Access to the Outdoors in Scotland A summary of relevant court decisions

Transcription

1 Access to the Outdoors in Scotland A summary of relevant court decisions Published by: ScotWays (The Scottish Rights of Way and Access Society) 24 Annandale Street Edinburgh EH7 4AN First edition, version 1.0 Date: 14 th September 2010

2 Copyright 2010 Scottish Rights of Way and Access Society (ScotWays) This publication may be downloaded by individuals for their own use. Short extracts from the publication may be reproduced without the prior consent of the copyright holder provided that the source is acknowledged. Scottish Rights of Way and Access Society (ScotWays) 24 Annandale Street Edinburgh EH7 4AN Registered as a limited company in Scotland. Company number: SC Registered office as above. A Scottish Charity, number: SC

3 ACKNOWLEDGEMENTS Many of the case summaries in this publication are derived from Rights of Way: The Authority of Case Law edited by Alistair Lawson. That publication was written with the help of ScotWays Legal Committee members, and published by ScotWays in This publication has been co-ordinated and edited by Judith Lewis. New material for this publication has been written with the help of members of the ScotWays Legal Committee, in particular: George Menzies John Mackay and John Innes Christopher Hooper, a law student at Edinburgh University, assisted with research for new material. We are also grateful to: John Spencer, who developed the database used as a basis for preparation of the publication; Debbie Ramage for her general assistance with the publication; ScotWays Board member, Richard Barron; Scottish Natural Heritage, which provided grant assistance to ScotWays during the period of development of this publication, and in particular to Rob Garner, Policy and Advisory Officer, SNH, for his support during this time; and ScotWays staff, particularly Catriona Davies. The Scottish Courts Service website: is an essential source for recent court decisions and also provides useful information about the Scottish courts system. Scottish Natural Heritage s publication A Brief Guide to Occupiers Legal Liabilities in Scotland was a valuable source of reference when preparing the Part on Liability. 3

4 Table of Contents Page Introduction 5 Part 1 Cases under the Land Reform (Scotland) Act Part 2 Public Rights of Way and Private Servitude Rights 23 of Way Part 2.1 Relationship of public rights of way with private 23 servitude rights of way and with roads under the Roads (Scotland) Act 1984 Part 2.1.1: Relationship of public rights of way with 23 private servitude rights of way Part 2.1.2: Public rights of way and roads under the 26 Roads (Scotland) Act 1984 Part 2.2 Creation of public rights of way need for public place 28 end points. Part 2.3 Creation of public rights of way use as of right by the 39 public for the prescriptive period Part 2.4 Creation of rights of way interruption of the 55 prescriptive period Part 2.5 Need for a particular line for public rights of way 57 Part 2.6 Different kinds of use of rights of way 59 Part 2.7 Rights of way land owned by statutory undertakers or 63 the Crown. Part 2.8 Public and private rights of way ancillary rights and 69 burdens Part 2.9 Obstruction of rights of way 73 Part 2.10 Procedural issues 86 Part 3 Navigation rights and rights in relation to the 92 foreshore Part 3.1 Navigation rights 92 Part 3.2 Rights in relation to the foreshore 96 Part 4 Liability 100 Part 4.1 Occupiers liability: Cases involving hazards in the 100 outdoors Part 4.2 Occupiers liability: Cases involving children 107 Part 4.3 Occupiers liability: Cases involving facilities/indoor 109 premises Part 4.4 Cases involving animals 110 Part 4.5 Liability of recreational users to one another 112 Part 4.6 Cases relating to contributory negligence 114 Part 5 Other cases of interest 115 Table of cases 117 Bibliography and Useful Websites 122 4

5 Introduction This new publication is the successor to the ScotWays publication Rights of Way: the authority of case law, which was published in But all the cases taken from that work (mainly in relation to rights of way) have been reviewed, and many new cases have been added in order to cover access rights under Part 1 of the Land Reform (Scotland) Act 2003, and other relevant areas of law. It is a companion to Access Rights and Rights of Way: A Guide to the Law in Scotland, also published by ScotWays. The publication is intended for all those interested in outdoor access or involved in advising access takers and land managers. It is hoped that the summaries will give readers who are non-lawyers an improved understanding of the issues, and give them more confidence when discussing these issues with their legal advisers. Lawyers and law students will also find it a useful starting point for researching this field of law. This publication provides summaries of court decisions in various fields that have a bearing on outdoor access: access rights, public rights of way, private rights of way (servitudes), liability, and navigation and foreshore rights. Cases relating to the new access rights and responsibilities under Part I of the Land Reform (Scotland) Act 2003 will be of particular interest. This Part of the Act is written in open terms and, during its evolution, Parliament recognised that the Courts would have a role in clarifying how it would operate. There have been few decisions so far, but they have been important in providing some early interpretation of this ground-breaking legislation. The longest Part of this guide concerns rights of way. There have been numerous court cases, some dating back to the eighteenth century, and many aroused heated public debate in their time. Private servitude rights of way are included where the principles involved are similar to those in public right of way cases. The Part on liability (the liability of occupiers, and the liability of one access taker to another) has been included because this topic is of increasing interest to land managers and to those taking access. Cases on navigation rights and rights on the foreshore have also been included in order to complete the main areas of law relating to outdoor access. The Scottish Court Service Website has a searchable database of court decisions since 1998 at Links to the appropriate full decisions on the SCS website are given in this publication, where they are available. Please note that, where links are given to web pages, you may need to copy and paste the links into your web browser, rather than going to them direct from this document. Also reported are some relevant decisions of courts in England and elsewhere. Scottish cases often refer to decisions in other jurisdictions where these are relevant. 5

