enshrined in the Roads (Scotland) Act 1984. ("the 1984 Act") Although the latest statutory definition of 'road' is based on this legal concept of a 'public right of passage', a wide range of terms arise in relevant case law, including: a right of passage, a servitude of road, a right of highway, a right of public road, a public right of way as well as a public right of passage. It is not always clear whether different terminology implies different legal principles or merely a different turn of phrase. The 1984 Act removed all references to 'highways' from the Scottish statutory framework. There are no longer any 'highways' or 'highway authorities' in Scotland.

Despite the long history of our road network, there remains uncertainty about the interpretation of the statutory definition of 'road' as set out in section 151 of the 1984 Act. Perhaps because of that uncertainty, the correct identification of a 'road' is an issue that arises frequently in public law and in the context of private development. Distinctions between public and private roads and between private roads and accesses are often misunderstood in attempts to apply the facts in any particular case to the legal definition. And it is well established that, in assessing whether a particular route or track or way is a 'road', the statutory definition of 'road' must be applied to the facts of the case. When considering the statutory definition for the purposes of the Road Traffic Act 1988, the House of Lords hesitated to formulate a comprehensive definition whereby a place might be identified as a road. Whether a particular area of land is or is not a road eventually comes to be a matter of fact.[1] Defining what is meant by a 'road' and a 'public right of passage' remains one of the most contentious areas of roads law and there is some degree of tension between the provisions of the 1984 Act and judicial decisions on their interpretation.

4.2 THE STATUTORY DEFINITION

The 1984 Act[2] defines a road[3] as follows:

"any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road's verge; and any bridge (whether permanent or temporary, over which the road passes; and any tunnel through which the road passes; and any reference to a road includes a part thereof."[4]

A road is the generic term for the way over which the public have a right of passage. Carriageways, footways, footpaths and cycle tracks are all roads for the purposes of the 1984 Act. Where the public right of passage is by foot only, the road is either a footway or a footpath. A footway is associated with a carriageway, that is, a traditional pavement. A footpath is independent of a carriageway. Where the public right of passage is by pedal cycle only or by pedal cycle and foot only, the road is a cycle track. Where it includes a right by vehicle, other than by pedal cycle only, the road is a carriageway.

4.2.1 WHAT IS A WAY?

The first aspect to consider in the statutory definition of a road is the meaning of a 'way'. The 1984 Act does not provide a definition of 'way'. Nor does it provide a standard or specification for a way, so different ways might have been formed or constructed to different standards. A way need not be formed or constructed to a standard suitable for adoption by the statutory roads authority. It need not be a traditional carriageway with associated footways and verge. As the 1984 Act provides no definition or assistance on what constitutes a way, it is necessary to look to case law for guidance. The basic principle deriving from the relevant case law is that the definition or identification of a way is a matter of fact in each case. In Clark v Kato,[5] Lord Clyde said:

"I would hesitate to formulate a comprehensive definition whereby a place might be identified as a road, but some guidance should be found by considering its physical character and the functions which it exists to serve…"

In another case, the court held that a 'way' was an area in which some form of travel takes place and that whether an area was a way was essentially a question of fact.[6] A test of practicality was introduced in the case of Mackinnon v Argyll and Bute Council[7] when Lord Osborne said:

"It appears to me that prescriptive rights have no necessary part to play in the resolution of the issue of whether a way is a "road". Furthermore, much depends on the question of whether the public use of the way is or is not practicable."

In Dick v Walkingshaw,[8] the court considered whether a quayside ramp lowered onto the car deck of a ferry constituted a road for the purposes of the 1984 Act. It was argued that the car deck was not a road because it could not be a 'way' when the ferry was at sea and the public had no right of passage over it. The court rejected this argument. The Lord Justice Clerk said:

"Thus [counsel] said that a road could not be a road at one time and not at another. We are not persuaded that that is so. If a road for some reason was taken out of use, for example, during repairs, we can see that it might cease to be a road within the meaning of the definition. Likewise in the present case it was accepted … that the ramp mechanism was part of the quay which was a road and that accordingly the ramp itself was a road in terms of the legislation. But the ramp could only be a road within the meaning of the definition at times when it was in the down position and connected to the vessel. When the ramp was in the perpendicular position, although it is part of the quay, it could not at that stage … be a road."

It is interesting that the Lord Justice Clerk appeared to accept that a road might cease to be a road within the meaning of the statutory definition if the road had been taken out of use, for example, for repairs. It should be borne in mind that the public right of passage over any 'way' is not without statutory control. The right to pass is to be exercised subject to the general provisions of road traffic law (such as speed restrictions) and the provisions of any extant traffic regulation orders[9] (such as waiting restrictions or banned turns). Likewise the exercise of the public right of passage over a public road may be determined or redetermined by the roads authority.[10] If the public right of passage had to be suspended for a period to allow road works to be carried out, then the roads authority would make a temporary traffic regulation order[11] to regulate the public right of passage over the road for the period of the road works. Such regulation could prohibit entry to the locus of the road works with a planned diversion route. Therefore it might have been more reasonable to conclude that the road would continue to be a road during the period of roadworks even although the public right of passage would have been suspended or diverted by order under roads legislation. A particular difficulty with concluding that the road would no longer be a road in such circumstances is that the carrying out of road works is regulated by statute. If the relevant section of road was no longer a road, then the legal basis for undertaking the road works and regulating the public right of passage would be undermined and could have the unintended result of rendering the relevant statutory orders and consents ultra vires. The Lord Justice Clerk's conclusion on the facts in the ferry case appear to be consistent with the regulation of the public right of passage during the operation of a swing bridge, a draw bridge or a bascule bridge when that bridge is positioned to allow the passage of boats. Similarly, in the case of a road crossing a railway when the barrier is in position to allow the passage of trains.

Although the identification of a 'way' may be obvious in most cases, there may be situations in which the position is not clear. In such cases the principles endorsed in the relevant case law may assist; those principles are as follows:

  • whether or not a place is a 'way, is a matter of fact in each case[12]

  • prescriptive rights are not necessary[13]

  • function and physical character are relevant[14]

  • Is it an area in which some form of travel takes place?[15]

  • Is the public use of the way practicable or not?[16]

  • A car deck in the down position and connected to the vessel could be a road[17]

4.3 WHAT IS A PUBLIC RIGHT OF PASSAGE?

4.3.1 INTRODUCTION

The second and more difficult aspect of the statutory definition is the meaning of a 'public right of passage'. Do members of the public have the right to pass along the way? As the 1984 Act does not define a 'public right of passage', it is once again necessary to look to relevant case law for guidance. However, case law on this issue is far from straightforward and appears to raise as many questions as it answers. In the 2006 case involving Dumfries and Galloway Council,[18] Lord Kingrath noted that there is limited judicial authority on this matter and, therefore, some uncertainty as to what is meant in Section 151 by a "public right of passage". In order to consider the modern legal concept of a public right of passage, it is helpful to look back at its origins in both statute and common law.

4.3.2 ORIGINS OF A PUBLIC RIGHT OF PASSAGE

Before the enactment of the 1984 Act, the legal concept centred on 'a right of public road or highway' rather than a public right of passage. Going back to the early principles of Scots Law, it was Erskine's view[19] that "the right of a public road, or King's highway, is not properly a servitude, but public juris – common to all members of the State, whether they are or are not proprietors of any tenement." This clear distinction between a public right to be enjoyed by all 'members of the State' and a private right in property was still evident in the nineteenth century. In 1868, a 'right of highway' was considered in a judicial decision[20] as follows:

"A right of highway confers on the public a right to use the surface for the ordinary purposes of locomotion. It is the kind of right that has existed in this country and elsewhere from the infancy of civilisation. Means of travelling from one part of the country to another is absolutely essential to the very existence of society. Unless rights of highway belong to the public, the power of locomotion would be completely annihilated. In all civilised nations we find such a right belonging to the public. It was known in the Roman law as res publica. With us, also it is res publica, and is vested in the Crown as a branch of the Regalia, for behoof of the public. The nature of the right is to use the surface for the purpose of locomotion by carriage or on foot, but not to exercise any other rights of property."

At this stage, the public right – res publica – was considered to be fundamental to 'the very existence of society' recognising its precedence over private rights of property, but only insofar as entitling the public to use the road for travel by carriage or on foot – there was no public entitlement to any other rights of property, all of which presumably remained vested in the owner of the solum of the road.

This public right of highway was endorsed in 1914[21] in the case of McRobert v Reid by Lord Skerrington who looked at it in the context of a public right of way. Lord Skerington said:

"It would be unsafe to argue that a public right of way is a highway, and then to assume that in Scotland there is no difference between one class of highway and another. Rights of way undoubtedly stand in a class by themselves – per Lord President Dunedin in Reilly v Greenfield.[22] In particular, the public must take them as they find them and not alter their character – per Lord President Inglis in Mackenzie.[23] So too, I should expect to find some legal difference between (1) a highway included in the list made up under the Roads and Bridges (Scotland) Act 1878 and (2) a highway once a turnpike or statute labour road but no longer maintained at the public expense; and (3) what Lord Dunedin in the case of Reilly described as "one of those still older roads in Scotland for which there is no actual nomen juris, and which, though neither statute labour roads nor turnpike roads, have still been public roads from time immemorial. In the south of Scotland stretches of the great Roman road and of other artificial roads of venerable but unknown origin are still used by the public even for cart traffic though their surface has become entirely overgrown. There is not much authority in Scotland as to the nature and limit of the right enjoyed by the public in the different classes of highways, but, in my view, there is one quality which is essential and which must be common to all of them, viz, that the surface of the highway and every square inch of it belongs to the public, not, of course, as property, but in order that it may be used for certain purposes. Hence, there is no room as to any question as to public termini, because at each step one passes from one public place to another. The primary right of the public in a highway is that of passage, but if this point be kept in view, one may say, as Lord Curriehill did in Waddell v Buchan[24] that 'the nature of the right is a right to use the surface for the purpose of locomotion.' In short, a member of the public has a jus spatiandi within the limits of a highway which he may exercise as he thinks fit, provided the eccentricity of his course does not disturb the public traffic or the public peace."

This case reiterated that the primary right of the public in a highway was the right of passage. Lord Skerrington confirmed that, whatever other legal differences might exist, all roads and highways had one essential quality – that the surface of the highway and every square inch of it belongs to the public, not as property but for use to travel – a public right of passage. The only qualification was that, in exercising this right, a member of the public could not disturb the public traffic or the public peace.

In this case, His Lordship distinguished between highways included in the list made up under the Roads and Bridges (Scotland) Act 1878 and highways 'no longer maintained at the public expense'. But this distinction, based on the responsibility for maintenance, did not affect His Lordship's conclusion that what was common to both categories of highway was that 'the surface of the highway and every square inch of it belongs to the public'; not as property but 'in order that it may be used for certain purposes.' His Lordship said that 'The primary right of the public in a highway is that of passage'.

