Access to the Outdoors in Scotland

A summary of relevant court decisions

Published by: ScotWays (The Scottish Rights of Way and Access Society) 24 Annandale Street Edinburgh EH7 4AN

First edition, version 1.1 Date: 14th September 2010 With Update 1, March 2011

This publication may be downloaded by individuals for their own use. Short extracts from the publication may be reproduced without the prior consent of the copyright holder provided that the source is acknowledged.

Scottish Rights of Way and Access Society (ScotWays) 24 Annandale Street Edinburgh EH7 4AN

www.scotways.com

Registered as a limited company in Scotland. Company number: SC024243 Registered office as above.

A Scottish Charity, number: SC015460

ACKNOWLEDGEMENTS

Many of the case summaries in this publication are derived from Rights of Way: The Authority of Case Law edited by Alistair Lawson. That publication was written with the help of ScotWays Legal Committee members, and published by ScotWays in 1998.

This publication has been co-ordinated and edited by Judith Lewis.

New material for this publication has been written with the help of members of the ScotWays Legal Committee, in particular:

George Menzies John Mackay and John Innes

Christopher Hooper, a law student at Edinburgh University, assisted with research for new material.

We are also grateful to:

John Spencer, who developed the database used as a basis for preparation of the publication; Debbie Ramage for her general assistance with the publication; ScotWays Board member, Richard Barron; Scottish Natural Heritage, which provided grant assistance to ScotWays during the period of development of this publication, and in particular to Rob Garner, Policy and Advisory Officer, SNH, for his support during this time; and ScotWays staff, particularly Catriona Davies.

The Scottish Courts Service website: http://www.scotcourts.gov.uk/ is an essential source for recent court decisions and also provides useful information about the Scottish courts system. Scottish Natural Heritage’s publication A Brief Guide to Occupiers’ Legal Liabilities in Scotland was a valuable source of reference when preparing the Part on Liability.

3 Table of Contents Page Introduction 5

Part 1 Cases under the Land Reform (Scotland) Act 2003 11

Part 2 Public Rights of Way and Private Servitude Rights 25 of Way Part 2.1 Relationship of public rights of way with private 25 servitude rights of way and with ‘roads’ under the Roads (Scotland) Act 1984 Part 2.1.1: Relationship of public rights of way with 25 private servitude rights of way Part 2.1.2: Public rights of way and ‘roads’ under the 28 Roads (Scotland) Act 1984 Part 2.2 Creation of public rights of way – need for public place 30 end points. Part 2.3 Creation of public rights of way – use as of right by the 41 public for the prescriptive period Part 2.4 Creation of rights of way – interruption of the 58 prescriptive period Part 2.5 Need for a particular line for public rights of way 59 Part 2.6 Different kinds of use of rights of way 61 Part 2.7 Rights of way – land owned by statutory undertakers or 65 the Crown. Part 2.8 Public and private rights of way – ancillary rights and 72 burdens Part 2.9 Obstruction of rights of way 76 Part 2.10 Procedural issues 89

Part 3 Navigation rights and rights in relation to the 95 foreshore Part 3.1 Navigation rights 95 Part 3.2 Rights in relation to the foreshore 99

Part 4 Liability 103 Part 4.1 Occupiers’ liability: Cases involving ‘hazards’ in the 103 outdoors Part 4.2 Occupiers’ liability: Cases involving children 110 Part 4.3 Occupiers’ liability: Cases involving facilities/indoor 112 premises Part 4.4 Cases involving animals 113 Part 4.5 Liability of recreational users to one another 116 Part 4.6 Cases relating to contributory negligence 117

Part 5 Other cases of interest 118

Table of cases 120 Bibliography and Useful Websites 125 Update 1 – March 2011 125

Introduction

This new publication is the successor to the ScotWays publication Rights of Way: the authority of case law, which was published in 1998. But all the cases taken from that work (mainly in relation to rights of way) have been reviewed, and many new cases have been added in order to cover access rights under Part 1 of the Land Reform (Scotland) Act 2003, and other relevant areas of law. It is a companion to Access Rights and Rights of Way: A Guide to the Law in Scotland, also published by ScotWays.

The publication is intended for all those interested in outdoor access or involved in advising access takers and land managers. It is hoped that the summaries will give readers who are non-lawyers an improved understanding of the issues, and give them more confidence when discussing these issues with their legal advisers. Lawyers and law students will also find it a useful starting point for researching this field of law.

This publication provides summaries of court decisions in various fields that have a bearing on outdoor access: access rights, public rights of way, private rights of way (servitudes), liability, and navigation and foreshore rights. Cases relating to the new access rights and responsibilities under Part I of the Land Reform (Scotland) Act 2003 will be of particular interest. This Part of the Act is written in open terms and, during its evolution, Parliament recognised that the Courts would have a role in clarifying how it would operate. There have been few decisions so far, but they have been important in providing some early interpretation of this ground-breaking legislation.

The longest Part of this guide concerns rights of way. There have been numerous court cases, some dating back to the eighteenth century, and many aroused heated public debate in their time. Private servitude rights of way are included where the principles involved are similar to those in public right of way cases.

The Part on liability (the liability of occupiers, and the liability of one access taker to another) has been included because this topic is of increasing interest to land managers and to those taking access. Cases on navigation rights and rights on the foreshore have also been included in order to complete the main areas of law relating to outdoor access.

The Scottish Court Service Website has a searchable database of court decisions since 1998 at http://www.scotcourts.gov.uk/search- judgments/about-judgments. Links to the appropriate full decisions on the SCS website are given in this publication, where they are available. Please note that, where links are given to web pages, you may need to copy and paste the links into your web browser, rather than going to them direct from this document.

5 Also reported are some relevant decisions of courts in England and elsewhere. Scottish cases often refer to decisions in other jurisdictions where these are relevant. Finding relevant cases in this guide

Cases in this publication have been divided into five main Parts. Longer Parts have been broken down to place cases under sub-headings – see the Table of Contents on page 4. The main Parts are:

Part 1: Cases under the Land Reform (Scotland) Act 2003 Cases under this Act have been placed in date order.

Part 2: Public rights of way and private servitude rights of way Because the principles in relation to public rights of way overlap with private servitude rights of way, they have been placed together in one Part. As this is the longest Part, they have been placed under headings according to the main principles in each case. See the beginning of that Part (page 25) for further details.

Part 3: Navigation rights and rights in relation to the foreshore These issues have been placed together because they both involve access to water.

Part 4: Liability This Part has also been sub-divided and includes cases in relation to the liability of landowners and occupiers under the Occupiers Liability Act 1960, and also the liability of access takers to one another.

Part 5: Other cases of interest This Part includes other cases that have a bearing on outdoor access.

There is an alphabetical list of the names of the cases, with their case report or court reference, on page 120.

Most of the cases listed are reported in various official law reports, which contain the full texts of the judges' opinions and summaries of the facts and the legal arguments on each side. The report reference consists of the year of the report followed by identifying letters for the series of reports and a page reference (e.g. 1945 SC 302 for a case reported in Session Cases in 1945). In addition there are summarised reports (such as GWD - Greens Weekly Digest, and CLY - Current Law Yearbook) which only contain brief summaries of cases. In many recent cases, the full texts of judges’ opinions are also available on official court websites and references to these are also given, with the relevant court reference numbers, where available. The case report references enable lawyers to look up the full reports in the appropriate volumes in law libraries, but non-lawyers will probably find it easier to use the online court website references for recent cases. There is often additional information or comment available on the Internet.

As this publication is electronic, readers can use the usual ‘find’ tools to search for relevant issues within the publication.

The format of this guide, as a downloadable PDF file, means that ScotWays will be able to update it with new court decisions as they arise. Updated versions will be available to download from the ScotWays website. The current version number, and date, are indicated on the front cover.

Please help us to keep this publication up to date by sending us comments, and letting us know of any relevant new court cases.

An outline of the Scottish Courts System

Civil court cases are initiated either in one of the many local Sheriff Courts, or in the Court of Session in Edinburgh. The Inner House of the Court of Session also acts as a court of appeal, though an appeal from a Sheriff Court can also be made to the local Sheriff Principal. It is up to the person making the appeal to decide whether to appeal to the Sheriff Principal or whether to appeal direct to the Court of Session. Until October 2009 there was a final right of appeal from the Court of Session appeal division (the Inner House) to the House of Lords. From that date, the new UK Supreme Court is now the final court of appeal for the whole of the UK in civil cases.

The diagram below explains the structure of the Scottish civil courts.

UK Supreme Court The Scottish Courts System (formerly the House of Lords) Arrows indicate potential lines of appeal.

Court of Session Inner House Sheriff Principal (Three Judges)

Court of Session Outer House Sheriff Court (Lord Ordinary)

In certain circumstances, there may be an application to the European Court of Human Rights if the claimant has been given no redress through the UK courts. For information about the process, see:

7 http://www.echr.coe.int/NR/rdonlyres/37C26BF0-EE46-437E-B810- EA900D18D49B/0/ENG_QR.pdf

In the case of the Land Reform (Scotland) Act 2003, there are two main processes for bringing cases to court and, in both cases, the process must start in the Sheriff Court. Under sections 14 and 15, a landowner can appeal to the Sheriff Court against a notice that the local authority has served on him in respect of an alleged obstruction of access rights. Under section 28, anyone may apply to the Sheriff Court for a court order in relation to: whether access rights apply on particular land; or whether particular land managers or users have acted responsibly in relation to access; or whether there is a public right of way. Once the Sheriff has given his decision there may be appeals to higher courts in the usual way.

A court decision may have an important impact on future cases because it may establish a precedent that has to be followed in other cases. A single sheriff’s decision is persuasive only – it is not binding on other sheriffs. An appeal decision by a sheriff principal is binding only within his own sheriffdom. An appeal decision in the Court of Session is binding throughout Scotland unless and until overturned, either by a larger appeal division of the Court of Session convened especially for the purpose, or by the Supreme Court.

The Scottish Courts Service website provides more information about the courts system in Scotland. See: http://www.scotcourts.gov.uk.

It also provides a useful glossary of legal terms used in court proceedings in Scotland. See: http://www.scotcourts.gov.uk/library/publications/docs/glossary.pdf

The following is a note of some of the main technical terms used in court proceedings.

Pursuer and defender The person who initiates the court proceedings is the pursuer, and the person defending the action is the defender. If there is an appeal, the person appealing is the appellant and the other party is the respondent.

Precognitions These are statements, generally prepared by the solicitor in the case, setting out what a witness is likely to say in open court in response to questions. They do not form part of the evidence as such, and are not lodged in court.

Pleadings These are the written statements of each party’s case, prepared by solicitors or counsel. They start with an initial writ (or application) and defences and develop over the initial procedural stages into the ‘Closed Record’, which is lodged with the court. The object of this is to identify the factual and legal issues in dispute, which need to be resolved in the case.

8 Proof This is the hearing of evidence, at which witnesses give their evidence under oath in open court.

9 Court Decisions

Court decisions review the facts and the legal arguments of the parties, and set out what the court has decided in relation to both the facts and the law. The court can make various different orders, depending on the nature of the case.

Examples of relevant court orders:

 A ‘declarator’ confirming the legal position in relation to a claimed right or status, e.g. that access rights apply over a particular area of land, or that there is a right of way along a particular line.  An ‘interdict’ prohibiting someone from doing something, e.g. obstructing a right of way. There can be an application for an interim interdict while the full court process is taking place. A final interdict may then be given when the case has been heard in full. A person who breaches an interdict may be fined, or even imprisoned.  ‘Damages’ compensating the claimant, e.g. for injuries he has suffered.

Expenses (Costs) The normal rule is that the losing party pays the winning party’s judicial expenses. They are assessed in accordance with a set table of fees by the Auditor of Court – in practice often limited to about two thirds of the actual expenses. The court has some discretion to vary an award of expenses (e.g. to one half of the table of fees) or to make no award, but this is unusual. If the losing party has legal aid, an expenses order against him/her is likely to be almost valueless.

10 PART 1: CASES UNDER PART I OF THE LAND REFORM (SCOTLAND) ACT 2003

Introduction The court cases that have been brought so far under this Act have been important in providing guidance on interpretation of the Act, which came into force on 9 February 2005. The Act gave everyone a right of access to most land and inland water in Scotland for recreation and other purposes, subject to certain exceptions, including allowing for an area of privacy around dwelling houses. A person only has access rights if they are exercised ‘responsibly’ in accordance with the Scottish Outdoor Access Code, drawn up by Scottish Natural Heritage and approved by the Scottish Parliament.

There have been two amendments to the LRSA. Scottish Statutory Instrument 2005/65, The Land Reform (Scotland) Act 2003 (Modification) Order 2005, amends section 7(10), adding a new subsection (c) to clarify that ‘…land on which crops are growing…’ does not include land wholly or mainly used as a woodland or orchard or for the growing of trees, but does include land used wholly for the cultivation of tree seedlings in beds. See: http://www.legislation.gov.uk/ssi/2005/65/pdfs/ssi_20050065_en.pdf

In 2013 a Modification Order allowed for core paths closures in case of an outbreak of animal disease or by section 11 Orders. New Guidance for access authorities was drawn up to accompany the 2013 Order.

The 2013 Modification Order and Guidance are available through these links: http://www.legislation.gov.uk/sdsi/2013/9780111021958 http://www.gov.scot/Publications/2014/01/8640

For a link to download the 2003 Act, other subordinate legislation made under the Act, and other legislative provisions impinging on the Act, see the Bibliography at page 125.

Cases have so far been initiated under two different sections of the Act. Under section 14, a landowner can appeal to the Sheriff Court against a notice that the local authority has served on him in respect of an alleged obstruction of access rights. Under section 28, anyone may apply to the Sheriff Court for a court order in relation to: whether access rights apply on particular land; or whether particular land managers or users have acted responsibly in relation to access; or whether there is a public right of way.

In view of the importance of the cases, most have been summarised in greater detail than cases in other parts of this publication. Cases have been set out in chronological order, according to the date of final decisions, which have followed appeals in some cases.

11 Caledonian Heritable Ltd v East Lothian Council Haddington Sheriff Court, Court ref: B401/05 Interim decision dated 28th April 2006. Scottish Courts Service website reference: http://www.scotcourts.gov.uk/search-judgments/judgment?id=bb0187a6-8980- 69d2-b500-ff0000d74aa7

This was the first case to come to court under the 2003 Act. Caledonian Heritable Limited (CHL) was developing a luxury hotel, golf course and housing complex at Archerfield, near Dirleton in East Lothian. The developer obstructed access by: fixing ‘keep out’ notices at the entrances and on a path through a wooded area; by erecting fences; and by removing a bridge. East Lothian Council served a Section 14 Notice on CHL (under the Land Reform (Scotland) Act 2003) requiring them to remove these obstructions, and subsequently also sought an interdict to stop work on erection of a fence. CHL challenged the Notice in the Sheriff Court, Haddington.

There was a preliminary legal debate on whether the notices served by the Council were specific enough, and the Sheriff decided that they were. However, before the proof hearing was held an agreement was reached, that the obstructions would be removed and the bridge restored, and a path provided through the woodland, and the case was settled on this basis.

Gloag v Perth & Kinross Council and the Rambler’s Association Case Report: 2007 S.C.L.R. 530 Perth Sheriff Court, Court ref: B111/06 Scottish Courts Service web site reference: http://www.scotcourts.gov.uk/search-judgments/judgment?id=19fa86a6-8980- 69d2-b500-ff0000d74aa7 Decision by Sheriff Michael Fletcher in the Perth Sheriff Court on 12th June 2007.

Facts: Mrs Gloag bought Kinfauns Castle, a former hotel and country house to the east of Perth, lying on a slope above the A90 trunk road and the inner estuary of the River Tay, and she renovated it for her own residential use and for use in her charitable activities. Kinfauns castle is a substantial mansion surrounded by mown grass, specimen trees and policy woodland.

Mrs Gloag erected a new fence around the grounds to enhance the security of her property, for which she obtained planning permission retrospectively from Perth & Kinross Council. She then applied to the Court under the Land Reform (Scotland) Act 2003, section 28(1)(a), to have the area of her land that was within the fence declared to be exempt from the exercise of access rights. The Sheriff said, as a finding of fact, that this amounted to about 11 acres of grounds (the Council maps indicated an overall area of 14.6 acres within the fence). Mrs Gloag claimed this land was land adjacent to Kinfauns Castle sufficient to enable those living there to have reasonable measures of privacy in the house, and to ensure their enjoyment of it was not unreasonably

12 disturbed. Mrs Gloag claimed that she and her family had a greater than normal security risk because of her high profile and the high value of the contents of the house.

Evidence: For Mrs Gloag, it was argued that her status as a public figure, her collection of valuable art, the use of the area by family, and visits by other public figures supportive of her charitable work, all called for a high degree of security and protection. The whole area sought as exempt from access rights was said to be in use, albeit that renovation of the woodland area was still in progress (though the Sheriff did debate the validity of the claim to use the whole area intensively). There were proposals for extension of the building to provide new leisure facilities.

Perth & Kinross Council proposed a smaller area to be excluded from access rights, making about 4 acres of woodlands and rough grass available for access, and the Ramblers Association also took the same approach. Both parties placed emphasis on the role of the Scottish Outdoor Access Code in advising how access takers should act when close to domestic property, and in identifying whether policy woodland areas and rough grass should be included within access rights. As well as arguing the case for a smaller exempt area, both parties led procedural evidence: for the Council on its role in overseeing implementation of the Act; and for the Ramblers, on the principles behind the legislation.

Decision: The Sheriff said that the court had no discretion to take the rights of the access taker into consideration in determining where there should be a right of access close to property. Parliament had decreed there were no access rights on such excluded land. The court had to decide the amount of ground to be excluded in accordance with its interpretation of section 6. He said the Code was intended to give help and guidance, on the one hand to the people taking access and, on the other hand, to those over whose land access is to be taken, as to how to act responsibly in relation to the rights given by the Act. However, there was no mention in the Act of the Code being a tool for interpretation of any other part of the Act, in particular, of section 6.

The exemption claimed by Mrs Gloag is contained in section 6(1)(b)(iv) of the Act, and one of the determining factors is the location and other characteristics of the house (section 7(5) of the Act). The Sheriff said that the Act gave little assistance on the issue of how much adjoining land was required for privacy and enjoyment, and he therefore had to rely to some extent on judicial knowledge, but the evidence in the case also led to the view he had reached. The test of how much adjoining land was required for privacy and enjoyment was an objective one, and not related to a particular owner at any one time. He therefore set aside claims of special needs made on behalf of Mrs Gloag, and said that an appropriate area should be determined against the reasonable needs and expectations of any person who purchased such a house. Any person who purchased such a property would only do so if they had a substantial area round the house to provide reasonable measures of privacy and the enjoyment of the house. Whoever owned Kinfauns Castle would be likely to have considerable resources and would be likely to possess

13 valuable objects. The Sheriff also took the view that enjoyment of the house extended to the grounds around it.

Applying this objective test, the Sheriff held that all the land within the fence should be excluded from the exercise of access rights. The evidence had shown that the fence had been placed in the most suitable location. The fact that it followed the line of a previous fence showed that it had not been placed along a purely arbitrary line, but one which a previous occupant had considered was required to secure their privacy and enjoyment of the property.

The Sheriff therefore granted a Declarator to Mrs Gloag that all the land that had been the subject of her application (i.e. all the land within the security fence) was excluded from the exercise of access rights. The Sheriff said “In my opinion it encompasses sufficient adjacent ground to enable persons living there to have reasonable measures of privacy in that house and to ensure that their enjoyment of that house is not unreasonably disturbed. The enjoyment of the house in my view depends on an extremely large number of factors, but it could not be ensured by a smaller area of adjacent ground such as the one suggested by the respondents, taking into account the location and characteristics of the house.”

All parties had agreed that the 2003 Act was not incompatible with the European Convention of Human Rights. The Sheriff said that the Act required the Court to find what was sufficient land for privacy and enjoyment of the house, and if this judgment was wrong that could be put right (presumably on appeal). There was no need to refer to the Convention.

Note on the parties in this case: Under section 28 of the 2003 Act, a person applying to the court must give notice of their application to the local authority, and it is then up to the local authority whether they oppose it, as Perth & Kinross Council did in this case. Other parties may apply to the court to be joined as defenders in the action, and the Ramblers Association did so in this case, and in the case of Snowie, below.

Snowie v Stirling Council and Ramblers Association Lindsay and Barbara Ross v Stirling Council

Case Report: 2008 S.L.T. (Sh Ct) 61 Stirling Sheriff’s Court, Court ref: A976/06; 23rd April 2008 Scottish Courts Service website reference: http://www.scotcourts.gov.uk/search-judgments/judgment?id=a39687a6-8980- 69d2-b500-ff0000d74aa7 and http://www.scotcourts.gov.uk/search-judgments/judgment?id=679087a6-8980- 69d2-b500-ff0000d74aa7 An appeal to the Court of Session was abandoned on 13th January 2010 (see below).

Facts: These two linked cases were heard together. Mr and Mrs Snowie owned Boquhan House close to Kippen in Stirlingshire and grounds extending to 70 acres. Two driveways entered the Estate from public roads via the East Lodge and the West Lodge, giving access to the Estate and a neighbouring farm. The Estate also contained seven tenanted houses and stables. Mr and Mrs Ross owned the West Lodge, the garden of which lay on either side of the main, west driveway. The gates consisted of two pedestrian gates and a vehicular gate.

After a few years of ownership the Snowies carried out work on the previously manually operated gates so that the vehicular gate could be operated electronically and remotely. The pedestrian gates at the West Lodge were locked, preventing public access through the gate.

Both before and after the Snowies purchased the Estate, local people enjoyed regular access, taking a short cut to a right of way parallel to the southern edge of the Estate, walking or cycling. After the main gate was locked, access could still be taken through the neighbouring farm or the East gates.

