Appeal By Renyana Stahl Anstalt Against Loch Lomond And The Trossachs National Park Authority
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Menzies,Lord President |
| Neutral Citation | [2018] CSIH 22 |
| Date | 26 March 2018 |
| Docket Number | XA59/17 |
| Court | Court of Session |
| Published date | 26 March 2018 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2018] CSIH 22
XA59/17
Lord President
Lord Menzies
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Appeal by
RENYANA STAHL ANSTALT
Pursuers and Appellants
against
LOCH LOMOND AND THE TROSSACHS NATIONAL PARK AUTHORITY
Defenders and Respondents
Pursuers and Appellants: Lindhorst; Russel & Aitken LLP
Defenders and Respondents: O’Brien; Harper Macleod LLP
27 March 2018
Introduction
[1] This litigation is about the access rights given to everyone over land in terms of Part I
of the Land Reform (Scotland) Act 2003; 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. This issue has already occupied some seven days of proof. The answers
provided by the Sheriff and the Sheriff Appeal Court have differed. Their accuracy
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depends, to a large extent, on whether: (i) a judgment of the Sheriff Principal (Young QC) in
Aviemore Highland Resort v Cairngorms National Park Authority 2009 SLT (Sh Ct) 97, 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 2009 SC 456, to the effect that the
“purpose” of taking action which may prevent or deter access should be judged
subjectively, is right.
Statutory Framework
[2] Section 1 of the Land Reform (Scotland) Act 2003 provides, inter alia, that everyone
has the right to be on land, for recreational purposes or educational activities, and to cross
land. The right is exercisable in respect of all land, except that specified in section 6. The
main exceptions, which are relevant for present purposes, are: land on which there is a
building or other structure; land forming the curtilage of a building which is not a house, or
a compound or enclosure of such a structure; land which is sufficient to enable residents to
have a reasonable degree of privacy and to ensure that their residence is not unreasonably
disturbed; and land on which crops (plants, s 7(10)) are growing.
[3] Although general access rights are given to everyone, they are immediately
constrained as they are said to exist only when “they are exercised responsibly” (s 2); that
they do not cause unreasonable interference with the rights of others, including landowners.
In assessing responsibility, regard must be had to the Scottish Outdoor Access Code (s 10).
Section 3 of the 2003 Act provides that:
“(1) It is the duty of every owner of land in respect of which access rights are
exercisable –
(a) to use and manage the land; and
(b) otherwise to conduct the ownership of it,
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in a way which, as respects those rights, is responsible.”
This reciprocal responsibility is not to use the land in such a manner as would cause
unreasonable interference with the access rights of others. Again, regard is to be had to the
Code.
[4] Section 14 prohibits owners from doing certain acts “for the purpose or for the main
purpose of preventing or deterring” persons from exercising their rights. These include:
(a) erecting a sign or notice; (b) putting up a fence, wall or hedge; (c) having any animal at
large; (d) carrying out agricultural or other operations; and (e) taking, or failing to take, any
other action. Where a local authority consider that anything of that nature “has been done”,
they may require that remedial action, specified in a notice, be taken. Failure to comply with
the notice entitles the local authority to remove the sign or notice or to take the specified
remedial action.
[5] The Act provides (s 16) local authorities with powers to acquire land compulsorily in
order to facilitate access rights. It imposes (s 17) an obligation on local authorities to draw
up a system of core paths, creating reasonable access throughout the local authority’s area.
Local authorities may delineate a route by making a path order (s 22). The sheriff is given
(s 28) a general jurisdiction, upon summary application, to determine the extent of access
rights. The sheriff also has (s 14(4)) a special jurisdiction to hear appeals “against” any
notices served under section 14.
The Land
[6] It is critical to understand the layout and nature of the land over which this dispute
lies. The findings in fact made by the sheriff are important, although it has been necessary
to supplement them (infra) with additional facts which are not in dispute in order to paint a
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