Raiders of the lost roads?

At the time of writing this article, the “great freeze” has finally given way to milder weather. On inspecting the damage inflicted during the winter, the unusually cold weather has principally affected the roads. It seems that small fissures in the surface of the road have filled with water from melting snow, which has subsequently expanded on freezing, causing the surface of the road to break up, a phenomenon known as “frost heave”.

In a very similar way to the roads that are its concern, the Roads (Scotland) Act 1984 contains some cracks that have over time become hazardous potholes to steer round for those embarking on an interpretative journey along the byways of the Act. In Hamilton v Dumfries & Galloway Council [2009] CSIH 13 the Inner House decided to carry out some major resurfacing works to the crumbling legal infrastructure.

The road to nowhere

The story begins with the decision to replace an old military road running through the village of Collin in Dumfriesshire with a new dual carriageway which bypasses the village. The new road dissects parts of the old road, rendering stretches of the latter redundant. The redundant stretches were stopped up by order of the roads authority in a 1983 order, which came into force around 1989. However, on a 36 metre long stretch of the stopped-up road, the road surface remained intact – it just led nowhere.

During the late 1990s, a field at the end of this 36 metre stretch was developed into a residential cul-de-sac, known as Townhead Park. Access to the development was by that road. In 2000, the developers applied to the roads authority for adoption of Townhead Park. However, this was rejected because, thanks to the 1983 stopping-up order, Townhead Park would not be connected to the public road network. This predicament seems to have caught the attention of an opportunist purchaser, who purchased the 36 metre stretch (amongst other areas) in 2001.

That purchaser was Brian Hamilton, who needs no introduction to the conveyancing community. Mr Hamilton has acquired a reputation as the so-called “Raider of the Lost Titles” in earlier cases involving tacks, leasehold casualties, feudal (paper) baronies and reversionary rights over former school buildings. In acting in the way he did, however, Mr Hamilton appreciated a fundamental point of roads law that is often overlooked by solicitors.

When is a road not a Road?

The answer is contained in s 151 of the Act, which defines a road in terms of the Act (in this article, a “Road”). It is defined as, subject to limited exceptions, “any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not)…”. So, the public right of passage is what makes a road a Road.

When considering delisting and stopping up, there can be a tendency to conflate the two ideas but they are different in procedure and outcome. Delisting can be a useful procedure for roads authorities if they no longer wish to fund the maintenance of a public road that has ceased to be used by the general public. On successful conclusion of the delisting procedure, the road is deleted from the list and becomes a “private road” in the sense that the solum of the road, previously vested in the roads authority, reverts to its former ownership. But the public right of passage remains. It is private only as regards maintenance. It is not a private road in the ordinary sense of the words that the owners can restrict passage over the road.

Stopping up, however, not only removes the duty of the roads authority to maintain the road in question at public expense, but it will also extinguish any underlying public right of passage. This renders the road a private road in the ordinary sense of the words, and without a public right of passage having been established, the owner’s tolerance of public use can be withdrawn at any time. The extinguishment of the public right of passage was critical in this case.

Without a right to use the 36 metre stretch, the owners of houses in Townhead Park became technically landlocked when Mr Hamilton inevitably withdrew the tolerance of their use of the road. It is sad to report that the road became a “ransom road”, because Mr Hamilton sought significant sums of money from the house owners to continue to use the road in future. The inconvenience and anxiety caused to the proprietors in Townhead Park was considerable.

To alleviate any hardship, Dumfries and Galloway Council decided to re-adopt the road on the basis that it remained to the adoptable standard and the owners had re-established a public right of passage through use for over five years or so and they considered it to be a private road. Mr Hamilton applied to the court for a judicial review of that decision on the basis that, as there was no underpinning public right of passage established over the prescriptive period since it had been extinguished, the 36 metre stretch was not a Road in terms of the Act. The roads authority can only adopt Roads, and therefore it was not capable of being adopted. The question of whether a public right of passage had been re-established was pivotal to the case.

Public right of passage

The Act does not define a public right of passage and accordingly the court conducted a wide ranging review of the law relating to the right, including case law before the Act, parliamentary proceedings during the passage of the Act and case law following the Act (including some criminal cases, although these were of limited assistance), and the opinions of the judges in the Outer House in the instant case.

On analysis, the court decided that the continual patching up of roads law was leading it to develop in a tangential way. There was an over-reliance on unsatisfactory dicta that was becoming hazardous. Previous cases relating to the definition of a Road generally relied on Cowie v Strathclyde Council (8 July 1986, unreported), even though it should have been treated with caution due to the fact that no authorities had been cited. Counsel in those cases fastened onto a particular passage in Cowie which seemed to suggest that the Act had created a novel, “less exacting” right of passage unrelated to the common law public right of way – an interpretation that the court firmly repudiated.

The court preferred the more solid, older authorities that placed the public right of passage in the same family as a public right of way. A public right of passage is not, as had recently been held, a lesser right than its more familiar relative, the public right of way, nor terminable at will. Lord Reed said at [61]:

“The rights of the public, where a public right of passage exists, are no less extensive, and no less enforceable, than where a public right of way (in the narrow sense) exists: indeed, a public right of way (in that sense) is one example of a public right of passage.”

The court also confirmed that physical stopping up is not required to extinguish the public right of passage. Extinguishment occurs when the order takes effect. In this case the public right of passage was extinguished in 1989 when the order became effective. Without an underlying public right of passage, there was no road and it could not therefore be re-adopted. A public right of passage can only be established through usage by end-to-end users, as of right, for the prescriptive period.

Mr Hamilton prevails in this case and has no doubt made a commercial success of his investment. In doing so, he has also reminded conveyancers that they must always ensure that any private road serving a property has an existing public right of passage all the way to and from the public road network. Otherwise there is a danger of titles to roads that are critical to access to a development being turned into ransom roads by title raiders.

• Euan Sinclair is a professional support lawyer at Burness LLP. Any views expressed in this article are his own.