Annex: Technical questions and answers
What is the legal and technical context?
A complex set of legislation, polices and guidance applies to the design of streets. There is a tendency among some designers and approving authorities to treat design guidance as hard and fast rules because of the mistaken assumption that to do otherwise would be illegal or counter to a stringent policy. This approach is wrong. It restricts innovation, and leads to standardised streets with little sense of place or quality. In fact, there is considerable scope for designers and approving authorities to adopt a more flexible approach on many issues. It is, therefore, Scottish Government policy in Designing Places and Designing Streets to encourage street design which engenders place and quality.
By copying a standard example without due consideration, designers abrogate their own professionalism. When doing so, they still retain responsibility for the design, as it is their decision to copy a standard example which has been produced by individuals who may never have seen the site in question, and which may therefore not be suitable.
The following comprise the various tiers of instruction and advice:
- the legal framework of statutes, regulations and case law
- government policy
- government guidance
- local policies
- local guidance
- design standards
- evidence and research base and the concept of 'evidence-based design'
The Westminster and Scottish Parliaments and the Courts have established the legal framework. In this respect, certain aspects of transport are reserved to Westminster in terms of the Scotland Act 199851. For example, this includes the provisions which are the subject matter of the Road Traffic Act 198852, namely traffic signs and speed limits.
The Scottish Government develops policies aimed at meeting various objectives which roads and planning authorities are directed to follow. Designing Places and Designing Streets are such policies. It also issues supporting guidance to help authorities implement these policies, including the guidance in this document.
Evidence-based design has been developed as a concept within recent years. A distinction needs to be drawn between policies, guidance and practices that are, in essence, rule of thumb and that reflect simply a continuation of a conventional approach, and those that are based on science, statistics and designed experimental studies, and regularly challenged to ensure that they are relevant to modern needs and conditions. Designing Streets is supported by an evidence base.
Within this overall framework, road and planning authorities have considerable leeway to develop local policies and standards, and to make technical judgements with regard to how they are applied. Other bodies also produce advisory and research material on which they can draw.
What is the risk and liability?
Concerns around risk and liability frequently lead to the rigid application of standards that can stifle design-led, contextual approaches. Roads authorities have often applied a very cautious approach in order to avoid potential liability in the event of damage or injury.
This over-cautious approach is ill-advised, and restricts innovation and responses to local context. Recent case law has established that drivers are primarily responsible for their own safety and although road authorities have a general duty under Section 39 of the Road Traffic Act 1988 to promote safety, this does not create a duty of care.
A major concern expressed by some road authorities when considering more innovative designs, or designs that are at variance with established practice, is whether they would incur a liability in the event of damage or injury.
This can lead to an over-cautious approach, where designers strictly comply with guidance regardless of its suitability, and to the detriment of innovation. This is not conducive to creating distinctive places that help to support thriving communities.
In fact, imaginative and context-specific design that does not rely on conventional standards can achieve high levels of safety. The design of Poundbury in Dorset, for example, did not comply fully with standards and guidance then extant, yet it has very few reported accidents. This issue was explored in some detail in the publication Highway Risk and Liability Claims 2009.
Claims against road authorities relate almost exclusively to alleged deficiencies in maintenance. Claims for design faults are extremely rare. The duty of the road authority to maintain the road is set out in the Roads (Scotland) Act 1984, and case law has clarified the law in this area.
The courts in Scotland have adopted a cautious approach when considering the duty of care potentially owed by roads authorities. Merely because a roads authority has powers, this does not generally open up the authority to liability. The circumstances in which roads authorities have been held liable in damages have been very restricted. The restrictive approach has also been adopted in circumstances where the risk of an accident may well be foreseeable. (See Murray v Nicholls and Bennett v J Lamont & Sons).
The Scottish line of authority has been recently reinforced by the House of Lords in the case of Gorringe v. CalderdaleMBC (2004). A claim was made against a highway authority in England ('roads' authority in Scotland) for failing to maintain a 'SLOW' marking on the approach to a sharp crest. The judgement confirmed a number of important points which were that:
- the authority's duty to 'maintain' covers the fabric of a highway, but not signs and markings;
- there is no requirement for the road authority to 'give warning of obvious dangers' and natural road hazards; and
- drivers are 'first and foremost responsible for their own safety'.
A handful of claims for negligence and/or failure to carry out a statutory duty have been made under section 39 of the Road Traffic Act 1988, which places a general duty on road authorities to promote road safety. In connection with new roads, Section 39 (3)(c) states that road authorities 'in constructing new roads, must take such measures as appear to the authority to be appropriate to reduce the possibilities of such accidents when the roads come into use'.
