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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Abernethy
Lord Nimmo Smith
Lord Clarke
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[2006] CSIH25
XA59/05
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
APPEAL TO THE COURT OF
SESSION
under
The Road Traffic
Regulation Act 1984
by
(FIRST) JOHN McNICOL
(FARMERS) LIMITED and (SECOND) STEWARTS OF TAYSIDE LIMITED
Appellants;
against
THE SCOTTISH MINISTERS
Respondents:
_______
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Act: Keen, Q.C.; Turcan Connell
Alt: Moynihan, Q.C.,
Crawford; Richard Henderson, Office of
the Solicitor to the Scottish Executive
5
May 2006
Introduction
[1] The
appellants are respectively the owners and the occupiers of Tofthill Farm ("the
farm"), the lands of which lie on either side of the A90 (formerly A85) trunk
road ("the A90"), a dual carriageway which runs approximately from west to east
between Perth and Dundee. There are private means of access to the
lands of the farm on either side of the A90, opening off it more or less
opposite each other. At this point,
where the A90 runs in a long bend approximately from north-west to south-east, there
is a gap in the central reserve. It is
therefore possible for traffic travelling in either direction along the A90 not
only to perform a left turn onto the farm lands on the same side of the
carriageway, but also to perform a U-turn, or to perform a right turn to reach
the farm lands on the far side of the opposite carriageway. It is also possible for farm traffic to cross
the A90 in either direction from the land on one side to the land on the other.
[2] On
22 April 2005 the
Scottish Ministers ("the respondents") made the M90/A90 Trunk Road (Friarton to
Glencarse)(Prohibition of Specified Turns) Order 2005 (SSI 2005 No. 238) ("the
Order"), which came into force on 6 May 2005. Article 2 thereof provides, inter alia, that
"no person
shall use, or cause or permit the use of, any vehicle on the lengths of road
specified in Part 1 of the Schedule to this Order so as to make any turn
specified in Part 2 of the Schedule to this Order."
In the Schedule "Reference Point E" is
defined as meaning
"the point
of intersection of the [M90/A90] Trunk Road and the projected centre line of
the existing access to Tofthill Farm as shown on plan 3".
In Part 1 of the Schedule six
lengths of road were specified, of which the fifth was:
"That
length of the existing central reserve opening of the Trunk Road, from a point
8 metres or thereby north west of Reference Point E, generally in a south
easterly direction for a distance of 14 metres or thereby, shown and numbered
'5' on [plan 3]".
On plan 3 it can be seen that this
point is approximately in the middle of the existing gap in the centre reserve,
and opposite the entrance to the private means of access to the farm on either
side of the A90. By Part II of the
Schedule, the turns which were prohibited by Article 2 of the Order were
specified as:
"1. All U-turns on those lengths of the
Trunk Road specified in Part 1 of this Schedule.
2. All right turns onto or off those
lengths of the Trunk Road specified in Part 1 of this Schedule."
[3] In
this appeal the appellants question the validity of paragraph 5 of Part 1 of
the Schedule to the Order.
The statutory provisions
[4] The
Order bore to be made by the Scottish Ministers, as the relevant traffic
authority, in exercise of the powers conferred by section 1(1) as read with
sections 2(1) and 2(2) of the Road Traffic Regulation Act 1984 ("the Regulation
Act"). By section 142(1) the expression
"road" is defined as meaning
"any length
of highway or of any other road to which the public has access, and includes
bridges over which a road passes".
Section 1(1) thereof provides, inter alia,
"The
traffic authority ... may make an order under this section (referred to in this
Act as a 'traffic regulation order') in respect of [a] road where it appears to
the authority making the order that it is expedient to make it -
(a) for avoiding danger to persons or other
traffic using the road or any
other road
or for preventing the likelihood of any such danger arising ... ".
Section 2(1) provides, inter alia:
"A traffic
regulation order may make any provision prohibiting, restricting or regulating
the use of a road, or of any part of the width of a road, by vehicular traffic
... ".