6 Finding relevant cases in this guide Cases in this publication have been divided into five main Parts. Longer Parts have been broken down to place cases under sub-headings see the Table of Contents on page 4. The main Parts are: Part 1: Cases under the Land Reform (Scotland) Act 2003 Cases under this Act have been placed in date order. Part 2: Public rights of way and private servitude rights of way Because the principles in relation to public rights of way overlap with private servitude rights of way, they have been placed together in one Part. As this is the longest Part, they have been placed under headings according to the main principles in each case. See the beginning of that Part (page 23) for further details. Part 3: Navigation rights and rights in relation to the foreshore These issues have been placed together because they both involve access to water. Part 4: Liability This Part has also been sub-divided and includes cases in relation to the liability of landowners and occupiers under the Occupiers Liability Act 1960, and also the liability of access takers to one another. Part 5: Other cases of interest This Part includes other cases that have a bearing on outdoor access. There is an alphabetical list of the names of the cases, with their case report or court reference, on page 117. Most of the cases listed are reported in various official law reports, which contain the full texts of the judges' opinions and summaries of the facts and the legal arguments on each side. The report reference consists of the year of the report followed by identifying letters for the series of reports and a page reference (e.g SC 302 for a case reported in Session Cases in 1945). In addition there are summarised reports (such as GWD - Greens Weekly Digest, and CLY - Current Law Yearbook) which only contain brief summaries of cases. In many recent cases, the full texts of judges opinions are also available on official court websites and references to these are also given, with the relevant court reference numbers, where available. The case report references enable lawyers to look up the full reports in the appropriate volumes in law libraries, but non-lawyers will probably find it easier to use the online court website references for recent cases. There is often additional information or comment available on the Internet. As this publication is electronic, readers can use the usual find tools to search for relevant issues within the publication. The format of this guide, as a downloadable PDF file, means that ScotWays will be able to update it with new court decisions as they arise. Updated 6

7 versions will be available to download from the ScotWays website. The current version number, and date, are indicated on the front cover. Please help us to keep this publication up to date by sending us comments, and letting us know of any relevant new court cases. An outline of the Scottish Courts System Civil court cases are initiated either in one of the many local Sheriff Courts, or in the Court of Session in Edinburgh. The Inner House of the Court of Session also acts as a court of appeal, though an appeal from a Sheriff Court can also be made to the local Sheriff Principal. It is up to the person making the appeal to decide whether to appeal to the Sheriff Principal or whether to appeal direct to the Court of Session. Until October 2009 there was a final right of appeal from the Court of Session appeal division (the Inner House) to the House of Lords. From that date, the new UK Supreme Court is now the final court of appeal for the whole of the UK in civil cases. The diagram below explains the structure of the Scottish civil courts. UK Supreme Court (formerly the House of Lords) The Scottish Courts System Arrows indicate potential lines of appeal. Court of Session Inner House (Three Judges) Sheriff Principal Court of Session Outer House (Lord Ordinary) Sheriff Court In certain circumstances, there may be an application to the European Court of Human Rights if the claimant has been given no redress through the UK courts. For information about the process, see: EA900D18D49B/0/ENG_QR.pdf 7

8 In the case of the Land Reform (Scotland) Act 2003, there are two main processes for bringing cases to court and, in both cases, the process must start in the Sheriff Court. Under sections 14 and 15, a landowner can appeal to the Sheriff Court against a notice that the local authority has served on him in respect of an alleged obstruction of access rights. Under section 28, anyone may apply to the Sheriff Court for a court order in relation to: whether access rights apply on particular land; or whether particular land managers or users have acted responsibly in relation to access; or whether there is a public right of way. Once the Sheriff has given his decision there may be appeals to higher courts in the usual way. A court decision may have an important impact on future cases because it may establish a precedent that has to be followed in other cases. A single sheriff s decision is persuasive only it is not binding on other sheriffs. An appeal decision by a sheriff principal is binding only within his own sheriffdom. An appeal decision in the Court of Session is binding throughout Scotland unless and until overturned, either by a larger appeal division of the Court of Session convened especially for the purpose, or by the Supreme Court. The Scottish Courts Service website provides more information about the courts system in Scotland. See: It also provides a useful glossary of legal terms used in court proceedings in Scotland. See: The following is a note of some of the main technical terms used in court proceedings. Pursuer and defender The person who initiates the court proceedings is the pursuer, and the person defending the action is the defender. If there is an appeal, the person appealing is the appellant and the other party is the respondent. Precognitions These are statements, generally prepared by the solicitor in the case, setting out what a witness is likely to say in open court in response to questions. They do not form part of the evidence as such, and are not lodged in court. Pleadings These are the written statements of each party s case, prepared by solicitors or counsel. They start with an initial writ (or application) and defences and develop over the initial procedural stages into the Closed Record, which is lodged with the court. The object of this is to identify the factual and legal issues in dispute, which need to be resolved in the case. Proof This is the hearing of evidence, at which witnesses give their evidence under oath in open court. 8

