Aviemore Highland Resort v Cairngorms National Park Authority,

Inverness Sheriff Court – Appeal Hearing, 24th March 2009

We are currently awaiting the decision of the Sheriff Principal in an appeal against the interim judgement in this case. The Cairngorms National Park Authority (CNPA) had served a notice under section 14 of the Land Reform (Scotland) Act 2003 requiring the Aviemore Highland Resort (AHR) to remove a fence and hedge which blocked access between the Resort and the centre of Aviemore. The interim judgement had indicated that, although the obstructions had been in place before the 2003 Act came into force, they were continuing obstructions which could be the subject of a valid section 14 notice. This would not be retrospective operation of the Act. This was only an interim judgement because the Sheriff said that there should be a further hearing on whether the obstructions had been put in place for justifiable land management reasons.

AHR appealed on the basis that a section 14 notice could not be served in relation to works or actions or omissions entirely prior to the 2003 Act coming into force. It was not valid to argue that obstructions had continuing effect after the Act came into force. The Act should only apply to acts carried out after it came into force. There had been no concept of access rights before the Act, and there could have been no obstruction before that date.

It was argued for CNPA that the section 14 notice had been served in relation to a state of affairs that was existing at the date of the service of the notice. The date that the obstruction had first been put in place was not important. The test was whether the obstruction was in place at the date of service of the notice, and whether such obstruction was to prevent or deter access rights. When deciding whether to serve a notice, the access authority does not have to consider the date when the obstruction was first put in place, but only whether there is an obstruction on the date of the notice.