Section 2(2) provides, inter alia:
"The
provision that may be made by a traffic regulation order includes any provision
-
(a) requiring vehicular traffic ... to proceed
in a specified direction or
prohibiting
its so proceeding ... ".
[5] By
Part VI of Schedule 9 to the Regulation Act provision is made with respect to
the validity of certain orders. By
paragraph 34 it is provided that this Part of the Schedule applies, inter alia, to any order made under
section 1 of the Act, and the expression "the relevant powers", in relation to
any such order, is defined as meaning the powers with respect to such an order
conferred by the Act. By paragraph 35 it
is provided that if any person desires to question the validity of, or of any
provision contained in, such an order on the grounds inter alia that it is not within the relevant powers, he may make
an application for the purpose to this court.
By paragraph 36 this court, if satisfied that the order, or any
provision of the order, is not within the relevant powers, may quash the order
or any provision of the order, either generally or so far as may be necessary
for the protection of the interests of the applicant. It is under these provisions that the present
appeal is brought.
[6] It
is necessary also to refer to certain provisions of the Roads(Scotland) Act 1984
("the Roads Act"). By section 151(1) the
expression "road" is defined as meaning, subject to subsection (3), which is
not relevant for present purposes,
"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 and includes the road's
verge, and any bridge (whether permanent or temporary) over which, or tunnel
through which, the road passes; and any
reference to a road includes a part thereof".
The expression "public road" is
defined as meaning "a road which a roads authority have a duty to maintain",
and the expression "private road" is defined as meaning "any road other than a
public road".
[7] By
section 12(1) of the Roads Act provision may be made by the roads authority by
an order under that section in relation to a public road inter alia for authorising the roads authority for the road ("the
main road") to stop up, divert, improve or otherwise alter a road ("the side
road") which crosses or enters the route of the main road. By section 68(1) the roads authority may inter alia make an order stopping up any
road which they consider has become dangerous to the public other than by
reason of its crossing or entering the route of another road which is a public
road. Section 69(1) provides, inter alia, that where the roads
authority consider that a private means of access from a road to land is likely
to cause danger to, or to interfere unreasonably with, traffic on the road,
they may make an order stopping up the access and may provide a new means of
access to the land. Section 71(6)
provides inter alia that where access
to any land has been stopped up under section 69, and any person has suffered
damage in consequence thereof by the depreciation of any interest in the land
to which he is entitled or by being disturbed in his enjoyment of the land, he
shall be entitled to recover from the roads authority compensation in respect
of that damage; and in assessing such
compensation regard shall be had to any new means of access provided by the
roads authority.
The purpose of the Order
[8] The
earliest document before us is the A85 Perth to Dundee Route Action Plan,
published by the Scottish Office in December 1991. In it mention was made of "a higher [than the
national average] proportion of accidents which result in serious or fatal
injuries" and "the very high growth in traffic". For these reasons a "package of proposals"
was announced, of which the first two were:
"a. Construction of four grade-separated
junctions (flyovers) at Glendoick,
Inchmichael,
Inchture and Longforgan - this allows amalgamation of side roads and removes
T-junctions onto the trunk road.
b. Closure of all but emergency central
reserve gaps - removes crossing
and right
turning movements which have the greatest accident potential. These movements will be via the flyovers."
Subsequently, a fifth interchange
was proposed, at Kinfauns Village.
[9] In
November 2003 the respondents published three draft orders for the construction
of an interchange at Kinfauns, and a draft order for the closure of the central
reserve gaps between Friarton and Glencarse.
Objections were lodged on behalf of the appellants, amongst others. By letter dated 6 October 2004 the respondents' decision on the
draft orders was set out. In response to
the objection that closing the central reserve gaps would increase journey time
and distance for local residents and businesses, it was stated:
"The main
priority of the A90 Route Action Plan is the construction of five grade
separated junctions along the route between Perth and Dundee with the
closure of the intermediate central reserve gaps. This removes the turning and crossing
movements, which are the major cause of accidents, to the safer interchanges. Inevitably this means that some road users
will incur additional journey lengths to cross the A90. However it is considered that the
inconvenience is outweighed by the safety benefits gained by all road users."