9 Court Decisions Court decisions review the facts and the legal arguments of the parties, and set out what the court has decided in relation to both the facts and the law. The court can make various different orders, depending on the nature of the case. Examples of relevant court orders: A declarator confirming the legal position in relation to a claimed right or status, e.g. that access rights apply over a particular area of land, or that there is a right of way along a particular line. An interdict prohibiting someone from doing something, e.g. obstructing a right of way. There can be an application for an interim interdict while the full court process is taking place. A final interdict may then be given when the case has been heard in full. A person who breaches an interdict may be fined, or even imprisoned. Damages compensating the claimant, e.g. for injuries he has suffered. Expenses (Costs) The normal rule is that the losing party pays the winning party s judicial expenses. They are assessed in accordance with a set table of fees by the Auditor of Court in practice often limited to about two thirds of the actual expenses. The court has some discretion to vary an award of expenses (e.g. to one half of the table of fees) or to make no award, but this is unusual. If the losing party has legal aid, an expenses order against him/her is likely to be almost valueless. 9

10 PART 1: CASES UNDER PART I OF THE LAND REFORM (SCOTLAND) ACT 2003 Introduction The court cases that have been brought so far under this Act have been important in providing guidance on interpretation of the Act, which came into force on 9 February The Act gave everyone a right of access to most land and inland water in Scotland for recreation and other purposes, subject to certain exceptions, including allowing for an area of privacy around dwelling houses. A person only has access rights if they are exercised responsibly in accordance with the Scottish Outdoor Access Code, drawn up by Scottish Natural Heritage and approved by the Scottish Parliament. There has been one amendment to Part I of the Act as passed. Scottish Statutory Instrument 2005/65, The Land Reform (Scotland) Act 2003 (Modification) Order 2005, amends section 7(10), adding a new subsection (c) to clarify that land on which crops are growing does not include land wholly or mainly used as a woodland or orchard or for the growing of trees, but does include land used wholly for the cultivation of tree seedlings in beds. See: For a link to download the 2003 Act, other subordinate legislation made under the Act, and other legislative provisions impinging on the Act, see the Bibliography at page 122. Cases have so far been initiated under two different sections of the Act. Under section 14, a landowner can appeal to the Sheriff Court against a notice that the local authority has served on him in respect of an alleged obstruction of access rights. Under section 28, anyone may apply to the Sheriff Court for a court order in relation to: whether access rights apply on particular land; or whether particular land managers or users have acted responsibly in relation to access; or whether there is a public right of way. In view of the importance of the cases, most have been summarised in greater detail than cases in other parts of this publication. Cases have been set out in chronological order, according to the date of final decisions, which have followed appeals in some cases. Caledonian Heritable Ltd v East Lothian Council Haddington Sheriff Court, Court ref: B401/05 Interim decision dated 28 th April Scottish Courts Service website reference: This was the first case to come to court under the 2003 Act. Caledonian Heritable Limited (CHL) was developing a luxury hotel, golf course and housing complex at Archerfield, near Dirleton in East Lothian. The developer 10

