VESTING OF SOLUM OF STOPPED UP ROAD (Hansard, 17 February 1970)

Mr. Deputy Speaker
The next Amendment is No. 15, with which I understand it is the desire of the House to discuss Government Amendment No. 16.

§ Dr. Dickson Mabon
I beg to move Amendment No. 15, in page 10, line 18 after 'Act', insert: 'or any other enactment and has ceased to be used as a road,'. The Amendments fulfil a Government undertaking in Committee on 22nd January to reconsider the Clause and, if necessary, table an Amendment. Amendment No. 15 does two things. First, it extends the Clause to apply to the solum of roads closed up under other enactments, such as Section 22 of the Town and Country Planning (Scotland) Act, 259 1945, Section 46 of the Town and Country Planning (Scotland) Act, 1947, Section 28 of the Civil Aviation Act, 1949, Sections 3 and 14 of the Special Roads Act, 1949, and Section 90 of the Town and Country Planning (Scotland) Act, 1969.
The point was raised on behalf of Edinburgh Corporation quite late in the proceedings on the Town and Country Planning (Scotland) Act last year in relation to Section 46 of the 1947 Act, when it was agreed that we would give consideration to it in the present Bill. Edinburgh Corporation has rightly mentioned the point again. It seems to us desirable to resolve any difficulties which may arise in relation to any road closure.
The other thing the Amendment does is to confine the Clause to cases where the road has ceased to be used as a road. As my hon. Friend the Joint Under-Secretary of State explained in Committee, a road could be stopped up, for example, by a fence or line of posts across one end while the road remained in use as an access to buildings or for parking. In such a case it would be inequitable to place the liability for maintenance on the adjoining proprietor. Under the Amendment, the Clause will operate only when the road ceases to be used as such.
Amendment No. 16 is designed to safeguard the claim of those having a title to the solution. They will probably be the adjoining owners, or the highway authority if it had acquired the land for the road.
The proposal in the Clause as drafted enabling a highway authority to claim the solum was the subject of an Opposition Amendment to remove what was described as an arbitrary power to claim land even though another person had the title. Under the Amendment, anyone with a title to the solum would have first claim. Failing title or claim, the solum would revert to the adjoining owners. The provision for settlement of disputes about ownership by the sheriff would remain.

§ Mr. Monro
I thank the Minister of State again for meeting an Amendment we moved in Committee. There certainly was an arbitrary power for the highway authority to take over the solum, 260 and while this may not be a provision that is used frequently, it is absolutely right to have it clarified, and clarified on the side of the adjoining proprietor, who may have the title.

§ Mr. George Lawson (Motherwell)
I notice that my hon. Friend is falling over backwards to meet hon. Members opposite. I did not serve on the Committee, but I wonder whether this might not be an occasion when he is going too far.
Roads could be stopped up that provide excellent public rights of way. They may very well have been in use for generations. What kind of protection is there for the other intests in such circumstances? If a roadway is stopped up because another highway has been built in its vicinity, and the highway authority is not taking over any liability to maintain or in any way keep open the old route, does it follow that under the Amendment the adjoining proprietors, who may have had no rights to the road, can simply take it over, close it up and make it part of their land? Are the interests of the other people in the area also protected?

§ Dr. Mabon
If there were arguments along the lines of what my hon. Friend says, and if there is justice in his claim about a road being a public right of way at some time, that is a matter to be argued before the sheriff. What my hon. Friend would argue if he represented the persons concerned would be that the title to the solum really lay with the community. Exactly in what sense that would be would have to be buttressed at the time by the various arguments used in that context. There is a society in Scotland which my hon. Friend has championed that will willingly help any persons concerned who want to make such a claim.
I imagine that such a dispute would have to go before the sheriff. In the absence of a community argument, surely it is fair and proper that anyone with title to the solum should have first claim. If it does not go to a person with such a claim, it reverts to the adjoining owners.

§ Mr. Bence
I would like clarification, because there are many cases throughout the country where the path of a road has been changed and the old part of the road is used as a lay-by for cars. Do 261 I understand from what has just been said that it is now possible for the owner of the land adjacent to the old piece of road to claim it, or does it remain open for the use of road users as a lay-by?

§ Mr. Dempsey
I, too, would like some clarification. I have in mind a certain highway which I believe may have prompted my hon. Friend the Member for Motherwell (Mr. Lawson) to raise the matter. This highway is in the Bothwell and Motherwell Divisions, but is where I live. A new road was opened some years ago, and the highway in question, which still has a 22-foot carriageway, was removed from the list of highways, but it is still used by hundreds of people who walk there during their leisure time.
The ruling of my hon. Friend the Minister of State seems to suggest that this admirable walk for the general public could be taken over by the owners of land on either side, who could claim a right to the solum and stop its use by people in the area. I would be very much disturbed if that were the intention of the Bill or any Amendment made to it. There are several similar instances. The highway I have mentioned is one where I walk every weekend, as do hundreds of other people. The biggest part of it is in the constituency of my hon. Friend the Member for Motherwell. It would be a dreadful mistake if we introduced legislation that enabled adjoining land owners to claim the highway, put up barriers and deprive the general public of such a pleasant walk in a very nice part of mid-Lanarkshire.
Therefore, may I have an assurance that there are no prospects of adjoining land owners who have the right to the solum taking advantage of powers in the Bill to block off that road for their own exclusive use, to the detriment of the general public.

§ Mr. Wylie
Surely questions of right of way and ownership of the solum are two entirely different things and hon. Gentlemen who express doubts on this are confusing these two things.

Mr. Deputy Speaker
Order. The hon. Gentleman has exhausted his right to speak.

§ Mr. Lawson
I was trying to ask a question.

Mr. Deputy Speaker
Asking a question is still speaking. The hon. Gentleman could always interject in the Minister's speech.