Stirling Council received complaints about the changes at the West gates from people wishing to take access. There were negotiations to seek agreement for reinstatement of pedestrian access at the west gate, involving Stirling Council, the Snowies and the Rosses. Following the failure of these negotiations, Stirling Council served a written Notice under Section 14(2) of the Land Reform Act (Scotland) 2003 requiring the pedestrian gate to remain open. During the course of the negotiations, the Rosses had become responsible for the gates under a lease (which the Sheriff said appeared inexplicable). Once the existence of the lease was disclosed the Rosses were served with a similar Notice.

Evidence: The Snowies and the Rosses appealed to the Sheriff Court against the notice, claiming that unlocking the gate would affect their security and would prevent them having sufficient land excluded from access rights to enable them to have reasonable measures of privacy in Boquhan House and the Lodge. Mr Snowie claimed a special need for privacy for his family and referred to the need to provide for the privacy of other tenants close to the house, although the Ramblers noted that this claim did not extend to tenants on the other side of the main road.

Decision: In his judgment, the Sheriff endorsed the approach to the determination of exempted land set out in the Gloag judgment: the court is to look not at the individual proprietor for the time being, but is to consider the particular characteristics of the property, and the expectations of the kind of person who would buy it and live there. He set aside the evidence of Mr Snowie’s security expert and decided it was not necessary for the gates to be locked for reasons of privacy and enjoyment, nor for security or insurance purposes, and he refused to withdraw the Notice.

The Snowies had asked for the Sheriff to determine the amount of land that afforded privacy and enjoyment in terms of section 28 of the 2003 Act. They

15 claimed that a substantial part of the estate should be excluded from access, including the entire length of the driveways. This was dismissed by the Sheriff, who outlined a smaller area to be excluded from the exercise of access rights, including the rear garden, the tennis courts and changing rooms, and adjacent gardens. He rejected the suggestion that the entire driveways should be excluded, as he said these were not land adjacent to the house. In relation to the tenanted houses on the estate, he said each of these properties had a well-defined garden area that was exempt from access and this would be obvious to any responsible access taker. A similar situation applied at the West Lodge.

Appeal hearing in the Court of Session on 13th January 2010 At the appeal hearing, Counsel for the appellants (the Snowies and Rosses) argued, firstly, that the Sheriff had not correctly interpreted section 6(1)(b)(iv) of the 2003 Act. He said that the Sheriff had to consider the particular people living there at the time in question, and he had not done this. He said the Sheriff had also failed to give sufficient consideration to the needs of the people living in the tenanted houses.

Secondly, he argued that the area of land which the Sheriff had excluded had been determined arbitrarily: there was no logical explanation as to how the decision had been reached. Also, he had conflated the Ross and Snowie cases, commenting on security of the estate in the Ross case, when that was not relevant. The appellants asked for the Court to quash the judgement and remit the matter back to the Sheriff to apply the correct interpretation of section 6(1)(b)(iv).

Counsel for Stirling Council said that the Sheriff had made an extensive site visit, had listened to the wishes expressed by the Snowies and Rosses, and had come to a decision on what was required for ‘persons’ living in the house, as the Act required, and not ‘the persons’ as had been argued. The reasons for selecting the exempted area had been explained in the judgement.

The Court asked Counsel for the appellants to address them further on how, if the findings in fact were not challenged, the case could be remitted back to the Sheriff. However, the appellants withdrew their appeal, and so this issue was not addressed.

Note on the parties: See the note on the Gloag case, above, in relation to the involvement of the Ramblers Association.

Tuley v Highland Council Case Report: [2009] CSIH 31; 2009 S.L.T. 616 Court of Session, 21st April 2009 Scottish Courts Service website reference for decision on appeal: http://www.scotcourts.gov.uk/search-judgments/judgment?id=945686a6-8980- 69d2-b500-ff0000d74aa7

16 This was a successful appeal by Mr and Mrs Tuley to the Court of Session, against a ruling by the Dingwall Sheriff Court, July 2007 (Scottish Courts Service website ref: http://www.scotcourts.gov.uk/search- judgments/judgment?id=f4fd86a6-8980-69d2-b500-ff0000d74aa7.

The facts: Mr and Mrs Tuley had purchased Feddonhill Wood in 1992 from the Forestry Commission on Mr Tuley’s retirement. It was a small wood, mainly coniferous, and located on a slope above the village of Fortrose in the Black Isle, with views to the south over the inner Moray Firth. The wood was bisected by a private road providing vehicular access eastward to a few private houses and a livery stable/riding school at Broomhill Farm, with about 60 horses. That part of the wood to the south of the private road suffered severe wind throw in 2006, and this was being cleared. When owned by the Commission there had been public access for walking and riding, but Mr Tuley had not allowed riding on the main path through the northern section of the wood, and which led to the vehicular road to Broomhill Farm. He had been managing the wood for amenity and public access, aiming to provide separately for different categories of user, his original intention being to provide for riders in that part of the wood which had been storm-damaged.

On the coming into force of statutory access rights, Mr Tuley erected padlocked pole barriers to deter riders at either end on the path through the northern section of the wood, although there were narrow gaps to allow others to pass. Mr Tuley feared that use of this track by riders would cause unreasonable damage on account of parts of the path having a steepish gradient. This action led to complaints by some local riders to Highland Council, which entered negotiation with Mr Tuley, but there was no agreement and the Council issued a Notice under s.14(2) of the Land Reform (Scotland) Act 2003 requiring that the barriers be removed or sufficient space provided for the passage of all users. This order was challenged by Mr and Mrs Tuley, arguing that the purpose of the barriers was not to inhibit all access but to ensure that the said track was not damaged by horses to the disadvantage of walkers. They said this was responsible management in line with section 3 of the Act.

Evidence: both parties to the case provided technical evidence. Mr Tuley had an expert witness in soil science whose report predicted that any major use of the track by horses would inevitably lead to damage, which was supported by a recreation professional, and a local walker expressed concern about meeting horses given the narrowness of the track. For the Council, evidence was led by the Council’s access officer and the access specialist for the British Horse Society, to the effect that the track could stand use by horses and that some impact from such use was not unreasonable – riders had to exercise judgement and act responsibly when conditions were unsuitable for riding. The owner of the stables said that she would limit use of the track to a small number of ponies ridden by children as part of a circuit using the vehicular road. The Council offered to assist should problems arise, but it did not dispute the evidence of the main expert witness on path damage.

Decision in the Dingwall Sheriff Court.

17 In a thoughtful review of the evidence, the Sheriff reflected on the uncertainties that still remained: the prospect that all users would always act sensitively and responsibly seemed uncertain; the Act made clear that the land manager should not limit access except in obvious or extreme circumstances, and without some objective evidence of the nature of the impacts that might arise; there was uncertainty in the number of riders that might use the contested track if access were to be opened up to all; there was uncertainty in the evidence as to the degree of impact that would arise; and there could be adverse effects on other users of the wood, although, on balance, this last point was not a major issue in the case. In conclusion, the Sheriff came to the view that while Mr Tuley had valid concerns, he had acted prematurely in limiting access for riding, and had denied the opportunity to assess objectively what damage might arise, given use by horses. He also had a remedy available in cooperating with the Council, which had offered assistance. The appeal against the Notice was refused.

Appeal hearing at the Court of Session – 21 April 2009 Mr and Mrs Tuley appealed to the Court of Session against the above decision. There were two main issues in the appeal.

The first issue was whether the landowners had acted responsibly in placing barriers preventing horse access along the disputed path. An expert witness had given evidence for the landowners about the soil damage that would occur on the disputed path as a result of horse use. The Council had not disputed the expert evidence, but argued that the Tuleys had acted prematurely in preventing access by horses. They said that horse riders should not be prevented from using the route unless/until it could be shown that damage was being caused as a result, and they had offered to assist if drainage problems arose. The appeal judges rejected this argument. The uncontested expert evidence had indicated that, in all probability, horse use would damage the track, and the Tuleys were therefore acting responsibly in preventing horse access to the part of the wood that was intended for pedestrian use. It was stated that the Tuleys were exercising land management responsibly in the way that they were managing different recreational uses of the wood.

The Court went on to give its views on the second issue, which was whether the purpose, or main purpose, for erecting the barriers had been to prevent or deter access. Section 14(1) of the 2003 Act prohibits landowners from putting up any obstructions if the purpose, or main purpose, is to prevent or deter people from exercising their access rights. The appeal judges said that ‘purpose or main purpose’ should be given a flexible interpretation. In the present case they said it was recognised and accepted that the Tuleys encouraged public access, and were only seeking, in good faith, to regulate different uses of access. The ‘main purpose’ of the barrier to horses was the landowners’ genuine concern to prevent damage by horses to the track and the paths leading off it. The Tuleys were therefore not in breach of section 14(1).

18 Comment: As the case had been decided on the first issue, the Court’s views on the second issue were only ‘obiter’, i.e. not part of the decision and therefore not binding in any future cases.

Williamson v Highland Activities Limited Court of Session, 12th May 2009 Court ref: A338/09

In this case, the pursuer claimed that the defenders (who organised commercial rafting) were not exercising access rights responsibly and therefore had no right to undertake this activity on his property, without his agreement. The pursuer successfully obtained an interim interdict to prevent the defender from carrying on further activity of this kind within the boundaries of his estate.

This brief note is included for completeness, but it should be noted that the case was undefended, and it would not be considered binding, or even persuasive, in any other court case. If it had been defended, the outcome might have been different.

Forbes v Fife Council Kirkcaldy Sheriff Court B375/07; 28th May 2009 Scottish Court Service website reference: http://www.scotcourts.gov.uk/search-judgments/judgment?id=4b0187a6-8980- 69d2-b500-ff0000d74aa7

The facts: A path ran along the foot of the garden of a group of seven houses at Coull Steadings in Glenrothes, and was owned in common by the householders. The path had been created at the time of the construction of the houses and it was separated from the gardens by a high fence. The pursuers and two other householders claimed that some people using the path were disturbing the residents and causing a nuisance, and concern was expressed over liability risk should anyone using the path be injured. The concerned householders erected gates on the path and kept them locked. Following complaints from other local residents, Fife Council informed them that they were in breach of the Land Reform Act, and should remove the locks. The Council also took the view that planning consent was needed for the gates. Negotiations failed, and a Section 14 enforcement Notice was served. Mr and Mrs Forbes, who owned one of the houses, appealed to the Sheriff Court against this notice, and also applied for a ruling under section 28 of the 2003 Act that the path was not within access rights.

Evidence and legal arguments: There was conflicting evidence about whether anti-social behaviour was a serious problem on the path. Fife’s Access Officer said that closure of a route on account of anti-social behaviour should be a last resort. It was argued for the Council that Mr and Mrs Forbes should not

19 expect the same degree of privacy in their garden as they would expect for their house. There were other ways of protecting their privacy, such as blinds on windows. The Council had a duty to assert access rights and, as long as rights could be exercised responsibly, the Council had a duty to step in when they were obstructed. It was argued for Mr and Mrs Forbes that the path needed to be excluded from access rights in order to ensure their privacy and enjoyment of their house and garden. Their motive in erecting the gates had been to prevent irresponsible use of the path, not to deter access rights.

Decision: The Sheriff first considered the application under section 28. He said that the boundary of the property was clearly marked by a fence between the path and the garden, some distance from the house, and the extent of the garden in this suburban setting was sufficient to provide the pursuers with reasonable privacy in their house. He noted that the qualifications in the Act as to "reasonable measures of privacy" and "enjoyment ... not unreasonably disturbed" both referred to the house (rather than the garden), and that existing use could be a factor in delimiting the appropriate area of land to be exempt. Determining whether land is within access rights has to be on the presumption that access is exercised responsibly. Those who are exercising the rights irresponsibly do not have the rights. He said that the pursuers had failed to establish that the path was land excluded from access rights.

On the question of the appeal against the Section 14 Notice, the Sheriff said that both parties had accepted that there was power to set aside, vary or confirm the Notice, and he agreed with this. He said that the evidence showed that there was both responsible and irresponsible use of the path. The Sheriff referred to the recent appeal decision in the Tuley case, but concluded that it did not assist here, as the circumstances were different in that the owner in that case was actively promoting access, whilst seeking to address concerns about damage by horses. In this case there was both responsible and irresponsible use of the path. He accepted that the purpose or main purpose of erecting the gates had been to prevent antisocial behaviour by those using the path, and the evidence had shown that irresponsible use occurred at night, particularly at weekends. However, the gates also impeded responsible use of the path. His view was that the court did not have a simple choice between upholding and refusing the appeal against the Notice. There was no statutory direction as to the court’s powers on appeal. He therefore determined that the Section 14 Notice should be amended to require the gates to be left unlocked during the day (from 8 am to 8 pm) and he awarded the pursuers 50% of their expenses (costs) on the basis that they had been partially successful.

Aviemore Highland Resort v Cairngorms National Park Authority Inverness Principal Sheriff Court, Court Ref B94/08 26th June 2009 Scottish Courts Service reference for appeal decision: http://www.scotcourts.gov.uk/search-judgments/judgment?id=d30687a6-8980- 69d2-b500-ff0000d74aa7

20 This was an appeal to the Sheriff Principal in Inverness by Aviemore Highland Resort (AHR) against the decision of Sheriff Alasdair Macfadyen in the Inverness Sheriff Court, (Inverness Sheriff Court, January 2009, Scottish Courts Service reference: http://www.scotcourts.gov.uk/search- judgments/judgment?id=c50687a6-8980-69d2-b500-ff0000d74aa7.

The facts: AHR had erected a boundary fence, a section of which crossed Laurel Bank Lane, Aviemore, cutting off an access route from the north end of the village into the Resort, which had been well used by pedestrians in the past. The Cairngorms National Park Authority (CNPA) issued a Notice requiring the removal of the fence, under section 14(2) of the Land Reform (Scotland) Act 2003 because its erection blocked a recognised and well used access route.

The debate in this case considered the wording of section 14 of the 2003 Act, and the wording of the notice, and whether or not the notice could be said to apply to circumstances which had existed before the 2003 Act came into force. AHR contended that the CNPA were not entitled to force them to remove the fence because it had been erected in 2004 – after the passing of the 2003 Act but before the Act had come into force in 2005. It further argued that there were no access rights in the resort to be interfered with and that even if access rights did exist, there was no interference because there were other entries to the resort. The fence had been erected for security and land management purposes. The CNPA argued that although the fence was erected before the 2003 Act came into force, their case was not that the Act was being applied retrospectively, but that the erecting of the fence was an act whose effects commenced before the Act came into effect and continued thereafter. It also denied that the fence had been erected on land free from access rights under section 6 of the Act, and argued that the land management purposes claimed were not specified and were irrelevant. There was also consideration of a hedge which had grown up in conjunction with the fence. It was not clear when the hedge had been planted.

Decision in the Sheriff Court In his determination of this case, Sheriff Macfadyen took the view that the case did not involve retrospective application of Part 1 of the 2003 Act, in that the continued use by the public of the route into the Resort via Laurel Bank Lane could be characterised as the exercise of an ‘access right’ in the terms of the Act: it did not matter that the fence had been erected earlier, it being conceded that its purpose was to impede access: that is, he agreed with the stance of the CNPA that this was an act commencing before the legislation came into force and continuing thereafter. AHR had also argued that, in any case, access rights could not exist over the land of the Resort, by virtue of section 6(1)(b) of the 2003 Act, it being curtilage to a group of buildings. But the Sheriff set this argument aside on the basis that the case had not been properly specified. The Sheriff accepted, however, that there was a case to be considered, at a further court hearing, on the question of the land management need claimed by AHR.

21 Decision in the Appeal to the Sheriff Principal On appeal, the Sheriff Principal (Sir Stephen Young) set aside the Sheriff’s decision. He said that access rights over the land in question could not exist prior to the date of commencement of the 2003 Act (9th of February 2005) and therefore access rights were not exercisable at the date when the fence was erected, thus there could be no contravention of section 14. He also rejected the argument that the erection of the fence was an act commencing before the 2003 Act came into effect and continuing thereafter. He said it might have been different if the wording of the Act had indicated that ‘maintaining’ a fence to deter access was a contravention of section 14, but this was not the case. In relation to the hedge, the Sheriff Principal said that the onus was on the CNPA to show that it had been planted after the commencement of the 2003 Act, and they had failed to do so.

The Sheriff Principal therefore concluded that the CNPA were not entitled to serve a notice requiring the removal of the fence and hedge, as there had been no contravention of the 2003 Act.

The Sheriff Principal also pointed out that he had interpreted the Section 14 Notice on the basis that the breach of the Act was in erecting the fence and hedge (i.e. in relation to section 14(1)(b)), not on the basis that there had been a breach because AHR had permitted a hedge to grow (also under section 14(1)(b)), or had failed to take any other action (section 14(1)(e)). As the Notice did not include specific wording relating to these sub-clauses, the Sheriff Principal did not have to consider whether CNPA might have succeeded on these other grounds.

Note: this case was preceded by a planning case under which CNPA had issued an enforcement notice against the construction of the above fencing, as being contrary to local planning policy by creating a physical and visual barrier between the resort and the village of Aviemore. It required consent because of adjacency to a road used by the public. AHR appealed the notice on the basis (inter alia) that the fence was permitted development. The initial decision to dismiss the appeal was, in turn, quashed in the Court of Session, and in a redetermination (dated 15 October 2007), the Reporter (P G Hutchinson) dismissed the appeal against the notice, but consented to most of the fence, apart from the short section at the head of Laurel Bank Lane which should either be removed or reduced to 1m in height (and it was so reduced).

Creelman v Argyll & Bute Council Dunoon Sheriff Court, Court ref.: B12/08 24th September 2009. Scottish Courts Service reference: http://www.scotcourts.gov.uk/search- judgments/judgment?id=7dfa86a6-8980-69d2-b500-ff0000d74aa7

This was an appeal by Mr and Mrs Creelman against a Section 14 Notice served on them by Argyll & Bute Council under the Land Reform (Scotland) Act 2003. The Notice required them to remove a sign that said ‘Private Road.

22 No Access Without Permission’ at one end of a track through their ground, and also to remove barbed wire at the other end of the track.

Facts: Mr and Mrs Creelman were the owners of two properties at Stronardon: a five bedroom house in which they lived, and a lodge house 'Dunans Lodge' located at the junction of a track leading to Stronardon and a public road, and which was used for short term holiday lets. The attached land was about 6 acres, in a long, narrow shape, bounded on one side by the public road and on the other by a steep bank above a river. The track through the property passed within a few metres of both Dunans Lodge and Stronardon. The total area of the property was about 6 acres and part of the ground (about 2 acres) was unusable as it was steeply sloped, with vertical drops down to a river. The land had originally been laid out as a garden for the adjacent Dunans Castle. The current owner of Dunans Castle, Mr Spain, had complained about lack of access. He wanted people visiting the Castle to be able to access the land. The track past the Lodge House had been overgrown for many years until the Creelmans cleared it. The Local Access Forum had been consulted and supported the Council’s view that part of the land was within access rights, although the Sheriff noted that there had been no site visit.

Evidence: there was little dispute in the evidence given by the parties. For the Creelmans it was argued that the they had put much effort into the improvement of the woodland garden; that before their improvements to the property the main access track was not passable; the closeness of the track to the properties was such that people on it could see into the houses; that the unusually long and narrow shape of the property made it unreasonable to have access; and that the size of the area was not unreasonable for a house of this size. The Council proposed that an area to the east of the track should be within access rights. They said that the main house was not always visible; that Stronardon could not be reasonably compared with the outcome of the case for a very large house such as Kinfauns Castle; and proximity to the public road compromised claims of this being an undisturbed location.

Decision: Sheriff Derek Livingston decided in favour of Mr and Mrs Creelman, and found that the whole area of their land, including the whole garden area, was excluded from access rights in order to ensure that enjoyment of the houses was not unreasonably disturbed. He placed emphasis on the track and its close proximity to the two houses involved, such that people walking on the track would interfere with the reasonable privacy of people occupying both houses. Here he followed the Gloag and Snowie cases (above) in that the test for how much land was needed to ensure privacy was an objective one, and based on considering the needs of a hypothetical typical owner, not the particular owner. He said that the property was in a relatively secluded part of the country, where people would expect more privacy than if living in an urban location. The Sheriff noted that the impetus for the case did not seem to have come from disaffected walkers but from a neighbour who wanted to use the Creelmans’ land for business purposes.

24 Part 2 Public Rights of Way and Private Servitude Rights of Way

Introduction Cases involving rights of way continue to come to the courts even after the passing of the Land Reform (Scotland) Act 2003. This Part contains cases which examine the principles in relation to both public rights of way and private servitude rights of way.

Many of the cases refer to the conditions necessary for establishing a public right of way. In brief, these are as follows:

1. the route must run from one public place to another public place; 2. the route must follow a more or less defined line; 3. the route must have been used openly and peaceably by members of the public otherwise than with the permission, express or implied, of the landowner; and 4. it must have been so used without substantial and effective interruption for a period of 20 years or more.

The law is examined in detail in the ScotWays publication: Access Rights and Rights of Way: A Guide to the Law in Scotland.

2.1 Relationship of public rights of way with private servitude rights of way and with ‘roads’ under the Roads (Scotland) Act 1984

2.1.1. Public rights of way and private servitude rights of way

Introduction Except in unusual cases where there is an express grant by the landowner, public rights of way are established by prescription when they meet the conditions set out above. Private servitude rights of way are very often set out in title deeds, but can also be gained by prescription. However, different conditions apply: for example, there is no requirement that they should go from one public place to another.

Thomson v Murdoch Case Report: (1862) 24 D 975

Key points: Private servitude right of way - public servitude right of way - definitions - distinction.

25 The facts: This was an appeal at the instance of Thomson against a previous Sheriff Court decision. Murdoch and others were the Trustees for the Roman Catholic congregation of Dumbarton, as proprietors in trust of certain lands within the burgh on which a chapel and other buildings had been erected. Thomson had erected certain buildings on a road lying adjacent to the church property. The Church Trustees contended that the land on which the road was situated was subject to a servitude right in their favour which they had enjoyed ‘from time immemorial’, and they petitioned the Court to require that Thomson should remove “all buildings, walls, fences and other erections'' therefrom. The decision in the Sheriff Court had been that the road in question was a public road and that the Trustees were entitled to possession.

