"The following works are hereby authorised:-

i. the construction of those lengths of road (hereinafter referred to as 'the new roads') along the routes described in Schedule 1 to this order.

ii. the improvement of those lengths of road described in Schedule 2 to this order.

iii. the stopping up of those lengths of road described in Schedule 3 to this order when the new roads are open for the purposes of through traffic."

Paragraph 3 provided that the new roads were to be transferred to Dumfries and Galloway Regional Council as highway authority on the date on which notice was given by the Secretary of State to the Council that the new roads were open for the purposes of through traffic. The new roads included the new access road connecting Main Road to the bypass, and the diverted route of the B724 to the south of the bypass. The lengths of road to be stopped up, as described in Schedule 3, included the section of the B724 immediately to the north of the proposed bypass, to a point 6 metres south-east of Collin village hall, which was at that time the last building on that side of the village. The section of the B724 immediately to the south of the proposed bypass was also included in Schedule 3, to the point at which the route of the B724 was to be diverted along the new road.

"The Road continued to be used as a turning area by buses from 1983, by vehicles for parking and turning when using the village hall and by British Telecom and Scottish Water. The Road was used as a way in the course of the construction of Townhead Park from about 1993 to 1999. The Road has been used as a way by the owners and residents of Townhead Park, and by members of the public and providers of services such as utilities, from about 1999."

Although those averments are not admitted, we do not understand them to be disputed for the purposes of the present proceedings.

"'road' means, subject to subsection (3) below, 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".

Section 151(2) distinguishes a number of specific categories of "road" within the meaning of section 151(1), such as footpaths, cycle tracks and carriageways, according to the means by which the public right of passage may be exercised. Section 151(3) excludes from the general scope of the Act certain specified types of road, including public footpaths created under the Countryside (Scotland) Act 1967, footpaths forming part of long-distance routes approved under the 1967 Act, and paths within public parks managed by local authorities. These exceptions illustrate the width of the definition of "road": its scope extends beyond what, in ordinary language, would usually be described as roads.

"'private road' means any road other than a public road;

...

'public road' means a road which a road authority have a duty to maintain."

It is important to note that the distinction between the expressions "public road" and "private road", as those expressions are used in the 1984 Act, has nothing to do with the existence of a public right of passage: public roads and private roads, as defined, are all alike ways over which there is a public right of passage. The distinction relates solely to the question whether the roads authority have a duty to maintain the road in question. A "private road" within the meaning of the Act is therefore entirely different from what, in ordinary language, would usually be described as a private road: that is to say, a road over which the public have no right of passage. In the language of the Act, such a road is not a "private road": it is not a "road" of any kind. Thus, in the present proceedings, the contention of the respondents is that the disputed section of road is a "private road", whereas the petitioner's contention is that it is not a "road", within the meaning of the 1984 Act, at all; and the question which is correct turns on whether the disputed section of road is a "way" over which there is a public right of passage. Neither the term "way", nor the expression "public right of passage", is defined by the 1984 Act.

"(1) If a private road -

(a) is of such standard as has last been required by relevant notice under section 13(1) of this Act; or

(b) where no such standard has been so required, is of a standard satisfactory to the local roads authority,

then, if application is made to them under this subsection by the requisite number of frontagers for such addition, the authority shall, subject to subsection (4) below, within 12 months of the application add the road to their list of public roads ...".

The roads authority can thus be required to assume responsibility for the maintenance of any way over which there is a public right of passage, provided it is of a standard specified in a notice served under section 13(1) or is otherwise of a standard satisfactory to them. Subsection (4) excludes from that obligation roads whose standard has deteriorated, during the period since the application was made, below the requisite standard. Subsection (5) restricts the general definition of "road", for the purposes of section 16, by excluding footpaths (separate provision for the adoption of footpaths being made by section 18).

"The leading legal distinction is between public roads and rights of way on the one hand, the right of passage along which is available to every member of the public, and servitude roads or rights of way on the other, where the right of passage is limited to the owner of the dominant tenement, his tenants and servants, or those proceeding to and from the tenement to which the road provides an access. To complete this classification, there falls to be added to public and servitude roads, private roads proper, constructed by a private owner on his own property for his own use, and that of his tenants and servants."

Ferguson then distinguishes (ibid.) between different categories of "public roads or rights of way", namely footpaths, bridle paths and carriageways, with drove roads as an additional, but obsolete, category. The general term which Ferguson employs to encompass all public roads and rights of way is "highway", defined (at page 4) in terms of a public right of passage:

"'A highway is a right of passage in general to all the King's subjects without distinction'. The phraseology of this definition has been adopted from England, for nowhere in the Scottish authorities is the essential nature of a public right of way laid down in language so crisp and correct."

