CHAPTER ONE – INTRODUCTION
The Importance of Roads
Securing appropriate access is fundamental to the development of a property. When looking at a site for development, consideration is required of what forms of access currently benefit or burden the property. What type of access currently serves the site? Is it in the form of a private right such as a servitude or is there a public right of passage? Is the extent of the access sufficient to enable movement directly from the development on to the access or is there a gap? Is the nature of the existing access adequate? If not, can the existing access be adjusted or will a new access route be required?
Where works are required to an existing access then further consideration may be required as to what consents are required to undertake the work. Where a new access needs to be constructed then consideration may need to be given to what type of access is proposed (public road, private road or private access), what design parameters apply and how these may impact on the land take for the development.
Additionally, consideration is required as to whether there are other types of access which subsist across the site. If the site is burdened with other forms of access then what type of legal right are these secured by and are they compatible with the proposed development? Where an access is not compatible with a proposed development then what mechanism is available to terminate or remove the right?
All of this requires an understanding of roads law. The construction, maintenance and use of roads in Scotland is heavily regulated by a system which has evolved from a combination of common law and legislation. This chapter considers the key pieces of legislation which regulate roads in Scotland, together with the key bodies that are involved in roads law.
Scotland Act 1998
Roads law is generally devolved to the Scottish Parliament. Power over certain aspects of road transport is reserved to Westminster but the legislative competence of the Scottish parliament was expanded by the Scotland Act 2016 to include pedestrian crossing design, regulation of traffic signs and speed limits. The remaining reserved matters relevant to roads, subject to certain exceptions, are:-
- granting of international driving licenses and recognition of driving licenses from other countries;
- public service vehicle licensing;
- traffic regulation on special roads and exemptions of emergency vehicles from speed limits;
- traffic offences under the Road Traffic Act 1988 and Road Traffic Offenders Act 1995 (including road safety offences, construction and use of vehicles, vehicle licensing, driving instruction and compulsory insurance);
- vehicle excise duty;
- regulation of driving instructors and newly qualified drivers;
- licensing of goods vehicles;
- regulation of hours of work for public service and goods vehicle drivers; and
- conditions for the international transport of goods and passengers.
Roads (Scotland) Act 1984 (“R(S)A 1984”)
R(A)A 1984 is the key piece of Scottish roads legislation. Prior to R(S)A 1984, roads were regulated in various pieces of legislation which used inconsistent terminology. What we now refer to as roads were variously referred to as roads, highways and streets. R(S)A 1984 was passed as a codifying piece of legislation which provided for the single concept of a road to replace the previous disparate terms for ways over which the public have a right of passage.
R(S)A 1984 provides for the definition of what a road is and the various types of road which can be formed. It establishes roads authorities with responsibility for maintenance and supervision of roads, together with the procedures for constructing new roads and, where necessary, terminating the public right of passage over roads. R(S)A 1984 sets out detailed and extensive powers to assist roads authorities in carrying out their statutory responsibilities.
The structure of R(S)A 1984 is, on the surface, similar to the Highways Act 1980 which is the equivalent piece of legislation for the regulation of roads (termed “highways”) in England and Wales. However, although there are similarities, there are also considerable differences between Scottish roads law and English highways law. In particular, the primary mechanism by which a new private road is constructed in Scotland (through road construction consent) is fundamentally different to England where highways are created by dedication; as are the mechanisms by which new roads and highways are adopted for public maintenance. Thus, although it can be helpful to refer to relevant case law in England, care must be taken to take account of the differences in the systems north and south of the border.
New Road and Street Works Act 1991 (“NRSWA 1991”)
Part IV of NRSWA 1991 provides a system for undertaking road works in Scotland. Confusingly, “road works” are works other than for road purposes with works for road purposes being mainly regulated under R(S)A 1984. Typically, road works involve the breaking open of the road by statutory undertakers to install or maintain apparatus such as electricity cables and gas pipes, but apparatus might also require to be installed by a developer. NWSWA 1991 establishes the Scottish Road Works Commissioner who has responsibility for coordinating works for road and non-roads purposes. Road works under NRSWA 1991 are considered in detail in Chapter 9. Regulation of other types of work in a road are considered in Chapter 10.
Part II of NRSWA 1991 also includes powers for toll roads in Scotland. However, toll bridges were abolished by the Scottish Government in 2008 and there are currently no toll roads in Scotland. Hence, the subject of toll roads will not be considered in detail in this work.
