COURT CASES - SUMMARY AND UPDATE

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COURT CASES SUMMARY AND UPDATE
Four cases have so far come to court under the Land Reform (Scotland) Act 2003 and the following is a brief summary of all the cases, and an update on the latest position.

Caledonian Heritable Limited v. East Lothian Council, Haddington Sheriff Court, Court ref: B401/05
This was the first case to come to court under the new access legislation and was eventually settled out of court. The case concerned a luxury development on the East Lothian coast where the developers blocked access to the public, and East Lothian Council served a Notice on them requiring them to remove obstructions. The developers appealed to the court against the Notice and claimed that the 2003 Act did not apply to the area under development for various reasons including protecting privacy and the fact that construction work was under way. The case also raised the issue of the extent of access rights over golf courses. There were two days of legal debate, mainly on the issue of the validity of the Notice served by the Council on the developers, following which the Sheriff decided that the case should go to a full hearing. For a note of her decision see: www.scotcourts.gov.uk/opinions/B401_05.html. The case was eventually settled as the developers removed the obstructions, so it never reached a full hearing of the evidence.

Mrs Ann Gloag v Perth & Kinross Council, Perth Sheriff Court, B111/06
This case, and the Snowie case (see below) centre on the question of the extent to which landowners can exclude public access in order to protect their privacy. In this case Mrs Gloag is seeking a ruling from the Sheriff that Kinfauns Castle and the surrounding land lying within a security fence is excluded from access rights. She is also claiming that public access breaches her human rights. Perth & Kinross Council are defending the action and have proposed an alternative boundary line that would exclude a smaller area of land from access rights. Ramblers Scotland have joined in the defence of this action, and the Snowie case (below). Evidence was given by a large number of witnesses over a period of 5 days, ending in January 2007. The closing statements by the lawyers for all the parties are to be made in writing, and these will be made available to the public. (These statements are due as we go to press). There may be a further brief hearing for clarification of these legal arguments, after which the Sheriff will give his decision.

Snowie v Stirling Council, Stirling Sheriff Court, Court Ref: B186/06
In this case the owners of the Boquhan Estate, near the Kippen roundabout west of Stirling, have locked all the gates to the Estate and claim that the entire area (about 70 acres) is excluded from access rights. Stirling Council served a Notice on them, requiring at least one route through the grounds to be open to the public, and the landowners appealed to the Sheriff Court. The case has now been adjourned until a preliminary hearing on 1st May 2007 when arrangements will be made for the main hearing of the case from 21st to 24th May 2007. The Sheriff will decide if a site visit is desirable.

Tuley v Highland Council, Dingwall Sheriff Court Ref B201/05
This case concerns horse access. It is an appeal by the landowner against a Notice by Highland Council requiring him to remove barriers which prevented access by horse riders. The landowner claims that the routes that have been barred to horse riders are only suitable for pedestrians, and use by horses would be irresponsible and contrary to the interests of pedestrian users. There were 4 days of evidence in the Dingwall Sheriff Court, concluding at the end of November, and a decision is now imminent.

For further information about any of these cases please contact us, or see our web site. If you would like to be sent email updates about the court cases, please email us.
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