Aviemore Appeal Decision - ScotWays Comment

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Aviemore Highland Resort Ltd (AHR) v Cairngorms National Park Authority CNPA), Inverness Sheriff Court, Ref B94/08
Appeal decision dated 26th June 2009

This was an appeal to the Sheriff Principal in Inverness by Aviemore Highland Resort (AHR) against the decision of Sheriff Alasdair Macfadyen.

AHR had erected a fence at Laurel Bank Lane, Aviemore, cutting off an access route which had been well used by pedestrians in the past. The CNPA issued a formal notice requiring the removal of the fence, under Section 14(1) of the Land Reform (Scotland) Act 2003 (the 2003 Act), because its erection blocked a recognised and well used access route.

The debate in this case considered the wording of Section 14 of the 2003 Act, and the wording of the notice, and whether or not the notice could be said to apply to work which had taken place before the 2003 Act came into force. AHR contended that the CNPA were not entitled to force them to remove the fence because it had been erected in 2004 – after the passing of the 2003 Act but before the Act had come into force in 2005. The CNPA argued that although the fence was erected before the 2003 Act came into force, the erecting of the fence was an act which commenced before the Act came into effect and continued thereafter. There was also consideration of a hedge which had grown up in conjunction with the fence. It was not clear when the hedge had been planted.

The decision: The Sheriff Principal (Sir Stephen Young) decided in favour of the AHR. He said that access rights over the land in question did not exist prior to the date of commencement of the 2003 Act (9th of February 2005) and therefore access rights were not exercisable at the date when the fence was erected. The purpose of erecting the fence therefore could not be to prevent people from exercising access rights. He also rejected the argument that the erection of the fence was an act commencing before the 2003 Act came into effect and continuing thereafter. He said it might have been different if the wording of the Act had indicated that ‘maintaining’ a fence to deter access was a contravention of section 14, but this was not the case. In relation to the hedge, the Sheriff Principal said that the onus was on the CNPA to show that it had been planted after the commencement of the 2003 Act, and they had failed to do so.

The Sheriff Principal therefore concluded that the CNPA were not entitled to serve a notice requiring the removal of the fence and hedge, as there had been no contravention of the 2003 Act.

The Sheriff Principal also pointed out that he had interpreted the Section 14 Notice on the basis that the breach of the Act was in erecting the fence and hedge (i.e. in relation to section 14(1)(b)), not on the basis that there had been a breach because AHR had permitted a hedge to grow (also under section 14(1)(b)), or had failed to take any other action (section 14(1)(e)). As the Notice did not include specific wording relating to these sub-clauses, the Sheriff Principal did not have to consider whether CNPA might have succeeded on these other grounds.

You can read the full report on the Scottish Courts Service web site: http://www.scotcourts.gov.uk/opinions/B94_08_.html

ScotWays, 01 July 2009