Decision: On appeal to the Court of Session, it was held, on the interpretation of the legal written case as put forward by Thomson, that the case related purely to a private servitude right and that the Sheriff's judgement had been unsound. In his judgement, Lord Deas said "The question dealt upon in argument - whether the right of public road is of the nature of a personal servitude or a right of property in the Crown for the behoof of the public - has in my opinion nothing to do with the question now before us, because, even assuming the right to be of the nature of a personal servitude, there can be no doubt that, when we speak of a servitude road and of a public road in judicial proceedings we usually mean two distinct things and the distinction is in practice perfectly well understood. In applications for Interdict, for Actions of Declarator and so on, we do not call a public road a servitude road, and a party who speaks of the one runs no risk of being supposed to mean the other. The right of servitude of road is different from a public road in many respects. In one case, the title is in every member of the public, whereas, in the other case, the title is only in the owner of the dominant tenement (i e only the person entitled to exercise the servitude right). Secondly, Lord Deas said that the effect of the action is different, in that a judgement in the case of a servitude road affected only the parties to the actual legal proceedings and each of their successors as the owners of the property benefited by and the property burdened with the access, whereas a judgement in an action at the instance of any member of the public for the vindication of a public road affected the whole public. He stated that the very nature of the two rights was essentially different - a right of servitude road excluded the public, whilst a right of public road admitted the public.

Comments: This case deals with technical points of legal procedure, relating to the terms in which Thomson’s case was stated, but nonetheless contains relevant statements by the Appeal Court judge on the difference between private and public rights of way. The final decision on the point at issue between the parties is not disclosed.

Case referred to: Galbreath v Armour (1845) 4 Bell’s Appeals 374 (Not in this publication).

McGavin v McIntyre Case Report: (1874) I R 1016

Key points: Private right of way - private and public rights concurrent - right of way over former public road - whether lost by closure of public road.

The facts: A conveyance of a mill was granted in 1722 "with free ish (exit) and entry and sufficient ways and passages of twelve foot breadth besouth the lead of the said miln". By 1872, the only road to the south of the mill lade convenient to the mill was one under the management of the local Roads Authority for the county. There was no evidence to show at what period it had become a county road. The Roads Authority, under their statutory powers, conveyed the solum of the land (the ground forming the road) to the proprietor of the adjoining ground through which it passed, receiving another road in exchange.

The proprietor of the solum of the road petitioned for an Interdict against the owner of the mill, to prevent the owner of the mill from using the former road.

Decision: It was held that a right of access in the line of the road was included in the grant of 1722, as a necessary adjunct of the mill, and that the Roads Authority had no power to interfere with it.

Comments: The case highlights the situation whereby a road may be a public highway and the subject of a private right of way at the same time, and the loss of such road’s status as a public road need not necessarily extinguish private servitude rights of way. Similarly, when a road is stopped up under a statutory procedure, the statutory authority may provide, in the stopping up order, for retention of some public rights, e.g. for a continuing pedestrian public right of passage. In suitable cases, ScotWays has made representations which have ensured such continuing public right of passage.

Cases referred to: (1) Galbreath v Armour (1845) 4 Bell’s Appeals 374 (Not in this publication). (2) Smith v Knowles (1825) 3 S 652 (Not in this publication).

Alvis v Harrison Case Report: 1991 SLT 64; 1991 62 P. & C.R. 10

Key points: Private servitude right of access under an express grant – different principles apply to those which would apply in the case of a servitude acquired by prescription.

Facts: Alvis was the owner of a driveway to his property (a castle). Harrison had a private right of access over part of the driveway to his own land. There had been an express grant of this right. Harrison built a new junction on the verge of the driveway in order to link with a new access road that he had built on his own property to link with a public road. There had already been a

27 separate link to the public road from Harrison’s land. Alvis claimed that this new junction was an unjustified increased burden on his land.

Decision: Alvis succeeded in the Court of Session, but their decision was reversed in the House of Lords on the basis that Harrison was entitled to build the new junction within the terms of the express grant. The court said that the position was different from if the right of access had been acquired by prescription, and also that, as there was already a link with the public road, no additional traffic would be generated.

2.1.2 Public rights of way and ‘roads’ under the Roads (Scotland) Act 1984

Public rights of way are ‘roads’ for the purposes of the Roads (Scotland) Act 1984. The Hamilton case below provides a useful analysis of the definition of a road and a ‘public right of passage’ for the purposes of the Act.

Hamilton v Dumfries & Galloway Council Case Report: [2009] CSIH 13; 2009 S.L.T 337 Scottish Courts Service website link: http://www.scotcourts.gov.uk/search-judgments/judgment?id=6a8e86a6-8980- 69d2-b500-ff0000d74aa7

This is an important case examining the issue of what is the nature of a ‘road’ and of a ‘public right of passage’ for the purposes of the Roads (Scotland) Act 1984. The court looked in detail at the statute and case law in relation to roads. Note that public rights of way are ‘roads’ for the purposes of the Act.

Key points – definitions of a ‘road’ and ‘public right of passage’ for the purposes of the Roads Scotland Act 1984.

Facts: The case concerned a small length of road in the village of Collin. When a new bypass was built in the 1980s the road became a dead end and the Secretary of State made a stopping up order in 1983 to close this and other roads replaced by new roads. The order was to take effect once the new roads had opened, which occurred in 1989. At the time, the section of stopped up road in question terminated at a field, but new houses were built on this field in 1999 (Townhead Park) and the stopped up section of road was used as the access to this development. There was no other means of vehicular access to the development, without demolishing one of the new houses. Hamilton purchased land, which included the road, at a later date, and claimed that the residents of Townhead Park could not use the access road unless they paid for grants to use it. At the request of the residents, the Council added the road to their list of public roads, on the basis that it was already a private road within the meaning of the Roads (Scotland) Act 1984. Hamilton applied for judicial review of this decision.

The definitions of ‘road’ under the 1984 Act are set out below:

28 ‘ “road” means …. any way (other than a waterway) over which there is a public right of passage by whatever means…. “public road” means a road which a roads authority have a duty to maintain; “private road” means any road other than a public road.’

Legal argument for the respondents (Dumfries & Galloway Council): The respondents claimed that the stopped up road had never fallen into disuse, despite the stopping up order, and that there continued to be a ‘public right of passage’ over it, which they said was a new statutory concept introduced by the 1984 Act, analogous to a public right of way, but without the requirements for the road to be between two public places or for there to be use for the prescriptive period. They said that this public right would only cease if physical work was carried out to prevent public use of the route.

Decision: This was an appeal to the Inner House of the Court of Session. The case contains detailed examination of what is a ‘road’ for the purposes of the Roads (Scotland) Act 1984 and when a public right of passage exists. The court said that the change in the definition of a road in the 1984 Act made no difference to the manner in which a public right of passage could be constituted and that the law remained the same as it had done prior to the passage of the 1984 Act. A road is defined in the 1984 Act as being a way over which there is a public right of passage. Where there is no public right of passage, a route is not a ‘road’ of any kind at all, for the purposes of the Act. The words "over which there is a public right of passage" refer to any way which any member of the public is entitled, as a matter of right, to use for the purpose of passage. Both ‘public’ and ‘private’ roads (as defined in the Act) have a public right of passage; the distinction between the two is that the road authority only has a duty to maintain public roads, not private roads.

Roads can be created by statutory powers (the usual case for public roads), or by express grant (the usual case with housing developments), or where they meet the legal conditions for public rights of way. The 1984 Act does not create any new right.

The court gave a number of reasons why they were unable to accept the respondents’ contention that a public right of passage was a new concept created by the 1984 Act, and that such a right would continue after a road was stopped up until it was physically blocked.

 It would place a new burden on property, and a statute would not be readily construed to have this effect.  It would make the conditions set out in the Prescription and Limitations Act 1973 unnecessary if a right of way could exist by public usage alone, without meeting the other conditions in the Act.  Physically blocking the route should not be required as part of the stopping up process because the landowner to whom the road reverts might require it to remain unobstructed for access to his land, and also the public might have a right of access in accordance with the provisions of Part I of the Land Reform (Scotland) Act 2003. [Editor’s comment – only in relation to non-motorised access.]

29 Furthermore, any suggestion that the public right of passage could only be extinguished by physically closing the road could not be correct, since it would be unlawful to carry out such works on a road over which there remained such a right. There is no such problem if the statutory order itself extinguishes the right. In the case of the 1983 Order, the public right of passage must therefore have been extinguished as from the time when the stopping up works were authorised, i.e. the time "when the new roads [were] open for the purposes of through traffic."

The Court concluded that the disputed section of road formed part of a ‘road’, as defined in the 1984 Act, prior to the coming into effect of the stopping up Order in 1989. Once the Order came into effect, the public right of passage over the disputed section of road was extinguished, and it accordingly ceased to be a ‘road’ as defined. Such use as was subsequently made of the disputed section did not constitute a fresh public right of passage, since the requirements for the constitution of such a right by usage (in particular, end- to-end user, as of right, for the prescriptive period) were not met. The disputed section of road therefore could not be adopted as a public road by the respondents under the 1984 Act.

Davidson v Earl of Fife Case Report: (1863) I M 874

Key points: Closure of old roads - substitution of new roads - public / private status of new roads - road used as public road for more than prescriptive period.

The facts: Two roads near Duff House, Banff, had been in public use from time immemorial. The Earl agreed with Banff magistrates in 1756 to create new roads for the public if he was allowed to close the existing roads. This was done, but, in or about 1860, the then Earl closed the new roads.

Comments: The case is a technical one on points relating to written pleading under a procedure now obsolete, and the final outcome of the case is not stated in the report. However, the following principle, stated at p 884 by the Lord President (Lord Inglis), remains relevant: ''I am inclined to hold that where it is admitted that roads have once been made, and have been used for years as public roads, on whatever consideration, that supersedes any further enquiry''.

See also: Marquis of Bute v McKirdy (Part 2.2).

2.2 Creation of public rights of way – need for public place end points

Introduction A public right of way can only exist if it runs between two public places. What is a ‘public place’ for this purpose is one of the most difficult issues in rights of way cases. Lord Moncrieff’s statement in Marquis of Bute v McKirdy & McMillan (below) is frequently quoted: "a public place is one to which the public have right of access, which the public have right to occupy and which in fact the public do occupy by a practice of resort".

Smith v Saxton Case Report: 1927 SN 98, 142

Key points: Access to churchyard and ruined church - whether churchyard a public place - whether a private servitude of access can co-exist with a public right of way - right to effect repairs and works.

The facts: Saxton was the owner of a former manse of a country parish in Peebles-shire. The parish had been conjoined with other parishes in 1810, and the church adjoining the manse ceased to be used. It had been allowed to get into a state of disrepair and was now a ruin. However, the churchyard adjoining the remains of the church was still in use for burials, and the road to it continued to be used by pedestrian and wheeled traffic in connection with this purpose. Smith raised an action alleging that Saxton had, without authority, carried out certain repairs to a road of which Smith was proprietor, and erected fencing on the side of it. Saxton claimed that he was justified in so repairing the road as he had a servitude right over it and as it was also a public right of way.

Decision: The Court held that Saxton had set forth facts sufficient, if proved, to establish that the churchyard was a public place which might properly form the terminus of a right of way and that there was no impossibility in the co- existence of a public right of way and a servitude right of access over the same road. Furthermore, it was held that no material distinction could be drawn between motor traffic and other forms of wheeled traffic (this being in 1927) either in the case of a public right of way or a servitude right of way. It was observed that the whole members of the community within the parish have a right in the parish church and graveyard. This right also extends to the public generally, whether resident in the parish or not.

Comments: This case is not fully reported but does contain some useful statements of legal principle concerning public and private rights of way; however, it is only authoritative in respect of the position of a parish church or churchyard as the terminus of a right of way.

Jenkins v Murray Case Report: (1856) 4 M 1046

Key points: Partial use of right of way - use of area as opposed to use of linear route - no evidence of end-to-end use - termini to be established as public places.

The facts: This was an Action for Declarator of a right of way through the estate of Polmaise, near Stirling. The public used part of this route for access to a considerable area called a common, where they used to stroll, especially on Sundays. Much of the evidence related to casual use and there was no substantial evidence of continued use by the public as a public right of way from one public place to another public place. Lord Curriehill stated: "A right of way - and particularly a right of footway - through a man's ground does not consist of a right of promenading within that ground, going in at a certain point and promenading indiscriminately over the ground and coming away again. The public must go through the ground from an entry at one place to an ish (exit) at another, and the two points where the ish (exit) and the entry are must be public places. It will not do for people to enter the ground of a proprietor and walk about in it as much as they choose and come out again where they started."

Comments: This is a case which repays study in questions arising from use of a route on a partial or limited basis. It stresses the importance of sufficient end-to-end use by the public as being essential for the constitution of a right of way in the present state of the law.

Magistrates of Dunblane v Arnold-McCulloch Case Report: 1951 SLT (Notes) 19

Key points: Private road as terminus of right of way - definition of public place - absence of challenge by owners - owners not parties to the Action.

The facts: An Action was raised for Declarator of a public right of way where one terminus was a private road to which the public had unrestricted access and none of the proprietors of which had objected to or taken steps to prevent such public access. These proprietors were not parties to the Action. It was held that, for the purpose of this Action, a private road could be deemed a ‘public place’ if the public had unrestricted access to it, and that - on the authority of Nairn v Speedie (see Part 2.10 below) - it was not necessary to call all the proprietors of ground affected by the right of way.

Comments: This is a brief case with little in the way of facts or argument reported. It would not be wise to deduce that any private road could constitute the terminus of a public right of way. It must be assumed that the private road in question connected directly to a public road. Case referred to: Nairn v Speedie (1899) 1 F 635

Marquis of Bute v McKirdy & McMillan Case Report: 1937 SC 93

Key points: Access to foreshore for recreational purposes - road no longer publicly maintained - terminus at foreshore become a public place - inference regarding nature of earlier use.

The facts: The case related to public access to the foreshore at Scalpsie Bay, near Rothesay, on the Isle of Bute. The proprietor of the foreshore, the Marquis of Bute, sought Action of Declarator to the effect that no right of way existed over a track about a quarter of a mile in length leading from a public road to the foreshore. It had been established that the track was part of a road, extending to the foreshore, which became a public road in 1819, but which ceased to be maintained at public expense in 1836. It was proved that from 1865 to 1934, when the proprietor first attempted to close the track, it had been used by the public as an access to the foreshore for the purpose of bathing and recreation. The evidence justified the inference that this use had extended as far back as 1836.

Decision: (On appeal) (1) The track having been at one time a public road, the foreshore at its terminus had therefore acquired the character of a public place, which it had never lost and, further, even if it were not established that the track had been part of a public road, the resort by the public to the foreshore for recreation had made the foreshore a public place prior to 1894 when the 40-year prescriptive period (to 1934) began. (2) The extent of the public use of the track throughout the prescriptive period was consistent, not with tolerance, but with the assertion of a right by the public. In his opinion, Lord Moncrieff stated "a public place is one to which the public have right of access, which the public have right to occupy and which in fact the public do occupy by a practice of resort". He also expressed the opinion that a public road could not lose its character as such by a failure on the part of the Roads Authority to maintain it and without resort by them to the statutory procedure for closing it in terms of the statutory powers that applied at the time – the Turnpike Roads (Scotland) Act 1831 or the Roads and Bridges (Scotland) Act 1878. He further stated that he did not consider that the public could lose their rights of passage as a result of the failure or refusal of the Roads Authority to include in the list of highways, as directed under the Roads and Bridges (Scotland) Act 1878, what may have been proved or admitted to be a public road.

Comments: This is the leading case relating to access to the foreshore and it has therefore also been placed in Part 3 below. It is a lengthy but illuminating case containing a wealth of citation of authorities and including a study of public rights to and recreation on the foreshore. It also has relevance to the question of routes formerly but no longer maintained by a local authority.

Cases referred to: There was a copious citation of cases, including the following:

33 (1) Winans v Lord Tweedmouth (1888) 15 R 540 (Not in this publication). (2) Campbell v Walker (1863) I M 825 (Not in this publication). (3) Lang v Morton (1893) 20 R 345 (Not in this publication). (4) Town Council of Perth v Kinnoul 1909 SC 114 (Not in this publication). (5) Bell v Magistrates of Prestwick 1930 SC 241 (Not in this publication). (6) Duncan v Lees (1871) 9 M 855 (7) Scott v Drummond (1866) 4 M 819 (8) Hope v Bennewith (1904) 6 F 1004 (Not in this publication). (9) Young v North British Railway (1887) 14 R (HL) 12 AC 544 (Not in this publication). (10) Darrie v Drummond (1865) 9 M 496 (11) Macpherson v Scottish Rights of Way Soc’y (1888) 15 R (HL) 68

Cuthbertson v Young Case Report: (1851) 14 D 304

Key points: Definition of public place - intermediate public places not necessary at estate boundaries - more than one proprietor - definition of terminus of right of way.

The facts: A public right of way was claimed by Cuthbertson and others in respect of a footpath between Burntisland and Aberdour. Robert Young was the proprietor of land lying westward of Burntisland, through which the alleged right of way passed. It was held by a jury that for more than forty years a public path had existed from Burntisland westwards, through and to the western boundary of Young’s lands, then on to Starleyburn Port and Harbour, thence westwards to Aberdour. Young disputed the existence of a public right over the route, on the basis that it did not lead to a public place at the boundary of his lands.

Decision: It was not necessary in this case to prove that there was a public place at each end of a footpath through ground belonging to Young. It was stated by the Lord Justice Clerk that it would be preposterous, if it were proved, that the public had enjoyed a right of way over Young’s grounds for more than forty years, that Young could defeat this by showing that there was no continuation of the right of way through the ground of an adjoining proprietor.

Comments: The facts in this case are somewhat special, inasmuch as the public had exercised a public right of way over Young’s land to (1) a small harbour, (2) the foreshore, (3) a public road, and (4) a public path to Aberdour, a section of which passed over Young’s land. There are various judicial pronouncements on particular aspects of the termination of a right of way (e.g. the starting point of a circular walk, and the end of a cul-de-sac), but it would be unwise to use this case as authority for the proposition that a public place is not a prerequisite for the termination of a right of way. It was necessary to show that the route through Young’s property was part of a (longer) right of way, leading to public places at its ultimate termini.

34 Cases referred to: (1) Rodgers v Harvie (1830) 8 S&D 611 (2) Crawford v Menzies (1849) 11 D 1127 (Not in this publication).

Darrie v Drummond Case Report: (1865) 3 M 496

Key points: Creation of right of way - route terminating at sea shore - whether sea shore generally is a ‘public place’ - necessary characteristics of terminus of a right of way.

The facts: A road, which had been used by the public for the prescriptive period, led from a village which was accepted to be a public place, through private ground to a part of the sea shore which was claimed by Darrie, being one of several local fishermen who used the road, to be a harbour but which was arguably only a creek with an adjoining beach. The fishermen kept their boats at this ‘harbour’ and Darrie sought a Declarator that the road was a public right of way.

Decision: The question was whether or not a part of the seashore where a route terminated was a ‘public place’ for the purpose of establishing a right of way. Generally speaking, the seashore is a public place in the sense that anyone getting there lawfully is entitled to use it on arrival. It is, however, the type of use made of the shore that decides whether it is a public place of the kind required for the terminus of a right of way. If the only object of a track is to reach the shore, the part of the shore at which it arrives is not necessarily a ‘public place’ for right of way purposes. The Court required to be satisfied that the part of the sea shore in question was a ‘public place’ of the kind required; for illustration, the Court observed that the beach at Portobello was used for military reviews and by the public for walking, driving, riding, bathing and other purposes of health and recreation and that a beach used in that way was undoubtedly a ‘public place’ such as is required for establishing the terminus of a right of way; but a part of the shore which is not self-evidently a public place must be proved to be such and this is a question of fact, which depends on the evidence. Darrie had failed to satisfy the Court on this point and was refused the Declarator sought.

Comments: This case illustrates the difference between the general character of the seashore as a public place and the character which a particular part of the shore must have in order to qualify as a public place for right of way purposes. See contrasting outcome in Duncan v Lees, which illustrates this point more fully. Also see Scott v Drummond, and Home Drummond & Another (Petitioners) below. Cases referred to: (1) Cuthbertson v Young (1851) 13 D 1308, 14 D 300, 1 MacQ 455 (2) Campbell v Lang (1851) 13 D 1179, 1 MacQ 451 (Not in this publication).

Scott v Drummond Case Report: (1866) 4 M 819

Key points: Right of way terminus at sea shore - distinction between seashore generally and right of way terminus - necessary characteristics of terminus of a right of way - procedural necessity to state claim clearly.

The facts: This case follows on from Darrie v Drummond, above, which failed because Scott did not aver (i.e. claim as part of the Action) that the terminus was a ‘public place’.

Legal arguments: Drummond argued that the question of the shore as a public place required to be proved. The Court allowed the matter to go to a jury to be resolved.

Comments: As the report dealt only with procedural matters, we are not told the outcome, though the case reinforces the need to establish the particular character of a part of the seashore which is claimed as the terminus of a right of way.

Case referred to: Darrie v Drummond (1865) 3 M 496

Duncan v Lees Case Report: (1871) 9 M 855

Key points: Creation of right of way - sea shore as terminus of right of way - nature of evidence required to establish a point on the sea shore as a ‘public place’ - distinction between sea shore generally and right of way terminus.

The facts: The fact of importance in this case was that Duncan, in order to succeed in an Action for Declarator of Right of Way, required to prove that a certain place on the coast (Kinkell Harbour on the Fife coast) was a ‘public place’ for right of way purposes.

