SCOTWAYS COURT CASES UPDATE JUNE 2009

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Forbes v Fife Council B375/07

Summary of decision in the Kirkcaldy Sheriff Court, 28th May 2009

 

Background

A housing development in 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, lighting fires, and deliberately provoking dogs kept by one of the owners into barking.

 

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, indicating their intended action and inviting questions. They erected the gates having received no comments, and kept them locked. Following complaints from nearby residents Fife Council informed them that they were in breach of the Land Reform legislation, and should take down the gates. Negotiations failed and a Section 14 enforcement Notice was served, against which the dog owning proprietors (Mr and Mrs Forbes) appealed and also applied for a ruling under Section 28 that the path was not within access rights.

 

Evidence

There was conflicting evidence about whether anti-social behaviour was a serious problem on the path. Fife’s Access Officer said that closure of a route for anti-social behaviour should be a last resort. Mr and Mrs Forbes pointed out that a nearby underpass had been closed by the Council because of anti-social behaviour.

 

It was argued for Mr and Mrs Forbes that the path needed to be excluded from access rights in order to ensure their privacy and enjoyment of their house and garden. Their motive in erecting the gates had been to prevent irresponsible use of the path, not to deter access rights. This was the only way that they could deal with the irresponsible behaviour. An action of interdict was not practicable because they could not identify all the people involved.

 

It was argued for Fife Council that where people were irresponsible they were excluded from access rights, but this should not exclude responsible users of the route. The landowner could only take action to prevent access in extreme cases. Mr and Mrs Forbes should not expect the same degree of privacy in their garden as they would expect for their house. There were other ways of protecting their privacy, such as garden fences and blinds on windows. The Council had a duty to assert access rights and as long as rights could be exercised responsibly the Council had a duty to step in when they were obstructed.

 

Summary of decision

There were two parts to the decision: consideration of the application under Section 28 that access rights did not apply to the path; and consideration of the appeal against the Section 14 Notice.

 

The Sheriff first considered the application under Section 28. He said that the boundary of the property was clearly marked by a fence between the path and the garden of the house, and the distance between the fence and the house was sufficient to provide the pursuers with reasonable privacy in their house. Determining whether land is within access rights has to be on the hypothesis that access is exercised responsibly. Those who are exercising the rights irresponsibly do not have the rights. He said that the pursuers had failed to establish that the path was land excluded from access rights.

 

On the question of the appeal against the Section 14 Notice, the Sheriff said that both parties had accepted that there was power to set aside, vary or confirm the Notice, and he agreed with this. He said that the evidence showed that there was both responsible and irresponsible use of the path. The purpose or main purpose of erecting the gates had been to prevent antisocial behaviour by those using the path (compare with the Tuley case, below, on the issue of ‘purpose’), and the evidence had shown that irresponsible use occurred at night, particularly at weekends. However, the gates also impeded responsible use of the path. His view was that the court did not have a simple choice between upholding and refusing the appeal against the Notice. There was no statutory direction as to the court’s powers on appeal. He therefore determined that the section 14 Notice should be amended to require the gates to be left unlocked during the day (from 8a.m. to 8p.m.) and he awarded the pursuers 50% of their expenses (costs) on the basis that they had been partially successful.

 

For the full decision, see:

http://www.scotcourts.gov.uk/opinions/b37507.html

 

Tuley v Highland Council, [2009] CSIH 31 (Court Opinion dated 21st April 2009)

 

Summary of the decision in the appeal to the Court of Session, with ScotWays comments.

 

This was an appeal to the Court of Session by Mr and Mrs Tuley against a decision of the Sheriff in Dingwall Sheriff Court in July 2007.

 

The Tuleys are owners of some woodland, Feddanhill Wood, near Fortrose. They had appealed to the Sheriff against a Notice by Highland Council (under section 14 of the Land Reform (Scotland) Act 2003) requiring them to remove barriers which prevented access by horse riders along a track in part of the wood (‘the red track/path’). The route gave access to a network of narrow paths which the Tuleys had created for walkers.

 

Sheriff’s decision

The Sheriff had upheld the section 14 Notice. He considered that the Tuleys’ action in erecting the barriers was premature. The Tuleys had not been able to assess what would happen in the future when they put the barriers in place. If in practice the path degraded rapidly under light horse traffic then all horse use would be seen to be irresponsible. The Tuleys had been unable to establish that all horse riding would be irresponsible because barriers had been put in place before damage was done, but all horse riders would be prevented from using the route – responsible riders legitimately exercising access rights as well as the irresponsible. The barriers were therefore contrary to section 14 of the Act.

 

The Tuleys appealed to the Court of Session against the Sheriff’s decision.

Appeal judgement

The Court of Session overturned the Sheriff’s decision. The judges in the Court of Session set out the grounds for their decision under two headings: firstly a review of the expert evidence and a discussion about whether the landowners had acted responsibly in placing barriers preventing horse access along the red track; and secondly whether (under section 14(1) of the 2003 Act) the landowners’ purpose, or main purpose, in erecting the barriers had been to prevent or deter access.

