Are Roads Like Buses?

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...