Under the heading "Consideration by
the Scottish Ministers" the letter stated:
"The A90
Route Action Plan set out measures to improve road safety for all road users on
the route. The construction of the
interchanges and the closure of the central reserve gaps provide the most
benefit by removing the at grade crossings [crossings at the same level] and
right turning movements which have the greatest accident potential.
It is
inevitable that some local residents will experience inconvenience in diverting
to the adjacent interchange but it is considered that this is outweighed by the
safety benefits gained.
The current
trunk road improvement programme does not include for the provision of
additional links or bridges that have been requested by some local residents
and businesses to reduce diversion distances.
However the construction of the proposed interchanges does not preclude
the possibility of the consideration of additional links in future road
programmes."
The Scottish Ministers had
concluded that the draft orders should be made as published, without recourse
to public inquiry, but subject to the statutory right of appeal under paragraph
35 of Schedule 9 to the Regulation Act.
The effect of the Order on the appellants
[10] Although the Order does not prohibit the crossing of traffic
over the A85 between the two parts of the farm, and makes no mention of the
closing of the gap in the central reserve at point E on plan No. 3, the hearing
of the appeal was conducted on the basis that the Scottish Ministers do indeed
intend to close the gap and thus prevent traffic from crossing over the A85
between the two parts of the farm as well as from performing right turns or
U-turns. Both parties were agreed in
inviting us to treat the appeal as being directed to the question whether the
closing of the gap, as well as the making of the Order, was within the powers
of the respondents under the Regulation Act.
[11] It was not in dispute that if only left turns on and off either
carriageway of the A90 were permitted in future, it would be necessary for
traffic to travel to the nearest interchange and back again, where formerly it could
have turned right or crossed directly over the A90. It is stated in the grounds of appeal on
behalf of the appellants that they farm the land of Tofthill
Farm as a unit. Senior counsel for the appellants laid
particular emphasis on the effect that closing the gap would have on traffic
crossing from one part of the farm to another.
He informed us that the appellants carry on a substantial business of
farming and the processing of produce.
They employ 100 employees throughout the year, a number which increases
to more than 400 in summer. The
processing is conducted on the part of the farm lying to the north of the A90,
and the employees are accommodated on the part lying to the south, so that
there is a substantial volume of traffic between the two parts. With the closure of the gap in the central
reserve, all of this traffic would require to go to the nearest interchange and
back again. We were not informed what
the distances were to these interchanges, or how long it would take for farm
traffic to travel in this way from one part of the farm to the other, but there
can be no doubt that it will add significantly to the journey times.
Was the Order within the powers of the Scottish Ministers?
[12] The first ground of appeal for the appellants includes the
following argument:
"A road
runs between the two parts of the farm, crossing the A90 trunk road through a
gap in the central reservation. ... Closing the central reservation gap through
which the road connecting the two parts of the appellants' farm passes has the
effect of stopping up that road. The
statutory procedure for stopping up roads is set out in section 69 of the Roads
(Scotland) Act
1984. Under that procedure the appellants
would be entitled to seek compensation for loss occasioned by the stopping
up. In promulgating the present Order as
a means of closing gaps in the central reservation the Scottish Ministers have
not taken account of the fact that the Order stops up the road connecting the
two parts of the appellants' farm and ought accordingly to have been made under
the Roads (Scotland) Act
1984. The Order is accordingly invalid."
Submissions
for the appellants
[13] In developing his submissions in support of this ground of
appeal, senior counsel for the appellants contended that there was a road which
connected the two parts of the farm, which he described as "Tofthill
Farm Road".