Ferguson summarises the position as follows (at page 8):

"A highway is therefore essentially a right of passage, a burden in the interests of the public on private ownership, but imposing, subject to the right of passage being unobstructed, no further disability on the exercise of the ordinary rights of property by the owner of the soil, except in so far as these may be affected by statutory provisions directed to secure the sufficiency and safety of the public roads."

Ferguson also notes (at page 13) that, within the general class of highways, a distinction can be drawn between public roads under statutory management and public rights of way which are not under the management of roads authorities:

"As far as public highways are concerned, with reference to their legal character, the only substantial distinction is that between the made public roads of the country under statutory management and public rights of way existing by usage, in reference to which no duty is imposed on and no control exercised by the local road authorities, though special powers have been conferred under recent legislation on the local governing bodies."

"A public right of way, in the narrow sense usually conferred on the phrase, differs from all the others (sometimes called King's highways) in not being set up or maintained by any public fund ... [Public right of way] is the ordinary name given to such a public passage as was not originally created, has not been adopted, and is not maintained or repaired, by any statutory authority."

"Carriage-roads, horse-roads, and footpaths are equally public roads; and whether the use of them has existed further back than can be traced, or they have been established by uninterrupted use for more than forty years immediately before the time when the controversy respecting them arises."

As to the nature of a highway, Lord Campbell said (at pages 380-381):

"When the text writers cited upon this point are examined, it will be found that they mean no more than that highways are res publicae - that there is a public servitude over them - that they are called 'the King's highway' in Scotland, as they are in England, because the public, represented by the sovereign, have a right to use them ... leaving the soil, subject to the public servitude, to remain in the private proprietor. The highway belongs to the King, but what is the definition of highway? - Not the soil, over which the public have a right of passage. We are told by our books that a highway may be either a footway, a horseway or a cartway, and is a right in passage in general to all the King's subjects, without distinction ... This right of passage may well be said to belong to the King, although the soil over which it is exercised belongs to a private individual."

Lord Campbell also used the expression "right of way" in a broad sense, synonymously with right of passage, as for example when discussing (at page 383) the statutory powers of the county roads trustees and turnpike trustees:

"The power of control and superintendence with a view to the public enjoying the right of way, leaves all the rights of the owner of the soil, subject to the right of way, entirely untouched."

Lord Brougham, in the other speech of the majority, similarly described (at pages 387-390) a highway as a public right of way (using that expression in the same sense in which Lord Campbell had spoken of a public right of passage), which might be established by long possession, abandonment of the ground to the public, or positive grant. Lord Brougham equiparated the concept of a highway in Scots law with that of via in Roman law, as "a general phrase for the whole", encompassing more specific categories of public right of way, such as footpaths and carriageways.

"It is scarcely conceivable that a landowner should, by express dedication, throw open to the public irrevocably a passage which neither the public nor any local authority is bound to repair. Accordingly, as matter of fact, all such rights of way have been acquired through prescription ...".

In modern times, however, public rights of way may also be created under statutory powers. In the case of other forms of highway, the public right of passage may equally be established by prescription, or by grant (for example, "landowners within burghs may lay out ground for streets in such a way as to create an indefeasible right in the public": Magistrates of Edinburgh v North British Railway Co (1904) 1 F 620 at page 639 per Lord Kinnear), but in practice is usually created by statute. As we have noted, the means by which the right of passage may be exercised may vary as between different highways, which may in consequence be classified as footpaths, carriageways and so forth. Statutory provisions may also affect in other ways the nature of the burden imposed by the right upon the landowner. For example, a distinction was drawn from early times between highways in the ordinary sense of that word and other public rights of way, in respect that any encroachment upon a highway was prohibited by statute, whereas there was no such prohibition so far as other public rights of way were concerned, provided there was no material interference with the exercise of the right of passage.

"A highway is not a corporeal heritable subject but an incorporeal right of public passage."

"It is plain, from the terms of the definitions, that the class of road intended is wider than the class of public roads to which the public has access in virtue of a positive right belonging to the public, and flowing either from statute or from prescriptive user. A road may therefore be within the definition (1) although it belongs to the class of private roads, and (2) although all that can be said with regard to its availability to the public is that the public 'has access' to it. There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed - that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs. I include in permission or allowance the state of matters known in right of way cases as the tolerance of a proprietor."

