SCOTWAYS SUMMARY OF ACCESS COURT CASES, 17 NOVEMBER 2006
Snowie v Stirling Council
Stirling Sheriff Court, Court Ref: B186/06
The owners of the Boquhan Estate, near the Kippen roundabout west of Stirling, have locked all the gates to the Estate. Stirling Council received complaints from people who said that they had previously been able to walk within the grounds of the Estate. After negotiations failed to resolve the issue, the Council served a Section 14 Notice (under the Land Reform (Scotland) Act 2003), indicating that the landowner (Mr Snowie) was required to allow access by unlocking a gate across the driveway leading to Boquhan House. The landowner appealed against this Notice to the Stirling Sheriff Court. The case is now proceeding under two different sections of the Land Reform (Scotland) Act, as follows.
Procedure under Section 14 of the 2003 Act
Local authorities have power to serve notices under Section 14 of the 2003 Act where a landowner is preventing or deterring people exercising their access rights, by physical obstructions or other means. If the landowner does not comply with the Notice, then the local authority can take direct action themselves. However, the landowner can challenge the terms of the Notice through appeal to the Sheriff Court, as in this case.
Application under Section 28 of the 2003 Act
In addition to appealing against the Section 14 Notice, the landowner subsequently applied to the court for a ruling under section 28 of the 2003 Act that the whole estate (70 acres) was excluded from access rights. Under the terms of Section 28, anyone can apply to a Sheriff Court for a ruling on whether, or not, access rights apply to a particular piece of land. This application was advertised (as required by rules of court) in order to enable other parties to join in the court action if they wished.
There have been preliminary hearings, but the main case has now been adjourned until 2007. A pre-proof hearing will take place on 1st May 2007 when the final arrangements will be made for the hearing of the case on 21-24 May inclusive. The Sheriff will decide if a site visit is desirable and whether it would be restricted to the court, the parties and their advocates and agents, as with the Archerfield case, or less restricted as in the Gloag case (see below).
Tuley v Highland Council
Dingwall Sheriff Court Ref B201/05
This case concerns horse access. It is an appeal by the landowner against a notice under Section 14 of the Land Reform (Scotland) Act 2003 that required him to remove barriers which prevented access by horse riders. The landowner claims that the routes that have been barred to horse riders are only suitable for pedestrians, and use by horses would be irresponsible and contrary to the interests of pedestrian users.
There has been one day of evidence on behalf of Mr Tuley. The case is due to resume in the Dingwall Sheriff Court on 27th November 2006 (for one week).
Mrs Ann Gloag v Perth & Kinross Council
Perth Sheriff Court, B111/06
The case is an action by Mrs Ann Gloag under section 28 of the Land Reform (Scotland) Act for a ruling by the Sheriff that Kinfauns Castle and that part of its grounds (roughly a half) lying within a security fence is land excluded from access rights under section 6 of the Land Reform (Scotland) Act 2003 because it comprises sufficient adjacent land to enable persons living there to have reasonable privacy, and to ensure that their enjoyment is not unreasonably disturbed’. She is also claiming breach of her human rights. Perth & Kinross Council are defending the action and have proposed an alternative boundary line for exclusion of a smaller area of land from access rights. The Ramblers Association have joined in the defence of the action.
There have already been two days in court, hearing evidence from witnesses for Mrs Gloag. A site visit has also taken place. It is likely to be some time before a decision is reached in this case as it has now been adjourned to 27th November for one day only, with further dates in January 2007 (3rd, 4th and 5th).
Caledonian Heritable Limited v. East Lothian Council,
Haddington Sheriff Court, Court ref: B401/05
Caledonian Heritable Limited (CHL) is developing a luxury hotel, golf course and housing complex at Archerfield, near Dirleton in East Lothian. They obstructed access in a number of ways, including the erection of fences and notices. East Lothian Council served a Section 14 Notice on them (under the Land Reform (Scotland) Act 2003) requiring them to remove these obstructions, and subsequently also issued an interdict to stop work on erection of a fence. CHL challenged the Notice in the Sheriff Court, Haddington. There were several preliminary hearings, and in March of this year there were two days of legal debate on the issue of the validity of the Notice served by the Council. The Sheriff decided that she could not determine the issue of the validity of the Notice without hearing the full evidence, and the case was set down for a full hearing.
For a note of her decision, see: www.scotcourts.gov.uk/opinions/B401_05.html .
However, the Council now considers that CHL have complied with everything demanded in the Notice, and the case has been settled after a period of thorough and detailed discussions between the parties.
For further information about any of these cases please contact us, or see our web site. If you would like to be sent email updates about the court cases, please email us.
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