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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKellar v City Of Aberdeen Council For Judicial Review [2001] ScotCS 64 (15 March 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/64.html Cite as: [2001] ScotCS 64

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[1] The petitioner is the tenant of property at 8 Wallfield Crescent, Aberdeen, in which he resides. The respondents, The City of Aberdeen Council, through their Street Bin Programme Implementation Task Group, resolved on 13 October 2000 to establish permanent wheelie bins along Wallfield Crescent. Shortly thereafter, the respondents installed 20 upright fixtures with attached wheelie bins in the carriageway along the length of Wallfield Crescent. Wallfield Crescent is a street which comprises essentially tenement properties with some shops at ground floor level. Parking is permitted on both sides of the street, either without restriction or, in parts, with a pay and display parking zone. As constructed and installed, the wheelie bins, which are set together in pairs, appear to occupy approximately the space in the carriageway which a parked car would occupy. In Wallfield Crescent there are two points where the installations are directly opposite each other and three points where they are diagonally opposite each other. Their different locations are of relevance because, according to the submission of counsel for the respondents, the installations, being "build-outs" are respectively "pinch-points" and "chicanes" in terms of the Roads (Traffic Calming) (Scotland) Regulations 1994.

[2] When the respondents' Environment and Infrastructure Committee (which deals with roads and environmental matters) met on 28 March 2000, they considered a report which was concerned with the need to establish permanent communal wheelie bin fixtures for those properties in the city to which it was not possible to deliver individual wheelie bins. It was recognised that there were "legal implications" in a number of respects arising from the installation of the structures in the carriageways of the streets. The report went on:

[3] In furtherance of their decision to approve the report in principle, the committee consulted "frontagers" in terms of Regulation 4 of the Roads (Traffic Calming) (Scotland) Regulations 1994. The petitioner was one such frontager who received the respondents' circular letter dated 11 August 2000. In that circular letter he was informed that:

He was also informed that "at this stage in the process, the legal aspect and public interest is (sic) being fulfilled by the use of statutory procedures under the 1994 Regulations."

[4] The petitioner opposed the proposed installations by letter from his solicitors to the respondents dated 8 September 2000. In this petition he maintains that the respondents' decision of 13 October 2000 was one that they had no power to make because installation of the permanent wheelie bin fixtures in Wallfield Crescent does not constitute traffic calming works in terms of the Traffic Calming Act 1992.

That Act, in Schedule 2, sets out provisions relating to other traffic calming works to be inserted in the Roads (Scotland) Act 1984. In section 2 of the 1992 Act the expression "traffic calming works" is defined thus:

In the 1984 Act "road" means "any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road's verge...". It is accepted that this would include the pavement of a street within a city. "Works" as regards a road, is defined as including

"Traffic" includes "pedestrians and animals". I was also referred to the definition of the word "improvement" in the 1984 Act, but as the expression in the 1992 Act is "improving the amenity through which the road runs", I am unable to derive any assistance from the statutory definition in the 1984 Act.

[5] The added section 39A of the 1984 Act provides in sub-section (1) that a roads authority may, in a road maintainable by them, construct traffic calming works which are of a description prescribed by Regulations under section 39B of the Act. And the authority cannot exercise the powers in sub-section (1) except in accordance with any requirements imposed by the Regulations (section 39A(2)). It seems to me therefore not only appropriate but legitimate to consider what are the traffic calming works set out in the Regulations in considering the intended statutory meaning of traffic calming works.

[6] Mr Webster, who appeared for the respondents, maintained that the installations in Wallfield Crescent constituted a "build-out" in terms of the Regulations. That expression means "work for narrowing a carriageway constructed on one side of the carriageway as an extension of, or adjacent to, the verge, footway or cycle track". A "chicane" means "a series of two or more build-outs constructed on alternate sides of the carriageway and not opposite one another". "Pinch-points" means "build-outs constructed on both sides of the carriageway opposite one another." Looking at these definitions and indeed the definitions of "island", "overrun area" and "rumble devices", it becomes obvious, in my opinion, that what is envisaged is something which is set into the carriageway, as opposed to the pavement, for the purpose of controlling or restricting essentially, but not exclusively vehicular traffic on the carriageway in the interests of promoting safety or preserving or improving the environment. In the statutory definition of "traffic calming works" in the 1992 Act (now section 40 of the Roads (Scotland) Act 1984) it is important, in my view, to note and to emphasise that the works are designed to affect the movement of vehicular and other traffic. I should add that since Regulation 3(1)(b) is not in play in this case, it is unnecessary to consider the provisions in Regulation 3(2).