Decision: The report deals with the evidence produced to establish that Kinkell Harbour was a ‘public place’ in the sense required to establish the terminus of a right of way. The Court remarked that Kinkell Harbour while not a ‘very public place’ did not have to be that or even a ‘place of great resort’, but it had to be a place to which the public resorted ‘for some definite and intelligible purpose’. Much evidence was considered, some conflicting, and the Court expressed the opinions that: (1) if the public resort to a place on the sea shore for pleasure and recreation that may be sufficient to constitute the place ‘ a public place as a terminus to a footpath’, and (2) if there was a mooring place used sufficiently to create a difference between the creek in

36 question and the coast generally and to establish a permanent use by the public of a particular part of the shore, then that place was a ‘public place’ for right of way purposes. The Court being satisfied with the evidence, Duncan obtained the Declarator sought.

Comments: This case follows on from Darrie v Drummond, above, and illustrates the kind of tests which the Court will apply in deciding whether a point on the seashore qualifies as a terminus for a public right of way.

Lauder v MacColl Case Report: 1993 SCLR 753 (OH)

Key points: Creation of right of way - track leading from public road to foreshore - evidence required to establish use for the prescriptive period - effect of occasional closing of access by locked gate.

The facts: Lauder raised an Action for Declarator of Right of Way over a track leading from a public road to the foreshore, crossing land owned by MacColl. The law in the case was straightforward and not in dispute, and, in considering whether the part of the foreshore in question was a ‘public place’ for right of way purposes, the judge quoted at length from the judgement of Lord President Normand in Marquis of Bute v McKirdy (above).

Decision: The question was whether Lauder could prove use of the track by the public for the prescriptive period. The evidence available towards the start of that period in the 1930s was not plentiful: part of it consisted of an affidavit (i.e. a sworn statement) from a 93-year old witness, who died before the case was heard, but this affidavit evidence was of limited value, because it was inconsistent with the other evidence and also because the witness was not available to be cross-examined for explanations. Lauder’s most important witness then became a local lady, born in 1927, whose visits to the foreshore had started in the early 1930s on Sunday School picnics and had continued from time to time since then. The Court held that, despite the limited evidence, Lauder had proved use of the track for the prescriptive period and he was granted the Declarator sought.

Comments: This case is of interest for two reasons: (1) It indicates the weakness of relying on affidavit evidence from a deceased witness, and (2) The effect of locking a gate across a track for one day in each year was referred to, although not considered in depth; in England, the question turns on the whether it can be inferred - under the presumptions applicable in English Law - that the owner intends to dedicate the way to the use of the public. Thus, in England, locking a gate, even if only once a year indicates that the owner has no intention of such dedication. In Scotland, however, the constitution of a right of way does not depend on any legal fiction (i.e. presumption) but on the fact of use by the public as a matter of right, continuously and without interruption. From the observations of the Court in the above case, it would seem that the practice of locking a gate for one day

37 in the year would be ineffective in a Scottish context, provided that the established criteria for creation of a right of way were otherwise met.

Cases referred to: (1) Macpherson v Scottish Rights of Way & Recreation Society Ltd (1887) 14 R 875 and (1888) 15 R (HL) 68 (2) Mann v Brodie (1885) 12 R (HL) 52

Oswald v Lawrie Case Report: (1828) 5 Murr 6

Key points: Creation of right of way - road alleged to be public but blocked by a gate - whether bank of a navigable tidal river is a ‘public place’ - distinction between tidal and non-tidal rivers.

The facts: Oswald sought a Declarator that a public right of way for carriages and horses existed along the south bank of the River Clyde from the south end of the old Gorbals Bridge to the south end of the new Broomielaw Bridge; at the latter point Lawrie had placed a gate across the alleged right of way.

Decision: After hearing the evidence regarding use of the road for the prescriptive period, the Court granted Oswald the Declarator which he sought.

Comments: This was a straightforward type of case, but its importance lies in the Court’s observation which was, in effect, that the bank of a navigable and tidal river could be a point at which a highway may legally end. The Court, using the language of 1828, referred to ''the margin of a river'', rather than to ''the bank'', and it did not refer to the river as being navigable or tidal; however, in 1828 at the place in question, the Clyde was both navigable and tidal; the new Broomielaw Bridge and the alleged public road met on the river bank where there was considerable traffic. The case is therefore considered as authority that where there is sufficient evidence of public resort to a particular spot on the bank of a navigable tidal river, that spot may be a ‘public place’ at which a public right of way may end. Contrast this decision with the observations in Leith-Buchanan v Hogg, referring to a navigable but non-tidal river, i.e. the Leven in Dunbartonshire.

Leith-Buchanan v Hogg Case Report: 1931 SC 204

Key points: Public rights on banks of non-tidal navigable river - public rights on shore of loch - commercial rights on shore of loch - public rights on tidal foreshore.

The facts: This case related to a claim by Hogg that he was entitled to use a part of the shore of Loch Lomond, which belonged to Leith-Buchanan, for his

38 (Hogg’s) boat-hiring business; as such, it is not strictly a right of way case, but its relevance is commented on below.

Comments: The foreshore (i. e. part of the shore of the sea which is, of course, both navigable and tidal) is, generally speaking, a ‘public place’, but it is only a ‘public place’ as a right of way terminus if the public resort to it ''for some definite and intelligible purpose'' (see Duncan v Lees, Part 2.2., re Kinkell, on the Fife coast). The River Leven, which is navigable but non-tidal, flows from Loch Lomond to the sea. In this case, both parties assumed that Loch Lomond was an extension of the navigable but non-tidal River Leven. The Court, however, while accepting that assumption for the purposes of this case only, seriously doubted whether it was legally correct. According to early legal authorities, the position of ‘public rivers’ was to be distinguished from that of ‘private lochs’. The Court was not satisfied that the same considerations applied to both merely because a navigable river issued from a loch. A navigable non-tidal river, such as the River Leven, has no foreshore, nor has Loch Lomond; it followed from the above assumption that on the banks of the River Leven and of Loch Lomond the public has none of the rights it enjoys on the foreshore at the sea. In a navigable non-tidal river such as the Leven, the public’s rights are those incidental to navigation, and in this case, with reference to Loch Lomond, again on the above assumption, the public’s rights were similarly limited. The banks of a navigable non-tidal river are the property of the riparian owners; likewise, again on the same assumption, Loch Lomond’s shores and banks are private too. It follows from the above that, for rights of way purposes, the positions in law of the sea’s foreshore and the banks of a freshwater loch are very different. It may be difficult to establish that a place on the shore of an inland loch is a ‘public place’, whereas, to establish the same on the foreshore, where a ‘public place’ may be established by recreational use, could be much easier.

This case has also been placed in the Part on navigation rights and rights on the foreshore (Part 3, below).

Cases referred to: A number of cases were referred to, of which only the following appears in the present publication: (1) Duncan v Lees (1871) 9 M 855.

Midlothian Council v Crolla Court ref: A717/04 Court of Session, 26th November 2004 Scottish Courts Service website link: http://www.scotcourts.gov.uk/search-judgments/judgment?id=392787a6-8980- 69d2-b500-ff0000d74aa7

Facts: Midlothian Council leased an area of ground in Eskbank that was used as a park. There was a route from a public road to the park across land owned by the defender, and this was used by some people as a short cut to the park. In 2004, the defender erected a fence across the line of the route. The Council took action to assert that the route was a public right of way, in accordance with section 46 of the Countryside (Scotland) Act 1967.

Decision: The court found that the route did not meet the conditions to be a right of way. The park was not a public place and therefore did not provide a public place terminus for a right of way. The Court said that the mere fact that the public used the park did not mean that they had an unrestricted legal right to do so. It is not enough for a place to become public that it happens to be owned by a central or local government authority and that authority permits its use by the public for certain purposes.

Also, there had been a fence across the line of the route in the past and, although this had become broken down, it had been sufficient during the prescriptive period to discourage public use, and the existence of the fence indicated that public use had not been ‘open’ and ‘as of right’.

Melfort Pier Holidays Ltd v The Melfort Club and Others Case Report: [2006] CSIH 61 Scottish Courts Service website links: Outer House: http://www.scotcourts.gov.uk/search-judgments/judgment?id=3ca186a6-8980- 69d2-b500-ff0000d74aa7 Appeal to Inner House: http://www.scotcourts.gov.uk/search-judgments/judgment?id=a87486a6-8980- 69d2-b500-ff0000d74aa7

This was an application for an interim interdict. The pursuers were developing a holiday resort near Oban. This required large vehicles to use the access road and at one point they encroached onto part of the defenders’ driveway in order to manoeuvre along the public road. The defenders had placed bollards on their driveway to prevent this, and the pursuers sought an interdict to require removal of the bollards. The defenders claimed, amongst other things, that no public right of way was created because the encroachment did not lead from one public place to another, but involved circuitous manoeuvring.

The interim interdict was granted in the Outer House and upheld on appeal to the Inner House, where it was said that it appeared that the public right of way was the public road as a whole, together with a variant over the area of the driveway which the pursuers sought to establish by reason of prescriptive user. The court said that there were some doubts about the case, but because this was an application for an interim interdict it was sufficient that the pursuer had established a prima facie case.

Wood v North British Railway Case Report: (1899) 2F.1

Facts: A cabman had dropped his fare at Waverley station and was hailed by a man who wished to place his box in the cab. Two railway constables

40 refused to let him do so and when the cabman disputed this they took him into custody.

Decision: The lower court held that the police were entitled to take the cabman into custody because the station was a private place. He had become a trespasser and at common law they were entitled to remove him by force if necessary. The cabman appeal on the grounds that a man did not become a trespasser by refusing to leave private property, but the appeal court disagreed. Lord Traynor commented: “The notion often expressed that there is no trespass in the law of Scotland, and that if a man is, contrary to the desire of the proprietor, on private property he cannot be removed, is a loose and inaccurate one.”

Comment: Waverley station is much used by the public but is shut in the middle of the night, and is not a public place in the sense of a terminus for a right of way. As far as access rights under the Law Reform (Scotland) Act 2003 are concerned byelaws relating to the station will have precedence over such rights, and in practice will probably affect access.

2.3 Creation of public rights of way – use as of right by the public for the prescriptive period

Rhins District Committee of the County Council of Wigtownshire v Cunninghame Case Report: 19l7 2 SLT 169 (Court of Session).

Key points: Establishment of terminus as public place - partial use - end-to- end use - use as of right or by tolerance

The facts: The local authority asked the Court to declare that a public right of way for pedestrians existed along a track leading from the Glenluce to Stranraer public road to the River Luce and to the sea shore and then back to the said public road at another point. The evidence showed that in the past there had been much cart traffic on parts of the route, but the evidence of end-to-end use in recent times related exclusively to pedestrians out for recreation.

Decision: It was held, on the basis of the evidence of end-to-end use, that there was a public right of way for pedestrians only.

Comments: The importance of this case lies in the long-established general principles set out by Lord Sands: the law first ascertains whether a place is public or private before determining whether the public have a right of access to it. The issue is not whether a right of way has been acquired by use for the prescriptive period, but whether evidence of use, and the nature of that use, have proved (in terms of the established criteria relating to rights of way) the

41 existence of a right of way. Use by persons not going the whole length of a route cannot establish a right of way for the whole length, or indeed for any right of way if there is no intervening public place; however, if a right of way is once established, anyone may use it, even if he does not go the whole distance. Lord Sands used the Lairig Pass between Aviemore and Braemar as an illustration. As this is perhaps the most famous long-distance right of way in Scotland, his remarks are quoted in full: "If a question of right of way arose, it would be necessary to show traffic from the public road near Aviemore to the public road near Braemar. No amount of traffic from Aviemore to the Pools of Dee and back, or from Braemar to the Pools of Dee and back (these pools not being a public place) would establish a right of way from Aviemore to Braemar. But, if enough through traffic were proved to establish a right of way, provided this were exercised as of right, then the fact that large numbers of people travel parts of the way without challenge would be a relevant consideration. A proprietor might have tolerated the relatively few athletic persons who carried their packs and made the whole journey, but he might not have tolerated the invasion of the privacy of his sporting domains by the large number who used part of the path, unless it were a public one which he could not close."

Cases referred to: (1) Moncrieffe v Lord Provost of Perth (1842) 5 D 298 (Not in this publication). (2) Scott v Drummond (1866) 4 M 819 (3) Duncan v Lees (1870) 9 M 274 (4) Jenkins v Murray (1866) 4 M 1046 (5) Keiller v Magistrates of Dunbar (1886) 14 R 191 (Not in this publication). (6) McRobert v Reid 1914 SC 633

Wilson v Jamieson Case Report: (1827) 4 Murr 364

Key points: Public road - private road - distinction - right to effect repairs – use for the prescriptive period.

The facts: This case related to a road which connected various farms in Ayrshire. Wilson was the tenant of one of the farms and Jamieson was the Clerk to the Road Trustees in the District of Carrick in the County. Jamieson, as Clerk to the Road Trustees, presented a petition complaining of certain operations (not specified) carried out by Wilson on the said farm as being injurious to this road. Wilson maintained that the road was private and that he had a right to carry out these operations. The Court referred to the distinction between a road which was private, such as the approach to a house, and a servitude road common to one or more farms on another property which the landlords and tenants of these farms alone have the right to use. It was proved that there was no formed track in this instance and that there were gates on the road. Wilson had not brought evidence to show that use of the road was confined to the farms in question nor to show that it was not used by the public. On the other hand, the evidence was: (1) that the road was used

42 by the public without anyone being stopped; (2) that it was a church road; and (3) that it was repaired at public expense.

Decision: The road was a public road because it had been proved that it had been used by the public, without interruption or question, for the relevant period of time.

Comments: This is a thinly-reported case, based upon a matter to be decided by a jury; although that procedure is now obsolete, the legal principle is still relevant, i.e. it must be shown that there has been use for a substantial period of time.

Strathclyde (Hyndland) Housing Society Ltd v Cowie Case Report: 1983 SLT 61 (Sheriff Court)

Key points: Urban lane - extent of possession (i.e. use) required - types of use appropriate to establishing right - need for end-to-end use.

The facts: A housing society asked the Court to declare that a public right of way existed over a mews lane in an urban area (Westbourne Gardens Lane, in Hyndland, Glasgow). The lane had, for very many years, been in public use, mainly for access to properties entering onto it, by residents and for persons visiting or providing services for them including rubbish collection, also by children at play, and occasionally by learner drivers. Relatively few people travelled the lane from end to end on a continuous journey

Decision: (1) There was no material difference between the common law test of “use as of right, continuously and without interruption" and the statutory test of ''continuous possession openly, peaceably and without judicial interruption''. (2) As the lane was in a densely populated urban area, it was necessary to demonstrate a substantial amount of possession (i.e. use) of the right of way. (3) The possession (i.e. use) proved was not of the amount, type or continuity necessary, in particular because there was no sufficient proof of members of the public using the alleged right of way from end to end on a continuous journey for appropriate purposes.

Comments: The case contains a comprehensive review by the Sheriff Principal of the law of Public Rights of Way in Scotland. In this review, the Sheriff specifies 26 cases, most of which are contained in this publication. The case is useful for anyone attempting to evaluate the evidence in a disputed right of way case in an urban area.

Cases referred to: There were a large number of cases cited, including the following: (1) Greg v Magistrates of Kirkcaldy (1851) 13 D 975 (Not in this publication). (2) Cuthbertson v Young (1851) 14 D 300 (3) Hay v Earl of Morton (1861) 24 D 116 (4) Burt v Barclay (1861) 24 D 218

43 (5) Stewart v Greenock Harbour Trustees (1864) 2 M 1155 (Not in this publication). (6) Macfie v Scottish Rights of Way Society (1884) 11 R 1094 (7) Macpherson v Scottish Rights of Way Society (1888) 15 R (HL) 68

Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd Case Report: 1993 SC (HL) 44

Key points: Creation of right of way - right of way over elevated footpath in New Town - whether acquired by prescriptive use - whether public use due to proprietor’s tolerance and no right of way created.

The facts: A pedestrian walkway in Cumbernauld belonged to the District Council and had been used by the public with the Council’s encouragement for over 20 years and was considered a right of way; it suffered from vandalism and although it could be closed by doors, the Council never did this, notwithstanding the cost to them of repairing vandal damage. Dollar Land subsequently became owners of the walkway and locked the doors at night to prevent vandalism; the Council raised an Action for Declarator that a right of way existed over the walkway.

Legal arguments: Dollar Land argued that: (1) a right of way could be established if the use of a route by right was such as to negate permission by the owner, and (2) the person raising a right of way Action must prove that the public’s use was as of right as opposed to being by the tolerance of the owner of the ground. Dollar Land further argued that: (3) if the use of a right of way was not damaging to the owner’s interest, then the use must be ascribed to the owner’s tolerance; in this case the use of the walkway had been encouraged by the Council while they were the owners, so it could not be said to be have been against their interest and, accordingly, could not be regarded as use as of right; and (4) for use to be as of right, there must be conflict between the interest of the users and the interest of the owner. Dollar Land were able to produce legal authority in support of their arguments (1) and (2), but not for arguments (3) and (4).

Decision: At the first hearing, the Council were successful in obtaining the Declarator which they sought. Dollar Land then appealed to the House of Lords, which held that the proposition that there must be a conflict of interest between the proprietor and the user was "wholly unsustainable in law" and that "this hopeless appeal...... must be dismissed".

Comments: This case re-affirms the principle that, where use can reasonably be regarded as the assertion of a public right, the owner cannot stand by and do nothing and then argue that his inaction be ascribed to his tolerance; if that is his argument, he must do something positive to alert the public to his attitude.

Cases referred to: (1) Mackintosh v Moir (1871) 9 M 574

44 (2) Macpherson v Scottish Rights of Way & Recreation Society Ltd (1887) 14 R 875 and (1888) 15 R (HL) 68 (3) Marquis of Bute v McKirdy & McMillan 1937 SC 93 (4) Richardson v Cromarty Petroleum Co Ltd 1982 SLT 237

Scottish Rights of Way & Recreation Society Ltd v Macpherson Case Report: (1887) 14 R 875 and (1888) 15 R (HL) 68

Key points: Creation of right of way - evidence of public use - nature and quantity of evidence required in remote mountain area - irregular and seasonal use only.

The facts: This was an Action for Declarator of Right of Way from Auchallater, (on the A93 Braemar / Blairgowrie road), via Glen Callater, Jock’s Road and Glen Doll to the terminus of the public road at Glen Clova. From the northern terminus at Auchallater to the flanks of Tolmount, the landowner, Farquharson of Invercauld, conceded a right of way; at Tolmount, however, the route entered Macpherson’s estate, passing to the west side of Craig Lunkard and descending by Jock’s Road (described as ''a steep and very rocky place'') to enter Glen Doll and reach Braedownie in Glen Clova.

Legal arguments: The dispute was whether the way claimed had been used as of right or by the tolerance of the landowner. The SRWRS evidence showed that the route: (1) had been a drovers’ road for taking sheep, unsold at the Braemar market, south to the market at Cullow at Kirriemuir; (2) had been used by farmers going south to Clova or north to Braemar, and also occasionally by tourists; (3) was reputed in the district to be a public right of way.

Decision: The decision turned wholly on the evidence, i.e. the law was not in dispute. The Court attached much importance to (1) above, and held that, taking the whole evidence together, a right of way had been established. Decree of Declarator was therefore granted, as sought.

Comments: The case is of interest in that the Court remarked that the evidence was ''by no means extensive'': the route was probably unused in winter, and at other periods it may have been unused for weeks at a time and the driving of sheep took place at most twice a year; but the extent of the use required depended on the nature of the country and the inhabitants’ requirements, and must be such as might be expected if the way were public and were admitted to be so by the proprietors. The use which was proved in the Action was ''just what might have been expected in such a district''.

Cases referred to: (1) Napier’s Trustees v Morrison (1851) 13 D 1404; 23 Sc Jur 656 (Not in this publication). (2) Mackintosh v Moir (1871) 9 M 574 (3) Torrie v Duke of Atholl (1852) 1 MacQ 61

Norrie v Magistrates of Kirriemuir Case Report: 1945 SC 302

Key points: Action for Declarator that ground was free of any public right of way - use by persons having privilege of access as opposed to use by the public - sufficiency of evidence - use as of right.

The facts: This Action was raised by Norrie for a Declarator that his ground was free of any public right of way; it related to a single pathway in Kirriemuir, created at first as an access to a number of allotments; privileges of access to these allotments had been originally granted to certain persons; later, however, the pathway became a link between two public places along which a substantial stream of through traffic developed. Considerable traffic had used the path for the prescriptive period, and the question was whether the traffic should be ascribed to public or private use.

Legal arguments: Norrie argued that: (1) use of the path was due to his tolerance; (2) there was a difference between: (a) use by members of the public as such, and (b) use by persons having a privileged right of use - e.g. allotment holders. He maintained that the evidence had proved that only nine named persons had been shown to use the route without a right of privilege to do so; these nine persons might possibly have exercised a public right, but passage by the many un-named users had not been proved to be in exercise of such a right; (3) use by persons who had a privileged right of access could not set up a right of way, and (4) because the path crossed the land of other proprietors who were not parties to the Action, the case could not proceed if these parties were not present. The Magistrates argued that Norrie’s suggestion that the use had been due to his tolerance was negatived by the volume of traffic on the path, many of the public using it never having been granted any right to use it; they maintained that the evidence was inconsistent with tolerance and consistent only with the assertion of a public right.

Decision: The Court rejected all four arguments above. (1) The Court referred to the summary of the law in the 1937 case of Marquis of Bute v McKirdy & McMillan viz: whether the use had been such as might have been expected if the road had been an undisputed right of way; if so, the inactivity of the proprietor in failing to assert his right to exclude the public was not to be ascribed to his tolerance, but rather to the fact that he acquiesced in, or could not have disputed, the public right. (2) In rejecting this point, the Court said that various classes of members of the public had been identified as users, e.g. factory workers, schoolboys, men going to work, women shopping and so on. If Norrie maintained that these classes had used the route other than as members of the public, he must prove this; the volume of the traffic was held to have been sufficient to set up a public right of way. (3) The Court held that evidence by such persons of use of the continuous passage of the footpath from end to end was valid evidence for this purpose; this followed the decision in the case of Scottish Rights of Way & Recreation Society Ltd v Macpherson (above) in 1887. (4) If the Magistrates could prove end-to-end use of the path,

46 that would establish a right of way; this followed the decision in the case of Nairn v Speedie in 1899 (see below, Part 2.10). The Declarator sought by Norrie was therefore refused.