His Lordship's view on the public right of passage in the highway, whether it is maintained by the public purse or not, reflects the current statutory provisions under the 1984 Act. The 1984 Act deals with roads over which there is a public right of passage and the Act distinguishes between public roads and private roads on the basis of responsibility for maintenance of the road. Section 151 of the 1984 Act defines a 'public road' as 'a road which a roads authority have a duty to maintain' and it defines a 'private road' as any road other than a public road'. As both are roads, they are ways over which there is a public right of passage. Likewise, in Lord Skerrington's view, there was a public right of passage in relation to all highways, whether or not the highway was included in the public list under the Roads and Bridges (Scotland) Act 1878. Of course, His Lordship expected there to be some legal difference between the different categories of highway but, whatever that difference was, it was not a difference affecting the public right of passage.

Of course, it should be borne in mind that Lord Skerrington was talking about both highways and other roads. Prior to the 1984 Act, statutory definitions of 'road' tended to distinguish between the 'highway' and 'any other road to which the public had access' or between the 'highway' and a road or bridge 'open to be used by the public'. Therefore, before 1984, there appeared to be some legal distinction between the highway over which there was a public right of passage and other roads to which the public has access.

Some ten years before Lord Skerrington delivered his judgement in McRobert v Reid[25], the phrase 'bridges open to be used by the public' was considered by Lord Kinnear in the decision in the case of The Magistrates of Edinburgh v North British Railway Co.[26] Lord Kinnear said:

"But it is said that, so far at least as the railway bridge is concerned, it is covered by the words 'bridges open to be used by the public'. These are words of ordinary language, and they do not appear to be very difficult of interpretation. A bridge is not open to the public, if the public is prevented from making use of it by any physical or legal obstruction; and the definition must therefore mean that it is physically accessible, and that the public is either entitled or allowed to enter upon it. But the words of the definition describe a condition of fact, without any implication of legal right or liability. So long as that condition of fact continues, the definition applies. If it is lawfully altered, the definition applies no longer. There is nothing in words that are merely descriptive to import a transference of rights of property from one person to another, or from a private owner to the public."

This is a straightforward interpretation of the statutory provision based on ordinary language. As a condition of fact, the road or bridge is either open to the public or it is not. If it is closed to the public, it does not fall within the statutory definition assuming that the closure is lawful. On this right of closure by the party with the legal control of the road or bridge, Lord Kinnear added:

"If the ground is not already subject to a public right, there is no positive enactment that touches the inherent power of the private owner to exclude the public, and if the public has been allowed to pass, out of mere goodwill and so long only as their passage is not inconsistent with the use and occupation by the proprietor of his own property, there is nothing in the statute to prevent the proprietor from taking his road or bridge outside the definition by appropriating it to purposes inconsistent with public use. But the pursuers' argument is that if they once allow the public to enter upon a road or bridge, although not for long enough to found a prescriptive right, and without creating an adverse right in any other form, the supereminent right of the magistrates comes in to compel them to keep their property open to the public for all time, This is confiscation of private property for the benefit of the community, without compensation, and without previous notice which is generally exacted before power is given by Parliament even to purchase without the owner's consent."

Lord Kinnear appears to be distinguishing between highways, which are subject to the public right of passage and which 'belong to the public', and other roads or bridges which are 'open to be used by the public' but do not 'belong to the public'. His Lordship is clear that the latter category is based on a condition of fact and not a public right so the road or bridge opened to be used by the public remains within the control of the private owner of the road or bridge unless it is already subject to a public right. This distinction is important in road traffic legislation. As the enforcement of road traffic legislation underpins road safety, convictions in the public interest should not be avoided on the basis of a narrow statutory definition of a road. For this reason, statutory definitions of highway or road usually include a 'catch all' phrase which describes a 'condition of fact', such as, "and any road opened to be used by the public" or "and any road to which the public has access."

For instance, the Road Traffic Act of 1960 defined a road as 'any highway and any other road to which the public has access'. This definition encapsulates roads over which the public have a right of passage, that is, the highway, and any other road to which the public have access, as a condition of fact rather than under a legal right. This 'catch all' phrase is similar to the one considered by Lord Kinnear. The inclusion of a 'catch all' phrase in the statutory definition of a 'highway' or a 'road' should reduce the risk of road traffic offenders avoiding conviction on the basis of the statutory definition of a road. Prior to the enactment of the Road Traffic Act of 1991, the current definition of a road under the 1984 Act created such a difficulty.[27] The solution was for the 1991 Act to extend the definition of 'road', as defined in the 1984 Act, by adding the 'catch all' phrase "and any other way to which the public has access". The effect is to widen the application of road traffic legislation to all roads, as defined in the 1984 Act, and to other ways to which the public has access.

The 'catch all' phrase in the definition in the Road Traffic Act 1960 was 'any other road to which the public has access'. At that time, the term 'highway' was used to describe roads over which there was a public right of passage. The 'catch all' phrase in the 1991 Act is 'any other way to which the public has access'. Since 1984, the term 'road' has been used to describe roads over which there is a public right of passage. If the term 'road' had continued to be used in the catch all phrase after 1984, there would have been some confusion between the interaction of the public right of passage, which right is now a pre-requisite of a road, and the private rights of property which underpin the other 'ways' covered by the 'catch all' phrase.

The 1960 'catch all' phrase was considered by Lord Justice Emslie in 1973 in the case of Cheyne v MacNeill.[28] Lord Justice Emslie said:

"The statute does not in terms require that the access upon which the issue of liability to the statutory provisions depends shall be in respect of any legally enforceable rights of passage. Further the definition contrasts 'highway' with the words 'road to which the public has access'. Upon a 'highway' the public right of passage is secured by law and its maintenance is the responsibility of a statutory authority. A 'road' within the meaning of the definition would therefore seem to include a way which need not possess either of these qualities. From this contrast, it is not difficult to infer that the words 'to which the public has access' are necessarily referable to a situation in which it is found-infact that the public has access – access for the purpose of which a road is intended or designed, i.e. passage on foot or in a vehicle. But when the statute refers to access it cannot be assumed that this means access which is obtained unlawfully, e.g. by climbing over or opening gates, or by surmounting walls or fences, designed to exclude potential intruders. In our opinion, 'access' as the word is used in the definition, covers access for passage by permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road. The degree or extent of use necessary to bring a particular road within the definition will necessarily be a question of fact in every case. Where there is such permission, acquiescence or tolerance demonstrated by use or otherwise it can properly be said that there is nothing illegal or unlawful in such access as the public has proved to enjoy, and therefore that the public has access lawfully to the road. "

Like Lord Kinnear in North British Railway Company, Lord Justice Emslie distinguished between 'highways' and 'roads to which the public had access'; the former having a public right of access 'secured by law' and being maintained by the public purse but the latter 'need not possess either of these qualities". If His Lordship's analysis were to be applied to the current 'catch all' phrase in the definition for the purposes of the Road Traffic Act 1991, he would have to distinguish between (1) a 'road' over which there is a public right of passage and which may or may not be maintained by the public purse and (2) any other way to which the public has access. His approach applies equally to the definition in the 1991 Act – a way need not possess either of the qualities of a road – there could be a way over which there is no public right of passage but to which the public has access. That way would not be a road for the purposes of the 1984 Act but it would fall within the definition of the 1991 Act and hence it would be subject to road traffic legislation.

Although the terminology may be confusing at times, the basic common law public right of passage over Scottish highways and roads can be traced over the centuries. What has been established at common law and in statute is the distinction between (1) highways or roads over which there is a public right of passage and (2) other roads or ways to which the public has access as a condition of fact rather than by public right. This distinction was clearly set out by Lord Kinnear in 1904, is consistent with Lord Skerrington's judgement in 1914 and with Lord Justice Emslie's judgement in 1973. Prior to the 1984 Act, the first category was referred to as 'highways' and the second category was referred to as other 'roads' to which the public had access. However, the 1984 Act rationalised the definition of road and removed all references to 'highways'. Since 1984, the first category is referred to as 'roads' and the second category is referred to as other 'ways' to which the public has access.

4.3.3 THE PUBLIC RIGHT OF PASSAGE SINCE 1984

The 1984 Act introduced the new statutory definition of a 'road',[29] as set out in paragraph [4.2 ] above. The new statutory framework deals only with roads, both public roads and private roads. A public road[30] is "a road which a roads authority has a duty to maintain' and a private road[31] is 'any road other than a public road'. The distinction between a public road and a private road relates solely to maintenance liability. A public road is maintained by the roads authority and a private road is not. To put it another way, a public road is a way over which there is a public right of passage and which the roads authority has a duty to maintain. A private road is a way over which there is a public right of passage but which the roads authority has no duty to maintain.

The 1984 Act deleted all references to 'highways'. This raises the question of what Parliament intended with the new definition including the deletion of 'highway' from Scottish roads law. It also raises the question of whether there was a Parliamentary error in the omission of the phrase "and any other way to which the public has access", the so called 'catch all' phrase which was retrospectively added for the purposes of road traffic legislation by the Road Traffic Act 1991.

Prior to 1984, there were two parts to the statutory definition:

  • 1 A highway, and

  • 2 Any other road to which the public has access

Case law distinguished between these two parts of the statutory definition as discussed above.[32] This distinction was significant. The first part involved a public right of passage as a matter of law whereas the second part involved access to property by the public as a condition of fact, which access was subject to control by the owner of the property. Perhaps unsurprisingly, given the lack of these two distinct parts in the 1984 Act definition, no such distinction has been drawn in case law since 1984. As a result the courts have applied the legal principles of private property law underpinning the second part of the definition to the first part of the definition, which is based on a public right. The interaction of these two approaches is particularly focussed in the context of road traffic law, which was of concern to Lord Cameron in 1991[33] who said:

"I am not certain there is truly any distinction in this difference. It is true that the definition which now applies in Scotland for the purposes of the Road Traffic Act 1988 is that in the Roads (Scotland) Act 1984, and that the earlier definition which makes reference to 'highway and any other road to which the public has access' is no longer applicable. However, the new definition makes no reference to the word highway which, as noted in Cheyne v MacNeill, was a road upon which the public right of passage was secured by law and whose maintenance was the responsibility of the statutory authority. In these circumstances it was not surprising that Parliament employed the phrase 'public right of passage' in the substituted definition. If counsel for the pursuer contended the word 'right' to be read as a real legal right, and not something which is obtained by virtue of permission express or implied from, or acquiescence or toleration by person or persons with legal right to control the use of the road, the consequences would be startling. It would mean, for instance, that where a road was not a public road but a private road, unless and until the public right of passage had been demonstrated by continuance over the prescriptive period, no such road would fall within the definition and thus a person driving on such a road, albeit the public had access to it, could not be convicted on evidence which would secure his conviction in England and Wales."

Lord Cameron's concern about the implications for road traffic law was resolved by the Road Traffic Act 1991 which extended the 1984 Act definition of 'road' for the purposes of road traffic law by adding the phrase 'or any other way to which the public has access'. Lord Cameron also said:

"I am content to decide the case on the more limited basis for which counsel for the pursuers contended, namely that the change in definition of a road in the 1984 Act made no difference to the manner in which a public right of passage could be constituted and that the law remained the same as it had done prior to the passage of the 1984 Act."