§ Mr. William Hannan (Glasgow, Maryhill)
Could I anticipate my hon. Friend's question? Surely where a road is stopped up under this Act it will revert to the owners unless the highway authority claims it. Let us assume that happens and the land goes to the adjoining land owners. If in future the highway authority found that plans made it desirable for a path to be reopened, would not that mean that it would have to regain ownership of the land, to repurchase it at public cost? If it was known that there would be no need for the land for some years, could not some temporary arrangement be reached for the land to be given to the adjoining land owners without its being disposed of by purchase? Would the land owners be offered a form of purchase, or is it just because the land has become redundant that it goes to the landowners for nothing?

§ Mr. Brewis
The problem is that the community has no right of possession in the solum of the highway. The right is solely to pass and repass on the highway. When the highway is stopped up the right of passage is maintained. The ownership of the solum does not matter.

Earl of Dalkeith
The hon. Member for Glasgow, Maryhill (Mr. Hannan) triggered me off when he expressed nervousness that someone might be getting something for nothing out of this arrangement. I would mention that the highway he talked about probably belonged to a land owner, was probably built by him many years ago and taken from him by the highway authority for nothing. I would have thought it a fair arrangement if it is now to be handed back. I know of a case where this has happened, in Selkirkshire, where a road will now become the property of the Forestry Commission. There may be a number of cases in Scotland where the commission will be taking over roads of this kind. In such cases there is a great deal of doubt, and it is rather a pity that the road is not being kept by the county council, which naturally wants to be relieved of the rate burden of looking after it.

§ Dr. Dickson Mabon
I must confess that I feel very much like Wellington, who, reviewing the reinforcements from England during the Peninsula War is alleged to have said: I don't know what the French think about them, but by God they frighten me. These Amendments are frightening me to the extent that there seems to be a lot more misunderstanding about this and stronger feeling than I had anticipated. May I clarify a number of points. It was the practice in the last century—and here we are concerned with Section 43 of the Roads & Bridges (Scotland) Act 1878—that the solum reverted to the adjoining owners unless the highway authority had paid for the land. At that time it was most unusual for a highway authority to buy land. Today the Secretary of State purchases such land. When he is involved in these developments for various roads which are sometimes stopped up he still ends up being the owner of the land. In that case there is no argument about it, the ownership is clearly in the hands of the Secretary of State. Similarly in the case of highway authorities. It is the practice to purchase land when such works are carried out. Again the bulk of land remains in public possession.
Under the old system there were different local enactments for stopping up roads. For example in Edinburgh and also in Dundee, Paisley and Rutherglen the solum vested in the town council unless someone else claimed it. That was how the measure was phrased before. In Glasgow it may go to the adjoining owner or to the Corporation, and in Greenock I am told it always went to the adjoining owners. In Aberdeen there was no provision at all so we are starting off from every conceivable circumstance and trying to sort out a very complicated position.
The first Amendment is sensible in that it makes the point that it would be inequitable to place the liability for maintenance on adjoining proprietors. That is a fair point and we promised to deal with it. On the second Amendment the position is that anyone with a title to the solum would have to claim it, otherwise it would revert to the adjoining owners. Since I have explained that in most cases it would be the Secretary of State and the highway authority it would only be in a minority of cases that anyone could make such a claim.
264 I take the point made by the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) that the argument about claim of ownership is rather different from public right of way on land. It does not mean that the ownership of the actual way is in public hands, it means that the right of way is. If it has been established to have been so for 40 years then it can be preserved. Here we are confined to the question of ownership and disposal of ownership in the case of stopping up roads. In no way does the Amendment or the preceding version of the Bill, or the Amendment moved by the Opposition in Committee detract from the argument about public right of way.

Earl of Dalkeith
Is the hon. Gentleman talking about a public right of way for vehicles or for people on foot? If someone breaks their back axle by going over one of these roads is the person who has the solum responsible for the damage?

§ Dr. Mabon
I have confined myself, and I am advised, strangely enough that I am right, to public rights of way meaning public rights of way on foot, not for horses, bicycles or vehicles.

§ Mr. Lawson
May I clarify this. Once a road becomes disused and is almost equivalent to a long walk, not leading from one point to another, merely a place that people like to wander along, would the public still have a right to have a "dander" along this area?

§ Dr. Mabon
I never thought that this little Amendment would lead to so much trouble. A "dander" is a "Bonner" in Motherwell. We are talking here about the title to the solum, not whether a person has the right to walk along a road.
It may be the case that the person claiming original title, or the adjoining owners to whom it will revert in the absence of it being claimed by someone else or being owned by the highway authority, will not wish to exercise any of the prerogatives of ownership in the solum, in which case "danders" will be in order, since nothing will be done. But if the person concerned wanted to do something he would be entitled to do it. He could also dispose of the road because it would no longer be a road. By the very circumstance of the Clause 265 we are discussing, the road will cease to be a road.

§ Mr. Lawson
Here is an area which is freely accessible and can be used to great advantage but which under this Measure can be stopped up at the wish of the proprietor.

§ Dr. Mabon
My hon. Friend has become involved in an argument of post hoc ergo propter hoc. It is after the closure of the road and the stopping up, so to speak, that these matters arise and not the other way around. In view of the fact that there has been all this heat engendered and little light on my part being shed on the matter, I undertake, if these Amendments are made now, to look into the matter closely and will write to my hon. Friend the Member for Motherwell.

§ Mr. Dempsey
Where a highway has been removed from the list of highways but is still usable as a tarmacadam surface, can the adjoining owners under this legislation block it off, thus preventing the general public from walking on that highway during their leisure hours?

§ Dr. Mabon
If the House will make these Amendments, I will look into this and give a precise answer later.