11 obstructed access by: fixing keep out notices at the entrances and on a path through a wooded area; by erecting fences; and by removing a bridge. East Lothian Council served a Section 14 Notice on CHL (under the Land Reform (Scotland) Act 2003) requiring them to remove these obstructions, and subsequently also sought an interdict to stop work on erection of a fence. CHL challenged the Notice in the Sheriff Court, Haddington. There was a preliminary legal debate on whether the notices served by the Council were specific enough, and the Sheriff decided that they were. However, before the proof hearing was held an agreement was reached, that the obstructions would be removed and the bridge restored, and a path provided through the woodland, and the case was settled on this basis. Gloag v Perth & Kinross Council and the Rambler s Association Case Report: 2007 S.C.L.R. 530 Perth Sheriff Court, Court ref: B111/06 Scottish Courts Service web site reference: Decision by Sheriff Michael Fletcher in the Perth Sheriff Court on 12th June Facts: Mrs Gloag bought Kinfauns Castle, a former hotel and country house to the east of Perth, lying on a slope above the A90 trunk road and the inner estuary of the River Tay, and she renovated it for her own residential use and for use in her charitable activities. Kinfauns castle is a substantial mansion surrounded by mown grass, specimen trees and policy woodland. Mrs Gloag erected a new fence around the grounds to enhance the security of her property, for which she obtained planning permission retrospectively from Perth & Kinross Council. She then applied to the Court under the Land Reform (Scotland) Act 2003, section 28(1)(a), to have the area of her land that was within the fence declared to be exempt from the exercise of access rights. The Sheriff said, as a finding of fact, that this amounted to about 11 acres of grounds (the Council maps indicated an overall area of 14.6 acres within the fence). Mrs Gloag claimed this land was land adjacent to Kinfauns Castle sufficient to enable those living there to have reasonable measures of privacy in the house, and to ensure their enjoyment of it was not unreasonably disturbed. Mrs Gloag claimed that she and her family had a greater than normal security risk because of her high profile and the high value of the contents of the house. Evidence: For Mrs Gloag, it was argued that her status as a public figure, her collection of valuable art, the use of the area by family, and visits by other public figures supportive of her charitable work, all called for a high degree of security and protection. The whole area sought as exempt from access rights was said to be in use, albeit that renovation of the woodland area was still in progress (though the Sheriff did debate the validity of the claim to use the whole area intensively). There were proposals for extension of the building to provide new leisure facilities. 11

12 Perth & Kinross Council proposed a smaller area to be excluded from access rights, making about 4 acres of woodlands and rough grass available for access, and the Ramblers Association also took the same approach. Both parties placed emphasis on the role of the Scottish Outdoor Access Code in advising how access takers should act when close to domestic property, and in identifying whether policy woodland areas and rough grass should be included within access rights. As well as arguing the case for a smaller exempt area, both parties led procedural evidence: for the Council on its role in overseeing implementation of the Act; and for the Ramblers, on the principles behind the legislation. Decision: The Sheriff said that the court had no discretion to take the rights of the access taker into consideration in determining where there should be a right of access close to property. Parliament had decreed there were no access rights on such excluded land. The court had to decide the amount of ground to be excluded in accordance with its interpretation of section 6. He said the Code was intended to give help and guidance, on the one hand to the people taking access and, on the other hand, to those over whose land access is to be taken, as to how to act responsibly in relation to the rights given by the Act. However, there was no mention in the Act of the Code being a tool for interpretation of any other part of the Act, in particular, of section 6. The exemption claimed by Mrs Gloag is contained in section 6(1)(b)(iv) of the Act, and one of the determining factors is the location and other characteristics of the house (section 7(5) of the Act). The Sheriff said that the Act gave little assistance on the issue of how much adjoining land was required for privacy and enjoyment, and he therefore had to rely to some extent on judicial knowledge, but the evidence in the case also led to the view he had reached. The test of how much adjoining land was required for privacy and enjoyment was an objective one, and not related to a particular owner at any one time. He therefore set aside claims of special needs made on behalf of Mrs Gloag, and said that an appropriate area should be determined against the reasonable needs and expectations of any person who purchased such a house. Any person who purchased such a property would only do so if they had a substantial area round the house to provide reasonable measures of privacy and the enjoyment of the house. Whoever owned Kinfauns Castle would be likely to have considerable resources and would be likely to possess valuable objects. The Sheriff also took the view that enjoyment of the house extended to the grounds around it. Applying this objective test, the Sheriff held that all the land within the fence should be excluded from the exercise of access rights. The evidence had shown that the fence had been placed in the most suitable location. The fact that it followed the line of a previous fence showed that it had not been placed along a purely arbitrary line, but one which a previous occupant had considered was required to secure their privacy and enjoyment of the property. The Sheriff therefore granted a Declarator to Mrs Gloag that all the land that had been the subject of her application (i.e. all the land within the security 12

13 fence) was excluded from the exercise of access rights. The Sheriff said In my opinion it encompasses sufficient adjacent ground to enable persons living there to have reasonable measures of privacy in that house and to ensure that their enjoyment of that house is not unreasonably disturbed. The enjoyment of the house in my view depends on an extremely large number of factors, but it could not be ensured by a smaller area of adjacent ground such as the one suggested by the respondents, taking into account the location and characteristics of the house. All parties had agreed that the 2003 Act was not incompatible with the European Convention of Human Rights. The Sheriff said that the Act required the Court to find what was sufficient land for privacy and enjoyment of the house, and if this judgment was wrong that could be put right (presumably on appeal). There was no need to refer to the Convention. Note on the parties in this case: Under section 28 of the 2003 Act, a person applying to the court must give notice of their application to the local authority, and it is then up to the local authority whether they oppose it, as Perth & Kinross Council did in this case. Other parties may apply to the court to be joined as defenders in the action, and the Ramblers Association did so in this case, and in the case of Snowie, below. Snowie v Stirling Council and Ramblers Association Lindsay and Barbara Ross v Stirling Council Case Report: 2008 S.L.T. (Sh Ct) 61 Stirling Sheriff s Court, Court ref: A976/06; 23 rd April 2008 Scottish Courts Service website reference: and An appeal to the Court of Session was abandoned on 13 th January 2010 (see below). Facts: These two linked cases were heard together. Mr and Mrs Snowie owned Boquhan House close to Kippen in Stirlingshire and grounds extending to 70 acres. Two driveways entered the Estate from public roads via the East Lodge and the West Lodge, giving access to the Estate and a neighbouring farm. The Estate also contained seven tenanted houses and stables. Mr and Mrs Ross owned the West Lodge, the garden of which lay on either side of the main, west driveway. The gates consisted of two pedestrian gates and a vehicular gate. After a few years of ownership the Snowies carried out work on the previously manually operated gates so that the vehicular gate could be operated electronically and remotely. The pedestrian gates at the West Lodge were locked, preventing public access through the gate. 13