Lord Cameron was deciding a case involving a housing association which had constructed a sheltered housing development in Edinburgh. In planning their development, they had applied to the roads authority for two street orders under the Edinburgh Corporation Order Confirmation Act 1967 authorising the construction of a street. The orders were granted and the street was constructed to a standard necessary for adoption by the roads authority. The development was completed in 1976 and from 1976 to 1990 the public were allowed to use the street without hindrance. The Association made two applications to the roads authority to have the road adopted but both applications were refused. In 1990, the Association erected a barrier[34] across the street. The roads authority ordered the Association to remove the barrier in terms of Section 59(3)[35] of the 1984 Act. The Association refused to remove the barriers claiming that the street had remained 'private' despite the fact that members of the public had been allowed access. The roads authority accepted that there was no public right of way but argued that a public right of passage had been created and this entitled them to invoke Section 59 of the 1984 Act.

The court held that permission by the owner of the street to its use by the public for a period short of the prescriptive period[36] could be terminated by the owner. In deciding this case, Lord Cameron said that the substantial issue was that, even if the street had acquired the character of a road for the purposes of the 1984 Act by virtue of "the unrestricted and tolerated use made of it for a period by the public" was the owner deprived thereafter of restricting the class entitled to use it by means of a barrier? He followed the reasoning of Lord Kinnear in the Magistrates of Edinburgh case.[37] His Lordship said that he found nothing in the cases presented to him to suggest "that once it is established that the road is one to which the public has access, the owner of the road with legal right to control the use of the road, ceases to be entitled to exercise such legal right."[38] However, Lord Cameron's statement appears to be referring to the 'catch all' phrase – a road to which the public has access – rather than to a 'road' as a statutory successor to a 'highway' – a way over which there is a public right of passage rather than public access as a condition of fact.

In the circumstances of this case, it might have been more appropriate to consider whether this 'street' fell within one of two categories:

  • (1) a 'road' as defined in the 1984 Act, or

  • (2) a 'way to which the public had access' as considered in earlier cases.

Presumably this approach was not submitted to Lord Cameron because the second category was not part of the definition of 'road' within the 1984 Act. However, it was part of the reasoning of Lord Kinnear in 1904 and Lord Skerrington in 1914 and Lord Justice Emslie in 1973.[39] Lord Cameron went on to apply Lord Kinnear's reasoning in relation to second 'catch all' category to the first category. Lord Cameron said that he "found nothing in these cases to suggest that once it is established that the road is one to which the public has access, the owner of the road with legal right to control the use of that road, ceases to be entitled to exercise such legal right" That proposition follows the decisions of Lord Kinnear, Lord Skerrington and Lord Justice Emslie as they applied it to the second category – the 'catch all' phrase which described a condition of fact rather than a public right of highway, which evolved into a public right of passage under the 1984 Act. Perhaps the substantial issue in this case should have been – whether the street had acquired the character of a road for the purposes of the 1984 Act, in which case it fell within the jurisdiction of the roads authority, or whether it remained a way to which the public had access, in which case it remained within the control of the property owner?

The effect of the Viewpoint case has been to create doubt about the powers and duties of the roads authority under the 1984 Act because of the application of the principles of private property law to a public right. For instance, is it intended that owners of the solum of roads, whoever is responsible for their maintenance, can at any stage short of the prescriptive period restrict or remove the public right of passage? That could allow every house builder to ransom householders after entry had been taken to new homes. However, in the case of Hamilton v Dumfries and Galloway Council[40] a local landowner laid claim to the solum of a road and approached local residents who used the road requiring them to make payment for the right to use part of the road that had been the subject of a stopping up order some years before. The roads authority reacted by adopting the road to the list of public roads. The local landowner sought judicial review of the Council's decision to adopt the road on the basis that it was not a road. Lord Kingrath held that the relevant section of the road was a private road within the meaning of the 1984 Act.

Lord Kingrath said:

"I am not persuaded (any more than the Lord Ordinary in Viewpoint Housing Association Ltd v Lothian Regional Council) that, although the language used in the definition of road in the 1984 Act is different, there was truly intended to be any material distinction from previous definitions such as that in the Roads (Scotland) Act 1970, which referred to ways 'to which the public had access'. These words were, of course, understood to refer to more than mere access in fact as was said by Lord Justice General Emslie in Cheyne v MacNeill[41] at p30

"[It] is not difficult to infer that the words 'to which the public has access' are necessarily referable to a situation in which it is found-in-fact that the public has access – access for the purpose of which a road is intended or designed, i.e. passage on foot or in a vehicle. But when the statute refers to access it cannot be assumed that this means access which is obtained unlawfully, e.g. by climbing over or opening gates, or by surmounting walls or fences, designed to exclude potential intruders. In our opinion, 'access' as the word is used in the definition, covers access for passage by permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road. The degree or extent of use necessary to bring a particular road within the definition will necessarily be a question of fact in every case. Where there is such permission, acquiescence or tolerance demonstrated by use or otherwise it can properly be said that there is nothing illegal or unlawful in such access as the public has proved to enjoy, and therefore that the public has access lawfully to the road. "

So Lord Kingrath agreed with Lord Cameron that there was no parliamentary intention to change the meaning of the definition of 'road' notwithstanding the difference in terminology – that is, using the word 'road' rather than 'highway'. Lord Kingrath then applied previous judicial reasoning on the 'catch all' phrase to justify the existence of the public right of passage, which is, of course, a pre-requisite of establishing a road in terms of the definition in the 1984 Act. In order to conclude that the public right of passage was in existence, His Lordship founded on the condition of fact of public access, which, according to previous judicial reasoning, should have been subject to private property law.

The result appears to be contradictory: in Viewpoint, it was decided that, although the 'way' was a road to which the public had access, it did not prevent the owners from restricting the class of persons entitled to use it, whereas in Dumfries and Galloway Council it was decided , following Viewpoint, that although the 'way' was a road to which the public had access, it did prevent the owners from restricting the class of persons entitled to use it – because the public right of passage outweighed the private property rights.

4.3.4 CONCLUSION

So what has changed with the enactment of the 1984 Act? Lord Cameron said the 1984 Act 'made no difference to the manner in which a public right of passage could be constituted and that the law remained the same as it has done prior to the passing of the 1984 Act. 'In 2006 Lord Kingrath agreed with Lord Cameron saying ' I am not persuaded (any more than the Lord Ordinary in Viewpoint Housing Association Ltd v Lothian Regional Council) that, although the language used in the definition of road in the 1984 Act is different, there was truly intended to be any material distinction from previous definitions such as that in the Roads (Scotland) Act 1970, which referred to ways 'to which the public had access'.

If nothing has changed, where do we find the pre-1984 distinction between the public right of highway or passage and access by the public based on permission, express or implied from, or acquiescence or toleration by the owner? And what are the consequences for the 1984 Act of the application of the legal proposition that private property rights apply, not just to the 'catch all' category of 'ways to which the public have access', but also to private roads as defined by the Act?

One example involves consideration of private rights of property in the context of a decision by the roads authority[42] to add a private road to their list of public roads. Or, indeed, to delete a road from their list, which would change the road's status from public to private, having the effect of transferring responsibility for maintenance from the authority to the road owner. Before a road can be competently added to the statutory list, it must already be a road, which means that a public right of passage must already exist in respect of the 'way' that is to be added to the list.[43] Apart from the provisions of the 1984 Act, as a matter of public policy, one would have to question why a roads authority should adopt a way that is not a road? Why should public funds be committed to maintaining a 'private' way over which there is no public right of passage? If the existence of a public right of passage is a pre-requisite of adoption of a road, then it must follow that the legal process of adoption of the road cannot create the public right of passage over it. Of course, adoption should provide evidence of the roads authority's view that the 'way' in question is a road.[44]

Any such decision by the roads authority to add to or delete from their list of public roads is subject to a requirement to notify affected front-agers.[45] The roads authority must serve notice of their intention to adopt a private road on the frontagers [46] who may submit representations to the authority. If the authority proceeds to adopt the road, notwithstanding an objection from the frontagers, there is provision for the requisite number of frontagers to make application to the Sheriff, whose decision is final.[47] Any road which is entered in the statutory list vests in the roads authority for the purposes of their functions as a roads authority.[48]

However, the right to be notified, to submit representations and to apply to the Sheriff applies to frontagers, who are defined as 'the owner of any land fronting or abutting' the road. These provisions do not apply to the owner of the solum of the road, who may well wish to object to the vesting of his private property in the roads authority.

These provisions contrast with the requirements under Section 21 of the 1984 Act for an application for road construction consent. A Section 21 application requires notice to be served on the owners of all land which would front, abut or be comprehended in the new road. However, the person who owns the solum of a private road could be faced with the proposed adoption of that road without having a right to be notified of that proposal. Even if the owner were to see a public notice of the proposed listing of his private road and he objected to the listing, the authority is still entitled to proceed to list the road on following due process.

Moreover, the owner of the solum might not fall within the definition of 'the requisite number of frontagers' so he might not have the right to apply to the Sheriff. If he were to fall within that definition and, consequently, he had the right to apply to the Sheriff, it has to be assumed that the Sheriff's decision is not pre-determined in favour of the owner due to his private right of property in the road?[49] If the roads authority proceeds to list the road, it would vest in the authority without payment of compensation. As listing transfers the liability for maintenance of the road from its owner to the roads authority, it seems reasonable that the owner should not be compensated for this loss of a liability. Nor is he compensated for the 'creation' of a public right over his property because that public right must already be in existence before the listing.

The lack of inclusion of the owner of the solum of the road in the statutory process for listing contrasts with his inclusion in the statutory process for making an application for road construction consent. This difference might be explained by the proposition that the construction of a road under the 1984 Act creates a public right of passage, once the road has been constructed in accordance with the statutory consent and opened to public use. If the public right of passage takes precedence over the private right in property, it seems reasonable that the owner of the property that will be 'comprehended within' the proposed road should be notified of the application and given the opportunity to make representations to the roads authority. In contrast, a private road, as defined in the 1984 Act, is already burdened by a public right of passage, which takes precedence over any private right in property. Therefore the authority's proposed listing or delisting of the private road only affects the maintenance liability not the diminution of any private right. However, that maintenance liability directly affects frontagers of a private road as they carry a risk that at any stage the authority could serve notice under Section 13 of the 1984 Act requiring them, at their expense, to upgrade the road. The removal of this risk on listing or its creation on delisting is of direct relevance to frontagers. So the operation of these statutory provisions sits somewhat uncomfortably with the proposition that the owner retains his fundamental property right in the road, which proposition draws no support from the decision in Dumfries and Galloway.

Furthermore, what happens if the owner decides to control the use of a private road in a way that is inconsistent with an extant traffic regulation order? How does a member of the public wishing to exercise his right to pass, reconcile conflicting private law conditions with extant statutory provisions? The statutory power to make a traffic regulation order applies to all roads – not just to public roads. Does this private right mean than any such order can only properly be made with the consent of the owner who has the common law right to control the use of the road? If so, why is there no provision to consult the owner on a draft traffic regulation order?

