UK: Are Roads Like Buses?

Last Updated: 26 October 2010
Article by Murray Shaw

There is a cliché that you wait ages for a bus then three or four come along at once. In the Court of Session over the last two or three years that appears to have been the same in relation to cases concerning roads.

Hamilton v Dumfries & Galloway Council

The first of these cases arises out of litigation involving a Mr Hamilton and Dumfries & Galloway Council and resulted in two Outer House decisions and two Inner House (Court of Appeal) decisions.

The underlying issues related to a request by two householders to have a minor road which had been stopped off and declassified "readopted" by the Council. Between the houses owned by these two householders and the road there was a narrow strip of ground to which they had a title albeit not a good title. In fact the true owner of the strip of ground was apparently the petitioner, Mr Hamilton. In order to have a right to make a request to have the road adopted in terms of the Roads (Scotland) Act 1984 the two householders had to be frontagers. When the Council adopted the road Mr Hamilton challenged the position by judicial review on the basis that they were not frontagers.

The Inner House of the Court of Session held there was clear authority that if there was no physical connection between their land and the road and the two householders were not frontagers and not entitled to make a request to have the road adopted. The Inner House therefore upheld the decision of the Outer House and quashed the adoption.

Mr Hamilton then brought further proceedings by way of judicial review seeking a declarator that the area of land was not a road and incapable of being adopted by the local authority. Again this case went to both the Outer and Inner House. In the Inner House decision there is more clarity about the underlying issues and the dispute. In effect in 1992 planning permission was granted for the construction of a housing development in a village in Dumfriesshire. The internal estate road opens by way of a bell mouth (a standard junction design) onto a section of road which has previously been part of a public road. As a result of the construction of a bypass this formerly public road became redundant, was stopped up and removed from the list of roads maintained by the local authority. Mr Hamilton was in effect the owner of the now "non public" road entitled in his view to deny vehicular access to the houses which had been constructed unless and until some form of agreement was reached with him. This in reality appears to have been the essence of the issue.

In the Inner House decision the court reviewed the effect of the Roads (Scotland) Act in the context of earlier decisions. Lord Reed reviewed the law prior to the 1984 Act and the Act observing that a number of the definitions commonly used are confusing because a private road is a road which though not adopted (i.e. maintained) by the local authority but over which there may still be a public right of passage. A road over which there is no public right of passage is not in reality a road at all (the court thought). The court also observed that there are clear differences between the laws of England and Scotland in a number of respects.

Ultimately the court came to the view that the stretch of "road" in question was not a road within the meaning of the Act capable of being adopted leaving the two householders with potentially no rights of access to the house – a severe position to be in but possibly one which might result in a claim against professional advisers.

Boyack Homes v Fife Council

The case of Boyack Homes Limited v Fife Council (decided on 10 February 2009) concerns a roads construction consent. It is necessary to obtain a roads construction consent as part of the process of constructing a road. Usually the process of obtaining a roads construction consent raises nothing other than technical issues and that was in effect the position here. The construction of a road (to service a new development) required the replacement of three existing lamp standards at the junction with five new lamp standards. This was purely a consequence of the development. The Council issued a roads construction consent subject to a condition intended to secure the provision of the revised road lighting. Boyack Homes could have appealed that condition but did not do so. In fact the relevant roads construction consent had been preceded by a contract between the parties in which Fife Council undertook the provision of the necessary services to install the new lighting.

The works were carried out. Subsequently Boyack Homes argued that the condition in relation to road lighting was ultra vires and sought recompense. They failed in that argument before the Sheriff Court and it came before the Court of Session.

Unfortunately the case does not give much information about why the litigation appears to have taken so long to come before the court, nor indeed the sums involved.

In essence it was argued for Boyack that in terms of Section 35 of the Roads (Scotland) Act 1984, Fife Council as roads authority had an obligation to provide and maintain lighting for roads or proposed roads. They accordingly argued that it was not competent for the Council to require them to upgrade the lighting at the junction in terms of the condition which was attached to the roads construction consent and that irrespective of the fact that the sole cause of the need for enhanced lighting was their development. Fife Council argued that the condition was not ultra vires and in terms of Section 23 of the Act they had a wide authority to impose conditions. On a supplementary point Boyack Homes argued that there should be a term implied in the contract which was entered into to have the lighting works carried out (to the effect that Fife Council could not require that Boyack Homes do or pay for work which they were not lawfully obliged to do).

The court dismissed the appeal by Boyack Homes against the Sheriff's ruling. In the judgement the court made clear that any condition attached by a local authority in these or similar circumstances must meet three requirements. Firstly, any condition must be connected to the subject matter of the arrangement and not for any ulterior motive. The court suggested it would be an ulterior motive for the condition to have required more works than were necessary as a consequence of the development itself. Secondly, any condition must fairly and reasonably relate to the development – this is a requirement that is found in other areas of planning (such as planning conditions and planning agreements). Thirdly, the condition must be reasonable.

The court also held that the implication of the term sought by the Appellants was unjustified in this case.

Michael & Sarah Hamilton v Robert Kennedy Nairn

This action is one which equally has gone to the Outer and Inner House of the Court of Session. In a way it is similar to the Hamilton action (the other Hamilton action) because the issue is a dispute between neighbours. In essence Mr and Mrs Hamilton brought an action with a view to establishing that they were entitled to take access over the verge of a road with the view of getting into subjects they were planning to purchase and operate as a cattery. The underlying dispute (as identified by the court) was hostility on the part of the defender to that development. The issue in question was whether or not the verge over which they had to take access was part of the road (the public road) adopted by the local authority and in respect of which there was therefore a right to take access and a right on the part of the local authority to authorise Mr and Mrs Hamilton in terms of Section 56 of the Roads (Scotland) Act to carry out works.

In the Outer House the case came before Lord Glennie who had issued at least one decision in the Hamilton and Dumfries & Galloway saga. In this case he held based upon the evidence that there was no doubt that the verge was part of the road a view that is consistent with the definition in Section 151 of the Roads (Scotland) Act 1984. As a consequence of that he granted declarator sought and an interdict to prevent the defender Mr Nairn from interfering with the proper activities of Mr and Mrs Hamilton.

The case was appealed and the decision of Lord Glennie this time was upheld (his decision in one of the other cases was overturned). The decision of the Inner House reviewed the provisions of the Roads (Scotland) Act in some detail. They accepted the views of Lord Reed in Hamilton v Dumfries & Galloway Council to the effect that the 1984 Act codified the law rather than simply consolidated it so that the definitions in the 1984 Act replaced earlier definitions.

In essence the dispute in this case was fairly straightforward namely whether or not the verge fell within part of the road as a result of which there was a public right of passage. The Inner House looked at the issue of management as one way of determining matters. The evidence was clear that the road was maintained by the local authority (Aberdeen Council). However the Inner House also looked at the definition in terms of the Act making the point that it was clearly sensible that the verge should form part of the road for any number of reasons.

The geography in this case probably helped in that there were two drystane dykes which appeared to form the obvious boundary to the road and verge. The court did observe that the area constituting the road even including the verge might be more restricted in particular circumstances and depending upon the relevant facts but that was not an issue in this case.

As a consequence they upheld the decision of Lord Glennie.

As a result of these three cases we now have a number of recent opinions from the court on the roads system in Scotland. Of course human nature may yet mean that further issues will arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.