As the first sentence in that passage makes clear, the definition of "road" in the 1930 Act extended more widely than ways over which there was a public right of passage.

"[T]he definition contrasts 'highway' with the words 'road to which the public has access'. Upon a 'highway' the public right of passage is secured by law and its maintenance is the responsibility of a statutory authority. A 'road' within the meaning of the definition would therefore seem to include a way which need not possess either of these qualities. From this contrast, it is not difficult to infer that the words 'to which the public has access' are necessarily referable to a situation in which it is found-in-fact that the public has access - access for the purpose for which a road is intended or designed, i.e., passage on foot or in a vehicle. But when the statute refers to access it cannot be assumed that this means access which is obtained unlawfully, e.g., by climbing over or opening gates, or by surmounting walls or fences, designed to exclude potential intruders. In our opinion 'access', as the word is used in the definition, covers access for passage by permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road. The degree or extent of use necessary to bring a particular road within the definition will necessarily be a question of fact in every case. Where there is such permission, acquiescence or tolerance demonstrated by use or otherwise, it can properly be said that there is nothing illegal or unlawful in such access as the public is proved to enjoy, and therefore that the public has access lawfully to the road."

The court may have been unduly restrictive in describing "highways", within the meaning of the definition, as roads whose maintenance was the responsibility of a statutory authority. As we have explained, "highway" was a term used to describe all ways over which there was a public right of passage in Scots law; it is also relevant that the term was similarly used in English law, since the 1930 and 1960 Acts applied in both jurisdictions. What is more important for present purposes, however, is the distinction drawn by the court between a public right of passage and passage based on permission or tolerance. It is clear that the scope of road traffic legislation at that time extended beyond roads or ways over which there was a public right of passage. That remained the position under the Road Traffic Act 1972, section 196(1) of which repeated the same definition.

"We are aiming to bring into the conception of 'road' all the various types of public right of way that one can have ... The distinction between a public road and private road is that the public authority has a duty to maintain the public road. Any other public right of way is a private road"

(H.L. Deb. Vol 446, cols 642, 994). Although the Lord Advocate's statement that the definition of "road" was intended to cover all public rights of way (that expression being used in a broad sense) is consistent with our construction, we do not find it necessary or appropriate to rely on Hansard as an aid to interpretation in the circumstances of this case.

"But the pursuers' argument is that if [the defenders] once allow the public to enter upon a road or bridge although not for long enough to found a prescriptive right, and without creating an adverse right in any other form, the [provision in question] comes in to compel them to keep their property open to the public for all time. This is confiscation of private property for the benefit of the community, without compensation, and without the previous notice which is generally exacted before power is given by Parliament even to purchase without the owner's consent. A construction of an Act of Parliament so inconsistent with the ordinary methods of legislation ought not to be adopted if it is not the plain meaning of clear language, and I find nothing in the Act to support it."

"A way to which the public has access (by whatever means and whether subject to a toll or not) which passes over a bridge constructed in pursuance of powers conferred by, or by an order made under or confirmed by, a private Act shall, for the purposes of the definition of 'road' in subsection (1) above, be treated as if there were a public right of passage over it."

The purpose of the amendment, as explained to Parliament by the Lord Advocate, Lord Rodger of Earlsferry (H.L. Deb. vol 557, cols 436-437) was to make the definition of a road for the purposes of the 1984 Act apply to toll bridges, including in particular the Forth Road Bridge and the Tay Road Bridge, so that responsibility for them could be transferred to a roads authority (specifically, to the Secretary of State) under section 9 of the 1984 Act, rather than their remaining the responsibility of statutory boards. The implication of section 151(1A), read with section 151(1), is that a way to which the public has lawful access (even, as in the case of the Forth and Tay Road Bridges, over many years) is not ipso facto a way over which there is a public right of passage.

"Counsel for the respondents was, in our opinion, well founded in saying that the definition of 'road' in the Act of 1984 does not require that there must exist over the 'way' a public right of way. Parliament has not chosen to define 'road' with reference to the well understood concept of a public right of way at common law. Under the definition there must at the outset be 'a way' and the pursuer's averments clearly disclose that the lane which he describes is, on any view, 'a way'. All that is required, therefore, in order to establish that the lane is a 'road' within the meaning of the Act of 1984 is to show that there exists over it 'a public right of passage'. It does not, for example, have to be shown that the passage is between one public place and another. Since it is well known that 'roads' within the meaning of the Act include cul de sacs, and that some exist to provide access and egress to private properties it is evident the 'right of passage' mentioned in the definition of the word 'road' involves less exacting considerations than those which govern the existence of a public right of way over private land."