4.4 CREATION OF A PUBLIC RIGHT OF PASSAGE OVER A WAY

Unfortunately it is not at all clear how a public right of passage is to be established. If a landowner applies under Section 21 of the 1984 Act for consent to construct a road and he subsequently constructs the road in accordance with that consent and then opens it to public use, would those acts create a public right of passage? If the owner applies to have that road listed by the roads authority after expiry of the statutory twelve month period,[50] the authority must adopt the road so, by that stage, the public right of passage must already be in existence. So it must be possible for a public right of passage to be created in relation to a newly constructed road within that 12 month period to make any sense of those provisions. The steps are as follows:

  • 1 submit application for road construction consent having notified the owner of the solum and others;

  • 2 obtain road construction consent;

  • 3 construct road in accordance with the road construction consent;

  • 4 on completion of road, open road to public use;

  • 5 expiry of 12 month period from completion;

  • 6 statutory right to have the road added to list of public roads thereby transferring maintenance liability

If the provisions are to make sense, the public right of passage must be established between steps 4 and 5. The public right of passage may be created (1) at the outset on opening the road to public use or (2) on application to adopt after the expiry of the 12 month period or (3) on some intervening date? Number (2) is flawed because the application must be in respect of a road, therefore the public right of passage must already have been created by the date of the application. If choosing between (1) and (3), the former seems more credible because it relates to the specific actings of the party who has control of the land on which the road has been constructed. That person could construct the road and then decide not to open it to public use. If the right is not triggered on the first day that the new road is open to public use, how does one draw any legal distinction between second day or the third day or any other subsequent day up until day 365?

There are two other ways in which a public right of passage may be created:

  • 1. By statute;

  • 2. By creation of a public right of way

4.4.1. BY STATUTE

Section 151(1A) of the Act requires a way to which the public has access and which passes over a bridge constructed pursuant to a Private Act is to be treated as if there were a public right of passage over it. The trigger in this statutory provision is the public having access, not public access being exercised for a specified period.

This provision refers to the 'catch all' phrase of "a way to which the public has access" suggesting that this category is distinct from the category of road over which there is a public right of passage, as discussed above in paragraph [4.3.1].

4.4.2 BY CREATION OF A PUBLIC RIGHT OF WAY

A public right of passage is not the same thing as a public right of way. Both rights may exist over the same 'way' but the establishment of a public right of way is not a pre-requisite of the creation of a public right of passage. That said, if a public right of way has been established, then there will be a public right of passage over that way.

In 1986,[51] the Lord President Emslie said that "the definition of 'road' in the Roads (Scotland) Act 1984 does not require that there must exist over the 'way' a public right of way. Parliament has not chosen to define 'road' with reference to the well understood concept of a public right of way at common law. …all that is required, therefore, in order to establish that the lane is a 'road' within the meaning of the Roads (Scotland) Act 1984 is to show that there exists over it 'a public right of passage'. It does not, for example, have to be shown that the passage is between one public place and another. Since it is well known that 'roads' within the meaning of the Act include cul de sacs,[52] and that some exist to provide access and egress to private properties it is evident that the 'right of passage' mentioned in the definition of the word 'road' involves less exacting considerations than those which govern the existence of a public right of way over private land."

This decision is helpful as it confirms that a public right of passage is not to be equated with the common law public right of way as the former involves "less exacting considerations". There are four essential requirements for the creation of a public right of way under common law:

  • The route must run from one public place to another public place.[53]

  • There must be a definite route.[54]

  • Members of the public must have used the route openly and peaceably, without the permission, express or implied, of the landowner.

  • Members of the public must have used the route without interruption for a period of 20 years or more.[55]

How do these requirements for a public right of way relate to the requirements for a public right of passage? In a case[56] in 2006, Lord Kingrath considered Lord President Emslie's views on the" less exacting requirements for a public right of passage". Lord Kingrath said:

"It is clear from Cowie v Strathclyde Regional Council that the definition 'involves less exacting considerations than those which govern the existence of a public right of way over private land'. In that case it was recognised that although there required to be a 'way', since it was well known that roads within the meaning of the Act included culde-sacs and that some existed to provide access and egress to private property, at least two of the requirements for the acquisition of a public right of way – use from end to end on a continuous journey and public termini – were not involved. What of the remaining conditions for the constitution of the public right of way, namely continuous use as of right and use for the prescriptive period? It is possible to envisage that Parliament intended that something similar to the former of these conditions apply – that is that there should have been substantial, as opposed to occasional, use as of right – as opposed to use by tolerance or by permission. In relation to public rights of way, it is well known that while occasional use might be tolerated, regular open use, if not challenged, is generally taken to imply a right (See Gordon, Scottish Land Law (2nd edition) at p 775)."

Lord Kingrath added:

"I am not persuaded that it can have been intended that any such use as of right required to be for the prescriptive period… Prescriptive use was not apparently thought to be necessary in Beattie v Scott. I was not referred to any authority in which it was. The 1984 Act itself make no specific requirement to this effect. Section 3(3) of the Prescription and Limitation (Scotland) Act 1973 relates specifically to public rights of way only."

In Mackinnon v Argyll and Bute Council,[57] Lord Osborne said "It appears to me that prescriptive rights have no necessary part to play in the resolution of the issue of whether a way is a 'road'".

A public right of way may also be created by statute. The Countryside (Scotland) Act 1967 empowers planning authorities to create, maintain,[58] divert and distinguish public rights of way. This may be done by two means – by the creation of a public path agreement with the landowner or under a public path creation order, which involves the exercise of compulsory powers. The agreement or order may specify the terms and conditions under which members of the public can exercise the right of way. The exercise of the right of way subject to conditions is the main distinguishing feature between a statutory public right of way and one created under common law. A statutory public right of way need not therefore necessarily end in a public place unlike a right under common law. However, in the case of public paths created under the Countryside (Scotland) Act 1967. Such paths fall within the scope of section 151 (3) of the 1984 Act.[59] This means that the 1984 Act does not confer any powers or impose any duties as regards a road which is a public path created under the Countryside (Scotland) Act 1967. So, although both common law and statutory public rights of way should fall within the statutory definition of 'road', the statutory public right of way would be outwith the scope of the Act's powers and duties by virtue of section 151(3).

It is settled that a public right of way may be a footpath, a carriage road[60] or a motor road.[61] It would appear therefore that all common law public rights of way are roads for the purposes of the Roads (Scotland) Act 1984.[62] They are all ways over which the public has a right of passage.

4.4.3 CONCLUSIONS

In comparing the public right of passage with the common law public right of way, the conclusions that can be drawn from case law are:

  • A public right of passage need not run from one public place to another[63]

  • There must be a 'way' over which the public right of passage is exercised[64]

  • A public right of passage may be exercised over a cul de sac[65]

  • A public right of passage may provide access to and egress from private property[66]

  • A public right of passage need not be used from end to end on a continuous journey

  • A public right of passage need not be exercised for the prescriptive period of 20 years

  • Actual public use is an important consideration and much depends on whether public use of the way is or is not practicable[67]

Although these principles may be of some assistance in assessing the facts in any given case, they do not provide the same kind of useful framework which is now established for the creation of public rights of way. This is particularly the case in relation to the running of the prescriptive period. It is settled that the right of way must be exercised by the public in accordance with the relevant principles for a period of at least 20 years; in contrast, although we know that a public right of passage need not be exercised for the 20 year period, there is no settled alternative minimum period of use for the establishment of a public right of passage. Lord Kingrath said that it was possible to envisage that Parliament intended…" that there should have been substantial, as opposed to occasional, use as of right".

The one certainty is that each case will turn on its own facts. Of course that may be of little practical assistance so, perhaps it should be borne in mind that the purpose of the 1984 Act is to allow the road network to be built, maintained, managed and used safely. In any particular circumstances, one should perhaps consider whether or not the 'way' in question should benefit from such statutory protection.

4.5 REDETERMINATION OF THE PUBLIC RIGHT OF PASSAGE

Section 1 of the 1984 Act empowers the roads authority to determine the means by which the public right of passage over a public road, or over any part of it, may be exercised and Section 151 (2) sets out the three means of exercise of the public right of passage:

  • 1. By foot only

  • 2. By pedal cycle only or by pedal cycle and foot only, and

  • 3. By vehicle other than by pedal cycle only

Section 152 of the 1984 Act makes provision for the means of exercise of the public right of passage to be determined or redetermined by order. For instance, the exercise of the public right of passage by foot only over a footpath may be redetermined by order to a public right of passage by pedal cycle and foot only, which would convert the footpath to a cycle track.

4.6 PUBLIC RIGHTS OF PASSAGE AND THE PUBLIC STATUS OF A ROAD

There is no relationship between a public right of passage and the public status of the road. The public status of a road relates only to responsibility for maintenance. It does not create or sustain a public right of passage over the road. Deletion of a road from the list of public roads does not extinguish the public right of passage. The right of passage can only be extinguished by confirmation and implementation of a stopping up order in terms of the 1984 Act or the Town and Country Planning (Scotland) Act 1997.[68]

In the Bute case,[69] Lord Moncrieff said:

'Once a road has been made public, I know of no way in which the rights of the public in the road can be excluded, or the road itself closed, except by following one of the three alternative methods of closing a public road which are available in law. These methods are (1) resort to statutory procedure under the Turnpike Roads (Scotland) Act 1831: (2) resort to statutory procedure under the Roads and Bridges (Scotland) Act 1878; and (3) application to Parliament for a particular enactment.'

'I am clearly of the opinion that a public road cannot be closed by mere failure on the part of the road authority to expend money on its maintenance; nor do I think that the public can lose their right of passage as a result of the failure or refusal of a road authority to include in the list of highways, as directed in the Roads and Bridges (Scotland) Act, 1878, what may be proved or admitted to have been a public road.'

'The mere non-inclusion of a road in the county list of highways cannot, however, in my opinion, be conclusive against the public in a question of their right to use the road.'

In giving this opinion, his Lordship was using the term public road in the sense of the current statutory definition of 'road', which is a way over which the public have a right of passage. His Lordship clearly makes the point that responsibility for maintenance of the road does not affect the public right of passage.

4.6.1 NO PUBLIC RIGHT OF PASSAGE OVER PRIVATE ACCESSES

Care must be taken when considering the difference between a private road and a private access. A private access is a way over which there is no public right of passage. If such a right were in existence, the way would be a private road, not a private access. The roads authority has no control over the construction of a private access, although planning permission may be necessary. Private accesses cannot be adopted to the list of public roads. A roads authority is empowered to adopt roads to their list of public roads.[70] Private accesses are not constructed in terms of a construction consent and they are outwith the scope of section 16 of the Roads (Scotland) Act 1984, which deals with applications for private roads to become public roads. Furthermore, why should a roads authority take on the responsibility for maintenance of a 'way' unless there is a public right of passage over that 'way'? Listing or delisting of a road under section 1 of the Act transfers maintenance liability for that road; it does not create or extinguish any public rights of passage over the road.

