UK: Roads And The Problems They Can Cause

Last Updated: 7 April 2009
Article by Murray Shaw

When dealing with planning situations it is all too easy to concentrate upon the grant of the planning permission itself, almost ignoring other aspects of the development process, often because these will be dealt with by way of conditions. Typically when dealing with a planning application issues such as roads will be resolved between the parties and their technical advisers so that the construction of any necessary roads is not an issue given any detailed consideration.

There are reasonably few cases in Scotland dealing with the topic of roads. However, just like buses, two have come along at once! One case deals with the definition of roads, while the other deals with the consent process.

The decision by the Inner House in the Court of Session on 24 February 2009 in the case of Hamilton v Dumfries & Galloway Council, illustrates however the sort of difficulties that can arise if proper consideration is not given to the issues. The decision deals with the proper interpretation of significant provisions in terms of the Roads (Scotland) Act 1984 including the definition of "a road" and the effect of a stopping up order.

Hamilton v Dumfries & Galloway Council

In 1992 planning permission was granted for the construction of a housing development in Collin, a village in Dumfriesshire. The internal estate road opened by way of a bell mouth (a standard junction design) onto a section of a road which had previously been part of a public road. That section of road had previously formed part of a road known as Low Road (formerly part of the B724). As a result of the construction of a by pass the road became redundant and was subject to a stopping up order. The stopped up part of the road came into the ownership of the Petitioner in this case who indicated to the owners of the housing development that they had no right of access over the stopped up road. While there were various issues, what brought the case before the court was a question of whether or not Dumfries & Galloway could adopt the disputed section of road. An application had been made by the developers to adopt the estate road but this could not happen as a matter of law unless that road connected to the public road network – hence the need to adopt the section of the former public road, title to which lay with the Petitioner.

As the court pointed out, the definition of a "public road " and a "private road" in terms of the Roads (Scotland) Act is confusing in the sense that a public road is one which is adopted while a private road is a road which is not adopted (i.e. maintained) by the local authority but over which there is a public right of passage. As the court pointed out a road over which there is no public right of passage is not a "road" of any kind for the purposes of the Roads (Scotland) Act 1984.

The court having reviewed the law decided that the relevant section of the road was a road over which there was a public right of passage up until the time when the stopping up order was made but the effect of the stopping up order was to terminate any right of passage with the consequence that the relevant part of the road ceased to be a road capable of being adopted by the Council.

The practical consequences of this may be severe for those who live in the houses which were developed. Presumably they will need to come to some arrangement with the Petitioner to secure access and that may result in claims against the developer and/or the solicitors who acted for them.

The case is an authoritative decision on key concepts in terms of the Roads (Scotland) Act 1984 and is a good example of the difficulties which can arise if the relevant issues in areas which may be critical to development are not thought through.

Boyack Homes Limited 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.


Obviously both cases turn upon their own facts. The Hamilton decision is a good illustration however of the difficulties which can arise if the relevant roads issues are not thought through properly. The Boyack case seems particularly to turn upon its own facts and circumstances. Nonetheless it is helpful and up to date guidance in relation to the power of local authorities to apply conditions, particularly in relation to roads construction consents. Obtaining roads are a critical part of the construction and development process, though one that is rarely given any detailed consideration by the courts.

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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