Court ref: A717/04 Court of Session, 26th November 2004
Scottish Courts Service decision.

Facts: Midlothian Council leased an area of ground in Eskbank that was used as a park. There was a route from a public road to the park across land owned by the defender, and this was used by some people as a shortcut to the park. In 2004, the defender erected a fence across the line of the route. The Council took action to assert that the route was a public right of way, in accordance with section 46 of the Countryside (Scotland) Act 1967.

Decision: The court found that the route did not meet the conditions to be a right of way. The park was not a public place and therefore did not provide a public place terminus for a right of way. The Court said that the mere fact that the public used the park did not mean that they had an unrestricted legal right to do so. It is not enough for a place to become public that it happens to be owned by a central or local government authority and that authority permits its use by the public for certain purposes.

Also, there had been a fence across the line of the route in the past and, although this had become broken down, it had been sufficient during the prescriptive period to discourage public use, and the existence of the fence indicated that public use had not been ‘open’ and ‘as of right’.

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