Estate owner loses appeal in dispute with national park authority over public access rights to land

The Inner House of the Court Session has refused an appeal by Renyana Stahl Anstalt, the Liechtenstein-based owners of the Drumlean Estate in the Trossachs, against a decision of the Sheriff Appeal Court, which upheld a complaint by Loch Lomond and The Trossachs National Park Authority over the extent to which the landowners required to afford access to members of the public over the estate in terms of the Land Reform (Scotland) Act 2003.

The Lord President, Lord Carloway (pictured), sitting with Lord Menzies and Lord Drummond Young, heard that by notice dated 31 October 2013, the National Park Authority (the defenders) alleged that Renyana Stahl Anstalt (the pursuers) had contravened sub-sections 14(1)(a) and (e) of the 2003 Act by erecting the wild boar sign and locking the three gates.

The notice required the pursuers to remove the sign and unlock the gates, but the pursuers appealed.

The sheriff allowed the appeal on the basis that the gates had been in place and locked, and the sign erected, before the coming into force of the 2003 Act and that the purpose of locking the gates and putting the sign up was to manage the land responsibly and not to deter access being taken.

The defenders challenged the sheriff’s decisions on both the timing issue and the purpose issue, and the Sheriff Appeal Court held that the pursuers’ purpose in locking the gates and in having the wild boar sign, was to deter persons exercising their access rights, contrary to the 2003 Act.

The pursuers appealed to the Court of Session. The pursuers’ argument, which the sheriff had accepted, was that, if an area of land, which would otherwise be covered by the 2003 Act, was already enclosed before the Act came into force, there was no obligation on the landowner to facilitate access to that land by, for example, unlocking locked gates or providing stiles.

However, the court rejected that argument. Delivering the opinion of the court, the Lord President said: “If a particular action prevents the exercise of the general right, the landowner may, under sub-sections 14(1)(e) and (2), be required to take remedial steps to undo any action, including the locking of a gate, or to remove a sign or unlock a gate which he has ‘failed’ to remove or unlock as part of his duty of responsible management of his land, having regard to the right under section 1.

“The court agrees with the SAC on this point. The land in question was land over which access rights under the 2003 Act were exercisable. The defenders were, as a generality, entitled to take action in respect of these rights under section 14(1). The pursuers’ contention to the contrary accordingly falls to be rejected.”

The court considered that a landowner’s purpose was to be ascertained objectively. Contrary to the view of the sheriff and Sheriff Appeal Court, the owner’s intention or motive was not relevant.

Lord Caroway explained: “Section 14 provides that the landowner cannot do certain acts ‘for the purpose or for the main purpose of preventing or deterring any person’ from exercising his or her access rights under the Act. The context of this prohibition is a regime in which persons can access rights for recreational purposes or educational activities (s 1), with both parties having an obligation to act responsibly (ss 2 and 3), having regard to the Scottish Outdoor Access Code (s 10)…Section 14 does not refer to the landowners’ purpose as such but to the landowners’ acts which are what have to be looked at, if necessary by the court, objectively to see what their purpose or main purpose is.”

When the case was reconsidered in light of this approach, the inevitable conclusion was that the main purpose of locking the gates was to deter persons from exercising their rights of access and transit under the 2003 Act. Whatever motive, intention or reasons may have been proffered for doing so, and whether they were genuinely held, the gates were and are locked for the purpose of preventing or deterring access to the farm by the public.

The Lord President added: “The failure to unlock the Altskeith and Kennels Gates amounted to a breach of the 2003 Act. To that extent, the substance of the appeal from the SAC failed. However, once access were to be available through the Kennels Gate, the public would have access into and through the farm and onto the hillside and beyond. In these circumstances, keeping the Main Gate locked would not breach the section, since it would not then prevent or deter access.”

However, the court further held that the SAC erred in finding that the erection of the wild boar sign breached the 2003 Act, since this was something which had been requested by the local authority.