Anstalt v Loch Lomond and the Trossachs National Park Authority
| Jurisdiction | Scotland |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] CSIH 22 |
| Docket Number | No 22 |
| Date | 27 March 2018 |
| Court | Court of Session (Inner House) |
[2018] CSIH 22
First Division
Sheriff Appeal Court
Angus v Glasgow Corporation 1977 SLT 206
Aviemore Highland Resort Ltd v Cairngorms National Park Authority 2009 SLT (Sh Ct) 97
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Scottish Natural Heritage, Scottish Outdoor Access Code: Public access to Scotland's outdoors (Scottish Natural Heritage, Perth, February 2005) (Online: http://www.snh.org.uk/pdfs/publications/access/full%20code.pdf (24 April 2018))
Heritable property and conveyancing — Statutory rights of access — Landowner locking gates and erecting sign — National park authority issuing notice seeking remedial action to allow access — Gates and sign predating legislation — Whether land over which access rights exercisable — Land Reform (Scotland) Act 2003 (asp 2), secs 1–3, 14
Statutory interpretation — Whether subjective or objective assessment of whether an act was done “for the purpose or main purpose of preventing or deterring” the exercise of access rights — Land Reform (Scotland) Act 2003 (asp 2), sec 14(1)
Renyana Stahl Anstalt raised a summary application in the sheriffdom of Tayside, Central and Fife calling the Loch Lomond and Trossachs National Park Authority as defenders. The summary application was in terms of sec 14(4) of the Land Reform (Scotland) Act 2003 in respect of a notice served on the pursuers as landowner by the defenders under sec 14(2) of that Act. On 12 February 2016, the sheriff (Cameron) allowed the appeal. Loch Lomond and Trossachs National Park appealed to the Sheriff Appeal Court.
A hearing before the SAC (comprising Sheriff Principal MM Stephen QC, Sheriff Principal DL Murray and Sheriff PJ Braid) was held on 8 December 2016. On 30 March 2017, the court allowed the appeal ([2017] SAC (Civ) 11; 2017 SLT (Sh Ct) 138). On 16 May 2017, permission to appeal to the Court of Session was granted.
Section 1 of the Land Reform (Scotland) Act 2003 (asp 2) (‘the 2003 Act’) sets out a general statutory right of access to land. Section 2 provides that such access is to be exercised responsibly. Section 3 imposes a duty upon owners of land over which access rights are exercisable to use, manage and otherwise conduct their ownership responsibly. Section 6 sets out exemptions to the right of access. Section 14(1) prohibits landowners from any act or omission “for the purpose or for the main purpose of preventing or deterring” persons from exercising their rights. Section 14(2) provides that where a local authority considers that anything has been done in contravention of sec 14(1) it may require that remedial action, specified in a notice, be taken. Under sec 14(4), a landowner can appeal by summary application to the sheriff against the notice.
A sec 14(2) notice was served on the pursuers as landowners by the defenders. The notice required the removal of a sign warning of wild boar and the unlocking of three gates (known as “Main”, “Kennels” and “Altskeith”). The sign had been erected at the request of the local authority, from whom a licence was required in order to keep wild boar. The pursuers appealed against the notice. The sheriff allowed the appeal, finding that: (i) access rights were not exercisable over the land because the gates had been in place and locked, and the sign erected, before the coming into force of the 2003 Act; and (ii) the “purpose or main purpose” of locking the gates and erecting the sign was not to prevent or deter access. In reaching the decision on purpose, the sheriff found the pursuer's agent to be a credible and reliable witness. The defenders appealed to the Sheriff Appeal Court (‘SAC’).
The SAC held that the sheriff had erred. At issue was not the erection of gates but a continuing failure to unlock them. The sheriff had also failed to consider whether the pursuers’ use of the land had been responsible and whether the gates ought to be unlocked. Subject to the question of “purpose”, the pursuers could not continue to refuse access by locking the gates or displaying the sign. Assessing the evidence subjectively, the SAC rejected the finding on purpose and concluded that the main purpose in locking the gates and erecting the sign was to prevent or deter the exercise of access rights. The pursuers appealed to the Court of Session.
Held that: (1) a landowner was obliged to facilitate access to land, such as by unlocking gates and removing signage, albeit that land was enclosed and the gates or signage were in place before the 2003 Act came into force (paras 58–61); (2) the purpose of a landowner's acts was ascertained objectively, not by reference to the particular landowner's intention or motive (para 65); (3) the gates were locked for the purpose of preventing or deterring access by the public to land on which they have a right to be or to cross (para 67); (4) the failure to unlock the Altskeith and Kennels gates was a breach of sec 14(1)(e) of the 2003 Act but, once access was available through the Kennels gate, the public would have the necessary access without the Main gate being unlocked (paras 73, 79); (5) the erection of a sign warning of dangerous animals at the request of the authority responsible for licensing the keeping of such animals was unobjectionable (para 70); (6) the pursuer's human rights challenges were without merit because the summary application to the sheriff protected the right to a fair and public hearing, the SAC's reasoning was adequate and the 2003 Act did not have retrospective effect (paras 76–78); and decision of the SAC varied.
Observed that: (1) it would be highly unusual for the SAC to remit a cause to the sheriff under sec 111(1)(a)(iv) of the Courts Reform (Scotland) Act 2014 (asp 18) where the remit would be for a redetermination of the merits of a cause to a sheriff who had already decided these merits; and (2) a court did not require expert testimony as to the propensities of cattle and deer (para. 69).
Aviemore Highland Resort Ltd v Cairngorms National Park Authority 2009 SLT (Sh Ct) 97 and Tuley v Highland Council2009 SC 456considered.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Drummond Young, for a hearing on the summar roll, on 14 and 15 February 2018.
At advising, on 27 March 2018, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This litigation is about the access rights given to everyone over land in terms of Pt I of the Land Reform (Scotland) Act 2003 (asp 2) (‘the 2003 Act’); known colloquially as the ‘right to roam’. On one level it just involves a question about whether two gates on the pursuers’ estate ought to be unlocked. The issue has already occupied some seven days of proof. The answers provided by the sheriff and the Sheriff Appeal Court have differed. Their accuracy depends, to a large extent, on whether: (i) a judgment of the sheriff principal (ST Young QC) in Aviemore Highland Resort Ltd v Cairngorms National Park Authority, which concerned a fence constructed before the 2003 Act came into force, was correct; and (ii) obiter dictum of an Extra Division in Tuley v Highland Council, to the effect that the ‘purpose’ of taking action which may prevent or deter access should be judged subjectively, is right.
[2] Section 1 of the 2003 Act provides, inter alia, that everyone has the right to be on land, for...
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