Case Report: [2009] CSIH 13; 2009 S.L.T 337
Scottish Courts Service decision.

This is an important case examining the issue of what is the nature of a ‘road’ and of a ‘public right of passage’ for the purposes of the Roads (Scotland) Act 1984. The court looked in detail at the statute and case law in relation to roads. Note that public rights of way are ‘roads’ for the purposes of the Act.

Key points – definitions of a ‘road’ and ‘public right of passage’ for the purposes of the Roads Scotland Act 1984.

Facts: The case concerned a small length of road in the village of Collin. When a new bypass was built in the 1980s the road became a dead end and the Secretary of State made a stopping up order in 1983 to close this and other roads replaced by new roads. The order was to take effect once the new roads had opened, which occurred in 1989. At the time, the section of stopped up road in question terminated at a field, but new houses were built on this field in 1999 (Townhead Park) and the stopped up section of road was used as the access to this development. There was no other means of vehicular access to the development, without demolishing one of the new houses. Hamilton purchased land, which included the road, at a later date, and claimed that the residents of Townhead Park could not use the access road unless they paid for grants to use it. At the request of the residents, the Council added the road to their list of public roads, on the basis that it was already a private road within the meaning of the Roads (Scotland) Act 1984. Hamilton applied for judicial review of this decision.

The definitions of ‘road’ under the 1984 Act are set out below:

‘ “road” means …. any way (other than a waterway) over which there is a public right of passage by whatever means….
“public road” means a road which a roads authority have a duty to maintain; “private road” means any road other than a public road.’

Legal argument for the respondents (Dumfries & Galloway Council): The respondents claimed that the stopped up road had never fallen into disuse, despite the stopping up order, and that there continued to be a ‘public right of passage’ over it, which they said was a new statutory concept introduced by the 1984 Act, analogous to a public right of way, but without the requirements for the road to be between two public places or for there to be use for the prescriptive period. They said that this public right would only cease if physical work was carried out to prevent public use of the route.

Decision: This was an appeal to the Inner House of the Court of Session. The case contains detailed examination of what is a ‘road’ for the purposes of the Roads (Scotland) Act 1984 and when a public right of passage exists. The court said that the change in the 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. A road is defined in the 1984 Act as being a way over which there is a public right of passage. Where there is no public right of passage, a route is not a ‘road’ of any kind at all, for the purposes of the Act. The words “over which there is a public right of passage” refer to any way which any member of the public is entitled, as a matter of right, to use for the purpose of passage. Both ‘public’ and ‘private’ roads (as defined in the Act) have a public right of passage; the distinction between the two is that the road authority only has a duty to maintain public roads, not private roads.

Roads can be created by statutory powers (the usual case for public roads), or by express grant (the usual case with housing developments), or where they meet the legal conditions for public rights of way. The 1984 Act does not create any new right.

The court gave a number of reasons why they were unable to accept the respondents’ contention that a public right of passage was a new concept created by the 1984 Act, and that such a right would continue after a road was stopped up until it was physically blocked.

• It would place a new burden on property, and a statute would not be readily construed to have this effect.
• It would make the conditions set out in the Prescription and Limitations Act 1973 unnecessary if a right of way could exist by public usage alone, without meeting the other conditions in the Act.
• Physically blocking the route should not be required as part of the stopping up process because the landowner to whom the road reverts might require it to remain unobstructed for access to his land, and also the public might have a right of access in accordance with the provisions of Part I of the Land Reform (Scotland) Act 2003. [Editor’s comment – only in relation to non-motorised access.]

Furthermore, any suggestion that the public right of passage could only be extinguished by physically closing the road could not be correct, since it would be unlawful to carry out such works on a road over which there remained such a right. There is no such problem if the statutory order itself extinguishes the right. In the case of the 1983 Order, the public right of passage must therefore have been extinguished as from the time when the stopping up works were authorised, i.e. the time “when the new roads [were] open for the purposes of through traffic.”

The Court concluded that the disputed section of road formed part of a ‘road’, as defined in the 1984 Act, prior to the coming into effect of the stopping up Order in 1989. Once the Order came into effect, the public right of passage over the disputed section of road was extinguished, and it accordingly ceased to be a ‘road’ as defined. Such use as was subsequently made of the disputed section did not constitute a fresh public right of passage, since the requirements for the constitution of such a right by usage (in particular, end- to-end user, as of right, for the prescriptive period) were not met. The disputed section of road therefore could not be adopted as a public road by the respondents under the 1984 Act.