Access Court Cases Update

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ACCESS COURT CASES UPDATE NOTE BY SCOTWAYS, 31 AUGUST 2006, WITH UPDATES ON 14 and 21 SEPTEMBER 2006

FIRST DAY OF TULEY HEARING, AND SUMMARY OF CURRENT POSITION IN OTHER CASES; NOTE POSTPONEMENT OF SNOWIE CASE (BELOW)

Tuley v Highland Council Dingwall Sheriff Court, Court Ref: B201/05
This case is an appeal by the landowners against a Section 14 Notice (under the Land Reform (Scotland) Act 2003) served by Highland Council. The first day of hearing of evidence took place on 30th August 2006 in the Dingwall Sheriff Court. Highland Council claims that the landowners (Mr and Mrs Tuley) are obstructing access to Feddanhill Wood, near Fortrose. Their Section 14 Notice required the landowners to remove pole barriers preventing access to the woods, particularly by horse riders.

At the court hearing there was some initial discussion on the procedural issue of the presence of witnesses, and it was decided that a witness from each side could remain in court throughout the hearing. Mr Tuley then gave evidence.

Mr Tuley (represented by Jonathan Mitchell QC) said that he was keen on promoting access in the countryside and had worked on promoting access to woodlands during his employment with the Forestry Commission. He said that, since his retirement, he had created a network of footpaths facilitating recreational use of the Feddanhill Woods by the public, particularly for walkers. There was also some access for bicycles, including a special area for mountain-biking, and he was also working on making access suitable for all-abilities. Horses wished to use a particular path in order to access an equestrian centre but Mr Tuley thought that the route they wished to use was unsuitable for horses. He had offered an alternative track as a compromise but this had not been accepted.

Mr Tuley will continue to give evidence when the case resumes in November. It has been set down for the week beginning 27th November, and is likely to continue for the whole week.

SUMMARY OF OTHER ACCESS CASES

Caledonian Heritable Limited v. East Lothian Council, Haddington Sheriff Court,
Court ref: B401/05 (Now settled)
Caledonian Heritable Limited (CHL) is developing a luxury hotel, golf course and housing complex at Archerfield, near Dirleton in East Lothian. They obstructed access in a number of ways, including the erection of fences and notices. East Lothian Council served a Section 14 Notice on them requiring them to remove these obstructions, and subsequently also issued an interdict to stop work on erection of a fence. CHL challenged the Notice in the Sheriff Court, Haddington. There were several preliminary hearings, and in March of this year there were two days of legal debate on the issue of the validity of the Notice served by the Council. The Sheriff decided that she could not determine the issue of the validity of the Notice without hearing the full evidence, and the case was set down for a full hearing in August.
[For a note of her decision, see www.scotcourts.gov.uk/opinions/B401_05.html ].
However, it now appears that CHL have complied with everything demanded in the Notice, and the case has been settled after a period of thorough and detailed discussions between the parties.

Snowie v Stirling Council Stirling Sheriff Court, Court Ref: B186/06
The Boquhan Estate, near the Kippen roundabout west of Stirling, has locked all the gates to the Estate (two pedestrian and one vehicular). Stirling Council received complaints from people who said that they had previously been able to walk within the grounds of the Estate. The Council asked the Estate owners to open one of the gates, as they considered that access rights applied there. One gate was initially opened, but it was later locked again. The Council therefore served a Section 14 Notice, indicating that the landowner was required to unlock a gate across the driveway to Boquhan House. The landowner has appealed against this Notice to the Stirling Sheriff Court. The case was due to be heard on 20 and 21 September, but has been postponed. However, there was a preliminary hearing on 20th September. The landowners are applying for a ruling under section 28 of the 2003 Act that all the land within the estate is excluded from access. There will be a further preliminary hearing on 31st October. Other parties will have an opportunity to join in the action.

Mrs Ann Gloag v Perth & Kinross Council
Perth Sheriff Court, B111/06
Mrs Ann Gloag has applied to the Perth Sheriff Court for a declaration under s.28 of the Land Reform (Scotland) Act 2003 that access rights do not apply to part of the land on her estate at Kinfauns Castle in Perthshire. The landowner has taken the initiative in this case. This is unlike other court actions, where landowners are appealing against notices served on them by local authorities. Mrs Gloag also claims a breach of her right to privacy and peaceful enjoyment of her possessions under the European Convention on Human Rights and the Human Rights Act 1998 (see extracts from the Convention and Protocol to the Convention set out below). There was a preliminary hearing on 30th June at which the case was set down for 23rd October. Both Perth & Kinross Council and Ramblers Scotland are defending the case.

Rights of way cases
Although the main focus is now on the new access rights under the 2003 Act, rights of way continue to be important, particularly where they provide routes over land that is excluded from the general access rights, e.g. curtilage of buildings. This has been demonstrated in local controversy about disruption of a right of way that forms part of the Clyde Walkway, near Lanark. The landowners' proposals for diversion of the right of way have been rejected by the local community, and South Lanarkshire Council is now bringing a court action for a declarator that the route is a right of way.

We are also aware of two other rights of way cases that are likely to proceed to court action in the near future.
EUROPEAN CONVENTION ON HUMAN RIGHTS (see Gloag case, above)
ARTICLE 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Protocols
1. Enforcement of certain Rights and Freedoms not included in Section I of the Convention
The Governments signatory hereto, being Members of the Council of Europe,
Being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4th November, 1950 (hereinafter referred to as 'the Convention'),
Have agreed as follows:
ARTICLE 1
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.