The Gorringe v. Calderdale judgment made it clear that Section 39 of the Road Traffic Act 1988 did not create a duty of care and, therefore, does not form the basis for a liability claim.
Advice to road authorities on managing their risks associated with new designs is given in Chapter 5 of Highway Risk and Liability Claims (2009). In summary, this advises that authorities should put procedures in place that allow rational decisions to be made with the minimum of bureaucracy, and create an audit trail which could subsequently be used as evidence in court.
Suggested procedures include the following key steps:
- set clear and concise scheme objectives;
- work up the design against these objectives; and
- review the design against these objectives through a quality audit.
A suggested framework from Highway Risk and Liability Claims (2009) which accords with those set out in Designing Streets is:
Vision - there should be an overall vision for an area that reflects local and national policy and, where appropriate, the views of the local community
Objectives/Purpose - there should be a robust understanding of what the scheme is intended to do. This will normally include balancing:
- movement and place;
- risk and opportunity; and
- ensuring sustainability.
Design - this should be worked up against the objectives
Quality audit - this is a review of the design against the objectives set
What are the issues regarding disability discrimination?
Road and planning authorities must comply with the Disability Equality Duty under the Disability Discrimination Act 2005. This means that in their decisions and actions, authorities are required to have due regard to six principles, which are to:
- promote equality of opportunity between disabled persons and other persons;
- eliminate discrimination that is unlawful under the 2005 Act;
- eliminate harassment of disabled persons that is related to their disabilities;
- promote positive attitudes towards disabled persons;
- encourage participation by disabled persons in public life; and
- take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons.
Those who fail to observe these requirements will be at the risk of a claim. Not only is there an expectation of positive action, but the duty is retrospective and local authorities will be expected to take reasonable action to rectify occurrences of non-compliance in existing areas.
The Disability Rights Commission ( DRC) has published a Statutory Code of Practice on the Disability Equality Duty53 and it has also published specific guidance for those dealing with planning, buildings and the street environment.
What are the adoption and maintenance issues?
- The quality of the environment created by new development needs to be sustained long after the last property has been occupied. This requires good design and high-quality construction, followed by good management and maintenance.
- Authorities are encouraged to adopt a palette of suitable local and natural materials which allow for more creative design whilst being practical to maintain.
- Resource efficiency and sustainability should be addressed through the use of appropriate materials and systems including SUDS.
- The inclusion of planting (in particular street trees) is encouraged within the street environment.
Roads adoption - legal framework
Provision of roads for new developments is controlled and consented by the local roads authority through the Roads Construction Consent ( RCC) process, governed by Section 21 of the Roads (Scotland) Act 1984. For the purposes of adoption, all streets are deemed to be roads under this Act.
Under the terms of the RCC, having first secured technical approval of the designs from the local authority, the developer is obliged to construct roads over which there is a public right of passage to an agreed standard. Expenses will be payable by the developer to the roads authority to cover its reasonable costs in inspecting the construction of the works and associated testing.
The Roads (Scotland) Act 1984 sets out the obligations of the developer to construct the roads and maintain them for a set period of normally 12 months. Following the satisfactory discharge of these obligations, the new roads can be offered to the roads authority for adoption. If the road is adopted, it will in the future be maintainable by the roads authority.
Road Bond Security
Where Roads Construction Consent is granted relative to roads associated with housing development, the granting of the consent will require the deposit of sum or surety (Roads Bond) sufficient to meet the cost of constructing the road. The purpose of this bond is to enable the roads authority to meet the cost of constructing or completing the construction of the roads, should the developer fail in his responsibility to do so under the terms of the granted RCC.
Before any roads works commence on such a housing development, the developer will normally be required to have both the Roads Construction Consent and the Roads Bond in place.
Thus, before any construction begins, the developer will normally be required either:
- to secure the payment of the estimated cost of the road works under the requirements of the Roads (Scotland) Act 1984; or
- to make an agreement with the road authority under terms of the Act and provide a Bond of Surety.
Where a developer wishes streets to remain private, some roads authorities have incorporated conditions into the planning approval to require the developer to design, construct and to make arrangements for the future maintenance of the new streets to a standard acceptable to the authority. This agreement may still require the submission and approval of an RCC under the terms of Section 21 of the Act.
Landscape features adoption
Maintenance arrangements for all planted areas should be established at an early stage, as they affect the design, including the choice of species and their locations. The approval and maintenance of proposed planting within the road boundary will be required to comply with Sections 50 and 51 of the Roads (Scotland) Act 1984.
