National park authority wins appeal in dispute with estate owner over public access rights to land

The Sheriff Appeal Court ruled that the sheriff’s approach to the evidence on the timing and purpose of the landowner’s actions were “seriously flawed” and the court had “no hesitation” in concluding that his decision was “plainly wrong”.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Duncan Murray and Sheriff Peter Braid, heard that the appellant, Loch Lomond and National Park Authority, had since 2006 been in dispute with the respondent Renyana Stahl Anstalt, owner of the Drumlean Estate in the Trossachs, over the extent to which it required to afford access to members of the public over the estate in terms of the Land Reform (Scotland) Act 2003.

The appellant took issue with the respondent erecting a sign warning of wild boar and the locking of three gates on the southern perimeter of the estate, and served a notice requiring the respondent to remove the sign and unlock the gates after the parties failed to reach an agreement.

The respondent appealed to the sheriff against the notice, in terms of section 14(4) of the Act and after an evidential hearing which comprised evidence over seven days, a site visit and a hearing on submissions, the sheriff allowed the appeal.

The sheriff’s principal finding was that as the matters complained of had begun before the 2003 Act came into force the respondent was not the owner of land in respect of which access rights were exercisable as at the date of service of the notice, which he found was a complete defence to the notice.

He also held that in any event the respondent had not acted for a purpose prohibited by section 14(1) in that the steps taken had not, in the sheriff’s view, been “for the purpose or for the main purpose of preventing or deterring any person entitled to exercise rights from doing so”.

The appellant challenged the sheriff’s decisions on both the timing issue and the purpose issue.

Counsel for the park authority submitted that it could not be correct that because the locking of the gates and the erection of the notice pre-dated the commencement of the 2003 Act, the respondent was not the owner of land over which access rights existed.

The Act’s premise was that access was exercisable over all land, coupled with the section 3 duty to manage land responsibly. If there had been an exception in respect of things done before the Act came into force, one would expect to have seen that expressly stated in section 6.

It was also argued that the sheriff had failed to make adequate findings as to the respondent’s purpose; failed to have regard to the Access Code; failed to appreciate that many of the respondent’s professed concerns, even if genuine, were of such general application that they could not properly amount to a legitimate purpose for the purposes of section 14; and erred in his approach to the evidence.

The appeal sheriffs ruled that the sheriff erred in his approach to the timing issue.

The opinion of the court stated: “The sheriff’s approach fails to take account of whether the landowner’s use of his land is responsible. It fails to recognise that the Act sets out a statutory presumption in favour of access. The access rights are to be exercised in a responsible manner and the Act expects land owners and managers to act in a responsible manner, which anticipates managing land in a way to facilitate access being taken.

“Responsible use of land in terms of the Act may well entail allowing access to land to which the public previously did not have access. Applying this to the present case the Act imposed a positive obligation on the respondent when the Act came into force, to consider, among other things, whether gates which had previously been locked, should be unlocked so as to enable the access rights created by the Act, to be exercised.

“The respondent’s land is land to which the Act applies and over which access rights are exercisable. Subject to the purpose issue, the landowner is not entitled to continue to refuse access to the land by continuing to lock the gates after the Act came into force, or to have a ‘wild boar’ sign (particularly where there are in fact no wild boar).”

The court also considered that the appellant’s criticisms of the sheriff’s approach to the purpose issue were “well founded”.

The opinion stated: “In our view, counsel for the appellant was correct in submitting that, in order for the respondent not to fall foul of section 14(1), there must be some identifiable legitimate purpose specific to the land in question rather than a broad purpose which could apply to virtually any estate in Scotland. We agree, too, that at least on one interpretation of the evidence, the true purpose of the respondent in the present case could be said to amount to no more than a desire to prevent access rights from being exercised, the very thing which section 14(1) prohibits.”

Having held that the sheriff erred in his whole approach to the assessment of the evidence, the appeal sheriffs allowed the appeal and made their own findings in fact.