14 Both before and after the Snowies purchased the Estate, local people enjoyed regular access, taking a short cut to a right of way parallel to the southern edge of the Estate, walking or cycling. After the main gate was locked, access could still be taken through the neighbouring farm or the East gates. Stirling Council received complaints about the changes at the West gates from people wishing to take access. There were negotiations to seek agreement for reinstatement of pedestrian access at the west gate, involving Stirling Council, the Snowies and the Rosses. Following the failure of these negotiations, Stirling Council served a written Notice under Section 14(2) of the Land Reform Act (Scotland) 2003 requiring the pedestrian gate to remain open. During the course of the negotiations, the Rosses had become responsible for the gates under a lease (which the Sheriff said appeared inexplicable). Once the existence of the lease was disclosed the Rosses were served with a similar Notice. Evidence: The Snowies and the Rosses appealed to the Sheriff Court against the notice, claiming that unlocking the gate would affect their security and would prevent them having sufficient land excluded from access rights to enable them to have reasonable measures of privacy in Boquhan House and the Lodge. Mr Snowie claimed a special need for privacy for his family and referred to the need to provide for the privacy of other tenants close to the house, although the Ramblers noted that this claim did not extend to tenants on the other side of the main road. Decision: In his judgment, the Sheriff endorsed the approach to the determination of exempted land set out in the Gloag judgment: the court is to look not at the individual proprietor for the time being, but is to consider the particular characteristics of the property, and the expectations of the kind of person who would buy it and live there. He set aside the evidence of Mr Snowie s security expert and decided it was not necessary for the gates to be locked for reasons of privacy and enjoyment, nor for security or insurance purposes, and he refused to withdraw the Notice. The Snowies had asked for the Sheriff to determine the amount of land that afforded privacy and enjoyment in terms of section 28 of the 2003 Act. They claimed that a substantial part of the estate should be excluded from access, including the entire length of the driveways. This was dismissed by the Sheriff, who outlined a smaller area to be excluded from the exercise of access rights, including the rear garden, the tennis courts and changing rooms, and adjacent gardens. He rejected the suggestion that the entire driveways should be excluded, as he said these were not land adjacent to the house. In relation to the tenanted houses on the estate, he said each of these properties had a well-defined garden area that was exempt from access and this would be obvious to any responsible access taker. A similar situation applied at the West Lodge. Appeal hearing in the Court of Session on 13 th January 2010 At the appeal hearing, Counsel for the appellants (the Snowies and Rosses) argued, firstly, that the Sheriff had not correctly interpreted section 6(1)(b)(iv) of the 2003 Act. He said that the Sheriff had to consider the particular people 14

15 living there at the time in question, and he had not done this. He said the Sheriff had also failed to give sufficient consideration to the needs of the people living in the tenanted houses. Secondly, he argued that the area of land which the Sheriff had excluded had been determined arbitrarily: there was no logical explanation as to how the decision had been reached. Also, he had conflated the Ross and Snowie cases, commenting on security of the estate in the Ross case, when that was not relevant. The appellants asked for the Court to quash the judgement and remit the matter back to the Sheriff to apply the correct interpretation of section 6(1)(b)(iv). Counsel for Stirling Council said that the Sheriff had made an extensive site visit, had listened to the wishes expressed by the Snowies and Rosses, and had come to a decision on what was required for persons living in the house, as the Act required, and not the persons as had been argued. The reasons for selecting the exempted area had been explained in the judgement. The Court asked Counsel for the appellants to address them further on how, if the findings in fact were not challenged, the case could be remitted back to the Sheriff. However, the appellants withdrew their appeal, and so this issue was not addressed. Note on the parties: See the note on the Gloag case, above, in relation to the involvement of the Ramblers Association. Tuley v Highland Council Case Report: [2009] CSIH 31; 2009 S.L.T. 616 Court of Session, 21 st April 2009 Scottish Courts Service website reference for decision on appeal: This was a successful appeal by Mr and Mrs Tuley to the Court of Session, against a ruling by the Dingwall Sheriff Court, July 2007 (Scottish Courts Service website ref: The facts: Mr and Mrs Tuley had purchased Feddonhill Wood in 1992 from the Forestry Commission on Mr Tuley s retirement. It was a small wood, mainly coniferous, and located on a slope above the village of Fortrose in the Black Isle, with views to the south over the inner Moray Firth. The wood was bisected by a private road providing vehicular access eastward to a few private houses and a livery stable/riding school at Broomhill Farm, with about 60 horses. That part of the wood to the south of the private road suffered severe wind throw in 2006, and this was being cleared. When owned by the Commission there had been public access for walking and riding, but Mr Tuley had not allowed riding on the main path through the northern section of the wood, and which led to the vehicular road to Broomhill Farm. He had been managing the wood for amenity and public access, aiming to provide 15

