This case is an appeal by the Aviemore Highland Resort (AHR’) against a Notice served on them by the Cairngorms National Park Authority (CNPA) under section 14 of the Land Reform (Scotland) Act 2003. The Notice required AHR to remove a fence and hedge which blocks access between the Resort and the centre of Aviemore. A legal debate took place on 6th August 2008. The case was heard by Sheriff Alistair MacFadyen. An interim decision was given on 14th January 2009 in relation to the issues in the legal debate. There were three main points at issue.

1. The fence had been erected in 2004 after the 2003 Act was enacted but before it came into force in 2005. AHR argued that access rights and obligations on landowners had no existence prior to the Act coming into force in February 2005. As the fence had been erected before the Act came into force, the Act could not be applied to such a situation with retrospective effect.

The Sheriff did not accept this argument. He said that people had already been using the route impeded by the fence before the fence was erected. The fence impeded an existing access route before the Act came into effect, and was continuing to impede access at the date when the notice was served, in January 2008, so it was an act commencing before the coming into force of the legislation and continuing thereafter. He said that in those circumstances there was no question of the Act being read with retrospective effect.

2. AHR said that the land concerned was excluded from access rights because of curtilage. However, the Sheriff said that they had not provided sufficient information on this point and they would therefore not be allowed to pursue this argument. CNPA had been entitled to know which building or buildings were claimed to have curtilage, and on what basis.

3. AHR argued that they had proper land management grounds for erecting the fence. There were established alternative access routes, and the presence of the fence did not unreasonably interfere with access rights. The Sheriff said that AHR’s arguments on this point were relevant and sufficiently specific to allow them to be the subject of a further hearing for witnesses to give evidence on this issue.

There will be a hearing on 16th February when the Sheriff will consider the issue of expenses to date and a date will be set for further hearings. It is likely to be some time before there is a final decision.

For more detail, visit the Scottish Courts website http://www.scotcourts.gov.uk/opinions/B94_08.html

ScotWays, 19 January 2009