In the present case, counsel for the respondents referred us to a number of criminal cases decided during the period when the definition of "road" in Scotland, for the purpose of the law relating to road traffic offences, was that contained in the 1984 Act. We find these cases of no assistance. In Beattie v Scott 1990 S.C.C.R. 435, for example, the issue was whether the sheriff had been entitled on the evidence (which included evidence that the local roads authority was responsible for the maintenance of the road surface at the locus, and that the locus was on a "way") to conclude that the locus was a road within the meaning of the 1984 Act. The decision does not appear to lay down any general principle as to the interpretation of section 151(1) of the 1984 Act. In particular, we are unable to agree with the observation of Lord Osborne in MacKinnon v Argyll and Bute Council 2001 S.L.T. 1275 at page 1293 that the decision demonstrates "that prescriptive rights have no part to play in the definition". The court in Beattie was not concerned to discuss the manner in which a public right of passage might be constituted. Its only concern was whether the evidence warranted the inference that such a right existed; and the fact that the maintenance of the road in question was the responsibility of the local roads authority prima facie warranted that inference.

"the change in the definition of a road in the 1984 Act made no difference to the manner in which a public right of passage could be constituted and that the law remained the same as it had done prior to the passage of the 1984 Act."

For the reasons we have explained, we consider that to be correct. Lord Cameron of Lochbroom also rejected (at page 926) a contention that, in Cowie v Strathclyde Regional Council, the court had implied (in the observation, cited earlier, that "the 'right of passage' mentioned in the definition of the word 'road' involves less exacting considerations than those which govern the existence of a public right of way over private land") that if a landowner allowed access to the public generally for a considerable period of time, then the road had a public right of passage over it and was a "road" for the purposes of the 1984 Act. In our opinion, Lord Cameron of Lochbroom was correct to reject that contention.

"If, as counsel for the pursuers contended, the word 'right' is to be read as a real legal right, and not something which is obtained by virtue of permission express or implied from, or acquiescence or toleration by, the person or persons with legal right to control the use of the road, the consequences would be startling. It would mean, for instance, that where a road was not a public road but a private road, unless and until a public right of passage had been demonstrated by continuance over the prescriptive period, no such road would fall within the definition and thus a person driving on such a road, albeit the public had access to it, could not be convicted on evidence which would secure his conviction in England and Wales."

Like the passage from Cowie v Strathclyde Regional Council which we discussed earlier, this passage has been fastened upon in subsequent cases by counsel acting on behalf of roads authorities seeking to support an expansive interpretation of the statutory definition of a "road". It has influenced decisions in later cases, including that of Lord Kingarth in the present case. The passage was however expressly obiter dictum, in that Lord Cameron of Lochbroom forbore from expressing any concluded view. In the context of the decision, the passage is somewhat puzzling, but it may have been intended to suggest that the statutory definition could be construed more widely in its application to road traffic legislation than in the context of the 1984 Act itself. Alternatively, it may simply have been intended to draw attention to the problem which was later resolved by amendments to the road traffic legislation.

"I have reached the conclusion that the word 'right' in the expression 'a public right of passage' in the definition of 'road' in s 151(1) of the Act of 1984 does not constitute a legal right in the ordinarily understood sense ... In my view, 'a public right of passage' may properly be described as a permission, express or implied, derived from those having legal right to control the use of the way concerned, for public use of that way; or established acquiescence or tolerance by those persons of such public use."

That conclusion was in our opinion erroneous, for the reasons which we have already explained. 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. Lord Osborne however went on to hold that the "right" of passage could be terminated by the landowner's withdrawing his permission, and that it had been so terminated in the case before him, with the result that the road in question was not a "road" as defined. We do not therefore question the correctness of the decision in that case, although we are unable to agree with the reasoning.

"In relation to a trunk road not being a special road the Minister may, by order made in accordance with the provisions of the Second Schedule to the Trunk Roads Act, 1976, make provision for any purpose specified in paragraph (c) or (d) of subsection (1) of section three of this Act, or for any purpose incidental to those purposes; and reference in subsections (3) to (5) of the said section three to an order under that section, to a special road and to a special road authority, shall be construed accordingly."

