Caledonian Heritable Limited v. East Lothian Council. Sheriff’s decision is awaited in the first court case under the Land Reform (Scotland) Act 2003.

Caledonian Heritable Limited (CHL) is developing a luxury hotel, golf course and housing complex at Archerfield, near Dirleton in East Lothian. They have erected fences and notices prohibiting access by the general public. East Lothian Council (ELC) served a formal Notice on them (under section 14 of the Land Reform (Scotland) 2003) to remove these obstructions to access. CHL are now challenging this Notice in the Sheriff Court, Haddington. (Court ref: B401/05). This is the first court case under the Land Reform (Scotland) Act 2003, which came into force in February 2005. The Act gives a right of responsible access to nearly all land and inland water throughout Scotland.

Hearing at the Sheriff Court on 23rd and 24th March 2006:
The hearing at the Haddington Sheriff Court took the form of two days of legal debate on the issue of the validity of the Notice that had been served on CHL by ELC. Counsel for CHL argued that the notice had not been specific enough as it did not indicate which areas within the Estate should be available for access, or the exact locations of notices and other obstructions which were the subject of complaint. They said that there was no process for amending the Notice and it should therefore be quashed, though it was then open to ELC to serve a fresh Notice.

ELC countered this by saying that the Notice had to apply to the whole Estate because the notices erected by CHL were on the boundary of the Estate and purported to exclude access to the whole Estate. The Council had to take a blunderbuss approach in order to counter the blunderbuss approach of the landowners. Also, the areas available for access varied from day to day, as construction sites changed location. In any event, they said that it was clear from discussions between the parties that CHL was well aware of what the Notice required them to do and, in these circumstances, it did not matter if the wording of the Notice was not clear in all respects.

Sheriff Mhairi Stephen noted that this was virgin territory for judicial determination, and she is considering her decision on this issue. Depending on her decision, the case may then proceed with the evidence of witnesses.

ELC has issued separate proceedings for an interdict in respect of a fence erected by CHL, and for the court to declare that part of the Archerfield Estate is land in respect of which access rights are exercisable, under section 28 of the 2003 Act.

For a more complete note of the legal debate during the court action, please contact ScotWays.