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.

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