16 separately for different categories of user, his original intention being to provide for riders in that part of the wood which had been storm-damaged. On the coming into force of statutory access rights, Mr Tuley erected padlocked pole barriers to deter riders at either end on the path through the northern section of the wood, although there were narrow gaps to allow others to pass. Mr Tuley feared that use of this track by riders would cause unreasonable damage on account of parts of the path having a steepish gradient. This action led to complaints by some local riders to Highland Council, which entered negotiation with Mr Tuley, but there was no agreement and the Council issued a Notice under s.14(2) of the Land Reform (Scotland) Act 2003 requiring that the barriers be removed or sufficient space provided for the passage of all users. This order was challenged by Mr and Mrs Tuley, arguing that the purpose of the barriers was not to inhibit all access but to ensure that the said track was not damaged by horses to the disadvantage of walkers. They said this was responsible management in line with section 3 of the Act. Evidence: both parties to the case provided technical evidence. Mr Tuley had an expert witness in soil science whose report predicted that any major use of the track by horses would inevitably lead to damage, which was supported by a recreation professional, and a local walker expressed concern about meeting horses given the narrowness of the track. For the Council, evidence was led by the Council s access officer and the access specialist for the British Horse Society, to the effect that the track could stand use by horses and that some impact from such use was not unreasonable riders had to exercise judgement and act responsibly when conditions were unsuitable for riding. The owner of the stables said that she would limit use of the track to a small number of ponies ridden by children as part of a circuit using the vehicular road. The Council offered to assist should problems arise, but it did not dispute the evidence of the main expert witness on path damage. Decision in the Dingwall Sheriff Court. In a thoughtful review of the evidence, the Sheriff reflected on the uncertainties that still remained: the prospect that all users would always act sensitively and responsibly seemed uncertain; the Act made clear that the land manager should not limit access except in obvious or extreme circumstances, and without some objective evidence of the nature of the impacts that might arise; there was uncertainty in the number of riders that might use the contested track if access were to be opened up to all; there was uncertainty in the evidence as to the degree of impact that would arise; and there could be adverse effects on other users of the wood, although, on balance, this last point was not a major issue in the case. In conclusion, the Sheriff came to the view that while Mr Tuley had valid concerns, he had acted prematurely in limiting access for riding, and had denied the opportunity to assess objectively what damage might arise, given use by horses. He also had a remedy available in cooperating with the Council, which had offered assistance. The appeal against the Notice was refused. 16

17 Appeal hearing at the Court of Session 21 April 2009 Mr and Mrs Tuley appealed to the Court of Session against the above decision. There were two main issues in the appeal. The first issue was whether the landowners had acted responsibly in placing barriers preventing horse access along the disputed path. An expert witness had given evidence for the landowners about the soil damage that would occur on the disputed path as a result of horse use. The Council had not disputed the expert evidence, but argued that the Tuleys had acted prematurely in preventing access by horses. They said that horse riders should not be prevented from using the route unless/until it could be shown that damage was being caused as a result, and they had offered to assist if drainage problems arose. The appeal judges rejected this argument. The uncontested expert evidence had indicated that, in all probability, horse use would damage the track, and the Tuleys were therefore acting responsibly in preventing horse access to the part of the wood that was intended for pedestrian use. It was stated that the Tuleys were exercising land management responsibly in the way that they were managing different recreational uses of the wood. The Court went on to give its views on the second issue, which was whether the purpose, or main purpose, for erecting the barriers had been to prevent or deter access. Section 14(1) of the 2003 Act prohibits landowners from putting up any obstructions if the purpose, or main purpose, is to prevent or deter people from exercising their access rights. The appeal judges said that purpose or main purpose should be given a flexible interpretation. In the present case they said it was recognised and accepted that the Tuleys encouraged public access, and were only seeking, in good faith, to regulate different uses of access. The main purpose of the barrier to horses was the landowners genuine concern to prevent damage by horses to the track and the paths leading off it. The Tuleys were therefore not in breach of section 14(1). Comment: As the case had been decided on the first issue, the Court s views on the second issue were only obiter, i.e. not part of the decision and therefore not binding in any future cases. Williamson v Highland Activities Limited Court of Session, 12 th May 2009 Court ref: A338/09 In this case, the pursuer claimed that the defenders (who organised commercial rafting) were not exercising access rights responsibly and therefore had no right to undertake this activity on his property, without his agreement. The pursuer successfully obtained an interim interdict to prevent the defender from carrying on further activity of this kind within the boundaries of his estate. This brief note is included for completeness, but it should be noted that the case was undefended, and it would not be considered binding, or even 17