Road Traffic Regulation Act 1984 (“RTRA 1984”)
RTRA 1984 provides power for traffic authorities to make various types of order to regulate traffic in roads such as speed limits, parking restrictions and restrictions on use of roads by classes of traffic. The main type of order made under RTRA 1984 is a road traffic regulation order. Road traffic regulation orders may be permanent or temporary in effect and often required to accommodate the traffic impact of proposed development. Road traffic regulation is considered in Chapter 11.
Transport (Scotland) Act 2001
Part I of the Transport (Scotland) Act 2001 gives power to Scottish Ministers to make an order requiring prescribed public bodies to prepare joint transport strategies. The 2001 Act also gives power for Scottish Ministers to approve payment of civil penalties for contravention of bus lane restrictions instead of criminal liability. This power has been used to provide for civil bus lane enforcement in various locations. Part 3 provides local traffic authorities with power to make road user charging schemes. There are currently no road user charging schemes in Scotland although the potential for such schemes to be introduced as part of action to address climate change cannot be ruled out.
Transport (Scotland) Act 2005
The Transport (Scotland) Act 2005 provides for the establishment of regional transport partnerships to enable more strategic planning of transport needs across local authority boundaries. This includes a duty to prepare regional transport strategies. Scottish Ministers have power to make orders transferring statutory functions on transport to regional transport authorities. Part 2 of the Transport (Scotland) Act 2005 established the Scottish Road Works Commissioner as well as making amendments to NRSWA 1991 to tighten regulation and coordination of road works.
Transport (Scotland) Act 2019
The Transport (Scotland) Act 2019 introduced some significant changes to roads law. It imposes a duty on Scottish Ministers to prepare a national transport strategy. The strategy must be kept under review with progress reports laid before the Scottish Parliament every 3 years. The role of the national transport strategy is considered further in Chapter 13, along with other transport and planning policy.
Part 2 of the Transport (Scotland) Act 2019 provides for the establishment of low emission zones where the driving of vehicles is prohibited unless they comply with specified emission standards or are exempt. Low emissions zones are being introduced on a phased basis across Scotland with an initial “grace period” during which the prohibitions will not apply.
The 2019 Act provides power for local authorities to make workplace parking licensing schemes requiring charges for workplace parking. Although a number of authorities have expressed in interest in introducing workplace parking licensing schemes, at the time of writing, no such schemes are in place.
The 2019 Act also makes further changes to NRSWA 1991 (some of which are not, at time of writing, in force) to regulate road works, including additional enforcement procedures.
Town and Country Planning (Scotland) Act 1997
This is the principal piece of planning legislation in Scotland. It sets out the framework for development planning and development management in Scotland. It is relevant to roads law in terms of establishing the extent to which road proposals require planning permission and the statutory policy context against which development proposals (including road design and traffic impact) are judged. Significant changes have been made to the 1997 Act by the Planning (Scotland) Act 2019. In particular, the development plan regime has been reformed with the abolition of strategic development plans and the incorporation of the national development framework as part of the development plan. Chapter 13 considers the updated development plan framework in more detail, together with how the development management system impacts on road issues.
Part IX of the 1997 Act is also important in relation to roads as it provides power to stop up roads, footpaths, bridleways and core paths for the purposes of development. Stopping up of roads and other types of access is considered in Chapter 12.
Key Bodies in Roads Law
There are a number of key bodies that have statutory responsibilities in relation to the regulation of roads in Scotland. These are identified below.
Scottish Ministers are the trunk roads authority in terms of R(S)A 1984 with legal responsibility for the construction and management of trunk roads in Scotland and have responsibility for preparation of the Scottish national transport policy. Scottish Ministers make funding decisions on national transport projects. Many of the policy development, trunk road project and day to day management functions of Scottish Ministers are discharged through Transport Scotland.
Scottish Ministers have various responsibilities in roads legislation for considering orders sent to them for confirmation by local roads authorities such as stopping up orders or certain kinds of road traffic regulation orders.
Scottish Ministers also exercise planning functions which impact on roads matters including preparation of the National Planning Framework which now forms part of the development plan. Sustainable transport is now very much placed at the heart of national planning policy with an expectation that spatial planning will reflect the sustainable travel hierarchy which seeks to reduce the need to travel and prioritises pedestrians and cyclists over vehicle movements. Scottish Ministers also prepare non statutory policy which currently includes Designing Streets and can have a significant impact on road design within developments.