Alternatives to formal adoption may require innovative arrangements to secure long-term landscape management. These may include the careful design of ownership boundaries, the use of covenants and annual service charges on new properties.
What is adoptable?
The roads authority has considerable discretion in exercising its powers as to whether to grant a Roads Construction Consent under Section 21 of the Act.
A roads authority can be required to adopt a road constructed in accordance with an RCC. The streets put forward for adoption must be constructed to the agreed standard and will be subject to a 12 month period of use as a road whilst being maintained to the agreed standard by the developer.
Roads authorities have tended to only adopt streets that serve more than a particular number of individual dwellings or more than one commercial premises. Two to three dwellings is often set as the lower limit, but some authorities have set figures above this.
Design standards for Road Construction Consent
Roads authorities are now encouraged to take a flexible approach to road adoption in order to allow greater scope for designs that respond to their surroundings and create a sense of place. It is recognised, however, that roads authorities will need to ensure that any future maintenance liability is kept within acceptable limits.
One way of enabling designers to achieve local distinctiveness without causing excessive maintenance costs will be for roads authorities to develop a limited palette of special materials and street furniture. Such materials and components, and their typical application, could, for example, be set out in local design guidance and be adopted as a planning policy.
Clear cases must be made where the adoption of designs are sought that differ substantially from those envisaged in a local authority's design guide or Designing Streets. Developers should produce well-reasoned design arguments in relation to this.
Roads authorities would normally be expected to adopt:
- residential streets, combined footways and cycle tracks;
- footways adjacent to carriageways and main footpaths serving residential areas;
- Home Zones and level surface streets;
- land within visibility splays at junctions and on bends (in some cases);
- street trees;
- any verges and planted areas adjacent to the carriageway;
- structures, i.e. retaining walls and embankments, which support the road or any other adoptable area;
- street lighting;
- gullies, gully connections and road drains and other road drainage features;
- on-street parking spaces adjacent to carriageways; and
- service strips adjacent to level surface streets.
Private management companies/factors
Any unadopted communal areas will need to be managed and maintained through private arrangements. Typical areas maintained in this way include communal gardens, shared off-street car parking, shared cycle storage, communal refuse storage and composting facilities and sustainable energy infrastructure.
Approval processes for new streets
The design and approval of new streets is governed by both planning and roads legislation. The design process must therefore recognise both sets of requirements. The Roads (Scotland) Act 1984 is the primary legislation for new roads, and all new roads must receive RCC under Section 21 of that Act prior to construction. Previous practice applied by most local authorities dictates that the formal RCC approval process only starts with the granting of planning permission, or at least with the agreement of the final planning layout. The process thus results in a 2-stage (planning and roads) approval process that not only significantly extends the overall statutory approval process and delays commencement of development construction but, by more rigid application of engineering requirements at this 2nd stage, can lead to a dilution of overall design quality.
Street design requires an integrated approach to approval, involving collaboration between planning officers and RCC engineers. In this way, roads colleagues will be satisfied with the fundamentals of the development proposal, and can approve it in principle concurrent with the granting of planning permission. RCC engineers will have an important role to play as consultees in the planning application process. It is as a consultee that the roads authority can ensure that an appropriate 2-stage approach is adopted. The roads authority should be satisfied that sufficient information has been provided with the planning application to ensure that a subsequent RCC reflecting the design will not alter the details approved under the planning permission. These discussions should take place as early as possible - before a layout is worked up and a planning application submitted. It is important that any principles that have been agreed at this point in the design process are not revisited later, unless there has been a significant change in circumstances.
Planning policies should set the overall benchmark for the design quality of any new development, which includes the new streets as a key part of the public realm. This is why local authorities should have specific planning policies on street design ideally within the development plan, or as Supplementary Planning Guidance ( SPG). Planners and road engineers should work together to ensure policies are up to date and allow for the most appropriate street patterns.
The flow chart contained in Part 3 of this document shows how a more integrated system should operate, and the key design decisions which would need to be taken, and signed off, at each stage.
Adoption of SUDS
Adoption issues will need to be clarified at an early stage in the design process, with the likely adopting authorities; Scottish Water, local authority and potential private bodies. The amendments to Section 7 of the Sewerage (Scotland) Act 1968 published within SUDS for Roads, focus on adoption of SUDS at a regional level by encouraging a collaborative approach to shared systems between local authorities and Scottish Water. It is important for a continuous, team-based approach to this matter.