18 persuasive, in any other court case. If it had been defended, the outcome might have been different. Forbes v Fife Council Kirkcaldy Sheriff Court B375/07; 28th May 2009 Scottish Court Service website reference: The facts: A path ran along the foot of the garden of a group of seven houses at Coull Steadings in Glenrothes, and was owned in common by the householders. The path had been created at the time of the construction of the houses and it was separated from the gardens by a high fence. The pursuers and two other householders claimed that some people using the path were disturbing the residents and causing a nuisance, and concern was expressed over liability risk should anyone using the path be injured. The concerned householders erected gates on the path and kept them locked. Following complaints from other local residents, Fife Council informed them that they were in breach of the Land Reform Act, and should remove the locks. The Council also took the view that planning consent was needed for the gates. Negotiations failed, and a Section 14 enforcement Notice was served. Mr and Mrs Forbes, who owned one of the houses, appealed to the Sheriff Court against this notice, and also applied for a ruling under section 28 of the 2003 Act that the path was not within access rights. Evidence and legal arguments: There was conflicting evidence about whether anti-social behaviour was a serious problem on the path. Fife s Access Officer said that closure of a route on account of anti-social behaviour should be a last resort. It was argued for the Council that Mr and Mrs Forbes should not expect the same degree of privacy in their garden as they would expect for their house. There were other ways of protecting their privacy, such as blinds on windows. The Council had a duty to assert access rights and, as long as rights could be exercised responsibly, the Council had a duty to step in when they were obstructed. It was argued for Mr and Mrs Forbes that the path needed to be excluded from access rights in order to ensure their privacy and enjoyment of their house and garden. Their motive in erecting the gates had been to prevent irresponsible use of the path, not to deter access rights. Decision: The Sheriff first considered the application under section 28. He said that the boundary of the property was clearly marked by a fence between the path and the garden, some distance from the house, and the extent of the garden in this suburban setting was sufficient to provide the pursuers with reasonable privacy in their house. He noted that the qualifications in the Act as to "reasonable measures of privacy" and "enjoyment... not unreasonably disturbed" both referred to the house (rather than the garden), and that existing use could be a factor in delimiting the appropriate area of land to be exempt. Determining whether land is within access rights has to be on the presumption that access is exercised responsibly. Those who are exercising the rights irresponsibly do not have the rights. He said that the pursuers had failed to establish that the path was land excluded from access rights. 18

19 On the question of the appeal against the Section 14 Notice, the Sheriff said that both parties had accepted that there was power to set aside, vary or confirm the Notice, and he agreed with this. He said that the evidence showed that there was both responsible and irresponsible use of the path. The Sheriff referred to the recent appeal decision in the Tuley case, but concluded that it did not assist here, as the circumstances were different in that the owner in that case was actively promoting access, whilst seeking to address concerns about damage by horses. In this case there was both responsible and irresponsible use of the path. He accepted that the purpose or main purpose of erecting the gates had been to prevent antisocial behaviour by those using the path, and the evidence had shown that irresponsible use occurred at night, particularly at weekends. However, the gates also impeded responsible use of the path. His view was that the court did not have a simple choice between upholding and refusing the appeal against the Notice. There was no statutory direction as to the court s powers on appeal. He therefore determined that the Section 14 Notice should be amended to require the gates to be left unlocked during the day (from 8 am to 8 pm) and he awarded the pursuers 50% of their expenses (costs) on the basis that they had been partially successful. Aviemore Highland Resort v Cairngorms National Park Authority Inverness Principal Sheriff Court, Court Ref B94/08 26 th June 2009 Scottish Courts Service reference for appeal decision: This was an appeal to the Sheriff Principal in Inverness by Aviemore Highland Resort (AHR) against the decision of Sheriff Alasdair Macfadyen in the Inverness Sheriff Court, (Inverness Sheriff Court, January 2009, Scottish Courts Service reference: The facts: AHR had erected a boundary fence, a section of which crossed Laurel Bank Lane, Aviemore, cutting off an access route from the north end of the village into the Resort, which had been well used by pedestrians in the past. The Cairngorms National Park Authority (CNPA) issued a Notice requiring the removal of the fence, under section 14(2) of the Land Reform (Scotland) Act 2003 because its erection blocked a recognised and well used access route. The debate in this case considered the wording of section 14 of the 2003 Act, and the wording of the notice, and whether or not the notice could be said to apply to circumstances which had existed before the 2003 Act came into force. AHR contended that the CNPA were not entitled to force them to remove the fence because it had been erected in 2004 after the passing of the 2003 Act but before the Act had come into force in It further argued that there were no access rights in the resort to be interfered with and that even if access rights did exist, there was no interference because there were 19