Comments: This was a long and complicated case, in which much evidence was produced; it is illustrative of the several points shown above but, as a whole, it is a good example of what is required of a proprietor who seeks a Declarator that his land is free of any right of way.

Cases referred to: (1) Marquis of Bute v McKirdy & McMillan 1937 SC 93 (2) Mann v Brodie (1885) 12 R (HL) 52 (3) Crawford v Menzies (1849) 11 D 1127 (Not in this publication). (4) Blair v MacFie (1884) 11 R 515 (Not in this publication). (5) Fraser Tytler’s Trustees v Milton (1890) 17 R 670 (Not in this publication). (6) Nairn v Speedie (1899) 1 F 635 (7) McGregor v Crieff Co-operative Society 1915 SC (HL 93) (8) McInroy v Duke of Athole (1891) 18 R (HL) 46 (9) Napier’s Trustees v Morrison (1851) 13 D 1404 (Not in this publication). (10) Edinburgh Corporation v North British Railway Co. 1904 6 F 620 (11) Scottish Rights of Way & Recreation Society Ltd v Macpherson (1887) 14 R 875 and (1888) 15 R (HL) 68

Cadell v Stevenson Case Report: 1900 8 SLT 8

Key points: Former right of way blocked by railway - rights over substitute route provided by railway company for owner - public use by right or due to acquiescence by landowner - onus on landowner to demonstrate tolerance.

The facts: The report on this case is brief and it is difficult to envisage the situation on the ground without seeing the plan used in Court. A footpath became blocked at an intermediate point by the construction of a railway. At the request of, and for the benefit of the landowner (Cadell), the railway company constructed a new path from the point of obstruction, but having a different terminus from the original, albeit in close proximity to the original. The new line of path had also been used by the public, though for less than the prescriptive period. Cadell maintained that the original line had not been a right of way and that the public had no right, therefore, over the new line. The case hinged, therefore, on the question as to whether the original line had been a right of way. Cadell insisted that the public had no such right and he sought Interdict against the use of the path by Stevenson as a member of the public and as representing the public.

Legal arguments: Cadell argued that the public’s use of the original line had been due to his tolerance and not ''as of right'', and that, because he did not challenge the public’s use of it, his tolerance must be assumed; accordingly, he argued, no right of way had been created over the original line; that being so, the public had no right to use the new line.

Decision: The important point was how Cadell had reacted to the public’s use of the original line: whether he ought to have known what was happening on his ground, and whether, if he took no action, he lost his plea of tolerance. The Court held (1) that the original line had been used by the public ‘as a matter of right’ and had, therefore, been a right of way, and (2) that, because the public could no longer use the old line because of the blockage, they adopted the new line; in these circumstances, there was no need to show that the substituted line had been used for the prescriptive period; even a short period of public use with Cadell’s acquiescence would create a right to continue using it. Cadell’s evidence was against him: he knew of the public’s use of the new line, he “grumbled a little”, but took no steps to stop the use or to indicate that he merely tolerated it; his behaviour, therefore, amounted to acquiescence. Cadell’s request for Interdict against Stevenson’s use of the new line was refused.

Comments: This case illustrates (a) that if a landowner wishes to plead that a route has existed only by his tolerance, then he must have taken steps to make the public aware of this fact, either by some positive action to stop public use or by making his mere tolerance known to them; and (b) that it is not necessary to establish full prescriptive use of a new part of a pre-existing public right of way; even “quite a short period” will suffice.

Cases referred to: (1) Jenkins v Murray (1866) 4 M 1406 (2) Mackintosh v Moir (1871) 9 M 574 (3) Mann v Brodie (1885) 12 R (HL) 52 (4) Hosier v Hawthorne (1884) 11 R 766

McGregor v Crieff Co-operative Society Ltd Case Report: 1915 SC (HL) 93

Key points: Servitude right of way through shared pend - proof of use not available for full prescriptive period - assumption of earlier use - observations on use ‘as of right’.

The facts: From a public street, a pend led between two adjoining buildings to ground at their rear; the owners of the building on one side of the pend, Crieff Co-operative Society Ltd (‘the Society’), wished to erect a new building on the back ground; the owners of the other building, McGregor & Others, (‘McGregors’), objected, because the new building would block a cart road, running from the street through the pend to the back of their property, over which they claimed a servitude right of way. McGregors sought an Interdict against the Society erecting the proposed building and thus obstructing the cart road. In order to establish a servitude right of way, McGregors required to prove 40 years’ use of the cart road, but in the event could only prove 38 years.

48 Decision: The Court held that evidence of use for 38 years did not justify the presumption of use for a longer period; such evidence might, however, warrant the inference of earlier use from instances of use prior to the 38-year period, so long as those instances were continuous with the later use of the 38 years which had been proved. Following on a detailed examination of the evidence, the Court stated that it was satisfied that continuous use for 40 years had been established, and granted interdict.

Comments: Note re the phrase ‘as of right’: One of the judges expressed the view that this phrase was inappropriate in rights of way cases where the question was often asked whether use was by tolerance of the proprietor (which would not establish a right of way), or ‘of right’ (which could establish one). He thought the correct question was whether it was by tolerance (which he equated to ‘with permission’) or whether it was ‘without permission’. This view was strongly disapproved of by the other judges as being misleading; in many cases landowners allowed people to use their paths, and while these people knew they were ‘tolerated’, few if any of them would have received either written or verbal permission.

This case illustrates that if a right of way is to be established by prescriptive use, proof of use for less than the full prescriptive period (then 40, now 20 years) is, as a rule, inadequate; however, if only a shorter period can be proved, then much will depend on the evidence of prior use which is available, and the Court may be prepared to infer that continuous use is, after all, established. Each case will depend on the evidence produced.

Cases referred to: (1) Harvie v Rodgers (1828) 3 W&S 251 (Not in this publication). (2) Young v Cuthbertson (1854) 1 MacQ 455 (Not in this publication). (3) Mann v Brodie (1885) 12 R (HL) 52 (4) Edinburgh Corporation v North British Railway Company (1904) 6 F 620 (5) Rome v Hope Johnstone etc (1884) 11 R 653 (6) Folkestone Corporation v Brockman 1914 AC 338 (Not in this publication). (7) McInroy v Duke of Athole (1891) 18 R (HL) 46

Rome v Hope Johnstone Case Report: (1884) 11 R 653

Key points: Acquisition of servitude right of way - route initially used by tolerance of proprietor - later established by prescriptive use - limits to validity of initial understanding between original owners.

The facts: An access road led from a public road to a house belonging to Rome; it continued past his house and crossed the boundary of his ground to reach a farm called Newfield, a short distance into the neighbouring estate. The owners of Newfield used the access road for getting to their farm from the public road, there being no other access to Newfield. Rome maintained that the use of the access road by the Newfield proprietors depended on

49 permission given by his predecessors and might be recalled at any time. Some evidence indicated that this permission might have been given in the early 1800s, some 80 years previously. In the intervening period, both properties had changed hands. Rome sought Interdict against the Newfield proprietors using the access road.

Decision: The Court observed that the access arrangement might have been temporary at first, but, having passed through several generations, it might be too late to revert to the details of its commencement, though no firm opinion was expressed on this point. The Court refused the Interdict sought, and found that the Newfield proprietors had a right to use the access road for the following reasons: (1) the evidence showed that the access road, throughout its entire length from the public road to Newfield, had been constructed as one thoroughfare (i.e. at one time and as one piece of work); and (2) there was no other access to Newfield; the construction of the access road must therefore be regarded as having been a joint operation for the benefit of and at the expense of two neighbouring properties; its use by Newfield was to be ascribed to a contract between the respective proprietors to create a mutual servitude over their properties, and not to any temporary grant of consent.

Comments: The principal interest of this case as regards rights of way matters is the view that an access agreement, which was originally temporary, may, by the passage of time, continuous use and - more significantly - change of circumstances, become a permanent arrangement (c.f consideration in Allan v McLachlan of the validity of access arrangements once lands change hands). The use of the term ‘access agreement’ in this context is to be contrasted with the more specific modern use of the term.

Authority cited: Lord Stair, in ‘Institutions of the Law of Scotland’ (ii 7,10), on the subject of free access to and egress from property. This volume was published in 1681, when Lord Stair was Lord President of the Court of Session; it is regarded as marking the creation of Scots Law as known since that time.

Burt v Barclay Case Report: (1861) 24 D 218

Key points: Use of route by right or by tolerance of proprietor - right of proprietor to enclose land - route having no public places at termini - destruction of fences regarded as trespass.

The facts: In 1856 Barclay owned a field which he enclosed with fences. Burt, the owner of the adjoining land, claimed that these fences crossed a public road or path leading from part of his ground to a mill, owned by Barclay. Burt made openings in the fences, which were in turn closed up again by Barclay. Barclay sought Interdict against Burt in order to stop Burt trespassing on his (Barclay’s) property.

50 Decision: The evidence did not establish ''any public road, or any servitude road, or indeed any road at all'', on the basis that the alleged road had no public termini (it is to be assumed, therefore, that Barclay’s mill was not a ‘public place’ in the sense of being a mill to which local farmers were thirled). Burt’s allegations were consistent with the tolerance of Barclay, the proprietor of the ground. Latterly, Burt had been using the alleged road and persuading others to do likewise, but persons doing so had been stopped by Barclay. The evidence of use was consistent with the owner’s tolerance; if a landowner chose to allow straggling over unenclosed land, that did not constitute the creation of a right of way nor did it prevent his enclosing his land. The Interdict sought by Barclay was granted.

Comments: This case illustrates: (1) that a public right of way, under common law, has to run from one public place to another public place; and (2) that use of a ‘servitude road’ to establish a ‘servitude of way’ (i.e. a private right of way) must be such as to exclude any suggestion that its use was due to tolerance by the landowner; (3) that it is relevant to apply the term ‘trespass’ in instances in which damage is done while on the land of another; compare the situation in Geils v Thomson in which Thomson was held to be trespassing on Geils’ land even though Geils had first committed a wrong.

McInroy v Duke of Athole Case Report: (1891) 18 R (HL) 46

Key points: Servitude right of way - occasional use only - landowner’s knowledge (or ignorance) of use - use to be open and peaceable.

The facts: A track which had been formed by deer and sheep went through a pass between two mountains and could be used as a short cut between one part of McInroy’s estate and another. It ran, however, through a projecting tongue of land belonging to the Duke of Athole, proprietor of the adjoining Athole Estate. Its use by McInroy was for occasional sporting purposes when he wished to cross the mountain barrier. The evidence indicated that this use was unlikely to come to the knowledge of the Duke or of his servants; on the two (and only two) occasions when the use did come to the Duke’s knowledge, it was challenged by him. On neither occasion did McInroy assert his right to use the track. The Duke sought Interdict against future use of the track by McInroy.

Legal arguments: McInroy argued that he had acquired, by prescriptive use, servitude of way for those persons who occupied his estate.

Decision: The Court held that the proved use of the track was insufficient to show that it was used in the assertion of a right. The Duke obtained the Interdict, as sought.

Comments: The Court said that, when a servitude of way is claimed, the claimant must show that his use was known, or ought to have been known, to the landowner or his staff. A high standard of vigilance on the part of the

51 landowner is assumed, but the use must be such as to indicate clearly, openly and peaceably that a right of passage is being asserted. In this case, the track used was in a remote area, where its use was not obvious, and, when the Duke learnt of the use, he did his best to stop it. As to tolerance, there was no argument that the use was known to and, therefore, tolerated by the Duke; since he neither knew of the use nor tolerated it, such use could not, therefore, create a servitude right of way. Indeed, the use was hardly known to the Duke at all, and he took clear steps to stop it when he learnt of it. It has been stated in 1993 in the case of Cumbernauld & Kilsyth District Council v Dollar Land (1993 SC (HL) 44) (above) that the amount and quantity of use might prevent a landowner maintaining that it was due to his tolerance, unless he takes measures to indicate the contrary. However, it is important to note that every case of tolerance must be considered individually in relation to its own circumstances.

Richardson v Cromarty Petroleum Co Ltd Case Report: 1982 SLT 237

Key points: Prescriptive period - interpretation of 20-year rule - constitution of right of way - quality of use required.

The facts: Richardson raised an Action for Declarator that a public right of way existed over a path on land owned by Cromarty Petroleum Co Ltd (‘Cromarty’). In order to succeed, Richardson needed to prove that the path had existed for twenty years.

Legal arguments: Cromarty argued that section 3 (3) of the Prescription and Limitation (Scotland) Act, 1973, which reduces the prescriptive period of use required to establish a right of way from 40 to 20 years, did not do so, and that the period remained at 40 years. Cromarty argued, therefore, that Richardson must prove use for that period in order to succeed.

Decision: The Court conceded that section 3 (3) of the Act, was not ''happily worded'', but nevertheless its intention and effect must be to reduce the prescriptive period to 20 years. Cromarty’s argument was, therefore, refuted. As regards the points which Richardson required to prove, the Court held that: (1) the path had existed for 20 years, from 1956 to 1976; (2) it did link two public places, one of these being the foreshore at a place to which the public regularly resorted for recreation and which accordingly fell within the category of a ‘public place’ (see Darrie v Drummond and Duncan v Lees, above); (3) the question of the amount and type of public use caused difficulty, because there were various ways of getting to the foreshore, and Richardson required to show that the path in question was used sufficiently to constitute a public right of way; the use to be by pedestrians, and to be for the purpose of recreation, not for other purposes, the rule being that the type of use to be taken into account when assessing the quantity of that use must be limited to the purpose of that use; this use of the path, for going to the foreshore for the purpose of recreation, was allowable, but use for other purposes must be disregarded (see Jenkins v Murray, Part 2.2. above); (4) evidence of sufficient

52 use of the type required had not been proved; a right had not, therefore, been established, and the case failed.

Comments: (a) For practical purposes, Cromarty’s argument regarding the length of the prescriptive period, though of technical legal interest, may be ignored; the length of the prescriptive period required to establish a right of way is 20 years; (b) much more importantly, the case indicates that mere ‘use’ by the public of a path may not be sufficient in all cases; the quality and the purpose of the use may be the critical point – in this instance, Richardson failed to satisfy the Court that the public’s use of the path for recreational purposes was sufficient to establish a right; (c) it also illustrates the point that, when it comes to assessing type and quality of use, each case has to be decided on the basis of its own particular circumstances.

Cases referred to: (1) Mann v Brodie (1885) 12 R 52 (2) Darrie v Drummond (1865) 3 M 496 (3) Duncan v Lees (1871) 9 M 855 (4) Scottish Rights of Way & Recreation Society Ltd v Macpherson (1887) 14 R 875 and (1888) 15 R (HL) 68 (5) Jenkins v Murray (1886) 4 M 1046

Magistrates of Elgin v Robertson Case Report: (1862) 24 D 301

Key points: Establishment of right of way - duration of period of use requiring to be proved - proof of use for less than the prescriptive period - presumption re nature of prior use.

The facts: Elgin Town Council (‘The Council’) raised an Action for Declarator to establish a right of way over certain plots of land. The Council required to prove, amongst other things, that there had been public use of the proposed way for the prescriptive period which, at that time, was 40 years. The Council proved that the way had been used in the necessary manner to establish it as public from 1798 to 1835 (i.e. for 37 years). They argued that this uninterrupted use could be presumed to be ‘carried back’ for at least another three years prior to 1798 in order to show 40 years’ use. Robertson, however, produced evidence that for several years prior to 1798 there had been no public passage over the ground.

Decision: The Court decided that no right of way had been established and observed: (1) That where uninterrupted use has been proved for less than the full prescriptive period, there may be ‘cases of delicacy’ where the use proved might warrant an inference that similar use had existed in the preceding years. In this case, there could be no such inference, because Robertson produced positive evidence that, prior to 1798, there had been no public access over the ground in question; and (2) that, in proving use, the prescriptive period to which the use relates need not finish on any particular date, e.g. the date of raising the Action; if the required use can be proved for

53 the necessary period, terminating at any time, that is sufficient, providing that between the end of the period of proved use and the raising of the Action the right of way has not been extinguished.

Comments: This case illustrates (a) that, in certain circumstances where proof of a full 40 (or now 20) years’ use is unavailable, the Court may be prepared to presume that similar use existed in preceding years, though every case will depend on its own circumstances; and (b) that the start and finish dates of the prescriptive period are not important, providing that the necessary use between given dates can be proved, and also that between the finish date and the raising of the Action the right of way has not been extinguished. Given that the prescriptive period is now only 20 years, as opposed to the 40 required at the time of this case, the foregoing comments are based upon the assumption that a present-day Court would apply the principles of this case in regard to the interpretation of the current Act, i.e. the Prescription & Limitation (Scotland) Act of 1973, which introduced the 20-year period. There is, however, no legal precedent on this point.

Cases referred to: (1) Harvie v Rodgers (1827) 4 Murr 29 (Not in this publication). (2) Cuthbertson v Young (1851) 14 D 304 and (1853) 1 MacQ 455 and 1854 17 R (HL) 2

Kinloch's Trustees v Young Case Report: 1911 SC (HL) 1

Key points: Prescription - substitution of new right of way during prescriptive period - whether road connecting two public roads was a private road - effect of earlier periods of use.

The facts: For a period of less than 40 years, prior to 1875, the public had used, without interruption and as a matter of right, a private road running through the Estate of Altries, connecting two public roads (the private road being called Standingstones Road). In 1875, an alternative track was substituted for part of the route; the public had used that alternative section of the track without interruption and as a matter of right until the raising of the Action in 1909 (i.e. for 34 years).

Legal arguments: (1) Young contended that, in counting the years of prescription, he was entitled to add the period of use prior to 1875, thereby giving a total period of use of more than 40 years. (2) The Trustees argued that, notwithstanding the period of use, no right of way had ever existed or been acquired. Any use which had been made had been made as a matter of express leave and licence and not as a matter of right, and that persons using the road had been for the most part tenants of the Trustees and not members of the public.

54 Decision: It is sufficient evidence of use of a right of way if one can accumulate, as one can, use of the earlier route along with that of the substituted route.

Comments: This is a useful case where there had been a substantial diversion of a right of way. The House of Lords decided that successive periods of use could be added together to constitute the prescriptive period. It was also stated that it was not enough to ''pick to pieces first one and then another piece of evidence''; conversely, it was stressed that evidence, as established, is to be considered collectively and cumulatively. The Lord Chancellor also stated: ''It is lamentable to see so much expense wasted upon so small a subject''.

Cases referred to: (1) Hozier v Hawthorne (1884) 11 R 766 (2) Mann v Brodie (1885) 12 R (HL) 62 (3) Scottish Rights of Way and Recreation Society Ltd v Macpherson (1888) 15 R (HL) 68

Ayr Burgh Council v British Transport Commission Case Report: 1955 SLT 219

Key points: Prescriptive use - public use of non-adopted road - effect of exclusion of public on three days of the week - whether cul-de-sac a proper terminus of a right of way.

The facts: This Action was brought by the Burgh of Ayr to prevent the British Transport Commission from levying charges for the parking of motor vehicles. Ayr Cattle Market is a public place. For more than 40 years, the public had access from Station Road to the market over a strip of land owned by the British Transport Commission (and not, therefore, adopted as a public road). The Council claimed that this strip was subject to a right of way for the public from a public road at one end to the market at the other end. The Writ issued by the Council did not seek a Declarator of the existence of a right of way, but sought simply to prevent the levying of parking charges.

Decision: From the Council’s written statement of their case, the Court inferred that the public did not have access to the area in dispute on three days in the week when the market was closed. No case was cited in which the public had such restricted access and, on principle, it was held that such a place could not be a ‘public place’ in the sense of a proper terminus of a right of way. It would be an unreasonable burden on a landowner to have to permit access along a route leading only to a locked gate (i.e. of the market, in this case), from which no egress is possible.

Comments: (1) This case deals with a number of issues other than public rights of way and was decided on the basis of the parties' written pleadings, without evidence being led. (2) There is an obiter dictum (i.e. a judicial statement of legal principle) to the effect that there is no known servitude right

55 in Scotland for the loading and unloading of cattle or - as is relevant in this case - for the parking of vehicles. [But see now Moncrieff v Jamieson, Part 2.8, below] (3) The case of a cul-de-sac which has been adopted as a public road or footpath, is of course different.

Cases referred to: (1) Jenkins v Murray (1869) 5 SLR 131 (2) Wallace v Police Commissioners of Dundee (1875) 2 R 565 (Not in this publication). (3) Edinburgh Corporation v North British Railway Co. (1904) 6 F 620

Aberdeen City Council v Wanchoo Case Report: [2008] CSIH 6 A390/05 Scottish Courts Service website link: http://www.scotcourts.gov.uk/search- judgments/judgment?id=165d86a6-8980-69d2-b500-ff0000d74aa7 (Outer House) http://www.scotcourts.gov.uk/search-judgments/judgment?id=8bb98aa6-8980- 69d2-b500-ff0000d74aa7 and Neumann v Hutchison Court ref: 1st May 2008; A211/04 Scottish Courts Service website link: http://www.scotcourts.gov.uk/search-judgments/judgment?id=05d786a6-8980- 69d2-b500-ff0000d74aa7

Key points: Private servitude rights of access – use ‘as of right’ to establish right by prescription – objective test.

These two cases involved claims of private servitude rights of access, but they both discussed important issues for the law relating to public rights of way. In particular there was discussion in both cases about what amounts to use ‘as of right’ in order to gain a prescriptive right. Both cases indicated that an objective test applied. The important thing is the nature, quality and frequency of the use. Occasional use might be explained as the landowner being helpful, but continued use for the prescriptive period may create a right of servitude by the user. This can only be displaced by evidence of permission or tolerance by the landowner.