In John McNicol (Farmers) Limited v Scottish Ministers,[71] the owners of a farm challenged the making of a road traffic regulation order under the Road Traffic Regulation Act 1984. The Order affected a section of the M90/A90 trunk road. Their farmland lay on either side of the trunk road and they had a private means of access from their land onto the trunk road on each side. There was a gap in the central reservation which allowed farm traffic to cross trunk road from one part of the farm to the other part as well as turning right or left or making a U-turn. The effect of the Order was to prevent the crossing movement as well as banning some of the turns. The appellants argued that the effect of closing the gap in the central reservation was to stop up their private access. They argued that the Ministers should have made a stopping up order in which event they would have been entitled to compensation. The Inner House held that the gap in the central reservation was part of the public road and, since there was no scope in the statutory framework for a place to be simultaneously part of a public road and a private means of access to land, when the appellants used it for cross traffic they were exercising their public right of passage as members of the public. Accordingly, no private means of access would be stopped up by the closure of the gap. Their Lordships said that it was not necessary for them "to decide whether closing the gap would amount to stopping up a road (though we have no reason to think that it would)." This is a useful indication of the court's possible approach to the legal distinction between closures made under a road traffic regulation order and the stopping up of a road under a stopping up order.

4.7 IDENTIFICATION OF A ROAD

Although the identification of a road is straightforward in most cases, there can be circumstances in which it is more difficult to establish that the way is a road and not a private access or some other area of land. If the way has been constructed in accordance with a valid road construction consent and planning permission, these documents could provide evidence of its status. Likewise, it may have been added to the list of public roads by the local roads authority, which could provide evidence of its status.

4.7.1. CAR PARKS

In Clarke v Kato[72] in 1998, the House of Lords held that a car park is not a road for the purposes of the Road Traffic Act 1988. Their Lordships rejected the decision of the Court of Appeal that regular and incontrovertible use of a car park as a pedestrian route to a parade of shops was sufficient for the route to qualify as a road for the purposes of the Road Traffic Act 1988. Lord Clyde stated that he would:

'hesitate to formulate a comprehensive definition whereby a place may be identified as a road, but some guidance should be found by considering its physical character and the functions which it exists to serve. . In the ordinary use of language a car park does not [qualify as a road]. In character and more especially in function they are distinct. . The proper function of a road is to enable movement along it to a destination. . The proper function of a car park is to enable vehicles to stand and wait. A car may be driven across it; but that is only incidental to the principal function of parking. A hard shoulder may be seen to form part of a road. A more delicate question could arise with regard to a lay-by, but where it is designed to serve only as a temporary stopping place incidental to the function of the road it may well be correct to treat it as part of the road'.[73]

Although the House of Lords ruled that a car park was not a road, in 1999[74] the High Court of Justiciary held that an area of ground used principally as a car park for employees of Strathclyde Regional Council was a 'way' over which the public had access. This car park was controlled by a barrier during office hours but otherwise open to use by the public. It was also used by pedestrians as a short cut and to provide access to a railway station. The appellant, having been charged with driving without a licence and insurance in this car park, argued that it was not a road. Nevertheless, she was convicted and she appealed to the High Court. The court held that a 'way' was an area in which some form of travel takes place and whether an area was a 'way' was essentially a question of fact; that the circumstances of this case left out of account any question of public rights of passage, the question being whether as a matter of fact the public had access by the way, whether permitted or not, that there was nothing in the definition[75] which confined the user of the way to vehicular traffic and that there were sufficient facts and circumstances to entitle the magistrate to have reached the view that the car park was a way over which the public had access.

These cases demonstrate how the courts will approach a consideration of the facts to establish the existence or otherwise of a 'road' or a 'way over which the public has access'. Another such example is found in the case of Rita Joan May v Director of Public Prosecutions.[76] M was convicted of careless driving after colliding with five cars parked in a car park belonging to a car dealership. The car park was only open during the day with a sign advising that its use was for customers only. The car park was accessed off a public road. M appealed her conviction on the basis that the car park was not a public place for the purposes of the Road Traffic Act 1988. On appeal, the court held that the car park in effect joined a public place and there were no restrictions placed on members of the public on entry to the car park although it was intended for use by customers only. They found that it was a public place for the purposes of the 1988 Act. However, the court warned against treating this type of decision as if it contained 'hard' law stressing that the court must look at the particular facts in each case.

4.7.2 ROAD VERGES

The statutory definition of a road includes the verge, which means that the public right of passage extends to the verge. Identification of the extent of the road verge is often not without some difficulty. It is a cardinal rule of property development to ensure that the land take for the proposed development falls within the control of the developer or within the boundary of the road to ensure that they can provide access from the development to the road network without risk of ransom.[77]

Like the identification of a road, the identification of the extent of the road verge is a question of fact.[78] If the road is on the list of public roads, then the roads authority is responsible for maintenance of the verge, which is part of the road.[79] If the roads authority has appropriate maintenance records, they may be able to demonstrate the extent of the road verge. Likewise, it may be possible to establish the extent of the verge from the statutory list of public roads if that list contains maps or dimensions of the road. Some authorities who manage roads in rural areas apply a standard area to the road verge. In the absence of any such evidence or assistance from the roads authority, the identification of the extent of the road verge will be a question of fact in each case.

In the case of Perth and Kinross County Council v Magistrates of Crieff,[80] Lord Murray said:

"In its natural meaning and construction…'road' or 'highway' means and includes the whole area dedicated to public passage from 'fence to fence' (or as may be 'building line to building line') including the area, if any, occupied by footways of any kind."

In the Runciman case[81] the petitioners argued that the existence of a hedge meant that the public could not have exercised their right of passage over that part of the verge obstructed by the hedge. However, the court held that it was not necessary for the right of passage to exist

over every part of the way because the roads authority had the power to place bus shelters and other such 'barriers' in the road, even although such barriers would impede the right of passage. The appropriate boundary in this case was held to be the roadward side of the trunks of trees that made up the hedge. Lord Drummond Young said:

"In relation to features on the ground, the position is reasonably straightforward where a road is bounded by an established wall or fence or by a building. In such cases the boundary of the verge will normally be taken as the roadward face of the wall, fence or building; this situation is discussed by Lord Murray[82] and it seems clear that the same analysis applies to the 1984 Act. In such cases there exists an obvious physical barrier that stretches up from the ground and is obviously designed to separate the road and its verge from the property beyond. At the other extreme are cases where there is no barrier of any sort… in the absence of a barrier, the verge must clearly be reasonable in extent and what is reasonable will depend on function rather than any physical barrier on the ground."

There appears to be merit in the approach of roads authorities in rural areas who apply a set distance from the edge of the carriageway or footway to the edge of the verge to delineate the boundary of the road. This approach also has the merit of consistency.

An interested party may undertake a property search to identify ownership of the land in question to establish, if possible, the extent of the public road. If the land is owned by the roads authority, that may point to the area under scrutiny being part of the road. However, it would not be conclusive. Ownership by the local authority would not necessarily mean that the land was part of the public road. Conversely, ownership by a third party would not necessarily mean that the land was not part of the public road. The solum of the road may be owned by a third party although the roads vests in the roads authority for the purposes of the 1984 Act. It depends upon the circumstances of the case.

In the case of Elmford Ltd v City of Glasgow Council[83] the court considered whether the petitioners were entitled to take vehicular and pedestrian access and egress across a certain strip of land between land belonging to the petitioners and a link road owned by the Council as roads authority. The land comprising the road and the disputed strip had been acquired compulsorily by the Council's statutory predecessors, who had constructed the road and made an entry in the list of roads under Section 1 of the 1984 Act. The petitioners argued that the land had been acquired for road purposes and, as it had not been appropriated by the Council for any other purpose, it must be deemed to be part of the land constituting the road and, accordingly, the petitioners as the owner of land fronting the road had a right of access over the strip. The Council argued that the strip of land was not part of the road and that they were entitled to charge to obtain value from the petitioners in respect of taking such access. Lord Clarke held that the acquisition by an authority of land under section 29 of the 1970 Act[84] in connection with the construction of a road was not the equivalent of declaration of that land in its entirety to public passage and since the petitioners had failed to demonstrate any subsequent actings or circumstances which amounted to such dedication, the Council was justified in law in seeking to obtain consideration from the petitioners in exchange for granting any rights of access. At a superficial level, it might seem harsh that land could be taken by compulsion to construct a road with the former owner then having to pay to access that road. However, it should be borne in mind that an authority pays the market value for any land taken under compulsory purchase powers. Furthermore, if there were to be surplus land which could be offered back to the former owner, it would only be transferred back at a consideration reflecting the market value. This is reasonable as it is a transfer of a public asset to a private party and the authority must ensure that any disposal of public assets stands up to scrutiny and audit. Any private landowner faced with a compulsory purchase order would be well advised to consider such risks and enter into appropriate contractual terms with the acquiring authority.

4.8 PUBLIC ROADS

A public road is "a road which a roads authority has a duty to main-tain."[85] A private road means "any road other than a public road".[86] The roads authority's statutory duty to maintain a road is contained in Section 1 of the 1984 Act.[87] Section 1 provides that the authority "shall manage and maintain all such roads in their area as are for the time being entered in a list (in this Act referred to as the "list of public roads") prepared and kept by them under this section; and for the purposes of such management and maintenance … they shall have the power to reconstruct, alter, widen, improve or renew any such road or to determine the means by which the public right of passage over it, or any part of it, may be exercised." Every road which is entered into the list of public roads shall vest in the roads authority for the purposes of their functions as roads authority.[88] However, such vesting does not confer any heritable right in relation to the road.[89]

4.8.1 LIST OF PUBLIC ROADS

The list of public roads is open for inspection free of charge at times and places determined by the local roads authority.[90] In practice, professional agencies provide a reporting service on the status of roads for solicitors and other professionals. Electronic access might also be available in some areas.

4.8.2 AMENDMENTS TO THE LIST OF PUBLIC ROADS

The local roads authority may add to or delete roads from its list of public roads.[91] If it wishes to add an existing private road to the list or delete an existing entry from the list, it must follow a specified procedure. This involves the service of a notice of its intention on the frontagers of the relevant road and the publication of a notice in a local newspaper. It must then consider any representations made within twenty-eight days of service and publication of the notices. Its final decision must be served on the frontagers and any person who made representations. It does not have to follow this procedure if it is reacting in response to:

  • 1. The decision of a sheriff on summary application by the frontagers in response to the authority's proposed addition to or deletion from the list.

  • 2. Any deletion in consequence of a stopping up of a public road.