20 other entries to the resort. The fence had been erected for security and land management purposes. The CNPA argued that although the fence was erected before the 2003 Act came into force, their case was not that the Act was being applied retrospectively, but that the erecting of the fence was an act whose effects commenced before the Act came into effect and continued thereafter. It also denied that the fence had been erected on land free from access rights under section 6 of the Act, and argued that the land management purposes claimed were not specified and were irrelevant. There was also consideration of a hedge which had grown up in conjunction with the fence. It was not clear when the hedge had been planted. Decision in the Sheriff Court In his determination of this case, Sheriff Macfadyen took the view that the case did not involve retrospective application of Part 1 of the 2003 Act, in that the continued use by the public of the route into the Resort via Laurel Bank Lane could be characterised as the exercise of an access right in the terms of the Act: it did not matter that the fence had been erected earlier, it being conceded that its purpose was to impede access: that is, he agreed with the stance of the CNPA that this was an act commencing before the legislation came into force and continuing thereafter. AHR had also argued that, in any case, access rights could not exist over the land of the Resort, by virtue of section 6(1)(b) of the 2003 Act, it being curtilage to a group of buildings. But the Sheriff set this argument aside on the basis that the case had not been properly specified. The Sheriff accepted, however, that there was a case to be considered, at a further court hearing, on the question of the land management need claimed by AHR. Decision in the Appeal to the Sheriff Principal On appeal, the Sheriff Principal (Sir Stephen Young) set aside the Sheriff s decision. He said that access rights over the land in question could not exist prior to the date of commencement of the 2003 Act (9th of February 2005) and therefore access rights were not exercisable at the date when the fence was erected, thus there could be no contravention of section 14. He also rejected the argument that the erection of the fence was an act commencing before the 2003 Act came into effect and continuing thereafter. He said it might have been different if the wording of the Act had indicated that maintaining a fence to deter access was a contravention of section 14, but this was not the case. In relation to the hedge, the Sheriff Principal said that the onus was on the CNPA to show that it had been planted after the commencement of the 2003 Act, and they had failed to do so. The Sheriff Principal therefore concluded that the CNPA were not entitled to serve a notice requiring the removal of the fence and hedge, as there had been no contravention of the 2003 Act. The Sheriff Principal also pointed out that he had interpreted the Section 14 Notice on the basis that the breach of the Act was in erecting the fence and hedge (i.e. in relation to section 14(1)(b)), not on the basis that there had been a breach because AHR had permitted a hedge to grow (also under section 14(1)(b)), or had failed to take any other action (section 14(1)(e)). As the Notice did not include specific wording relating to these sub-clauses, the 20

21 Sheriff Principal did not have to consider whether CNPA might have succeeded on these other grounds. Note: this case was preceded by a planning case under which CNPA had issued an enforcement notice against the construction of the above fencing, as being contrary to local planning policy by creating a physical and visual barrier between the resort and the village of Aviemore. It required consent because of adjacency to a road used by the public. AHR appealed the notice on the basis (inter alia) that the fence was permitted development. The initial decision to dismiss the appeal was, in turn, quashed in the Court of Session, and in a redetermination (dated 15 October 2007), the Reporter (P G Hutchinson) dismissed the appeal against the notice, but consented to most of the fence, apart from the short section at the head of Laurel Bank Lane which should either be removed or reduced to 1m in height (and it was so reduced). Creelman v Argyll & Bute Council Dunoon Sheriff Court, Court ref.: B12/08 24 th September Scottish Courts Service reference: This was an appeal by Mr and Mrs Creelman against a Section 14 Notice served on them by Argyll & Bute Council under the Land Reform (Scotland) Act The Notice required them to remove a sign that said Private Road. No Access Without Permission at one end of a track through their ground, and also to remove barbed wire at the other end of the track. Facts: Mr and Mrs Creelman were the owners of two properties at Stronardon: a five bedroom house in which they lived, and a lodge house 'Dunans Lodge' located at the junction of a track leading to Stronardon and a public road, and which was used for short term holiday lets. The attached land was about 6 acres, in a long, narrow shape, bounded on one side by the public road and on the other by a steep bank above a river. The track through the property passed within a few metres of both Dunans Lodge and Stronardon. The total area of the property was about 6 acres and part of the ground (about 2 acres) was unusable as it was steeply sloped, with vertical drops down to a river. The land had originally been laid out as a garden for the adjacent Dunans Castle. The current owner of Dunans Castle, Mr Spain, had complained about lack of access. He wanted people visiting the Castle to be able to access the land. The track past the Lodge House had been overgrown for many years until the Creelmans cleared it. The Local Access Forum had been consulted and supported the Council s view that part of the land was within access rights, although the Sheriff noted that there had been no site visit. Evidence: there was little dispute in the evidence given by the parties. For the Creelmans it was argued that the they had put much effort into the improvement of the woodland garden; that before their improvements to the property the main access track was not passable; the closeness of the track 21