Cupar Sheriff Court, November 2009. Court ref: A149/08

Key points: Landowners fined for breach of interdict for obstructing a right of way.

The facts: Mr and Mrs Nisbet owned a property at Bloomfield, near Newburgh, adjacent to a right of way which runs from Whinnybank in Fife to Macduff’s Cross in Perth & Kinross. The route was declared to be a right of way in a court action in 1997 (North East Fife Council v Nisbet, 2000 S.C.L.R. 413), and an interdict was imposed at that time, requiring the Nisbets not to obstruct the right of way or interfere with its use. This was confirmed in subsequent appeals to the Sheriff Principal and the Court of Session. However, Mr and Mrs Nisbet continued to interfere with use of the right of way. They erected gates on the route, extended their garden over it, and challenged people using the route. Witnesses described how they had been repeatedly challenged when they tried to use the route, and their difficulties in opening the gates that the Nisbets had erected on the route.

Decision: Sheriff Johnston ruled that Mr and Mrs Nisbet were in breach of the interdict because they had obstructed the right of way and interfered with its use. Sheriff Johnston commented that Mr Nisbet’s evidence ‘illustrated an ongoing determination to thwart the order of the court’.

The Sheriff ordered that Mr and Mrs Nisbet should each pay a fine of £500, and the full legal costs of the case, including those of Fife Council, which would considerably exceed the amount of the fines. It was made clear in the course of the case that there had been considerable effort by both the Council and ScotWays to persuade Mr and Mrs Nisbet to realise the seriousness of the position without going to court.

Comments: A landowner may usually install suitable gates on rights of way, provided that they are on his land, and that they are unlocked at all times, and capable of being opened by any likely user of the route. However, in this case, the erection of gates was expressly forbidden in the terms of the interdict.

Note that in cases of breach of interdict, where there is a possibility of a fine or imprisonment, it is necessary to prove the case beyond reasonable doubt – as in criminal prosecutions.

The case highlights that rights of way continue to be important even after the passing of the Land Reform (Scotland) Act 2003. In this case, it was possibly arguable that the route was sufficiently close to the Nisbets’ house to be excluded from access rights. The Sheriff reiterated that the public had a right to use the route, and dismissed the Nisbets’ claim that access along the route was an invasion of their privacy and against their human rights. The case also highlights, however, that even once a court has declared a route to be a right of way, a determined landowner can only be prevented from obstructing the public’s use by further enforcement action.

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