Snowie v Stirling Council - Update

on .

Snowie v Stirling Council Stirling Sheriff Court, Court Ref: B186/06
Update by ScotWays, 2nd November 2006

Background
The owners of the Boquhan Estate, near the Kippen roundabout west of Stirling, have 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. After negotiations failed to resolve the issue, the Council served a Section 14 Notice (under the Land Reform (Scotland) Act 2003)), indicating that the landowner (Mr Snowie) was required to allow access by unlocking a gate across the driveway leading to Boquhan House. The landowner appealed against this Notice to the Stirling Sheriff Court.

Procedure under Section 14 of the 2003 Act
Local authorities have power to serve notices under Section 14 of the 2003 Act where a landowner is preventing or deterring people exercising their access rights, by physical obstructions or other means. If the landowner does not remove the obstruction, or comply with other terms of the Notice, then the local authority can take direct action themselves. However, the landowner can challenge the validity of the Notice through appeal to the Sheriff Court, as in this case.

Application under Section 28 of the 2003 Act
In addition to appealing against the Section 14 Notice, the landowner subsequently applied to the court for a ruling under section 28 of the 2003 Act that the whole estate (70 acres) was excluded from access rights. Under the terms of Section 28, anyone can apply to a Sheriff Court for a ruling on whether, or not, access rights apply to a particular piece of land. This application was advertised (as required by rules of court) in order to enable other parties to join in the court action if they wished.

Preliminary hearing on 31st October 2006
The main purpose of this hearing was to allow other parties to come forward to join the action, and to set a date for the main hearing.

No other parties notified the court of their intention to defend the action. However, there is also an issue about whether the occupier of the gatehouse should be joined in the action. The gatehouse is adjacent to the locked gate that was the subject of the Section 14 Notice and was leased to the current occupiers after the date of the service of the original Section 14 Notice by the Council.

The question of a site visit was discussed at the hearing but the Sheriff indicated that he did not think that this would be necessary.

The case was adjourned to 14th November 2006 when there will be a further preliminary hearing to clarify the issue of parties to the action. The main hearing is likely to take place at some time between January and May 2007.