SCOTWAYS COURT CASES UPDATE JANUARY 2009

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Court cases under the Land Reform (Scotland) Act 2003

Mr and Mrs Tuley v Highland Council
Mr and Mrs Tuley's appeal in this case against the decision of the Sheriff at Dingwall was heard by the First Division of the Court of Session in Edinburgh (Lords Eassie, Hardy and Mackay of Drumadoon) in the second week in December. The Sheriff had refused to recall the notice issued by Highland Council requiring the Tuleys to remove the barriers preventing access to horse riders to a path through their wood.

It was argued for the Tuleys that the Sheriff should not have made the findings in fact which he had made. The undisputed evidence on behalf of the Tuleys by soil expert, Mr Dickson, was that if the path was exposed to regular horse use there would be progressive deterioration, especially on the steepest sections, leading to soil erosion. The Sheriff however had contradicted that.

The evidence also showed that the Tuleys had experienced deterioration of the track as a result of horse riding. The Sheriff had said that the Tuleys had never permitted horse riders access to the track and this was disputed. The Sheriff had also said that they had denied themselves the chance of showing how much damage might be caused to the path by a certain number of horses over a definite period of time.

The Sheriff had said the decision was not a subjective one by the landowner, but it was argued on behalf of the Tuleys that a landowner was entitled to take steps where there was a reasonable apprehension that damage would occur.

It was also argued that that Mr Tuley's purpose in erecting the barrier was to protect the path and not to exclude riders. It was similar to workings in a forest, where the purpose of restrictions was to protect the public and not to deny access.

The court's decision is awaited.

Forbes v Fife Council, Kirkcaldy Sheriff Court
A development at Coul Steading, Glenrothes, includes a path running along the back of some of the houses. It is owned in common by the householders of the development. Two owners of houses adjacent to the path claimed that some people using the path, usually on foot, but in a few instances, on cycles and on quad bikes, were disturbing the quiet, throwing litter over the 6 ft high fence into their gardens, or dropping it on the path, lighting fires there, and deliberately provoking the German Shepherd show dogs kept by one of the owners into barking. That owner claimed that when they tried to picnic in their back garden, children stared through their fence at them.

They wrote to the interested proprietors explaining that they were intending to erect gates at either end of the path, citing worries about possible public liability claims, and inviting questions. They then erected notices on the path of their intended action, inviting questions. They erected the gates having received no comments, and kept them locked.

Following complaints from residents on Maree Way, lying somewhat beyond the end of the path, Fife Council informed them that they were in breach of the Land Reform legislation, and should take down the gates. Negotiations failed and an enforcement notice was served under the Land Reform (Scotland) Act 2003, against which the dog owning proprietor appealed.

There have been court hearings in September and November, and the case is still continuing, with further hearings due next month.

It does not seem that Fife Council are arguing that there is a public right of passage other than the right to cross land under the access legislation. Fife Council's Access Officer said in her evidence that closing the path could be a justified step in the face of unreasonable conduct by those using it, but only as a last resort. Although the parties were not in complete agreement about how much negotiation had taken place, there had been a meeting.

It is clear from this and other cases that the public are not fully aware of the application of the 2003 Act in essentially urban areas.

The issues to be decided include whether the path is excluded land as enabling the adjacent property to have reasonable measures of privacy and ensuring that its enjoyment is not unreasonably being disturbed. There may also be discussion of whether the fact that some responsible use is made means that access must be permitted, even if some irresponsible use might follow as has been argued in the Tuley case.

Snowie v Stirling Council and Ramblers' Association
It has been confirmed that this case is going to appeal, but the appeal is not due to be heard until 2010.

New case Argyll & Bute
Argyll & Bute Council are defending a new case where a landowner is appealing to the Sheriff Court against a section 14 notice. The landowner is also asking the court to determine whether access rights apply, under section 28 of the 2003 Act. More details in due course.


Cases relevant to rights of way law

A hearing in the case of Fife Council v Nisbet is due next month. This is an action to enforce an interdict against Mr and Mrs Nisbet which requires them to allow free passage along a right of way adjacent to their property.


Liability Cases

Douglas Porter v Scottish Borders Council, [2008] CSOH163
Outer House, Court of Session, 4th December 2008
This case concerned an accident in a public toilet in Hawick and will be of relevance to those who provide toilet or similar facilities for the public, e.g. in car parks and visitor centres. Mr Porter slipped and fell in the toilet and was injured. It was claimed that he fell because the floor tiles were slippery and that they should have been replaced by non-slip tiles. However, the judge said that there had been no evidence to indicate that the tiles were dangerous. The kind of tile in question had been used by the Council for 39 years without previous complaint. There was no duty on the Council to embark on a programme of replacing them with non-slip tiles. It was not reasonable to expect the defenders to do any more than they already did to keep the public toilets clean and dry for the safety of those entering them at the relevant time. It was unreasonable to expect the tiles to be dry at all times.


Other cases of interest

R v Howard, Aylesbury Magistrates Court
In an English criminal case in Aylesbury Magistrates Court on 8th July 2008, a cyclist, Jason Howard, was fined £2,200 pounds for dangerous cycling (under the Road Traffic Act 1988, section 28, as substituted by the Road Traffic Act 1991, section 7). He had collided with a teenage girl who hit her head on the pavement and died a few days later. The court heard that Mr Howard could have swerved to avoid the collision and had shouted to the girl “Move because I'm not stopping". There was conflicting evidence about whether the cyclist had mounted the kerb at any point during the incident. The Crown Prosecution Service defended their decision to charge the cyclist with dangerous cycling rather than manslaughter. An inquest had previously returned a verdict of accidental death.


ScotWays, 15 January 2009