Section 3(1) of the Act authorises the making of an order

"(c) for authorising [the relevant authority] -

(i) to stop up, divert, improve, raise, lower or otherwise alter any road which crosses or enters the route of the special road ...

(ii) to construct any new road for purposes connected with any such alteration as aforesaid ...".

Section 3(3) provides:

"No order authorising the stopping up of a highway shall be made or confirmed by the Minister under this section unless the Minister is satisfied that another reasonably convenient route is available or will be provided in pursuance of an order under this section before the highway is stopped up ...".

In relation to procedure, the Second Schedule to the Trunk Roads Act 1946 provides that the order cannot be made without prior newspaper advertisement, and the holding of a local inquiry in the event that objections are received. It is to be noted that the 1946 and 1949 Acts apply in England and Wales as well as in Scotland.

"When an order is made under the Act of 1835 stopping up a highway, that extinguishes the public right".

Singleton L.J., with whom Romer L.J. agreed, similarly said (at page 583):

"The order which is made is an order for stopping up a highway and it destroys the public right of way."

It is relevant also to note a dictum of Thesiger L.J. in Rolls v Vestry of St George the Martyr, Southwark [1879] 14 Ch D. 785. There, the plaintiff had made a new street over his land and obtained a statutory stopping up order in respect of one old street and a diversion order in respect of another. Cotton and Thesiger L.JJ. interpreted the provision under which the diversion order had been made as meaning, by implication, that the old line of the highway was to be stopped up on its being certified that the new street had been completed. Thesiger L.J. observed (at pages 805-806)

"When we look at the terms of [the provision in question] ... it is obvious that it was considered by those who framed that section, that ipso facto, by the very diverting and turning of a road, that portion of it which was originally used, and is no longer required to be used, is stopped, and, being stopped, the rights of the owner over it would no longer be fettered by the rights of passage on the part, or in favour of the Queen's subjects ... [O]n [the justices'] giving their certificate [of completion of the new road] then, and not till then, the diverted portion of the road may be physically stopped, and rights of property existing over it are unfettered by the rights of passage."

A similar observation was made by Cockburn C.J. in R v Wallace (1879) 4 Q.B.D. 641 at page 644 ("as soon as the diversion to which the certificate of the justices has reference is established, the old road ceases to be a highway"). These dicta are relevant in so far as they provide some further support for the view that an order which authorises the stopping up of a road, subject to a condition precedent, has the effect of extinguishing the public right of passage over the road once the condition precedent is fulfilled.

"Where a road is stopped up under this Act or any other enactment and has ceased to be used as a road, the solum of the road shall, subject to any prior claim of any person by reason of title, vest in the owner or owners of the land which adjoins the road".

It was not suggested that section 115(1) had any application to the present case: since the petitioner has been held by Lord Glennie to have title to the solum of the disputed section of road, there is no question of its vesting in adjoining proprietors through the operation of section 115(1). Counsel however argued that it was implicit in that provision that a road which has been stopped up may not necessarily have "ceased to be used as a road", and that stopping up a road does not therefore ipso facto extinguish the public right of passage. We are unable to accept that contention: for the reasons we have explained, and in the whole context of the 1984 Act, we are persuaded that the stopping up of a road means that the public right of passage over it has been extinguished, and that it has therefore ceased to be a "road" as defined in section 151(1) of the 1984 Act.

"A turnpike road is made not merely for the purpose of connecting termini, but for the convenience of every one who has property along the line."

In the present case, it is true, there were only two persons who had property "along the line" (namely the owner of the field, and the Scottish Executive as the owner of a small area of land adjoining the embankment), and it is not obvious that either, as at 1989, would have had need of the disputed section of road, or indeed that it could be of any evident utility to any member of the public as a means of passage along its length. Nonetheless, as was stressed in Campbell v Walker, the public right of passage over a public road cannot normally be extinguished without recourse to the statutory procedure for stopping up, in the course of which all those having an interest will have an opportunity of being heard. We also note the decision in Lang v Morton (1893) 20 R. 345, where it was held that the fact of a roads authority providing a substitute road, omitting the old road from the statutory list of public roads and failing to maintain it would not have the effect of divesting the roads authority of their right to the old road: the statutory procedure for shutting it up still required to be followed. The cases of Perth Town Council v Earl of Kinnoul 1909 S.C. 114, Bell v Magistrates of Prestwick 1930 S.C. 241 and Marquis of Bute v McKirdy & McMillan (at page 127 per Lord Moncrieff) are in the same line of authority.