Town and Country Planning (Scotland) Act 1969

Stopping-up and diversion of highways

89 Procedure for making orders for stopping-up and diverting highways

(1) Where the Secretary of State would, if planning permission for any development had been granted under Part II of the Act of 1947, have power to make an order under section 46(1) of that Act authorising the stopping-up or diversion of a highway in order to enable that development to be carried out, then, notwithstanding that such permission has not been granted, the Secretary of State may, in the circumstances specified in subsections (2) to (4) below, publish notice of the draft of such an order in accordance with Schedule 6 to that Act (procedure in relation to orders under section 46).

(2) The Secretary of State may publish such a notice as aforesaid where the relevant development is the subject of an application for planning permission and—

(a) that application is made by a local authority or statutory undertakers or the National Coal Board ; or

(b) that application stands referred to the Secretary of State in pursuance of a direction under section 13 of the Act of 1947; or

(c) the applicant has appealed to the Secretary of State under section 14 of that Act against a refusal of planning permission or of approval required under a development order, or against a condition of any such permission or approval.

(3) The Secretary of State may publish such a notice as aforesaid where—

(a) the relevant development is to be carried out by a local authority, statutory undertakers or the National Coal Board and requires, by virtue of an enactment, the authorisation of a government department; and

(b) the developers have made application to the department for that authorisation and also requested a direction under section 32 of the Act of 1947 or, in the case of the National Coal Board, under section 2 of the [1958 c. 69.] Opencast Coal Act 1958, that planning permission be deemed to be granted for that development.

(4) The Secretary of State may publish such a notice as aforesaid where the local planning authority certify that they have begun to take such steps, in accordance with regulations made by virtue of section 32 of the Act of 1947 (application of planning control to local planning authorities), as are requisite in order to enable them to obtain planning permission for the relevant development.

(5) Paragraph 5 of Schedule 6 to that Act (power of Secretary of State to make an order under section 46 after considering any relevant objections and report) shall not be construed as authorising the Secretary of State to make an order under section 46(1) of that Act, of which notice has been published by virtue of subsection (1) above, until planning permission is granted for the development which occasions the making of the order.

90 New powers to authorise stopping-up and diversion of highways

(1) If planning permission is granted under Part II of the Act of 1947 for constructing or improving, or the Secretary of State proposes to construct or improve, a highway (hereafter in this section referred to as " the main highway "), he may by order authorise the stopping-up or diversion of any other highway which crosses or enters the route of the main highway or which is, or will be, otherwise affected by the construction or improvement of the main highway, if it appears to him expedient to do so—

(a) in the interests of the safety of users of the main highway ; or

(b) to facilitate the movement of traffic on the main highway.

(2) Subsections (3) to (5) of section 22 of the Act of 1945, subsections (2) to (7) of section 46, subsections (2) to (4) of section 111 of the Act of 1947 and Schedule 6 to that Act (ancillary provisions, provisions as to compulsory acquisition of land in connection with highways and provisions as to telegraph lines) and section 89 above shall apply in relation to an order under this section as they apply in relation to an order under section 46(1) of the Act of 1947.

(3) In section 32(3) of the [1951 c. 60.] Mineral Workings Act 1951 (rights of statutory undertakers in respect of their apparatus where order made under section 46 of the Act of 1947), after the reference to the said section 46 there shall be inserted an alternative reference to this section.

91 Conversion of highway into footpath or bridleway

(1) The provisions of this section shall have effect where a competent authority by resolution adopt a proposal for improving the amenity of part of their area, being a proposal which involves a highway in that area (being a highway over which the public have a right of way with vehicles, but not a trunk road or a road classified as a principal road for the purpose of advances under section 8 of the [1909 c. 47.] Development and Road Improvement Funds Act 1909) being changed to a footpath or bridleway.

(2) The Secretary of State may, on an application made by a competent authority, by order provide for the extinguishment of any right which persons may have to use vehicles on that highway.

