Kirkcaldy Sheriff Court B375/07; 28th May 2009
Scottish Court Service decision.

The facts: A path ran along the foot of the garden of a group of seven houses at Coull Steadings in Glenrothes, and was owned in common by the householders. The path had been created at the time of the construction of the houses and it was separated from the gardens by a high fence. The pursuers and two other householders claimed that some people using the path were disturbing the residents and causing a nuisance, and concern was expressed over liability risk should anyone using the path be injured. The concerned householders erected gates on the path and kept them locked. Following complaints from other local residents, Fife Council informed them that they were in breach of the Land Reform Act, and should remove the locks. The Council also took the view that planning consent was needed for the gates. Negotiations failed, and a Section 14 enforcement Notice was served. Mr and Mrs Forbes, who owned one of the houses, appealed to the Sheriff Court against this notice, and also applied for a ruling under section 28 of the 2003 Act that the path was not within access rights.

Evidence and legal arguments: 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 on account of anti-social behaviour should be a last resort. It was argued for the Council that 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 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. 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.

Decision: 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, some distance from the house, and the extent of the garden in this suburban setting was sufficient to provide the pursuers with reasonable privacy in their house. He noted that the qualifications in the Act as to “reasonable measures of privacy” and “enjoyment … not unreasonably disturbed” both referred to the house (rather than the garden), and that existing use could be a factor in delimiting the appropriate area of land to be exempt. Determining whether land is within access rights has to be on the presumption 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 Sheriff referred to the recent appeal decision in the Tuley case, but concluded that it did not assist here, as the circumstances were different in that the owner in that case was actively promoting access, whilst seeking to address concerns about damage by horses. In this case there was both responsible and irresponsible use of the path. He accepted that the purpose or main purpose of erecting the gates had been to prevent antisocial behaviour by those using the path, 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 8 am to 8 pm) and he awarded the pursuers 50% of their expenses (costs) on the basis that they had been partially successful.