Roads And The Problems They Can Cause

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...