  • 3. Any deletion on transfer of a public road to another roads authority.[92]

4.8.3 APPLICATION TO THE SHERIFF

Following service of a notice in relation to an amendment to the list, the requisite number of frontagers may within twenty-eight days of service, refer the matter by summary application to the sheriff.[93] The sheriff's decision is final and must be given immediate effect by the local roads authority. The notice served by the authority does not take effect until the expiry of the twenty-eight day period within which the matter can be referred to the sheriff. If the matter has been referred to the sheriff, the notice cannot take effect until his decision is known. The sheriff's decision does not prohibit the local roads authority from proceeding with a future proposal to add or delete the same road to or from the list if there is a material change in circumstances.

4.8.4 THE REQUISITE NUMBER OF FRONTAGERS

'The requisite number' of frontagers is defined as a majority or such number as together own land which includes not less than half of the boundary between the land fronting or abutting the relevant road and that road.[94]

4.8.5 DE-LISTING OR STOPPING UP?

The power to delete a road from the list of public roads may be useful if local circumstances change. For instance, use of a public road may have become less popular and may be restricted to use by one party or by a restricted group of interests. The local roads authority may no longer wish to maintain a road which is no longer serving the public at large. Some authorities have been known to respond to such situations by promoting a stopping up order. However, de-listing would be a simpler and less expensive procedure. Of course, it is open to the requisite number of frontagers to oppose a proposal to de-list a road. Moreover, under section 16 of the 1984 Act, the requisite number of frontagers may make application to the local roads authority to adopt a private road to the list of public roads. (A road does not include a footpath for the purposes of this provision). If the private road is of the standard required in a section 13 notice[95] or, if there is no such notice, it is of a standard satisfactory to the local roads authority, the road must be adopted within twelve months of the application. It is reasonable to assume that a road which is on the list of public roads is of a standard that is satisfactory to the local roads authority because it is responsible for the road's maintenance. If the requisite number of frontagers oppose a proposed de-listing and find that their representations fail to persuade either the authority or the sheriff, there would appear to be no legal bar to prevent a subsequent application by them under section 16 to have the newly de-listed road re-adopted by the local roads authority.

4.8.6 MANDATORY ADDITIONS TO THE LIST OF PUBLIC ROADS

The local road authority's general power to add a road to its list is contained in section 1 of the 1984 Act. There are two situations in which the authority is required to add a private road to its list on application:

  • 1 One is where an application is made by the requisite number of frontagers in terms of Section 16 of the 1984 Act. The authority must add the road[96] to their list within twelve months of application if the road is of a standard specified in a section 13 (1) notice or, in the absence of such a notice, if it is of a standard satisfactory to the authority. No such application is required if the local roads authority has undertaken and completed the works specified in a section 13 notice. In those circumstances, the authority must add the road to the list forthwith.

  • 2 The second situation is where a person has completed the construction of a private road in accordance with a construction consent granted by the roads authority in terms of Section 21 of the 1984 Act. If, on completion of the road, the person granted the construction consent applies to have the road added to the list, the roads authority must do so within twelve months of the application.

There is an arbitration provision to settle any dispute between the local roads authority and the person making the application. In the event of a failure to agree upon an arbiter, either party may apply to the sheriff to make an appointment.

If a party makes an application under Section 16, the roads authority may refuse to add the road to their list because the road is not of a standard satisfactory to the authority.[97] In practice, the authority will advise the applicant of the remedial works necessary to bring the road up to a standard that is satisfactory to the authority. Some authorities treat this 'response' as the roads authority's consent to undertake those remedial works. However, the provisions of Section 16 of the 1984 Act relate to applications for a private road to become a public road; they do not authorise the construction of a new road, or part of a new road or other works to a road. If a person other than a roads authority wishes to construct a new road or extend and existing road then that person must obtain the written consent of the roads authority in terms of Section 21 of the 1984 Act. It should be borne in mind that any reference to 'road' includes part of the road.[98] So works to part of the road fall within the scope of Section 21. It is an offence to construct a road or to extend an existing road without construction consent. Any person who undertakes remedial works to an existing private road on the basis of the roads authority's response under Section 16 risks having committed an offence under Section 21 of the 1984 Act.

4.9 PRIVATE ROADS

A private road is any road other than a public road.[99] Although the local roads authority is not responsible for the management and maintenance of private roads, they do have specific powers in relation to them, including:

  • making a financial contribution to the cost of making up or maintaining a private road[100]

  • carrying out repairs to a private road[101]

  • carrying out emergency works to a private road[102]

  • installing refuse or storage bins in roads[103]

  • powers in relation to dangerous road works[104]

  • control of obstructions in roads[105]

  • temporary prohibition or restriction of traffic for reasons of public safety or convenience[106]

  • regulation of horsedrawn carts etc[107]

  • maintenance of vaults and cellars etc[108]

  • power to direct that doors do not open onto a road[109]

  • stopping up of roads by order[110]

  • prevention of obstruction of view at corners, bends and junctions[111]

  • control of builders' skips on road[112]

  • removal of structures from roads[113]

  • removal of projections which impede or endanger road users[114]

  • removal of accidental obstructions from roads[115]

  • restriction on placing bridges, beams, rails etc over roads[116]

  • prevention of danger to road from nearby vegetation and fences or retaining walls being inadequate[117]

  • restriction of planting of trees etc near carriageway[118]

  • protection of road users from dangers near a road[119]

  • deposit of mud from vehicles[120]

  • control of stray and other animals on a road[121]

  • prevention of flow of water onto a road[122]

  • offences relating to road damage[123]

These provisions address issues of road safety, which are relevant to both public and private roads because members of the public have a right of passage over each category of road. Likewise, roads authorities are empowered under the Road Traffic Regulation Act 1984 to make traffic regulation orders in respect of both public and private roads. In practice, however, such orders tend to be made in respect of public roads because they form the main part of the road network and are more likely to require regulation. If a private road were to become so heavily trafficked that it required regulation, the roads authority might well consider adding the road to their list of roads, which would extend their powers to matters such as the provision of street lighting.[124] One example where a traffic regulation order might be required in relation to a private road is in relation to a controlled parking zone. If a private road in a proposed zone were to be omitted from the traffic regulation order, it could undermine the objectives of the scheme by permitting uncontrolled or 'free' parking within the controlled zone. This might be particularly sensitive in situations where 'new build' residential developments have provided residents' parking spaces on private roads associated with the development. For this reason, it is in the interests of both the roads authority and the developer/residents to be clear about whether the development includes a private access or a private road in urban areas. The roads authority should be clear about their view in their consultation responses to the planning authority.

4.9.1 MAKING UP AND MAINTENANCE OF PRIVATE ROADS

Section 13 notices

Under section 13 of the 1984 Act, the local roads authority may serve a notice on the frontagers of a private road requiring them to make up the road to a reasonable standard, as specified in the notice, and thereafter to maintain the road. The works that can be required include levelling, paving, lighting and drainage. The Section 13 notice must specify:

  • 1. The local roads authority's estimate of the costs of the required works.

  • 2. A scheme apportioning the cost among the frontagers. The scheme must be equitable in the opinion of the authority and it must describe for each frontager the proportion of the cost to be paid by him.

  • 3. The dates by which the works shall be commenced and completed. The authority has the power to postpone commencement or completion, or both, by a subsequent notice.

If the frontagers fail to comply with the dates for commencement and completion specified in the notice, the authority has the power to carry out the work or to complete unfinished works. The authority also has the power to carry out the requirements of the notice with the agreement of the requisite number of frontagers.[125] In both situations, the expenses incurred by the local roads authority are recoverable in accordance with the scheme contained within the notice. This procedure has the practical advantage of providing a cost benchmark for frontagers in receipt of a notice. If the local authority's estimate is less than those of private contractors, the requisite number of frontagers may ask the authority to undertake the work in terms of the scheme on their behalf.

Any person receiving a section 13 notice may appeal by summary application to the sheriff within twenty-eight days of the date of service of the notice. The sheriff's decision on the matter is final.

The risk of being served with a Section 13 notice is carried by all frontagers of private roads in Scotland. In practice, local roads authorities do not serve such notices without good cause. Presumably the benefit to the general public of carrying out the works would have to outweigh the cost to the frontagers of paying for the works before Members would sanction service of the notice. The effect of a Section 13 notice is to impose a liability on the frontagers of the private road, not on the owner of the solum of the road.

4.9.2 FINANCIAL CONTRIBUTION BY THE LOCAL ROADS AUTHORITY

The local roads authority has an additional power which enables it either to make a financial contribution to private road maintenance works or to carry out such works.[126] Such a decision is entirely within its discretion. It may pay the whole or any part of expenditure incurred by a person in making up or maintaining a private road. It may also at its own expense carry out any repair to a private road which it considers necessary after giving such notice as is reasonable in the circumstances. This power is in addition to and without prejudice to its separate power to carry out emergency work in relation to private roads.[127] If it decides to make a financial contribution or to carry out works to a private road, it does not as a result incur responsibility for making up or maintenance of the road. Future maintenance of the road remains the responsibility of the landowner. In the absence of a clear title to the solum of the private road, the frontagers could be liable for its maintenance if a Section 13 notice were to be served. The carrying out of such works by the local roads authority does not create any implication that the private road, on completion of the works, is of a standard satisfactory to the authority for the purposes of adopting a private road to the list of public roads.[128]

4.9.3 EMERGENCY WORKS TO A PRIVATE ROAD

The local roads authority may undertake works to a private road that, in its opinion, are necessary because circumstances have arisen that constitute an emergency. It is not required to give any notice of its intention to carry out the works. It may however give such notice as is appropriate in the circumstances. Any such works are carried out at the expense of the authority. For the purposes of this provision, an emergency excludes dangers relating to vegetation, fences or inadequate retaining walls.[129]

4.10 ROADS OUTWITH THE SCOPE OF THE ROADS (SCOTLAND) ACT 1984

The 1984 Act does not confer any power or impose any duty on a roads authority regarding a road or proposed road that falls within the following categories:

  • 1. A public path created under section 30 of the Countryside (Scotland) Act 1967. Such paths are created under powers conferred upon planning authorities and responsibility for them rests with planning authorities not local roads authorities.

  • 2. A footpath, which forms part of a long distance route approved by the Scottish Ministers under section 40(1) of the 1967 Act. Proposals for long distance routes are submitted to them by Scottish Natural Heritage and must contain proposals for the provision, maintenance and enjoyment of the route. Such routes are not the responsibility of the local roads authority.

  • 3. A road which forms part of land owned or managed by a local authority for the provision of recreational, sporting, cultural or social activities in terms of section 14 of the Local Government and Planning (Scotland) Act 1982.

In 1984 there was a two tier structure of local government in Scotland. This provision would have had the effect of separating the powers and functions of regional councils, as roads authorities, and district councils, which, as leisure and recreation authorities, were responsible for the management and maintenance of certain roads, such as park roads. This provision would have prevented a district council from applying to have a park road added to the list of public roads maintained by the regional council. The provision may be of less importance today but it continues to remove the jurisdiction of the roads authority in relation to roads that fall within the three categories. However, it does not follow that a public right of passage does not exist over the categories of road specified in subsections (a), (b) and (c) of Section 151 (3). The 'road' in question must be a road for the purposes of the 1984 Act in order to fall within these provisions. So they are ways over which there is a public right of passage. If a decision were to be taken to extinguish the public right of passage, a stopping up order would be necessary. However, that order could not be promoted by the roads authority under the 1984 Act because of the terms of Section 151 (3). The stopping up order would have to be promoted under a different statutory process. For instance, an order could be made under planning legislation.