The planning casework of Scottish Ministers impacts on roads matters. Appeals to Scottish Ministers may require consideration of transport impacts. Where a proposed development has a potential impact on a trunk road then this may lead to a planning application being called in for determination by Scottish Ministers.
Transport Scotland are an executive agency of the Scottish Government. They are responsible for the design, procurement and construction of major trunk road improvement projects in Scotland. The Roads Directorate of Transport Scotland is responsible for:-
- safe operation and maintenance of trunk roads;
- roads policy
- road safety including progress towards casualty reduction targets.
- intelligent transport systems and lighting
- resilience, winter maintenance and transport planning of major events
- roads and bridges design standards
- air quality and the environment, including climate change adaption and asset management.
Transport Scotland also undertake work to enable Scottish Ministers to develop the national transport policy as well as setting investment priorities for transport investment. This includes preparation of the Strategic Transport Projects Review which is the key document which sets out investment priorities for transport in Scotland.
Local Roads Authorities
Local authorities in Scotland function as local roads authorities in terms of R(S)A 1984 and have responsibility for the management and maintenance of public roads in their area other than trunk roads. They also have regulatory powers over private roads including powers to require private roads to be brought up to an appropriate standard of maintenance, and manage issues which may constitute a hazard to the exercise of the public right of passage along public and private roads.
Local roads authorities have responsibility for determining applications for construction consent for proposed new private roads and hold road bonds from developers as security for the satisfactory completion of roads which serve proposed residential development. Local roads authorities may have bespoke standards for roads design which require to be considered as part of the development design process.
Local Planning Authorities
As with Scottish Ministers, the functions of a local authority as planning authority will impact on roads matters. Local planning authorities are responsible for the preparation of local development plans which can identify where new road infrastructure is required to support development as well as spatial planning and development management policy which will impact on the design of transport links. As with NPF4, local planning policy increasingly seeks to embed sustainable travel in the design of development.
Local planning authorities are the primary decision maker for planning applications. Traffic impact and road design are a key issue in many planning applications.
Scottish Ministers and local roads authorities are given power under RTRA 1984 as traffic authorities to make road traffic regulation orders to regulate the movement of traffic on roads under their control. Traffic regulation is considered in Chapter 11.
Road Works Authorities
Road works authorities have responsibilities in terms of NRSWA 1991 for the coordination of road works on roads under their control. Scottish Ministers are the road works authority for trunk roads and local roads authorities have that function in relation to public roads in their area other than trunk roads. For roads other than public roads, the road works authority are the road managers who have maintenance responsibility for the road.
Scottish Road Works Commissioner
The Scottish Road Works Commissioner has responsibility in terms of NRSWA 1991 for overseeing the coordination of roadworks across Scotland and maintains the Scottish Roadworks Register. The role of the Scottish Road Works Commissioner is focussed on works other than for road purposes but has expanded to include supervision of certain works for road purposes carried out under R(S)A 1984.
Regional Transport Partnerships
Regional transport partnerships are established under the Transport (Scotland) Act 2005 to prepare regional transport strategies across local authority areas. The current regional transport partnerships are:-
- Shetland Transport Partnership (ZetTrans);
- Highlands and Islands Transport Partnership (HITRANS);
- North-East of Scotland Transport Partnership (NESTRANS);
- Tayside and Central Scotland Transport Partnership (TACTRAN);
- South-East of Scotland Transport Partnership (SESTRAN);
- Strathclyde Partnership for Transport (SPT); and
- South-West of Scotland Transport Partnership (Swestrans).
 Scotland Act 2016 section 40(2) and 72(7).
 Scotland Act 1998 Schedule 5 Part III Head E1 Road Transport
 Transport (Scotland) Act 2001 section 44.
 City of Edinburgh Council proposed the introduction of a congestion charge which was intended to start in 2006. Following a referendum on the proposals, the Council decided not to proceed with the scheme.
 See Transport (Scotland) Act 2005 Part 1.
 Transport (Scotland) Act 2005 sections 10-12.
 Transport (Scotland) Act 2019 section 1. The national transport strategy at time of writing can be found at https://www.transport.gov.scot/
 Transport (Scotland) Act 2019 sections 4 and 5.
 Transport (Scotland) Act 2019 Part 2.
 Transport (Scotland) Act 2019 sections 15 and 16.
 Transport (Scotland) Act 2019 Part 7.
 See National Planning Framework 4 Policy 13 Sustainable Transport.
 The current strategic transport projects review is STPR2 – https://www.transport.gov.scot/our-approach/strategy/strategic-transport-projects-review-2/