[7] The installation of the permanent wheelie bins in Wallfield Crescent cannot truly have been promoted as traffic calming works. As is evident from the photographs in process and, as I have already said, the pairs of wheelie bins and their attachments occupy no more space in their position adjacent to the pavement, and perhaps arguably less space in the carriageway than an ordinary sized motor vehicle. Given that parking is permitted throughout the length of Wallfield Crescent, the carriageway of Wallfield Crescent is as a matter of fact not narrowed where the installations are located and the installations do not affect the movement of vehicular and other traffic except to prevent vehicles parking where they have been located. If that is so, they do not constitute "build-outs", and if they are not "build-outs", neither are they "chicanes" or "pinch-points". I therefore conclude, without hesitation, that they do not constitute traffic calming works and the attempt to use the authority of sections 39A to 40 of the 1984 Roads (Scotland) Act and the associated 1994 Regulations, is in my opinion spurious.

[8] That was the only basis for the respondents' decision to site permanent wheelie bins in Wallfield Crescent. Ex post facto, however, the respondents have sought to rely on section 54 of the Roads (Scotland) Act 1984. They aver at the end of Answer 7 that the wheelie bins as installed constitute a bin or other receptacle for the collection and temporary deposit of road refuse and waste paper in terms of that section. Mr Devlin, who appeared for the petitioner, objected to this section being relied on because it was not the basis upon which the respondents reached their decision. He went on to say, however, that he did not press this objection strongly. I am therefore prepared to consider the respondents reliance upon this section.

[9] Mr Webster drew my attention to a number of newspaper articles which had been lodged in process showing the effect in the general area of Wallfield Place and Wallfield Crescent of domestic refuse bags which had been opened by seagulls, in particular, and their contents scattered on the pavement. This was the "mischief" which the respondents' measures were intended to contain. What could be seen in the newspaper photographs was road refuse which would no longer litter the pavement but would be deposited in the permanent wheelie bins installed in the carriageway of the streets. He submitted that section 54 of the 1984 Act in these circumstances authorised the respondents to install such permanent wheelie bins. Section 54 provides:

It must be remembered that the word "road" includes the "road's verge" which in this case would include the pavement. So refuse discarded by householders on the pavement could, according to Mr Webster, be considered "road refuse" for the collection and temporary deposit of which the wheelie bins had been located in the carriageway of the streets.

[10] I agree, however, with Mr Devlin when he submitted that one must look at the source of the waste and its nature in determining what is truly "road refuse". The fallacy in the respondents' approach in my opinion is the failure properly to consider how such refuse gets on to the pavement. Every householder places what is without argument domestic refuse on the pavement by arrangement with those collecting it on behalf of the local authority. The days of such collection are usually published and well known. Unfortunately, the times during the day are not always the subject of pre-arrangement. (If they were, I venture to suggest that the attacks of the voracious seagulls might be greatly restricted or even perhaps prevented). When domestic refuse is placed outside the houses for collection in accordance with such arrangements, it does not, in my opinion, become road refuse because of the location in which it is left. In my view road refuse is what is deposited on the road by those using it, either in vehicles on the carriageway, or as pedestrians using the pavement. That was what was submitted by Mr Devlin and I agree with him. In any event, if the respondents are right, what is carried by the householders from their houses and deposited in the permanent wheelie bins would never be road refuse. In these circumstances it would never lose its character as domestic refuse. And so the object of providing these receptacles is the collection of domestic refuse. Accordingly, in my opinion, the respondents have not properly exercised their power in terms of section 54 in providing these permanent wheelie bins in Wallfield Crescent, even on the assumption that they did base their decision upon the exercise of this power.

[11] The respondents intimated that they did not insist upon their first, second and sixth pleas-in-law. The petitioner, equally, did not insist upon his second plea-in-law. I hold that the respondents had no power to make the decision which they did on 13 October 2000 in relation to Wallfield Crescent. I will therefore uphold the first plea-in-law for the petitioner and grant decree of declarator and reduction as sought. I will also uphold the petitioner's third plea-in-law and grant the order that the respondents dismantle and remove the permanent wheelie bin structure and all that is associated with them established along the carriageway of Wallfield Crescent. No period was suggested to me within which this should be done. I would however have thought that the period of six weeks from the pronouncement of my interlocutor in this action would be a reasonable period and I will so order. I will also repel the respondents' remaining pleas-in-law.