The Neumann case explained that ‘tolerance’ in this context must amount to evidence of permission being granted by the landowner, not just his acquiescence, and in this respect Scottish law is different from English law. Where there is persistent use, it requires a successful challenge by the landowner to prevent the acquisition of a servitude right. Persistence of use in face of an unsuccessful challenge is good evidence of use as of right.

56 Duffield Morgan v Lord Advocate Case Report: 2004 SLT 413; 2004 G.W.D. 10-239 Decision of the Court of Session, Outer House, 13th February 2004 Scottish Courts Service link: http://www.scotcourts.gov.uk/search- judgments/judgment?id=a7ce86a6-8980-69d2-b500-ff0000d74aa7

The facts: The Pursuers were the owner of a historic property, Rowallan Castle, which had been placed under public guardianship in 1950 by their predecessors in title. The Lord Advocate represented Historic Scotland in the case as defender. The pursuers were seeking planning permission to convert the Castle into a hotel. The dispute between the parties was in relation to access over the road leading to the Castle.

Legal arguments: The principal question in the case was: what was the nature of the right of access which was detailed in the 1950 Agreement? The pursuers regarded it as being a public right of access that was capable of being lost by negative prescription under the Prescription and Limitations Act 1973. The defender argued that it was an incident of guardianship, terminable only by termination of the guardianship agreement and not separable from it.

Since the guardianship agreement was made, Historic Scotland and its predecessors had taken access to the castle from time to time, but members of the public had never taken access to the castle. Historic Scotland had not opened the castle to members of the public, nor arranged for, encouraged, caused, permitted or facilitated public access ‘as of right’ to members of the public.

The defenders argued that access had been purely within the terms of the guardianship agreement and Historic Scotland therefore had control over who could take access over the road. The agreement could not be seen to have created a public right of way by deed, because the guardians had control over when, if at all, access could be taken by the public. The agreement had not created a ‘right relating to property’ in favour of the public, and was therefore not covered by the terms of the 1973 Act.

Decision: The Court agreed with the defenders and found that access was within the terms of the guardianship agreement, and not affected by the 1973 Act.

Wills Trustees v Cairngorm Canoeing and Sailing School Ltd Case Report: 1976 SC (HL) 30

This is a House of Lords decision, and the leading case on the subject of the public rights of navigation in a non-tidal river, and is therefore reported under Navigation Rights – Part 3.1. The main point of interest for those interested in rights of way on land lies in the statements by Lord Fraser (a Scottish judge sitting in the House of Lords) on the differences between Scots and English Law on the subject of implied grant - a right of way in Scots Law being constituted by use and not by implied grant.

See also: Lauder v MacColl (Part 2.2). Midlothian Council v Crolla (Part 2.2).

2.4 Creation of rights of way – interruption of prescriptive period

Mann v Brodie Case Reports: (1884) 11 R (SC) 925 and (1885) 12 R (HL) 52

Key points: Exclusion of public from right of way - interruption of prescriptive period - effect of earlier period of use - failure of public to assert right.

The facts: In a previous Action brought by Brodie in 1883 for Declarator of Public Right of Way over a road leading from one public road to another, over land belonging to Mann, it was proved that, during the 37 years from 1846 to 1883, the public had been excluded from use of the road, but that, during the 26 years from 1820 to 1846, the public had used the road as of right. The evidence as to the remainder of the forty years prior to 1846 was insufficient in itself to prove that the public had used the road as of right.

Decision: It was held that the legal presumption arising from exclusion of the public from the road without challenge for 37 years (i.e. the presumption that the road was not a public right of way) overcame the presumption that the use prior to 1820 had been of the same character as that between 1820 and 1846 (when the road had been used by the public as of right), and that, therefore, in the absence of any distinct evidence as to that earlier use, Brodie had failed to prove a prescriptive right to the road. Lord Blackburn observed as follows: "Though exclusion for less than forty years will not extinguish a public right which is proved to have been created, the fact of no right having been asserted during an exclusion of so long a period as 37 years affords some reason for requiring more evidence to establish that such a right really existed. There must have been many alive in the period between 1846 and, say, 1856 and now dead, who must have known much more as to what really was the state of user of the road between 1805 and 1820 than those now alive, and if they did not assert a right, it affords some ground for surmising that they did not think that the right existed, and, therefore, some ground for looking more critically at the evidence produced to prove that it did."

Comments: This case contains a useful exposition of the law relating to the acquisition of and loss of rights of way, and includes a review of the authorities at that time. In particular, Lord Blackburn (an English judge sitting in the House of Lords) indicated that the concept of an implied grant of a right

58 of way was not one of Scots Law, which rested rather upon use by the public for the prescriptive time.

Cases referred to: (1) Harvie v Rodgers (1827) 3 W & S 251 (2) Cuthbertson v Young (1851) 1 MacQ 455

See also: Lauder v MacColl (Part 2.2).

2.5 Need for a particular line for public rights of way

Mackintosh v Moir Case Report: (1872) 10 M 517

Key points: Indeterminate line of route - procedure for fixing line of route - use of surveyor / engineer - right of Court to decide between several possible lines.

The facts: The Pursuers raised an Action for Declarator that a public road or right of way existed between two public places in Dunoon, as indicated on a plan shown to the Court. The Action was successful, and the Court appointed an Engineer to ''report in what line the road ought to be laid down''. The Engineer’s report suggested three possible lines, each with advantages and disadvantages, and the Court confirmed that it was its duty as a Court both of Law and Equity to decide which line should be adopted as being the most suitable and convenient.

Comments: This case records the principle that the Court in a right of way case can, where the circumstances require, remit to a suitably qualified person the fixing of the actual line of a right of way (see also Rodgers v Harvie, in which the Court required a surveyor to ‘lay off’ the footpath in question); moreover, where there are several possibilities, as in this case, the Court will take upon itself the decision as to which one is most suitable. The report also includes an important statement (at p 519) by Lord Deas, ''In many instances in Scotland, where there are moors to be passed over, the public have a right of way, and yet they may have used twenty different lines for going from the one terminus to the other, taking the one they liked best or found most suitable in the state of the ground and of the weather''. In this case, however, the right of way was for a road to be constructed in a built-up area, and it was necessary that its line should be precisely fixed.

59 Home Drummond & Another (Petitioners) Case Report: (1868) 6 M 896

Key points: Petition to Court for marking line of a right of way on map or plan - whether competent or not - use of surveyor / engineer - effect of undue delay in bringing Petition.

The facts: This case, although dealing with a right of way question, deals only with a procedural matter. It was started almost three years after the decision in Darrie v Drummond regarding fishermen’s access from a village to a creek at the sea shore, where they kept their boats. Subsequent owners of the land affected by the right of way in that Action (i e the successors to the original owners of the ground) petitioned the Court to appoint a Surveyor to have the precise line of the route marked on a plan; the Petition was refused, on the grounds that the matter should have been raised when the original Action was still before the Court and before its final disposal.

Comments: This case indicates that a Court is prepared to consider a request that the line of a right of way be marked on a plan prepared by a Surveyor appointed by the Court, a practice also followed in Mackintosh v Moir.

Hozier v Hawthorne Case Report: (1884) 11 R 766

Key points: Deviations in line of right of way - substitutions in line of public right of way - by-passing of natural barriers to passage - accumulation of use of original and substituted routes.

The facts: A pedestrian path had existed from the ferry at the junction of the Rivers Kelvin and Clyde westwards to Whiteinch and Scotstoun. This had been used for recreation for more than 40 years, without interruption or molestation. There had been diversions of the path to avoid certain industrial premises. These had diverted the path away from the riverbank in places. Between 1852 and 1854 the Clyde River Trustees (as represented by Hawthorne) formed an embankment along the river and so formed a new footpath (on the embankment), which had been extensively used by the public. It was established by inference that there had been a pre-existing footpath, used as a matter of right and not of mere tolerance. Fences erected by Hozier, the proprietor of Partick Estate, had been broken down by the public in order to by-pass areas subject to flooding. In addition, part of the route was diverted round a sawmill, so blocking the riverside path, but the public accepted the diversion and continued to walk along the remainder of the path. This diversion had operated for less than 40 years. Hozier disputed the existence of a right of way over the new route.

Decision: Where a public right of way has been constituted and a substitute or deviated route is provided, the ordinary rule that 40 years' possession (or use) is necessary to create a new right has no application in relation to the substitute route.

Comments: (1) This case is useful authority in the case of rights of way which have been subject to diversion. (2) There is a dictum (a legal statement of principle) to the effect that where evidence of use sufficient to constitute a right of way is available for part of the prescriptive period, "it is not very material that the only prior uses of the road may be indefinite or ambiguous" (Lord Kinnear, at p 769).

Cases referred to: (1) Jenkins v Murray (1866) 4 M 1046 (2) Mackintosh v Moir (1871) 10 M 517 (3) White v Lord Morton's Trustee (1866) 4 M (HL) 53 (Not in this publication). (4) Rodgers v Harvie (1829) 7 S 287 (5) Macdonald v Farquharson (1832) 10 S 236 (Not in this publication).

See also: Rodgers v Harvie (Part 2.9) Mackintosh v Moir (Part 2.5)

2.6 Different kinds of use of rights of way

Carstairs v Spence Case Report: 1924 SC 385, 394

Key points: Private servitude right of access - servitude rights not subject to limitation - access by cart for agricultural purposes - general right of access for additional purposes.

The facts: Spence owned land in St Andrews, and this property adjoined land belonging to Carstairs. In order to reach his land, Spence had enjoyed a servitude right of access over a road on Carstairs’ property and had used that road for cartage, for ‘agricultural and general’ purposes only. Spence now sought to use the road for the cartage of building materials for buildings he was erecting on his lands. Carstairs sought interdict to prevent this extended use.

Decision: Private servitude rights of way acquired by prescription do not, in general, suffer from any specific limitation as to the type of use to which they may be put (this is to be distinguished from private servitude rights of way given by express grant, which are strictly limited by the terms of the grant). Hence, as Spence had provided enough evidence to justify the Court in finding that he enjoyed a general right of access over Carstairs’ ground, he was, therefore, entitled to extend the type of use to include cartage of building materials.

Comments: This is a case reported in considerable detail, following copious citation of legal authorities. It confirmed the principle that the greater or more

61 burdensome servitude, such as cartage, also included less burdensome servitudes, such as pedestrian rights. It was indicated in the course of the judgements that certain servitude rights of access might be limited by reason of the destination or terminal point of the route and the activities conducted there, e g a route leading to a mill, a peat moss or a parish church.

Cases referred to: There was a comprehensive reference to legal decisions both in England and in Scotland. Readers interested in pursuing this decision further would require to study the case in detail.

Mackenzie v Bankes Case Report: (1868) 6 M 936 Key points: Right of way for foot passengers and horses - extension of use to cover carts and carriages - public not entitled to change character of right of way - partial use insufficient to establish right.

The facts: (1) A track, in a remote part of Letterewe, leading up the Gruinard River from Aultbea and traditionally used by the Lewis drovers when taking their cattle to the lowlands, had been in existence as "a public road for the passage of horses with and without burdens, and of cattle, sheep and the like"; (2) carts had only recently come into use in the area; (3) the route could not be traversed by carts from one end to the other; (4) the route could not be made into a cart road without engineering operations.

Decision: (a) A member of the public is neither bound nor entitled to make expensive or extensive alterations on another person’s property to convert a track into a cart or carriage road; (b) the mere existence of a public road (i.e. route or way) does not mean that it may be used for all purposes; (c) the fact that a route may be used in part for the passage of carts does not mean that the whole length of it may be used for carts.

Comments: This is a useful case in questions of the extension of the use of a route to cover additional categories of use, e g from pedestrian use to use by vehicles. It was said by the Lord President ''The public must take the route as they find it and not alter its character''. This is not to be confused with the public’s right to effect minor repairs.

Case referred to: Forbes (1829) 7 S 441 (Not in this publication).

Crawford v Lumsden Case Report: 1951 SLT 64

Key points: Servitude rights recorded in title deeds - express grant of access by horse and cart - whether a motor vehicle could be used - interpretation of terms of express grant.

62 The facts: Crawford had a servitude right of access in his title deeds for access "by a horse and cart", for certain specified purposes, over land belonging to Lumsden. Crawford now wished to have access using a motor vehicle. Lumsden argued that a right conferred by an express grant must be strictly construed (i.e. limited to the terms of the grant - in this case, to use by horse and cart and for the purposes specified).

Decision: Where a grant of this nature is made, it is intended to endure for a long stretch of time, during which modes of travel may possibly change. The use proposed was held not to be a different kind of use. To allow a servitude to be enjoyed using a new form of vehicle is not widening the grant in any real sense (c.f. Mackenzie v Bankes, above, where works were envisaged which would open up the route to a new type of use).

Comments: This case involves a private servitude but does have a relevance to some public right of way issues. Note that the Court relied upon the fact that no limit of time was placed on the original grant and that no averments (allegations) of increased burden (e.g. by extra wear and tear on the road surface) were made by Lumsden. However, this decision did not prejudge any questions of future damage which might arise due to the use of a motor vehicle. This case - relating only to a private servitude - would require to be treated with caution in any case involving a public right of way, such as Mackenzie v Bankes, above.

Cases referred to: (1) Moyes v McDermott (1900) 2 F 918 (Not in this publication). (2) Smith v Saxton 1928 SN 59

Malcolm v Lloyd Case Report: (1886) 13 R 512

Key points: Private servitude right of way - servitude for sleds, carts, horses, cattle and foot passengers - whether category of use may be extended - effect of evolving modes of transport.

The facts: Malcolm claimed a private servitude right over Lloyd's lands to the public road at Loch Fyne for (1) carts, (2) horses and cattle and (3) pedestrians. It had been held by a jury in 1885 that a road for foot passengers and horses had existed for 40 years, for carts since 1854, and for sleds for a previous period of 10 years before that. Sleds being regarded as an earlier form of cart, the Court accordingly held that there was therefore a servitude right for carts (10 years’ use by sleds + 32 years’ use by carts). Lloyd appealed against this finding and argued that to extend the servitude to include carts was an unwarranted extension of the burden on his lands.

Decision: Scots Law recognised three kinds of servitude roads: (a) foot, (b) horse and (c) cart or carriage. As the existing uses proved by Malcolm extended beyond the use by horses to include first sleds then later, carts, this case must fall in category (c). Hence the servitude had been established as

63 one for carts as well as for other uses, a cart and a sled both being in the nature of devices adapted for the carriage of goods.

Comments: This case deals with a private servitude right, but the Lord President stated that the distinction between public and private servitude rights did not enter into the case. It is some authority for the argument that a new type of vehicle, if in its nature it is similar to an existing type, may be included within a particular category of right of way.

Cases referred to: (1) Forbes v Forbes (1829) FC 75411 (Not in this publication). (2) Mackenzie v Bankes (1868) 6 M 936 (3) Hozier v Hawthorne 1884 11 R 766

Macfarlane v Morrison & Others (Robertson’s Trustees) Case Report: (1865) 4 M 257

Key points: New road substituted for old - restricted use over part of old road - vehicular rights previously lost - whether use of new road similarly affected.

The facts: Broad Loan in Causewayhead, near Stirling, had been a public road until 1806 and used for all purposes (i.e. by all classes of traffic). In that year a new road was formed. It was claimed by Morrison, on behalf of Robertson's Trustees, that a part of the old road, including Broad Loan, had previously been closed by the Turnpike Road Trustees and restricted to foot passage only.

Decision: A jury found that the solum of Broad Loan had indeed been restricted to foot passage only, since 1806. Consequently, the public right of passage over the new road was now restricted to foot passage only.

Comments: Loss of use of a public right of way for horse or cart traffic does not necessarily deprive it of its status as a right of way for pedestrians. The user status of an old route passes unchanged to a new or substitute route.

Cases referred to: (1) Forbes (1829) 7 S 441 (Not in this publication). (2) Thomson v Murdoch (1862) 24 D 975 (3) Forbes v Morrison (1851) 14 D 134 (Not in this publication).

Aberdeenshire Council v Lord Glentanar Case Report: 1999 SLT 1456

This case was heard in 1931, but not reported until the Scots Law Times report in 1999.

64 Aberdeenshire Council had applied to the court for a declarator that there was a public right of way for vehicles (horse drawn or mechanically propelled) and generally for all forms of road traffic including ‘by horse or cycle’. The case is significant for Lord Mackay’s comments in relation to the use of bicycles on rights of way. The case was subsequently appealed to the Inner House of the Court of Session but settled by an agreement that was ratified by that Court on 10th December 1931. The Inner House therefore had no opportunity to consider Lord Mackay’s views.

Lord Mackay said: “The age old distinctions of the Civil Law and the not quite corresponding distinctions in our Scots Law viz: cart road, bridle road, footpath, loaning, were not developed out at the date when a velocipede or any such wheeled contrivance existed. Probably then they didn’t contemplate such a monster. But the expression ‘horse drawn vehicle’ or the expression ‘vehicle’ itself as used in right of way cases, is in my opinion apt to express a sharp distinction between machines for carrying passengers over the country by some sort of motive power which precludes them from using their own legs for the purpose, and on the other hand, any form of contrivance such as a skate or roller skate or ski or snow-shoe which merely facilitates the use of the individual’s own muscle to cover ground more quickly. Accordingly I take the view that the pedal cycle is only an aid to pedestrianism. I think it would be unfortunate in Scotland to take any other view, for otherwise tracks which had only been used by the comparatively innocuous two-wheeled pedal cycle might be appropriated by the public thereby to all purposes of traffic.”

2.7 Rights of way – land owned by statutory undertakers or the Crown.

Kinross County Council v Archibald Case Report: 1900 VII SLT 305

Key points: Public passage over ground owned by statutory body - power of statutory body to grant rights of way over ground used in their undertaking - use by tolerance - use as of right.

The facts: Kinross County Council raised an Action for Declarator of a public right of way over land of the Leven Trust (represented by Archibald), a statutory body formed to deal with the drainage of land at Loch Leven. A new cut (drainage channel) had been formed in 1830, in replacement of an older channel, and a pre-existing track had been severed as a result of the necessary works. There was a cart road alongside the line of the new channel, and this had been used by the public. It was argued for the Trust, on the authority of preceding cases, that the Trust could not competently grant a

65 servitude right of way over land required for their undertaking. The Lord Ordinary held that it was not established law that it was ultra vires (i.e. beyond the legal powers) of a statutory body to grant a right of way over land required for statutory purposes if such a grant was not inconsistent with the terms of the Statute and did not prevent the due fulfilment of its purposes. Evidence was then led, and the Court held, that the County Council had not proved that the track had been used as of right, but merely by tolerance of the Trustees; thus no public right of way had been proved.

Comments: Although the claim for declarator of a right of way failed, it could have succeeded if other conditions had been met, and this case is in line with Lord Keith’s comments in British Transport v Westmoreland County Council (see below in Part 2.7).

Cases referred to: (1) Magistrates of Oban v Callander & Oban Railway (1892) 19 R 912 (2) Ayr Harbour Trustees v Oswald (1883) 10 R 472 and 10 R (HL) 850 (3) Caledonian Railway v Turcan (1898) 25 R (HL) 1 (Not in this publication). (4) Mann v Brodie (1885) 12 R (HL) 52 (5) Napier’s Trustees v Morrison (1851) 13 D 1404 (Not in this publication).

Ayr Harbour Trustees v Oswald Case Report: (1883) 10 R (HL) 85

Key points: Compulsory purchase - statutory body - power of statutory body to restrict use of land acquired for statutory purposes - public rights where use thus restricted.

The Facts: Ayr Harbour Trustees were established by Act of Parliament with statutory powers to acquire land and carry out their functions. They compulsorily acquired some of Oswald’s land and sought to limit the amount of compensation by undertaking not to use the land so as to injuriously affect Oswald’s remaining land. Oswald objected.

Decision: Any contract which is made by a statutory body which would prevent it from exercising its statutory powers is void. The Trustees did not have power to agree not to use harbour roads and wharfs on land acquired specifically for harbour works.

Comments: This case was analysed by the House of Lords in British Transport v Westmoreland County Council (below in 2.7). The English Judges held that the grant of the right was incompatible with the carrying out of the Trustees’ function (thus reconciling it with English precedents). Lord Keith thought that the Trustees could not bind themselves in such a way as to prevent them from using the land for the statutory purposes which provided the sole justification for acquiring the land.

66 Oban Town Council v Callander & Oban Railway Case Report: (1892) 19 R 912

Key points: Acquisition of ground under statutory powers - effect of such acquisition on right of way - position of statutory body in granting rights - terms of statute.

The facts: A railway company acquired land situated in the town of Oban from the Town Council under compulsory powers contained in their private Act of Parliament (The Callander & Oban Railway Act 1878). The Company was, in terms of their Act, ''bound to satisfy every claim competent to the Council for the loss of all rights of servitudes of which they should be deprived by the construction of the Company's works." The Council had hitherto enjoyed a servitude right of way over a strip of ground which formed part of the lands acquired by the Company. The Company duly completed the necessary railway works including the erection of a station, but they did not need the whole of the land acquired for the purposes of the necessary access and they laid out part of the ground in front of the station as garden ground. Some years after the railway works had been completed the Council raised a Court Action contending that the terms of the Company's Act were subject to the servitude right which they (the Council) had previously enjoyed, on the grounds that no works had actually been constructed on the strip of ground in question, which had the effect of depriving them of their rights unnecessarily.

Decision: The Council were unsuccessful in their action, the Court having decided that when land is taken by a railway company under their statutory powers, it is taken absolutely and free of all servitudes unless it is otherwise provided in the Act (See Ayr Harbour Trustees v Oswald, above, relating to harbour works).

Comments: This case is only briefly reported but it gives some authority for the proposition that acquisition by statutory power extinguishes rights of way; however, the case is based upon the construction of the particular statute quoted (i.e. a private Act of Parliament) and its relevance may, therefore, be limited.

Case referred to: Walker’s Trustees v Caledonian Railway Company (1881) 8 R 405 (Not in this publication).