(3) An order made under subsection (2) of this section may include such provision as the Secretary of State (after consultation with the local planning authority and the highway authority, if different from the competent authority) thinks fit for permitting the use on the highway of vehicles (whether mechanically propelled or not), in such cases as may be specified in the order, notwithstanding the extinguishment of any such right as is mentioned in that subsection ; and any such provision may be framed by reference to particular descriptions of vehicles, or to particular persons by whom, or on whose authority, vehicles may be used, or to the circumstances in which, or the times at which, vehicles may be used for particular purposes.

(4) No statutory provision prohibiting or restricting the use of footpaths or bridleways shall affect any use of a vehicle on a highway in relation to which an order made under subsection (2) above has effect, where the use is permitted in accordance with provisions of the order included by virtue of subsection (3) above.

(5) Any person who, at the time of an order under subsection (2) of this section coming into force, has an interest in land having lawful access to a highway to which the order relates shall be entitled to be compensated by the competent authority in respect of any depreciation in the value of his interest which is directly attributable to the order and of any other loss or damage which is so attributable.

In this subsection " lawful access " means access authorised by planning permission granted under the Act of 1947, or access in respect of which no such permission is necessary.

(6) A claim for compensation under subsection (5) above shall be made to the competent authority within the time and in the manner prescribed by regulations under the Act of 1947.

(7) Subsections (3) to (5) of section 22 of the Act of 1945, subsections (2) to (5) of section 46, subsections (2) to (4) of section 111 of the Act of 1947 and Schedule 6 to that Act (ancillary provisions, provisions as to compulsory acquisition of land in connection with highways and provisions as to telegraph lines) shall apply in relation to an order under this section as they apply in relation to an order under section 46(1) of the Act of 1947.

(8) The Secretary of State may, on an application made by a competent authority, by order revoke an order made by him in relation to a highway under subsection (2) above ; and the effect of the order shall be to reinstate any right to use vehicles on the highway, being a right which was extinguished by virtue of the order under the said subsection.

(9) Subsection (8) above shall not be taken as prejudicing any provision of the Act of 1947 enabling orders to be varied or revoked.

(10) The competent authorities for the purposes of this section are county councils and town councils, and before making an application under subsection (2) or (8) above a competent authority shall consult with the local planning authority and the highway authority (in a case where they are themselves not that authority).

(11) In this section " statutory provision" means a provision contained in, or having effect under, any enactment.

92 Provision of amenity for highway reserved for pedestrians

(1) Where in relation to a highway an order has been made under section 91(2) above, a competent authority may carry out and maintain any such works on or in the highway, or place on or in it any such objects or structures, as appear to them to be expedient for the purposes of giving effect to the order or of enhancing the amenity of the highway and its immediate surroundings or to be otherwise desirable for a purpose beneficial to the public.

(2) The powers exercisable by a competent authority under this section shall extend to laying out any part of the highway with lawns, trees, shrubs and flower-beds and to providing facilities for recreation or refreshment

(3) A competent authority may so exercise their powers under this section as to restrict the access of the public to any part of the highway, but shall not so exercise them as—

(a) to prevent persons from entering the highway at any place where they could enter it before the order under section 91 was made; or

(b) to prevent the passage of the public along the highway; or

(c) to prevent normal access by pedestrians to premises adjoining the highway ; or

(d) to prevent any use of vehicles which is permitted by an order made under the said section 91 and applying to the highway; or

(e) to prevent statutory undertakers from having access to any work of theirs under, in, on, over, along or across the highway.

(4) An order under section 91(8) above may make provision requiring the removal of any obstruction of the highway resulting from the exercise by a competent authority of their powers under this section.

(5) The competent authorities for the purposes of this section are county councils and town councils, but such an authority shall not exercise any powers conferred by this section unless they have obtained the consent of the local planning authority and the highway authority (in a case where they are themselves not that authority).

