New housing developments will on occasion swallow up existing roads, in some cases building over them and replacing them with new roads in different places. Developers are not free to close existing roads before first obtaining consents to do so.
A Roads Authority can enter an agreement with an occupier of land to stop up a private access from a public road. If an agreement cannot be reached or it will not be suitable, a Stopping Up Order ("SUO") is the legal order needed to close or “stop up” a road permanently.
When is an SUO made?
An SUO is made for various reasons in various circumstances. Examples include:
- to stop up, divert, improve or alter a side road which crosses or enters the main road and which will be impacted by the construction or improvement of the main road;
- where a road has become dangerous to the public or if the road is or will become unnecessary if a suitable alternative road exists or no other road is necessary;
- to redetermine how a public right of passage is exercised, for example it may authorise a change from a cycle track to a footpath; and
- to enable a development to be carried out in accordance with a planning permission.
Who can make an SUO?
The Roads Authority, the Planning Authority and the Scottish Ministers all have powers to make an SUO. Generally, the Roads Authority will act in cases involving road safety or road management, whereas the Planning Authority will take responsibility if the SUO is related to a development proposal. It is for the local authority to decide the relevant power to use in the circumstances of each case. Whichever procedure is used, the party requesting the Order will be expected to pay the local authority’s costs for making the Order.
The Authority will make the proposed Order, including a plan showing the length of road to be stopped up and publish a statement of reasons for making the Order. It will send copies to the Roads or Planning Authority, affected statutory undertakers, owners and occupiers of any private access affected and publish it in the local paper and the Edinburgh Gazette. Notices will also be put up at each end of the road which is being stopped up.
Anyone may object to an SUO before the deadline given in the Order. If no objections are received or objections are withdrawn, the Authority may go ahead and confirm the Order.
If objections are received, in some circumstances, there may be a public inquiry or a hearing by a Reporter but ultimately, the Scottish Ministers will decide the fate of each SUO against which objections are made and not withdrawn.
Once confirmed, the SUO must be advertised in the Edinburgh Gazette and in at least one local newspaper.
How long does it take for an SUO to be confirmed?
If there are no objections, the whole process for making and confirming an SUO may take around 4 to 6 months. If there are objections and an inquiry or hearing is required, it may take 9-12 months for the SUO to be confirmed. The timescales involved rely heavily on the officers of the Authority involved progressing matters swiftly.
Is compensation payable?
Compensation is payable only in limited circumstances for certain types of SUO where a person has suffered damage as result of the stopping up or access to any land. The damage is depreciation of the interest in land or by being disturbed in the enjoyment of the land. The Lands Tribunal must take into account the new access when assessing compensation.
What is the effect of an SUO?
When an SUO is confirmed, the road will be stopped up to vehicular traffic but may continue to be available for use by pedestrians and/or cyclists, depending on the circumstances involved and the safety considerations.
Generally, an SUO must not obstruct the exercise of any public right of way on foot.
The rights of statutory undertakers, such as electricity, gas, water or telecommunications providers, in respect of any of their apparatus in the road will be safeguarded in the SUO.
Who owns the stopped-up road?
Although a public road is vested in the Roads Authority such vesting does not confer any heritable right in the road and therefore ownership rests with the person or entity holding title.
Where a road is stopped up and is no longer used as a road, ownership of the road vests in the owner or owners of the land which adjoins the road, subject to any prior claim of any other person by reason of title.
Maintenance of the road will rest with the owner subject to any title conditions.
The above is a summary of what is involved in obtaining the necessary consent to stop-up a road and should not be relied on specific cases. Your Brodies contact will be happy to assist with any fact specific inquiries.