Ellice’s Trustees v Commissioners for the Caledonian Canal Case Report: (1904) 6 F 325

Key points: Public passage over ground owned by statutory body - acquisition of right of way by prescription - acquisition of right of way by express grant - powers of statutory body.

The facts: By Acts of Parliament in 1803 and 1804, powers were given for the construction and maintenance of the Caledonian Canal. The canal, which passes through the Estate of Invergarry, was opened in 1822 and, in its

67 passage through the Estate, it separated a certain strip of land from the rest of the estate and from the public road. In 1814, the Estate was paid a sum of money as compensation for the land taken, and the Commissioners undertook to provide four bridges ‘conveniently situated’. In the conveyance of the land, dated 1815, to the Commissioners, the Estate proprietor accepted that he was satisfied with the accommodation provided. In the event, only two of the bridges were built and a further sum was therefore paid to the estate in respect of the two not built. In exchange, the Estate discharged the Commissioners of all claims which they might have under the law. In 1893, the Commissioners constructed a weir in the bank of the canal to permit the escape of floodwater and to prevent injury to the bank. The weir intersected the towpath which had been used since the construction of the canal by the Estate and by their tenants as an access to several lands. Although the Act of 1804 gave powers to the owners of lands affected by the canal to erect additional bridges at their own expense, the Estate asked the Commissioners to erect a new bridge, at their (the Commissioners’) expense, at the point where the towpath was cut.

Decision: In an Action of Declarator by the Estate against the Commissioners, it was held that: (1) looking at the terms of the conveyance and subsequent discharge, the Commissioners were under no statutory obligation to execute any further works to provide more convenient communication between different parts of the estate; (2) no servitude right of way or access had been implicitly reserved by the Estate in the conveyance to the canal authorities; (3) any use that the Estate had made of the towpath could be described as a tolerance on the part of the canal authorities and could not form a foundation for prescription; (4) as it would have been ultra vires (i.e. beyond the legal powers) of the Commissioners to make an express grant of servitude right of way along the towpath, an effective grant could not be inferred from any such use as had been made; and (5) even if a limited right of use of the towpath had been acquired by prescription, such a right could not prevail against the statutory rights of the canal authorities. The construction of the weir in question was, therefore, within their rights and duties.

Comments: This case is dependent upon the terms of the particular Acts relating to the canal but contains important comments upon the position of statutory authorities in respect of the acquisition or grant of rights of way.

Cases referred to: (1) Grierson v School Board of Sandsting (1882) 9 R 437 (Not in this publication). (2) Rome v Hope-Johnston (1884) 11 R 653 (3) Mann v Brodie (1885) 12 R (HL) 52 (4) Thomson v Murdoch (1862) 24 D 975 (5) Ayr Harbour Trustees v Oswald (1883) 10 R (HL) 85

Edinburgh Corporation v North British Railway Co. (Also in reports under the name ‘Magistrates of Edinburgh v North British Railway Co.’)

68 Case Report: (1904) 6 F 620

Key points: whether right of way had been proved by 40 years of public use openly and as of right – whether right of way existed over land bought and required for statutory undertaking – situation of bridge carrying route over the railway.

The facts: Hope Lane in Edinburgh had existed since 1825 as a private road, though some public use was tolerated latterly. The main east coast railway line to Edinburgh intersected it and a bridge was built, over which the road passed. In 1872 the railway company acquired more land through which the road passed, with the aim of building a marshalling yard. To that end they then closed the road and removed the bridge. Edinburgh Corporation raised proceedings against them to require them to restore the bridge and open the road, and sought a declarator that the road was a public right of way.

Decision (Lord Kinnear): The evidence did not prove that use by the public, which was originally by tolerance of the owner, had become use as of right for the necessary 40 years. Further, as the land acquired by the railway company was required to carry out its statutory undertaking, it had no power to grant a dedication to the public and equally had no power to acquiesce in the public acquiring a right by use. There was no duty to maintain the bridge and if it fell down the busy line would have to be crossed at ground level and the operation of the railway impaired.

Comment: In the later case of British Transport v Westmoreland County Council (below) Lord Keith referred to this decision, and said that he would agree with Lord Kinnear if what Lord Kinnear had meant was that a public right of passage was incompatible with the use of the railway in this particular case, but he would not agree if what Lord Kinnear meant was that in no circumstances could the public acquire rights over railway property.

Cases referred to: (1) Brodie v Mann (1885) 12 R (HL) 52 (2) Wallace v Police Commissioners of Dundee (1875) 2 R 565 (Not in this publication). (3) Oswald v Ayr Harbour Trustees (1883) 10 R 472 (4) Rodgers v Harvie (1827) 5 S 851 (5) Napier v Morrison (1851) 13 D 1404 (Not in this publication).

British Transport v Westmoreland County Council [1957] 2AER 372

The facts: The railway line was carried over a private road by a bridge. The lower courts had held that members of the public had so used the road as to justify the inference of a dedication of a public right of way. British Transport

69 appealed. British Transport argued that no right of way existed and the test was whether the existence of the right of way might, in any possible circumstances, at any future time, hamper the undertaker in carrying out the statutory purpose to the best advantage. The Council argued that the test is whether at the time the matter is being considered there is any likelihood that the existence of a right of way would interfere with the adequate and sufficient discharge of the statutory duties.

Decision: The Judges agreed with the latter approach and held that the right of way was compatible with carrying out of the statutory purpose, and refused the appeal.

Comment: The judges analysed Ayr Harbour Trustees v Oswald (above) and several thought the grant of the right of way in that case was incompatible with the carrying out of the Trustees’ statutory purpose. Lord Keith thought it was ultra vires for the trustees to bind themselves in such a way as to prevent them from using the land for the statutory purposes which provided the sole justification for acquiring the land. He also held that the onus was on the statutory undertaker to show if there was incompatibility with their operations. Lord Keith expressly stated that there was no difference between Scots and English law on this particular issue. He also commented on Lord Kinnear’s statement in Edinburgh Corporation v North British Railway Company, (above) which was inconsistent with the authorities if it meant that in no circumstances could the public acquire rights over railway property.

Lord Advocate v Strathclyde Regional Council and Lord Advocate v Dumbarton District Council Case Report: 1988 SLT (SC) 546 and 1988 SLT (SC) 546

Key points: Closure of public highway by the Crown - notice requiring removal of obstruction - position of local authority vis-à-vis the Crown - procedures regarding dealings with the Crown.

The facts: These Actions related - amongst other things - to the powers of local planning authorities to require the removal of obstructions on public roads. The obstructions had been placed on part of the A814 road near Faslane by contractors acting on behalf of the Ministry of Defence. The local authorities acted in terms of section 87 of the Roads (Scotland) Act 1984, by serving Orders requiring removal of the obstructions (Orders on the Crown, in this instance). The Crown applied for judicial review of the Orders requiring the removal of obstructions. It was argued on behalf of the Crown that it is not bound by any statutory provision unless it (the Crown) is named expressly or by necessary implication.

Decision: It was decided that section 87 of the Roads (Scotland) Act does apply to the Crown: accordingly the notices requiring the removal of the obstructions were valid.

Comments: This is a lengthy and complex case involving points of Constitutional Law. It is noted here only in respect of its relevance to rights of way.

Cases referred to: The parties referred to a copious selection of cases not directly relevant to rights of way, hence not noted here.

71 2.8 Public and private rights of way – ancillary rights and burdens

McRobert v Reid Case Report: 1914 SC 633

Key points: Creation of right of way - rights of frontagers - access to property - right to use part of right of way only.

The facts: An established right of way ran through land belonging to McRobert; Reid owned property fronting a part of the route; he used the portion of the route leading from his frontage to one of the route’s termini (‘the access portion’) for getting to and from his property. McRobert raised an Action against Reid, asking the Court to interdict Reid from trespassing on his (McRobert’s) property.

Legal arguments: McRobert’s case was that while Reid was entitled to use the route from end to end, he was not entitled to use the access portion by itself for access to his property. Part of McRobert’s argument was that such use would add considerably to the burden imposed on him by the use of the whole route. Accordingly, McRobert sought Interdict against Reid trespassing on his ground.

Decision: The Court held that: (1) the right of the public to use a right of way was not confined to end-to-end use, but might be exercised over any part of it and that Reid, as owner of property abutting a right of way, was entitled to use a part of the route as an access to his property; and (2) the surface of a right of way ''...and every square inch of it, belongs to the public, not of course in property, but in order that it may be used for certain purposes''. The public’s primary right was that of passage; when one is on a right of way ''at every step one passes from one public place to another'', so that any point on a right of way is a public place.

Comments: The main importance of this case is the decision under (1) above, i.e. that the owner of ground abutting a right of way may use a part of the right of way as an access to his property. The report is silent about Reid’s type of use of the access; any extension of the type of use, e.g. from pedestrian access to access by heavy vehicles, might have been successfully challenged.

Cases referred to: Many cases and authorities were referred to, of which the following appear in the present volume: (1) Thomson v Murdoch (1862) 24 D 795 (2) McGavin v McIntyre & Co (1874) 1 R 1016 (3) Hay v Earl of Morton (1861) 24 D 116 (4) Sutherland v Thomson (1876) 3 R 841 (5) Mann v Brodie (1885) 12 R (HL) 52

72 (6) Torrie v Duke of Atholl (1849) 12 D 328 1852 15 D (HL) 17 (1852) 1 MacQ 65 (7) Macfie v Scottish Rights of Way & Recreation Society Ltd (1884) 11 R 1094 (8) Scottish Rights of Way & Recreation Society Ltd v Macpherson (1887) 14 R 875 and (1888) 15 R (HL) 68 (9) Mackenzie v Bankes (1868) 6 M 936

Lord Burton v Mackay Case Report: 1995 SLT 507

Key points: Right of way over de-commissioned public road - whether rights of access to intermediate points lost - use of access route for commercial purposes - effect of works on ‘character’ of right of way.

The facts: An old road ceased to be used as a through route in the early 1900s. Mackay owned ground on the north side of part of the road, and Lord Burton owned ground on the south side and also the road itself. Mackay had, for many years, used the road as an access to his property, and this fact was accepted by Lord Burton. Mackay obtained planning permission to erect houses on his ground, but this was conditional on access to the houses being available from the road in question.

Legal arguments: Lord Burton claimed that no vehicular access rights remained along the road; he sought Interdict against Mackay’s encroaching on his property and surfacing part of the road and using it for motor vehicles.

Decision: The evidence is not included in the case report, but the Court held it proved that: (1) the road was formerly a public road; (2) its use had included vehicular use; and (2) it had ceased to be a continuous route from one public place to another. Reference was made to the 1914 case of McRobert v Reid, which decided that, where a right of way was established as public, its use need not always be from end to end, but its intermediate frontagers had the right to use it for access. There was no legal authority as to the rights of such intermediate proprietors if end-to-end use of the route became impossible as was the case here. The Court declared that it would be extraordinary if intermediate proprietors’ rights were to be lost if a right of way ceased to be capable of end-to-end use, perhaps because of some catastrophe or natural change. Accordingly, Mackay was entitled to continue to use the road for access to his property. Lord Burton also claimed that re-surfacing operations carried out by Mackay on the road had changed its character and, by potentially attracting more traffic, had increased the burden on his (Burton’s) property. The Court disagreed and did not consider that any such re-surfacing materially affected the character of the road or increased the burden referred to; Lord Burton’s claim was, therefore, rejected.

Comments: The importance of this case is that, if a right of way exists and then becomes blocked (such blocking could be due to landslide or flooding, for example), then the rights of frontagers to the route as an access to their

73 properties is not affected, even though the route is not useable from end to end.

Cases referred to: (1) McRobert v Reid 1914 1 SLT 434 and 1914 SC 633 (2) Carstairs v Spence 1924 SC 380 and 1924 SLT 300

Allan v McLachlan Case Report: (1900) 2 F 699

Key points: Servitude right of access - obligation to repair road - terms of conveyance - perpetual / short-term burdens on land.

The facts: Allan sold the lands of Aros in Mull by a conveyance containing a reservation of ''ingress and egress'' in his own favour over an existing road, the expense of maintaining this road to be borne equally by Allan and his disponee (i.e. the person who purchased the lands). This declaration was not declared a ‘real burden’ on the lands (i.e. the obligation was not a perpetual one). At the time of the case, the lands of Aros had been sold on by the original disponee to McLachlan.

Decision: As the obligation to pay a half share of the cost of repair and upkeep of the road was a personal contract between the seller and the original purchaser, it did not bind McLachlan, who was not the immediate purchaser but a subsequent owner of the land burdened with the right of access.

Comments: This was an Action by a proprietor who had sold land and retained access over it in his own favour. He did not impose on the future owners of the land burdened with the right of access any valid permanent obligation to pay part of the cost of upkeep of the access route. Hence Common Law applied, and the obligation to repair fell on the person using the access (Allan) and not the landowner (McLachlan).

Case referred to: Tennant v Napier Smith’s Trustees (1888) 15 R 671 (Not in this publication).

Preston's Trustees v Preston Case Report: (1860) 22 D 366

Key points: Servitude right to water supply - right to enter property of burdened proprietor to maintain supply - right of access to maintain servitude - effect of division of estate.

The facts: The two Estates (A and B) represented by the two parties to the case had previously been in one ownership. Estate A had surplus water which was piped to Estate B. When the Estates were separated, the proprietor of

74 Estate B wished to enter upon Estate A to repair the pipes. The proprietor of Estate A averred (i.e. claimed) that the supply had been personal to the former owner of the combined Estate. It was held that the servitude right to a water supply as enjoyed by Estate B had arisen by implication from the circumstances of the division and sale of the Estate, hence the proprietor of Estate B was entitled to enter upon Estate A for the purpose of maintaining the pipes.

Comments: The case is authoritative in respect of the right of parties entitled to exercise a servitude right (and this would include a right of way as well as a right to a water supply) over the property of another to enter upon that property to carry out repairs on the ground over which the servitude may be exercised.

Cases referred to: None relevant to rights of way matters.

Milne v Inveresk Parish Council Case Report: (1899) 2 F 283 Key points: Common ground - ground subsequently divided and sold - public right of way over common ground - right of Council to erect seats beside right of way.

The facts: The Parish Council erected two seats on the Haugh of Inveresk, for public use. The Haugh had formerly been common ground, belonging to certain heritors of Inveresk. It had thereafter been divided in certain proportions leaving parts for public use and for public parks. Sir Archibald Milne raised an Action against the Council, asking for removal of the seats because he, as proprietor of parts of the former common ground, claimed still to have an interest in the remaining common ground and the paths.

Decision: It was held that the Parish Council were entitled to place seats on the road over the common ground as incidental to the reasonable enjoyment by the public of the walks and other facilities, and that this was not an encroachment on Sir Archibald's right of ownership.

Comments: This case turned on the very unusual state of the title to the common ground and cannot be relied upon as establishing a general principle of law.

Cases referred to: (1) Breadalbane v McGregor (1848) 7 Bell's Appeals 43 (Not in this publication). (2) Magistrates of Dundee v Hunter (1843) 6 D 12 (Not in this publication). (3) Dice v Hay (1852) 1 MacQ 305 (Not in this publication). (4) Henderson v Earl of Minto (1860) 22 D 1126 (Not in this publication).

75 Moncrieff v Jamieson Case Report: [2007] UKHL 42 http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/jamie- 1.htm

Key points: Private servitude right of way – right to park.

The pursuers had a private servitude right of way over the land of the defenders (in Shetland) for both pedestrians and vehicles, in order to gain access to their own house. It was agreed that such a right allowed the pursuers to stop in order to turn, load and unload, but the defenders disputed the pursuers’ right to park.

The House of Lords ruled that a right to park could be inferred from a servitude right of access, although the pursuers should act reasonably in their use of the right.

This was a landmark ruling by the House of Lords. It is arguable that this inference could also be drawn in the case of a public right of way for vehicles, but this would have little impact in practice as there are very few recorded rights of way for vehicles.

See also: Johnstone v Sweeney 1985 SLT 2, under Part 4.1.

2.9 Obstruction of rights of way

Fife Council v Nisbet Cupar Sheriff Court, November 2009. Court ref: A149/08

Key points: Landowners fined for breach of interdict for obstructing a right of way.

The facts: Mr and Mrs Nisbet owned a property at Bloomfield, near Newburgh, adjacent to a right of way which runs from Whinnybank in Fife to Macduff’s Cross in Perth & Kinross. The route was declared to be a right of way in a court action in 1997 (North East Fife Council v Nisbet, 2000 S.C.L.R. 413), and an interdict was imposed at that time, requiring the Nisbets not to obstruct the right of way or interfere with its use. This was confirmed in subsequent appeals to the Sheriff Principal and the Court of Session. However, Mr and Mrs Nisbet continued to interfere with use of the right of way. They erected gates on the route, extended their garden over it, and challenged people using the route. Witnesses described how they had been repeatedly

76 challenged when they tried to use the route, and their difficulties in opening the gates that the Nisbets had erected on the route.

Decision: Sheriff Johnston ruled that Mr and Mrs Nisbet were in breach of the interdict because they had obstructed the right of way and interfered with its use. Sheriff Johnston commented that Mr Nisbet’s evidence ‘illustrated an ongoing determination to thwart the order of the court’.

The Sheriff ordered that Mr and Mrs Nisbet should each pay a fine of £500, and the full legal costs of the case, including those of Fife Council, which would considerably exceed the amount of the fines. It was made clear in the course of the case that there had been considerable effort by both the Council and ScotWays to persuade Mr and Mrs Nisbet to realise the seriousness of the position without going to court.

Comments: A landowner may usually install suitable gates on rights of way, provided that they are on his land, and that they are unlocked at all times, and capable of being opened by any likely user of the route. However, in this case, the erection of gates was expressly forbidden in the terms of the interdict.

Note that in cases of breach of interdict, where there is a possibility of a fine or imprisonment, it is necessary to prove the case beyond reasonable doubt – as in criminal prosecutions.

The case highlights that rights of way continue to be important even after the passing of the Land Reform (Scotland) Act 2003. In this case, it was possibly arguable that the route was sufficiently close to the Nisbets’ house to be excluded from access rights. The Sheriff reiterated that the public had a right to use the route, and dismissed the Nisbets’ claim that access along the route was an invasion of their privacy and against their human rights. The case also highlights, however, that even once a court has declared a route to be a right of way, a determined landowner can only be prevented from obstructing the public’s use by further enforcement action.

Rodgers v Harvie Case Report: (1829) 7 S 287

Key points: Claimed public right of way - removal of obstruction - obligation on land-owner to provide gates in fences - procedure for establishing line of right of way.

The facts: Rodgers claimed that a public right of way existed from Carmyle to Glasgow Green along the bank of the River Clyde. He succeeded in the Action for Declarator of a public right of way and Harvie, the owner of lands along the length of the route, was interdicted from shutting up or obstructing passage unless he left proper openings in his fences or provided wicket- gates. The Court instructed a Surveyor to “lay off (i.e. draw on a plan) the footpath or foot-road along the bank of the River Clyde, so far as it extended

77 along the Defender's (i.e. Harvie’s) grounds, at the sight of the parties'' (i.e. the plan would require to be submitted to both parties before approval by the Court).

Comments: The case for the existence of a public right of way was held to have been proved, although the report does not give any details. As no plan of the right of way had been provided, the Court remitted the preparation of a plan to a Surveyor, but the public’s rights were not prejudiced or deferred while the plan was being prepared and being approved by the parties. In terms of modern practice, it is to be noted that a landowner - as in 1829 - is entitled to be made aware of the claimed route of a public right of way.

Sutherland v Thomson Case Report: (1876) 3 R 485

Key points: Gates for control of stock - gates as obstruction to public - Interdict to prevent destruction of gates erected on public footpath - public rights over kirk road.

The facts: Sutherland erected two small swing gates at either end of a grass field, through which ran a footpath to Tibbermuir Church. The object of the gates was to prevent stock grazing in the field from straying, whilst still allowing the parishioners to use the path on Sundays. Thomson (and others) had broken down the gates on several occasions, and Sutherland sought an Interdict and damages against Thomson. On appeal, the Court of Session held that a proprietor was entitled to put swing wicket gates across the footpath for grazing purposes, provided that the gates were not to any material degree injurious or obstructive to the public in the free use of the path. Interdict was granted against Thomson, with an order of damages to cover the cost of re-instating the gates.

Decision: In issuing the judgement, Lord Neaves posed the question as to ''whether there is any reasonable ground in the case of a public footpath for depriving the proprietor of the privilege of protecting his property from unnecessary injury by putting up gates''. He answered this question in the negative. Lord Ormidale was of the opinion that ''the general right of the owner (or the tenant farmer) to erect gates, provided they do not interfere (in a fair and reasonable sense of that expression) with the public right of passage is...beyond dispute''. Lord Gifford took the view that ''the proprietor of the servient tenement (i.e. the lands over which the footpath runs) may put up such swing gates, stiles, or turnstiles as may be necessary for fencing his property, provided they do not materially interfere with the exercise or enjoyment of the right of way which the occupants of the dominant tenement (in this case, the public; the ‘dominant tenement’ meaning the land which is benefited by the servitude in the case of private servitudes) can claim'', and he extended this principle to cover the erection of swing gates or stiles or wickets across a public footpath.

78 Comments: The essential principles established by this case, and followed in all subsequent cases, are that: (1) the obstruction (e.g. gate or stile) must not materially prejudice public enjoyment and use of the public right of way; (2) the obstruction must be shown to be necessary in the interest of the land through which the public right of way passes (e.g. to prevent grazing stock from straying, protect crops, or the like); (3) the public right of way must be used in a manner which gives the owner of the land the best use of his property and causes the least possible burden or inconvenience.