93 Powers for local planning authorities analogous to s. 46 of Act of 1947

(1) Subject to section 95 below, a local planning authority may by order authorise the stopping up or diversion of any footpath or bridleway if they are satisfied that it is necessary to do so in order to enable development to be carried out—

(a) in accordance with planning permission granted under Part II of the Act of 1947 or the enactments replaced by that Part of the Act; or

(b) by a government department.

(2) An order under this section may, if the local planning authority are satisfied that it should do so, provide—

(a) for the creation of an alternative footpath or bridleway for use as a replacement for the one authorised by the order to be stopped up or diverted, or for the improvement of an existing path or way for such use ;

(b) for authorising or requiring works to be carried out in relation to any footpath or bridleway for whose stopping-up or diversion, creation or improvement, provision is made by the order;

(c) for the preservation of any rights of statutory undertakers in respect of apparatus of theirs which immediately before the date of the order is under, in, on, over, along or across any such footpath or bridleway ;

(d) for requiring any person named in the order to pay, or make contributions in respect of, the cost of carrying out any such works.

(3) The powers of a local planning authority under this section shall include power to make an order authorising the stopping-up or diversion of a footpath or bridleway which is temporarily stopped up or diverted under any other enactment.

(4) Section 32(1) and (2) of the [1951 c. 60.] Mineral Workings Act 1951 (temporary order for stopping-up or diversion of highway) shall apply to an order made by a local planning authority under this section as it applies to an order made by the Secretary of State under section 46 of the Act of 1947, with the substitution—

(a) for references to the Secretary of State of references to a local planning authority ; and

(b) for the reference in subsection (2) to section 46(4) of the Act of 1947 of a reference to subsection (2) of this section.

94 Extinguishment of footpaths etc. over land held for planning purposes

(1) Subject to section 95 below, where any land has been acquired or appropriated for planning purposes and is for the time being held by a local authority for the purposes for which it was acquired or appropriated, the authority may by order extinguish any public right of way over the land, being a footpath or bridleway, if they are satisfied that an alternative right of way has been or will be provided, or that the provision of an alternative right of way is not required.

(2) Any reference in subsection (1) above to the acquisition of land for planning purposes is a reference to the acquisition thereof under section 35 or 37 of the Act of 1947 or section 29 of this Act; and any reference to the appropriation of land for planning purposes is a reference to the appropriation thereof for purposes for which land can, or could have been, acquired under those sections.

95 Confirmation, validity, etc. of orders under ss. 93 and 94

(1) An order under section 93 or 94 of this Act shall not take effect unless confirmed by the Secretary of State, or unless confirmed, as an unopposed order, by the authority who made it.

(2) The Secretary of State shall not confirm any such order unless satisfied as to every matter of which the authority making the order are required under section 93 or 94 (as the case may be) to be satisfied.

(3) The time specified—

(a) in an order under section 93 above as the time from which a footpath or bridleway is to be stopped up or diverted; or

(b) in an order under section 94 above as the time from which a right of way is to be extinguished,

shall not be earlier than confirmation of the order.

(4) Schedule 7 to this Act shall have effect with respect to the confirmation of orders under section 93 or 94 of this Act and the publicity for such orders after they are confirmed.

96 Amendments of s. 46 of and Schedule 6 to Act of 1947

(1) It is hereby declared for the avoidance of doubt that the incidental and consequential provisions which may be included in an order under section 46 of the Act of 1947 or section 90 or 91 above by virtue of section 46(4) of that Act shall include provisions providing for the preservation of any rights of statutory undertakers in respect of any apparatus of theirs which immediately before the date of the order is under, in, on, over, along or across the highway to which the order relates.

(2) In paragraphs 1(b) and 4 of Schedule 6 to the Act of 1947 (periods for inspecting and objecting to a draft order under section 46), for the words " three months" there shall be substituted the words " twenty-eight days ".