This road passed through the gap in the central reserve. If the gap were closed, this would constitute
a stopping up of the road. This could be
achieved by the making of an order under the Roads Act, in which event the
appellants would be entitled to payment of compensation. The respondents were, however, intent on
proceeding in a way which did not require the payment of compensation. They had sought to make use of the Regulation
Act in order to avoid paying compensation, contrary to the policy of the
relevant legislation. Notwithstanding
the express terms of the Order, which did no more than to prohibit right turns
and U-turns, counsel submitted that the intention of the respondents could be
discovered from the terms of the letter dated 6 October 2004 quoted above, and
also from a passage in their answer to this ground of appeal, which included
the sentence: "The Order is not
restricted to stopping up a private means of access from a road to land." It was thus clear that the purpose of the
respondents in making the Order was to stop up the road between the two parts
of the farm. By closing the gap and
putting in a central reserve at the crossing point the respondents were
preventing traffic from moving over a private road between the two parts of the
farm. Tofthill
Farm Road was continuous, forming a
cross-roads with the A90. It was
possible to have a public road with a continuous private right of access at
right angles across it. The respondents
could only validly exercise their discretion under section 1 of the Regulation
Act in order to implement the policy of the law, and not to frustrate the
policy of the Roads Act. The policy and
object of the Regulation Act was to regulate the movement of traffic, and not
to stop up roads. Counsel referred to Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, per
Lord Reid at p. 1030, and R v Tower Hamlets London Borough Council, ex parte Chetnik Developments
Limited [1988] A.C. 858, per Lord Bridge at
p. 872. Counsel sought to
distinguish the decision of Richards J. (as he then was) in Decra Plastics Limited v London Borough of Waltham Forrest [2002] EWHC 2718 (Admin), on the ground that in the present case the respondents'
ulterior purpose was to avoid the payment of compensation. In the course of his submissions senior
counsel for the appellants did not dispute that the respondents were motivated
by considerations of road safety, and he made it clear that the appellants'
objective was not to prevent the closure of the gap in the central reserve at
point E, but to secure an award of compensation under section 69 of the Roads
Act.
Submissions
for the respondents
[14] In response to these submissions, senior counsel for the
respondents referred to the definitions in the Roads Act quoted above. What had been called "Tofthill
Farm Road" was a private means of access, in
two sections on either side of the A90.
Between them lay the A90, which was a road over which there was a public
right of passage. The gap in the central
reserve was a means of access between the two parts of the farm, but it was not
a private means of access within the meaning of section 69 of the Roads
Act. The gap was properly to be regarded
as being a section of a public road, and even if the respondents were to be
considered to be stopping it up, the appellants would not have a right to
compensation. A road might be stopped up
under either section 12 or section 68 of the Roads Act, but it was clear from
section 71(6) that there was no right to compensation for an order under either
of these sections. The Order did not
affect the ability of the appellants to continue to use the private means of
access to the farm by making appropriate turns onto and off the A90. Even if there was a lacuna in the Order, in
that it did not expressly prohibit cross-traffic, closing the gap in the
central reserve was still not a matter falling within section 69 of the Roads
Act. In making the Order the respondents
were regulating the use of the A90, and were thus within the terms of the
Regulation Act. Since on no view could
the Scottish Ministers be regarded as seeking to frustrate the purpose of the
Roads Act, by preventing the appellants from obtaining compensation, the
approach in Padfield and Tower Hamlets did not arise. The respondents were acting within the terms
of the Regulation Act. They were seeking
to avoid danger, in terms of section 1(1), by regulating the use of a
road. Under section 2 they had a
discretion to do as much or as little as was necessary: their powers under this section could overlap
with their powers under section 68. On a
proper understanding of the relevant definitions and characterisation, it could
be seen that the appellants were in error in asserting that the respondents'
objective could only have been achieved under section 69 of the Roads Act.
Discussion
[15] The case as presented to us contains some unsatisfactory
features. First, it is clear that what
the respondents intend to do is not only to prohibit traffic from either
direction along the A90 from performing right turns and U-turns at point E, but
also to prevent traffic movements (cross-traffic) across the A90 between the
two parts of Tofthill Farm, and to close the gap in the central reserve. The Order, which is the subject of this
appeal, goes no further than to prohibit right turns and U-turns. It says
nothing about cross-traffic.