4.11 TRUNK ROADS

The trunk road network is a national system of routes for through traffic in Scotland. The Trunk Roads Acts of 1936 and 1946 defined trunk roads as the principal roads constituting the national system of routes for through traffic. The actual roads are listed in Schedules to the Acts. All existing trunk roads maintained their status when the Road Traffic (Scotland) Act 1984[130] came into force.

4.11.1 TRUNK ROAD AUTHORITY

The Scottish Ministers are responsible for the management and maintenance of the trunk road network which will include any special roads for which they are special road authority and which have been designated as trunk roads.[131] The Ministers have the power to reconstruct, alter, widen, improve or renew trunk roads and can also determine the means by which the public right of passage may be exercised over the road. The day to day administration of the trunk road network is now carried out on behalf of the Scottish Ministers by the new national transport agency, Transport Scotland.[132] The Directorate within Transport Scotland is known as the Trunk Roads Infrastructure and Professional Services Directorate (TR:IPS).

There is a list of roads which are managed and maintained by Transport Scotland. This list includes all trunk roads. It is open for public inspection free of charge.[133] Every trunk road vests in the Ministers for the purposes of their functions as roads authority but such vesting does not confer any heritable right in relation to the road.[134] The Ministers have an obligation to keep the trunk road system under review.[135] As part of that review, they may decide that an existing road, or any road to be constructed by them, should become a trunk road or that an existing trunk road should cease to be a trunk road. In making any such decision the Scottish Ministers must take into account the requirements of national and local planning, including the requirements of agriculture and industry. The Scottish Ministers may direct that a road, or a proposed road, should become part of the trunk road in order to relieve the trunk road from local traffic. They may do so even if there is intervening land between those roads.[136]

4.11.2 TRUNK ROAD ORDERS

The legal procedure to be followed by the Scottish Ministers to direct that a road shall become or cease to be a trunk road is set out in Schedule 1 to the 1984 Act.[137] They may have to publish an environmental statement in relation to certain road improvement projects.[138]

The procedure involves public advertisement with provision for submission of objections within a specified period being not less than six weeks from the date of publication of the statutory notice of the draft order. The Schedule contains a table of statutory consultees who must be served with a copy of the order, the statutory notice and any relevant map or plan. If a statutory consultee submits and maintains an objection, the Scottish Ministers must hold a local inquiry. If a party, other than a statutory consultee, submits and maintains an objection, the Scottish Ministers may hold a local inquiry. After considering outstanding objections and the report of the local inquiry, the Scottish Ministers may make the order with or without modifications.

The validity of Scottish Ministers' decision to make the order may be challenged in the Court of Session by an aggrieved person within six weeks of the date of public notice of the decision. The existence of this statutory right of appeal may have the effect of rendering this procedure compatible with the provisions of the Human Rights Act 1998 in relation to Article 6(1) of the European Convention on Human Rights which enshrines a right to a fair hearing.[139]

The Scottish Executive adopts this procedure in relation to the construction of side roads.[140] The Local Government etc (Scotland) Act 1994 introduced certain transitional powers of the Secretary of State to deal with existing and proposed trunk roads in relation to the establishment of new local government areas on 1 April 1996. Those powers allowed him to make trunk road orders in respect of existing or proposed roads directing that the roads should become or cease to be trunk roads.

4.11.3 SPECIAL PARLIAMENTARY PROCEDURE

A trunk road order may relate to a road which is, or will become, the responsibility of the local roads authority. The former involves a proposal to designate part of the local road network as a trunk road. This would effectively remove control of the road from the local roads authority. The second situation involves the 'de-trunking' of a trunk road to local road status thereby transferring the maintenance responsibility for the road from Transport Scotland to the local roads authority. In either case, the submission of a valid objection from the local roads authority means that the order will be subject to special parliamentary procedure, if the objection is not withdrawn.[141]

4.11.4 STATUS OF A ROAD WHICH CEASES TO BE A TRUNK ROAD

If, for the purposes of reorganising or improving the network, the Scottish Ministers decide that a road should no longer be a trunk road, they have the power to make a trunk road order, which specifies that the road shall cease to be a trunk road. Such an order may also direct that the local roads authority for the area shall become the roads authority for the road. The order must specify the date from which the local roads authority assumes responsibility for the road. The order may also direct the authority to enter the road in the list of public roads.[142]

4.11.5 CYCLE TRACKS AND FOOTPATHS ASSOCIATED WITH TRUNK ROADS

The Scottish Ministers have a general power to improve trunk roads by the construction of associated cycle tracks and footways.[143] They may also make an order directing that cycle tracks or footpaths, which they propose to construct in association with a trunk road, albeit separated from the road by intervening land, will be part of the trunk road network.[144]

4.11.6 FINANCIAL CONTRIBUTIONS BY LOCAL ROADS AUTHORITY

A local roads authority may make a financial contribution towards the costs incurred by the Scottish Ministers in the construction or improvement of any trunk road.[145]

4.11.7 PROVISION OF PICNIC SITES FOR TRUNK ROADS

The Scottish Ministers have the power to provide and maintain picnic sites and associated facilities for trunk roads.[146] The associated facilities include public conveniences and facilities for the provision of meals and refreshments. They are not empowered to provide a catering service or to arrange for the local authority to provide that service although they may make arrangements for some other person to do so. They may acquire land voluntarily or compulsorily for the construction of a picnic site. The scope of land take authorised by a compulsory purchase order is restricted to 800 metres from the middle of the relevant trunk road.[147]

4.12 SPECIAL ROADS

A special road is one that is for the use of prescribed classes of traffic as specified in a special roads scheme.[148] Schedule 3 to the 1984 Act sets out the nine classes of traffic for this purpose. The Scottish Ministers may by order vary the classes of traffic and the composition of any such class. Special roads include, for example, motorways. All special roads provided under the Special Roads Act 1949 maintained their status when the 1984 Act came into force.[149]

4.12.1 SPECIAL ROAD AUTHORITY

A special road authority is a roads authority authorised by a special road scheme to provide a special road. A special road authority may be the Scottish Ministers or a local roads authority. One example of a local roads authority as special road authority was Strathclyde Regional Council in relation to the section of the M8 motorway within the boundaries of the former Glasgow District Council area.

4.12.2 SPECIAL ROAD SCHEMES

The legal procedure to designate an existing or proposed road as a special road involves the making of a special road scheme.[150] A special road scheme will be made by the Scottish Ministers in the case of a road to be provided by the Transport Scotland. If the road is to be provided by the local roads authority, the scheme will be made by that authority and confirmed by the Scottish Ministers.[151] There is a statutory obligation upon the Minister to give due consideration to the requirements of national and local planning, and to the requirements of agriculture and industry, before making or confirming a scheme.[152] Two or more local road authorities may jointly submit a scheme to the Scottish Ministers for confirmation. Any such scheme may determine which of the promoting authorities shall be the special road authority for the special road. In the case of a joint submission, one of the authorities can transfer its statutory roads function in relation to the road to the special road authority. The scheme can also make provision for the roads authority to make a contribution to the special road authority in respect of expenditure incurred in the performance of those functions.[153] With the establishment of Regional Transport Partnerships,[154] it would be possible for a Transport Partnership to enter into arrangements with the Scottish Ministers or the local roads authority in relation to a special road scheme.[155]

The procedure for making and confirming special road schemes is set out in Schedule 1 to the 1984 Act.[156] The procedure involves public advertisement and statutory consultation with the opportunity to submit objections within a specified period of not less than six weeks. One of the statutory consultees is the council in whose area any part of the route of the special road is situated. If the relevant council objects and does not withdraw its objection, the Ministers must hold a local inquiry.[157] Such an objection may arise from a function of the council other than its roads function, such as its planning function. If an objection is sustained by a person other than a statutory consultee, the Scottish Ministers have the discretion to dispense with the local inquiry if satisfied that an inquiry is unnecessary in the circumstances of the case.[158] Although they have a statutory discretion in these circumstances, they must nevertheless act reasonably in reaching a proper decision. Failure to act reasonably may leave the decision open to legal challenge by means of judicial review.[159] Care will also have to be taken to ensure that the adopted procedure does not deny a relevant party their right to a fair hearing in terms of the Human Rights Act 1998. After considering any outstanding objections and, if applicable, the report of the local inquiry, the Scottish Ministers may make or confirm the scheme without modification or subject to such modification as they think fit. As soon as may be after making or confirming the scheme, they must publish notice of their decision. The scheme may be challenged in the Court of Session by an aggrieved person within six weeks of the date of public notice of the decision to make or confirm the scheme.[160]

4.12.3 SPECIAL PARLIAMENTARY PROCEDURE

The submission of following categories of objection will result in the scheme being subjected to special parliamentary procedure:[161]

  • 1 A valid objection made by the roads authority for any road (or proposed road) comprised in the route of the special road authorised by the scheme. This situation deals with a dispute between the roads authority for the road which is the subject of the scheme and the promoter of the scheme.

  • 2 A valid objection from any navigation authority or Scottish Water, on the ground that the scheme provides for any bridge or tunnel over or under navigable waters that is likely to impede the performance of their statutory functions. This situation deals with disputes between other statutory bodies and the promoting authority.

4.12.4 SUPPLEMENTARY ORDERS RELATING TO SPECIAL ROADS

A range of supplementary orders can be made in relation to special roads.[162] These orders may cover:

  • Appropriation of any road or proposed road in the course of construction as part of the special road.

  • Transferring any road or proposed road in the course of construction to the special road authority.

  • Authorising the special road authority to stop up, divert or improve any road which crosses or enters the route of a special road.

  • Construction of any new road related to such improvements.

  • Transferring to the roads authority any new road constructed by the special road authority.

  • The exercise by the special roads authority of the roads authority functions in relation to the special road.

  • Any other purpose incidental to the special road scheme.

  • Payment of contributions by or to the special road authority.

4.12.5 RELATIONSHIP WITH THE TRUNK ROAD NETWORK

Until 1991 special roads for which the Secretary of State was special road authority, were designated as trunk roads.[163] In administrative terms, this ensured that all of the roads that were under the responsibility of the Secretary of State were part of the trunk road network. They would therefore be part of any trunk road maintenance contract let by the Secretary of State. They would also benefit from the statutory provisions in respect of trunk roads. Now the special roads scheme may specify that the special road, or any part of it, shall not be a trunk road.[164] The Scottish Ministers retain the power to reclassify the special road as a trunk road at a future date.[165]

4.13 CROWN ROADS

A crown road is a road to which the public has access by permission granted by the appropriate Crown authority or otherwise granted by or on behalf of the Crown.[166]



[1] Clark v Kato; Cutter v Eagle Star Insurance Co Ltd [1998] 4 All ER 417, HL.