 

In the first part of the judgement the court reviewed the evidence that had been given by an expert witness for the landowners about the soil damage that would occur on the red track as a result of horse use, and examined whether the landowners had acted responsibly in closing the path in the light of that expert evidence. The expert evidence had not been disputed by Highland Council but they had argued that horse riders should not be prevented from using the route unless/until it could be shown that damage was actually being caused as a result. Witnesses for the Council had also indicated that they thought that it was reasonable to expect a path in woodlands to be muddy. The Sheriff had said that the erection of barriers at either end of the path was ‘an intended unreasonable interference with the exercise of responsible access rights over the red path.’ The Court of Session disagreed and said that the expert evidence had indicated that, in all probability, horse use would damage the track, and the Court found as fact that horse riders had damaged the path in 2005. The Tuleys were therefore acting responsibly in preventing horse access to the part of the wood that was intended for pedestrian use.

 

The second heading concerns the interpretation of section 14(1) of the 2003 Act.

This sub-section of the Act prohibits landowners from putting up any obstructions if the ‘purpose, or main purpose’, is to prevent or deter people from exercising their access rights. The appeal judges said that assessment of the landowner’s purpose is not wholly objective and ‘purpose or main purpose’ should be given a flexible interpretation. In this case the purpose, and particularly the main purpose, was what the landowner wished to achieve, i.e. to prevent damage to the red track and routes leading off it. In the present case they said it was recognised and accepted that the Tuleys encouraged public access, and were only seeking, in good faith, to regulate different uses of access. The ‘main purpose’ of the barrier to horses was the landowners’ genuine concern to prevent damage by horses to the track and the paths leading off it. The Tuleys were therefore not in breach of section 14(1).

 

Comments on the Court of Session decision:

 

Concerns have been expressed that this case will make it easier for landowners to obstruct access. However, the judges made it clear that their decision was based on the particular facts of the case. The court said that the Tuleys welcomed public access to the wood and they wished to manage the wood suitably for different users. The good faith of the landowners was an important issue in addressing the question of the purpose of any obstruction to access.

 

There has also been concern that the case will make it more difficult for access authorities to use section 14 notices, except in the most blatant obstruction cases. Where there are future appeals by landowners against section 14 notices, it would be an additional safeguard for access authorities to join into the court action an application under section 28 for a ruling on whether the landowner is managing the land responsibly in respect of access rights. In the Tuley case, however, the Court of Session’s ruling would have been in favour of the landowners on this ground too.

 

It is perhaps surprising that the judges said that the first part of the judgement  was the main ground for the court’s decision. The approach adopted by the court in this part of the judgement could be said to be more appropriate for dealing with an application under section 28 of the Act to determine whether the landowner had managed the land responsibly as respects access rights, rather than an appeal against a section 14 Notice.

 

The argument in the second part of the judgement (interpretation of section 14(1)) is rather tortuous, i.e. that the landowners’ purpose, or main purpose, in placing the barriers was what they ultimately wished to achieve (the prevention of damage to the track), rather than what was the direct result of their action (the blocking of access for horses).

 

The judges said that this second part of the judgement was not strictly necessary, but ‘it is appropriate that we give brief expression to our views’. It could therefore be argued that this part of the judgement expresses the court’s views (obiter dicta) which do not form part of the decision itself (the ratio decidendi). The importance of this distinction is that such views are not binding in later cases, although they would be highly persuasive.

 

The Court of Session said that the landowners did not need to wait for actual damage to be done before they could take preventative action – otherwise there would be ‘difficult practical issues as to the extent of predictable damage which the landowner must endure (without compensation) before he could take measures to prevent …further damage.’ This wording suggests the court may have had in mind the possibility of a complaint by the landowner of an infringement of his human rights because of unwarranted interference with his property rights. Such an approach by the court would comply with the rule that statutes should be interpreted so as to be compatible with the Convention on Human Rights.

 

The ScotWays view is that because the case turned on the very particular circumstances of the case, it should not be seen as providing other landowners with an opportunity to obstruct access.

 

For the full decision, see the Scottish Courts Service web site, under http://www.scotcourts.gov.uk/opinions/2009CSIH31A.html

 

Fife Council v Nisbet, Cupar Sheriff Court

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. The court hearing concluded on 16th June and a decision is awaited.

 

Recent interdict case – Paul Williamson v Highland Activities Limited (A338/09)

There has been a recent successful application for an interim interdict in the Court of Session, where the landowner’s case has been based partly on similar grounds to the Tuley case. Highland Activities Limited organised rafting down part of the River Garry within an area of land owned by the Pursuer, Mr Williamson. The Pursuer claims that the way the activity was organised was not responsible exercise of access. He claims, amongst other things: that the rafts have to be carried over his land to the river and such use damages the paths; and that rafting disrupts the balance that has to be maintained amongst different recreational users. The Court of Session granted an interim interdict on 12th May 2009 preventing Highland Activities from transporting rafts across the Pursuer’s land or using the river for rafting.

 

ScotWays, 19 June 2009