While the prohibition of right turns would no doubt affect the
appellants, it is the prevention of cross-traffic which is of greater concern
to them. They do not, however, contend
that none of this should happen. The
Order viewed in isolation is clearly within the relevant powers of the
respondents, and if their intentions went no further than the making of the
Order the appellants might very well not have questioned its validity. The appellants accept that what the
respondents intend to do is in the interests of road safety, and their only
concern is the financial consequences for them when the gap in the central
reserve is closed and traffic between the two parts of the farm is diverted via
the interchanges. Their contention is
that this should not happen without their being paid compensation.
[16] Secondly, although senior counsel for the appellants referred
to "Tofthill Farm Road", it is clear that, within each of the two parts of the
farm, this is not a road within the meaning of either of the statutory
definitions quoted above, because it is agreed that there is no public access
or public right of passage over it, but rather it is a private means of access
to land. And of course the appellants
would only be entitled to recover compensation under section 71(6) of the
Regulation Act if private means of access from the A90 to their land were to be
stopped up under section 69 of that Act.
Contrary to what is stated in the Answers for the respondents, the Order
does not provide for the stopping up of a private means of access from a road
to land.
[17] The true question which the appellants seek to raise in this
appeal is whether it is within the respondents' powers to close the gap in the
central reserve without the payment of compensation to the appellants. To secure a negative answer to this question,
the appellants must be able to demonstrate that closure of the gap would amount
to the stopping-up of private means of access to their land. It is not satisfactory that we should be asked
to decide this question at this stage, when, for the reasons given above, it
does not properly arise in this appeal.
It would more appropriately be considered in the context of an
application for judicial review of a decision to close the gap. But counsel for both parties requested us to
give a decision on the question at this stage, and with some hesitation we have
decided to accede to this request.
[18] It will have become apparent that the question is a narrow one,
to which a short answer can be given. It
is simply this. The gap in the central
reserve is indisputably part of a public road, and is used by the public as
such, hence the prohibition by the Order of right turns and U-turns. There is no scope within the statutory
framework for a place to be simultaneously part of a public road and a private
means of access to land. The conclusion
is therefore inescapable that when the appellants use the gap for cross-traffic
between the two parts of the farm, they do so in exercise of their right of passage
as members of the public. If the gap is
closed, no private means of access will be stopped up: indeed the private means of access as such
will remain unaffected by the closure, since traffic will continue to be able
to reach each part of the farm from the A90, provided that it turns left from
the carriageway adjacent to that part of the land. The appellants accordingly will not be
entitled to compensation. On no view
could the respondents be said to be using the Order to avoid paying
compensation to the appellants and thus to frustrate the policy of the Roads
Act. It is not of significance for this
purpose that the Order does not in terms prohibit cross-traffic. Nor is it necessary for us to decide whether
closing the gap would amount to stopping up a road (though we have no reason to
think that it would). For the reasons we
have given, the question outlined at the beginning of the preceding paragraph
must be answered in the affirmative.
Ground of appeal 2: the
appellants' human rights
[19] It is alleged in the second ground of appeal that the Order is
incompatible with the appellants' rights under Article 1 of the First Protocol
to the European Convention on Human Rights.
The Order is said to interfere with their peaceful enjoyment of their
possessions and to impose an individual and excessive burden on them. In advancing a brief argument in support of
this ground of appeal, senior counsel for the appellants also referred to our
obligation under section 3 of the Human Rights Act 1998 to interpret
legislation, so far as possible, in a way which is compatible with the
Convention rights.
[20] We do not consider it necessary to say much about this ground
of appeal. It is predicated on the
assumption that the ability to use the gap in the central reserve for
cross-traffic is a "possession" within the meaning of Article 1. But since, as we have said, the gap in the
central reserve is part of a public road, the ability to use it can no
more be a private possession than
can the gap be a private means of access to land. If a private means of access to land,
assuming it to be a possession, were to be stopped up, compensation would be
payable and the requirements of Article 1 would be satisfied. In the circumstances of the present case
there is therefore no substance to this ground of appeal.
Result
[21] For the foregoing reasons we shall refuse the motion to quash
the Order, or any part of it, and shall dismiss the appeal.