[2] R(S)A 1984, 151(1).

[3] Subject to subsection 3 of Section 151 – see also 4.3.3 below.

[4] R(S)A 1984, s 151.

[5] Clark v Kato [1984] 4 All ER 417, HL per Lord Clyde at 431.

[6] Aird v Vannet 1999 SCCR 322.

[7] 2001 SLT 725.

[8] 1995 SLT 1254.

[9] Orders made under the provisions of The Road Traffic Regulation Act 1984. See Chapter 22.

[10] Section 1(1) of the 1984 Act.

[11] Section [14] of the Road Traffic Regulation Act 1984.

[12] Clark v Kato [1984] 4 All ER 417.

[13] Mackinnon v Argyll and Bute Council 2001 SLT 725.

[14] Clark v Kato.

[15] Aird v Vannet 1999 SCCR 322.

[16] Mackinnon v Argyll and Bute Council 2001 SLT 725.

[17] Dick v Walkingshaw 1995 SLT 1254.

[18] Brian Gregory Hamilton v Dumfries and Galloway Council [2006] CSOH 110.

[19] Erskine (II.ix.12).

[20] Waddell v Earl of Buchanan (1868) 6 M 690.

[21] McRobert v Reid 1914 SC 633.

[22] 1909 SC 1336 (or 8 – see page 648 footnote 2).

[23] (1868) 6 Macph 936.

[24] 6 Mach 690 at p. 699.

[25] 1914 SC 633.

[26] (1904) 6 F 620.

[27] See Lord Cameron's comments in Viewpoint Housing Association Ltd v Lothian Regional Council 1993 SLT 921 at 927 B.

[28] Cheyne v MacNeill 1973 SLT 27.

[29] RS(A) 1984 Section 151.

[30] RS(A) 1984 Section 151.

[31] RS(A) 1984 Section 151.

[32] See Origins of a Public Right of Passage para 4.3.2.

[33] Viewpoint Housing Association.

[34] Two posts and a removable chain.

[35] Control of obstructions in roads.

[36] See discussion on public rights of way at [4.4.2] below.

[37] the Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620.

[38] page 926 G.

[39] see paragraph [4.3.2] above.

[40] 2006 S.C.L.R. 839.

[41] 1973 SLT 27.

[42] Section 1 of the 1984 Act.

[43] See Brian Gregory Hamilton v Dumfries and Galloway Council [2006] CSOH 110.

[44] See Brian Gregory Hamilton v Dumfries and Galloway Council [2006] CSOH 110.

[45] See chapter [4.8.2] below.

[46] Section 1(4) of the 1984 Act.

[47] Section 1(5) of the 1984 Act.

[48] Section 1(9) of the 1984 Act.

[49] See Brian Gregory Hamilton v Dumfries and Galloway Council [2006] CSOH 110.

[50] Section 16(2) of the 1984 Act.

[51] Cowie v Strathclyde Regional Council 8 July 1986 – unreported.

[52] At common law there were doubts about whether a cul-de-sac was a highway (Bateman v Black (1852)18 QB 870). Those doubts resulted in the statutory definition of 'street' in the Public Utilities Street Works Act 1950 being extended to include the words: '. . . irrespective of whether the highway, road or other thing in question is a thoroughfare or not.' In considering the meaning of this phrase in the case of Strathclyde Regional Council v British Railways Board 1978 SLT (Sh Ct) 8, Sheriff Principal R Reid QC accepted that its purpose was to exclude doubts which had arisen in the common law regarding cul-de-sacs. However, he was of the view that it was not intended to have the effect that a length of highway which had been blocked off at both ends should continue to be regarded as a highway. Such an interpretation would set aside the decision in Bailey v Jamieson(1876) 10 CP 329 and make 'a considerable statutory inroad into the idea of a highway as a place over which all persons may pass.'

[53] Campbell v Lang (1853) 1 Macq 451.

[54] Mackintosh v Moir (1871) 9 M 574, (1872) 10 M 517.

[55] For further reading see Rights of Way – A Guide to the Law in Scotland published by the Scottish Rights of Way Society Ltd.

[56] Brian Gregory Hamilton v Dumfries and Galloway Council 2006 S C L R 839.

[57] 2001 SLT 725.

[58] Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd 1993 SLT 1318 HL.

[59] See para [4.10] below on Section 151(3).

[60] Mackenzie v Banks (1868) 6 M 936.

[61] Smith v Sexton 1927 SN 92, 142.

[62] With the exception of any road covered by Section 14 of the Local Government and Planning (Scotland) Act 1982.

[63] Cowie v Strathclyde Regional Council, 8 July 1986 – unreported.

[64] Cowie v Strathclyde Regional Council, 8 July 1986 – unreported.

[65] Cowie v Strathclyde Regional Council, 8 July 1986 – unreported.

[66] Cowie v Strathclyde Regional Council, 8 July 1986 – unreported.

[67] Mackinnon v Argyll and Bute Council 2001 SLT 725 page 84.

[68] See Chapter 9.

[69] Marquis of Bute v McKirdy and McMillan 1937 SC 93 at 126–127.

[70] R(S)A 1984, s 1 and s 16.

[71] [2006] CSIH 25.

[72] The Times Law Report October 23 1998.

[73] Aird v Vannet(Procurator Fiscal, Glasgow) 1999 SCCR 322.

[74] Aird v Vannet(Procurator Fiscal, Glasgow) 1999 SCCR 322.

[75] Section 192(1) of the Road Traffic Act 1988 as amended by paragraph 78 of Schedule 4 to the Road Traffic Act 1991, which defines a road as, inter alia, 'any other way to which the public has access.'.

[76] [2005] EWHC 1280.

[77] See Strathclyde Regional Council v Persimmon Homes (Scotland) Limited 1994 SLT 176.

[78] See Stansfield v Findlay 1998 SLT 784 for consideration of private road verges.

[79] Cameron v Central Regional Council 16 January 1995.

[80] 1933 SC 751.

[81] David Runciman & Sons v Scottish Borders Council 2003 SLT 1405.

[82] In Perth and Kinross County Council v Magistrates of Crieff 1933 SC 751.

[83] 2001 S.C. 267.

[84] Section 29 of the Roads (Scotland) Act 1970 provided that a highway authority may acquire by agreement or compulsorily, land required in connection with the construction of a highway.

[85] R(S)A 1984 s 151.

[86] R(S)A 1984 s 151.

[87] See Transco plc v Glasgow City Council 2005 S.L.T. 958.

[88] R(S)A 1984 s 1(9).

[89] R(S)A 1984 s 1(9).

[90] R(S)A 1984 s 1(3).

[91] See MacKinnon v Argyll and Bute Council 2001 SLT 1275 and Brian Gregory Hamilton V Dumfries and Galloway Council 2006 CSOH 110.

[92] R(S)A 1984 s 1(4) As to 'frontager' see Section 151(1).

[93] R(S)A 1984 s 1(4) provisos i–iii.

[94] R(S)A 1984 s 1(7) (amended by the Abolition of Domestic Rates Etc (Scotland) Act 1987.

[95] See [4.9.1] below.

[96] but not a footpath.

[97] Section 16(1) (b) of the R(S)A 1984.

[98] Section 151 of the R(S)A 1984.

[99] Section 151 of the R(S)A 1984.

[100] Section 14 (1) of R(S)A 1984.

[101] Section 14 (1) of R(S)A 1984.

[102] Section 15 of R(S)A 1984.

[103] Section 54 of R(S)A 1984.

[104] Section 57 of the R(S)A 1984.

[105] Section 59 of R(S)A 1984.

[106] Section 62 of R(S)A 1984.

[107] Section 65 of R(S)A 1984.

[108] Section 66 of R(S)A 1984.

[109] Section 67 of R(S)A 1984.

[110] Section 68 of R(S)A 1984.

[111] Section 83 of R(S)A 1984.

[112] Section 85 of R(S)A 1984.

[113] Section 87 of R(S)A 1984.

[114] Section 88 of R(S)A 1984.

[115] Section 89) of R(S)A 1984.

[116] Section 90 of R(S)A 1984.

[117] Section 91 of R(S)A 1984.

[118] Section 92 of R(S)A 1984.

[119] Section 93 of R(S)A 1984.

[120] Section 95 of R(S)A 1984.

[121] Section 98 of R(S)A 1984.

[122] Section 99 of R(S)A 1984.

[123] Section 100 of R(S)A 1984.

[124] Section 35 of R(S)A 1984.

[125] The requisite number of frontagers has the same meaning as in R(S)A 1984, s 1(7): R(S)A 1984, s 13(8).

[126] Section 14 (1) of R(S)A 1984.

[127] Section 15 of R(S)A 1984.

[128] Section 16(1)(b) of R(S)A 1984.

[129] Section 91 of R(S)A 1984 and Chapter 11.

[130] Section 5 (1) of R(S)A 1984.

[131] Section 2 of R(S)A 1984.

[132] See Chapter 2.

[133] Section 2(3) of R(S)A 1984.

[134] Section 2(4) of R(S)A 1984.

[135] Section 5(2) of R(S)A 1984.

[136] Section 5(3) of R(S)A 1984.

[137] Section 5(4) of R(S)A 1984.

[138] Section 55A of R(S)A 1984 (added by the Environmental Impact Assessment (Scotland) Regulations 1999, SSI 1999/1) See also Chapter 5.

[139] See para 1.4.5 .

[140] See Chapter 5.

[141] Section 5(5) of R(S)A 1984.

[142] Section 5(2)(b)of R(S)A 1984.

[143] Section 5(8) of R(S)A 1984.

[144] Section 5(8) of R(S)A 1984.

[145] Section 6 of R(S)A 1984.

[146] Section 55 of R(S)A 1984.

[147] Section 109 of R(S)A 1984, Sch 5, Pt 1, para 5.

[148] Section 7of R(S)A 1984.

[149] Section 7(1) of R(S)A 1984.

[150] Section 7 of R(S)A 1984.

[151] Section 7(6) of R(S)A 1984.

[152] Section 7(7) of R(S)A 1984.

[153] Section 7(10) of R(S)A 1984.

[154] Transport (Scotland) Act 2005 Part 1.

[155] Section 14 of the Transport (Scotland) Act 2005.

[156] R(S)A 1984 Sch 1, Pt 1.

[157] R(S)A 1984 Sch 1, Pt II, para 11.

[158] R(S)A 1984 Sch 1, Pt II, para 12.

[159] Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, CA.

[160] R(S)A 1984, Sch 2: See Lithgow v Secretary of State for Scotland Court of Session Outer House Oct 18 1972.

[161] Section 7(8) of the R(S)A 1984.

[162] Section 9 of the R(S)A 1984.

[163] Section 10(1) of the R(S)A 1984.

[164] R(S)A 1984, s 10(3) added by the New Roads and Street Works Act 1991, s 46.

[165] R(S)A 1984, s 5(2)(a).

[166] Section 131(7)(b) of the Road Traffic Regulation Act 1984.

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