Cases referred to: (1) Wood v Robertson (1809) FC (Not in this publication). This case related to obstructions of a servitude (i.e. private) road rather than a public right of way, but the principles involved were regarded as equally applicable to obstructions of a public highway. (2) Lord Donington v Mair (1894) 21 R 829 (3) Galbreath v Armour (1845) (HL) 4 Bell’s Appeals 374 (Not in this publication). (4) Kirkpatrick v Murray (1856) 19 D 91 (5) Hay v Earl of Morton (1861) 24 D 116 (6) Marquis of Breadalbane v McGregor (1848) 7 Bell’s Appeals 43 (Not in this publication).

Kirkpatrick v Murray Case Report: (1856) 19 D 91

Key points: Continued public use of old road - old road claimed as right of way - gates erected to block access - removed by public.

The facts: A road through the Estate of Cally was closed by the Estate proprietor in 1806, after it had been replaced by a new road. Public use of the old road did not cease. Gates were erected, but did not cause an obstruction. Then in 1854 the proprietor erected new gates which did effectively block the right of way. These gates were removed in protest by the public. An Action was raised by the landowner for authority to re-erect the gates pending a decision regarding the status of the alleged right of way.

Decision: The circumstances proved that a public right of way did exist; the proprietor was not entitled therefore to erect gates to obstruct it. He could erect gates, but not in such a fashion as to block the road.

Comments: One of a series of cases concerning gates on rights of way, still of relevance today. The key point is whether gates ‘materially’ (i.e. significantly) interfere with public passage.

Cases referred to: (1) Neilson v Vallance (1828) 7 S&D 182 (Not in this publication). (2) Cuthbertson v Young (1862) 14 D 465 (3) Rodgers v Harvie (1825) 5 S&D 851 (4) McDonald v Watson (1830) 8 S&D 584

79 (5) Calder &c v Learmonth (1851) 13 D 343(Not in this publication).

Hay v Earl of Morton's Trustees Case Report: (1861) 24 D 116

Key points: Claim of right of way agreed - plan approved by both parties, showing gates - later request for removal of gates - effect of undue delay in pursuing case.

The facts: Hay raised an Action, on behalf of residents of Aberdour, against the landowner in respect of a path eastwards from Aberdour. A right of way was conceded and a plan drawn up and agreed. Five years later Hay and the other residents asked the Court to have the gates removed. It was held that, the gates having existed before the Action and having been shown on the judicially agreed plan, Hay was now too late to object to the gates.

Comments: The gates were not locked, but closed by a cleek and chain. They did not therefore prevent access, but did cause a certain measure of obstruction. It is difficult now to understand why Hay delayed his proceedings for such a length of time, but it is clear that, by doing so, he jeopardised his case.

Cases referred to: Blackwood v Mylne (1845) 8 D 313 (Not in this publication).

Lord Donington v Mair Case Report: (1894) 21 R 829

Key points: Pedestrian right of way over private carriage road - right of proprietor to erect gates to prevent carriage traffic - provision of pedestrian gates and vehicular gates - whether gates an obstruction of pedestrian right of way.

The facts: Lord Donington erected locked gates at either end of a public right of way through his estate, these gates being designed to prevent the passage of carriages and other vehicles, but he also placed two unlocked swing gates alongside. These swing gates presented no obstacle to pedestrians. The locked gates were broken down, and Lord Donington sought an order for re- erection of the gates and an Interdict against Mair from interfering with the gates.

Decision: The Court held, by a majority, that the proprietor of a road, which was suited for carriage traffic, and over the whole of which the public had been entitled to free use for foot passengers only, was entitled to erect, and to keep locked, gates at each end of the road, across the carriageway, for the purpose of preventing any public traffic along the road other than that of foot passengers, swing gates having been left unlocked at either end, sufficient to permit entry and egress of foot passengers.

Opinion: In the leading opinion, the Lord Justice Clerk stated that ''The presence of swing gates, giving an opening of three feet when swung back, could not be held to be an illegal obstruction'', and that ''Anything which covers up and prevents the unobstructed use of the ground, subject to the right for its exercise, must be justified by the owner. He may do so by shewing that what he is doing is required for the proper working of his estate, as by dividing the fields or the like, and that it is an immaterial interference with the rights of…..the public. The case of stiles and a footway is an illustration of this. They are obstructions, but may be put up as not interfering materially with the right, and as being requisite for the reasonable working of the owner’s estate.'' He held it as established law ''...that a right to pass from one place to another, over private property, is one which does not imply the power to prevent the proprietor from beneficial use and protection of his own property. The proprietor is not to be held to obstruct the right by the course he has taken, which practically leaves the whole road available to the foot passenger, and only requires him at the moment of entering and leaving the private property of the Pursuer (i.e. the owner, Donington, in this case) to do so in such a manner as does not injure him, but enables the Pursuer to protect his property from illegal trespass by other classes of road traffic.''

Comments: This is another leading case defining what can be categorised as an obstruction of a public right of way. It illustrates the Court’s desire to balance the right of the public to free use and enjoyment of a right of way with the landowner’s right to make legitimate use of his land and to prevent unauthorised access.

Cases referred to: (1) Wood v Robertson (1809) FC (Not in this publication). (2) Rodgers v Harvie (1829) 7 S 287 (3) Kirkpatrick v Murray (1856) 19 D 91 (4) Hay v Earl of Morton's Trustees (1861) 24 D 116 (5) Home Drummond (petition) (1848) 6 M 896 (6) Sutherland v Thomson (1876) 3 R 485

Midlothian District Council v MacKenzie Case Report: 1985 SLT 36

Key points: Obstruction of public right of way - erection of fences by proprietor - consequent narrowing of route - obligation to demonstrate management need for changes.

The facts: Midlothian District Council raised an action against MacKenzie, who had erected a fence which restricted the width of an established pedestrian right of way from 15 feet to 2.5 feet.

Legal arguments: Mackenzie argued that his actions had not closed the right of way, as passage was still possible. The District Council argued that

81 MacKenzie had not averred (i.e. claimed, as part of his argument) that his actions were necessary for the proper working of his land.

Decision: It was noted that the dictum in Lord Donington v Mair (above) that "...anything which covers up and prevents the unobstructed use of the ground....must be justified by the owner" is a correct statement of the law. MacKenzie ought, therefore, to have justified his narrowing of the right of way in terms of the requirements of estate management.

Comments: The outcome of the case was not stated, as the case reports only a discussion of the legal principles involved, i.e. the manner in which MacKenzie presented his case; however, the Court accepted the law as set down in Lord Donington v Mair.

Cases referred to: (1) Lord Donington v Mair (1894) 21 R 829 (2) Rodgers v Harvie (1827) 7 S 287 (3) Hay v Earl of Morton (1861) 24 D 116 (4) Sutherland v Thomson (1876) 3 R 485

Graham v Sharpe Case Report: (1823) 2 S 540

Key points: Obstruction of public road - wall built across road - exclusion of public - right to remove obstruction.

The facts: In 1818 Graham dedicated land for construction of a road for public use. Sharpe and others (as Road Trustees) constructed and repaired the road. Some 3 years later, Graham built a wall across the road to prevent public use. The Trustees had the wall removed and were sued by Graham for damages. The Court of Session upheld the Trustees’ right to remove an obstruction from a public road.

Comments: This decision is only briefly reported, and the arguments of the parties and the reasoned judgements of the Court are not set out in any detail. It would appear that the Court was influenced in favour of the Trustees by virtue of their being, in a sense, representatives of the public; however, it would be dangerous to rely on this decision as conferring any right on private individuals to remove obstructions from public rights of way with impunity.

Glasgow and Carlisle Road Trustees v Whyte Case Report: (1828) 7 S 115 Key points: Obstruction of public road - attempt to substitute new road - attempt to impose tolls - right to remove obstruction.

The facts: The Road Trustees attempted to erect a toll barrier across part of a section of an old turnpike road to force the public to use a new section of road

82 and pay tolls. Members of the public removed the barrier, without legal authority. The Court refused to grant the Road Trustees an Interdict against parties removing obstructions put up by them. However, the members of public in this case were refused their expenses against the Road Trustees, apparently as a token of the Court's disapproval of their illegal actions.

Comments: A case of no direct authority, save that it illustrates the principle that obstructions on a right of way can be removed by the public, albeit not in the circumstances of this case.

Macdonald v Watson Case Report: (1830) 8 S 584

Key points: Obstruction of right of way - wall built across road - right to remove obstruction - risk of compounding wrongdoing.

The facts: A dry stone dyke or wall was built by Macdonald across a kirk, market and mill road used by members of the public. It was demolished by Watson shortly after its erection. Macdonald sought an Order from the local Sheriff Court for Watson to rebuild it. Watson contended that, as the wall had been built without any lawful warrant and had only just been built, he was entitled to remove it. The Sheriff refused to grant the Order and granted expenses against Macdonald. Macdonald appealed to the Court of Session, which refused his appeal.

Comments: No cases were cited in support of this decision, nor were the detailed judgements of the Appeal Court reported. It is therefore of doubtful authority.

Anderson v Earl of Morton Case Report: (1846) 8 D 1085 Key points: Attempt to exclude public from claimed right of way - gates on footpath - consequent change in character of route - changed character prejudicial to case for right of way.

The facts: Lord Morton challenged the public's right to use certain footpaths running through his estate at Aberdour. Certain residents of Aberdour raised an Action for Declarator to establish that the public had a right to the use of these footpaths. Lord Morton planned to erect gateways at certain points with a view to excluding members of the public. An Interdict was sought against Lord Morton to prevent any action being taken to change the character of the roads in issue pending a decision in the Action of Declarator. The residents' concern was that the erection of the proposed gates would have the effect of seriously prejudicing their case by depriving them of evidence in favour of a public right of way which would be afforded by the existing appearance of the paths (i.e. open and without gates).

83 Lord Morton argued that the mere fact of an application for Declarator should not have the effect of preventing him from exercising his proprietorial rights.

Decision: The Court of Session refused the Interdict against Lord Morton, but agreed to make an Order to have an inspection of the ground take place and a judicial plan drawn up, representing the existing appearance of the roads, to avoid the danger that evidence of their present state might be lost.

Comments: This case clearly demonstrates that the Court will provide a remedy in cases where the proprietor intends to carry out operations altering the whole aspect of the ground along which an alleged right of way runs (for instance by blowing up or digging up the road, flooding it or otherwise changing its character). According to Lord Cockburn, even removal of a plank or breaking off the projecting stones of a stile can be barred.

Earl of Morton v Anderson Case Report: (1846) 8 D 1249

Key points: Foreshore as part of right of way - title to foreshore - right of way blocked by walls and fences - trespass arising from interference with estate structures.

The facts: This follows on from Anderson v Earl of Morton, above. The Earl of Morton in this case applied for an Interdict against certain of the residents of Aberdour from trespassing upon his estate or from pulling down walls or fences.

Interim Interdict was granted by the Court but on appeal was recalled so far as relating to the sections of the footpath which ran along the foreshore between Aberdour and Burntisland by virtue of the fact that Lord Morton had not produced evidence of title to the foreshore.

Comments: The arguments of the Court are not set out, nor are any cases reported in support of this decision.

See Part 3 for cases on the public’s rights on the foreshore.

Aitchison v India Tyre & Rubber Co. Case Report: 1950 CLY 4878

Key points: Gates athwart right of way - shared access to dwelling house and factory - obstruction apparent not real - requirement to alter aspect of gates.

The facts: This is a very brief report concerning the erection of gates by a factory owner across a path used as a private access to a dwelling-house where it was proved that the gates were necessary for the proper conduct of the factory owner's business. The gates, although high and forbidding and

84 without evident means of being opened, were never locked, and employees of the factory were in constant attendance.

It was held that although the proprietor of the dwelling-house was not being put to material inconvenience and was not entitled to have the gates removed, the gates should, however, be altered ''to look as if they were meant to be opened''.

Comments: This case is not fully reported, but in any event adds little to the principles enunciated in earlier cases.

Stewart, Pott & Co. v Brown Brothers & Co Case Report: (1878) 6 R 75

Key points: Servitude access to property - loading and unloading of goods in common pend - occasional obstruction of passage - qualified Interdict.

The facts: Brown Brothers & Co. owned a shop in a tenement in Glasgow fronting a public street and had, for around 40 years, been in the practice of loading and unloading goods in a passage forming a common access from the street to several back tenements and thereby obstructing the passage. Stewart Pott & Co., owners of a neighbouring shop, which could only be reached through the pend, raised an Action of Interdict against Brown Brothers & Co. to prevent them obstructing the common entrance.

Decision: The Court of Session (on appeal from the Sheriff Court) held that Brown Brothers & Co. had not acquired and never could acquire any right to block the passage. Interdict was therefore granted against Brown Brothers & Co., preventing them from interfering with the free and reasonable use of the passage by other proprietors and occupiers of the back tenement.

Comments: This case related to obstruction of a private road (or way) rather than a public right of way. However, in the leading opinion, the Lord Justice Clerk quite clearly stated that "No man can acquire a right to obstruct a public or servitude road by from time to time placing obstructions upon it".

Lord Ormidale concurred, but was not prepared to go so far as to grant Interdict against Brown Brothers & Co. ever loading or unloading lorries in the passage. The Interdict was therefore qualified to prevent them from ‘materially’ interrupting the free passage of vehicles across the covered court, and they were permitted to make occasional use of the passage for loading and unloading goods.

Geils v Thomson Case Report: (1872) 10 M 327

Key points: Interruption of public water supply - trespass in the course of taking remedial action - Interdict against public - apportioning of blame.

The facts: Geils, the proprietor of a stream which supplied a public well, diverted its course so as to deprive the well of the supply of water. A few months afterwards, some members of the public (Thomson and others) went upon the proprietor's land and removed the obstruction which was diverting the flow of the stream.

Decision: On appeal from the Sheriff Court, it was held by the Court of Session that this removal was unlawful and that the proprietor was entitled to Interdict to prevent trespass by members of the public onto his land.

The Lord Justice Clerk, in granting Interdict, commented “.... but the respondents, whether Mr. Geils had the right to cut off the supply or not, had no right to do what they did. They went up the stream beyond the spot to which they had been in the custom of going and so trespassed on Mr. Geils’ land; and having done so they removed the obstruction which he had created. That was an illegal mode of asserting their right".

Comments: No cases were cited in support of this judgement, which appears to be somewhat at odds with the decision in Kirkpatrick v Murray where the illegal act of the proprietor was taken as justification for the subsequent illegal act on the part of members of the public. In this case, Geils' illegal action in cutting off the supply of water to a public well does not appear to have been taken into account.

There is no indication in the report as to how this matter was eventually settled.

Lanarkshire Water Board v Gilchrist Case Report: 1973 SLT 58

Key points: Servitude right of way over unfenced land - access to Water Board reservoir - bulls, other dangerous animals - animals ‘of uncertain temperament’.

The facts: The Water Board had a right of way to its reservoir over unfenced farm land, part of which was owned by Gilchrist, who allowed a bull to roam at will throughout the unfenced portions of his farm. The Water Board feared for the safety of its employees using the road on foot and of the families of its employees occupying houses at the reservoir. It sought Interdict against Gilchrist from keeping the bull at large on the unfenced land.

Decision: On appeal, the Sheriff Principal granted Interdict preventing Gilchrist from allowing a bull to be present on unfenced land adjacent to the right of way.

Legal arguments: Gilchrist had argued that he had not interfered with the Water Board's enjoyment of its right of access, if it was exercised in the way which caused the smallest possible inconvenience to the owner of the land. No explanation as to how this might be done was given in Gilchrist's pleadings but his solicitor suggested that persons wishing to walk along the road might telephone the farm to give advance notice of their intent or alternatively that the use of the road by pedestrians might be restricted to certain hours of the day. These suggestions were dismissed by the Sheriff Principal as impracticable and clearly restrictive of the full enjoyment of the right of access. Gilchrist also sought the opportunity of demonstrating that the bull in question was not a dangerous bull. The Sheriff Principal saw no value in allowing a proof as the present bull could be replaced at any time by another, possibly more dangerous one. He regarded as within judicial knowledge the fact that a bull is of uncertain temper and is liable at any time to become vicious and to cause injury to human beings.

Comments: The decision in this case is capable of being extended to cover dangerous animals (even such as red or roe deer) pastured in the vicinity of public rights of way. It would also appear to apply not only to rights of way running through unfenced land but also to rights of way through a fenced field in which a bull (with or without cows) or other dangerous animals are being allowed to graze. For instance, would a right of way running through a deer park be regarded as being obstructed, it being traditionally recognised that at certain times of the year deer can become a danger to humans? The crucial point is that the owner of animals with dangerous characteristics (whether on the basis of species, breed, gender or age) can be prevented from allowing them to roam at large in the vicinity of public pedestrian rights of way.

Note that, in relation to a public right of way, the following offence applies under the Countryside (Scotland) Act 1967: ‘Section 44 (1) No person shall, being the occupier of any field or enclosure through which there is a public right of way, permit any bull to be at large in such field or enclosure: Provided that this section shall not apply to any bull which— (a) does not exceed the age of 10 months; or (b) is not of a recognised dairy breed and is at large in any field or enclosure in which cows or heifers are also at large.’

Cases referred to: (1) Brock v Copeland (1794) 1 Esp 203 (Not in this publication). (2) Henderson v John Stuart (Farms) Ltd 1963 SLT 22 (Not in this publication). (3) Milligan v Henderson 1915 SC 1030 (Not in this publication). (4) Harpers v Great N of Scotland Railway Co (1886) 13 R 139 (Not in this publication).

Drury v McGarvie Case Report: 1993 SLT 987

Key points: Servitude right of access to dwelling-house - gates athwart access road - whether gates an obstruction due to disability of user - Court decision based on ability of persons of average strength and agility.

The facts: Mr & Mrs Drury owned a cottage situated on farmland some distance from the public road. Their title contained an express grant of vehicular and pedestrian access over an access road running through the farm fields. Gates were erected by the farmer at each end of the access road to prevent stock from straying. The Drurys were disabled and in poor health and found it difficult to open and shut the gates, which they described as .... ''heavy, improperly hinged and so placed as to be difficult to reach'', and which therefore constituted a material obstruction to their right of access. They applied to the Sheriff Court for Interdict, which was refused. They then appealed to the Court of Session, which refused their appeal.

Decision: The Court decided that the farmer was entitled to erect swing gates across a public or private right of way in order to contain stock, provided the gates did not amount to a ''material obstruction''; and further, that the individual characteristics of the user were not relevant in determining the meaning of ''material'', the test to be applied being whether a person ''of average strength and agility'' could open or surmount the gates.

Comments: This is one of the series of cases following the principles laid down in Lord Donington v Mair (above) and earlier cases, regarding the circumstances in which gates on a right of way may or may not be considered as obstructions. These cases are useful, therefore, in establishing the tests to be used in determining whether a gate or other barrier across a right of way constitutes a ''material'' obstruction.

Glasgow and Carlisle Road Trustees v Tennant Case Report: (1854) 16 D 521

Facts: A private Road Act permitted the Trustees to shut up (and sell) those parts of the road by-passed because of alterations to the road. This would prevent people avoiding tolls. Aggrieved persons could apply to the local Justices of the Peace to hear and decide any dispute. A new piece of road was constructed and the Trustees then built a wall across a bridge which had carried the old road. Steps were incorporated in the wall for foot passage. Tennant dismantled the wall and the Trustees applied for an interdict.

Decision: The interdict was granted.

88 Comment: The court was clearly against the self-help approach of the clearance of the obstruction especially when there was a statutory remedy.

Soriani v Cluckie Stranraer Sheriff Court, 13th July 2001. Case Report: 2001 GWD 28-1138

Facts: Soriani owned a business property with a rear garden and yard and had a servitude right of access over a pend owned by Cluckie, whilst Cluckie had a servitude right to reach his property through Soriani’s yard. When Cluckie purchased his property he locked the existing gates which had previously been open during the day. His dog roamed Soriani’s yard. Soriani sought to interdict Cluckie from locking the gates and allowing the dog to roam in the yard. Cluckie argued that prescription barred Soriani’s claim, and he was entitled to take the dog across the yard.

Decision: The Sheriff granted the interdict. The servitude by express grant had to be construed by reference to the grant and in the least burdensome way. Cluckie had a right to take his dog across the yard under control, but not to allow it to roam and defecate in the yard.

Comment. Servitudes, like public rights of way, must be used "civiliter" i.e. in the least burdensome way to the occupier. By contrast access rights under the Land Reform (Scotland) Act 2003, must be exercised responsibly, as to which guidance is given in the Scottish Outdoor Access Code. The 2003 Act did not extend the advice in the Code to rights of way.

See also: Lord Advocate v Strathclyde Regional Council and Lord Advocate v Dumbarton District Council, 1988 SLT (SC) 546 and 1988 SLT (SC) 546, under Part 2.7.

2.10 Procedural issues

Alston v Ross Case Report: (1895) 23 R 273

Key points: Right of way claimed - Action for Declarator of absence of right of way - whether case may be delayed to allow interested party to appear - effect of Local Government (Scotland) Act 1894.

The facts: Alston raised an Action against various parties using a claimed right of way across his Estate in Strathoykell. Ross and other Defenders were

89 unable to pay for a defence but claimed that the case should be sisted (i.e. delayed) to enable Sutherland County Council (which had been set up only shortly before) to enter the legal process to defend the Action in terms of section 42 of the newly-enacted Local Government (Scotland) Act of 1894, which required local authorities to assert, protect and keep open public rights of way. (It should be noted that this important duty was first placed upon local authorities following representations made by the Scottish Rights of Way Society).

Decision: It was held that the Court was bound to allow the County Council to consider whether or not it was obliged to defend the Action in terms of its duty under the said Act to vindicate public rights of way.

Comments: This was a case turning on special circumstances following the recent passing of the new Act. The Court allowed the case to be delayed to enable the County Council to consider its legal position. It must be noted that Ross and the other Defenders undertook not to use the route until the legal position was settled.

Alexander v Picken Case Report: 1946 SLT 91

Key points: Right of way claimed - Action to negate public right of way, raised by proprietor - title of local authority to intervene - duty of local authority to ‘assert, protect, keep open’ rights of way.

The facts: Alexander, a landowner in Kirkcudbrightshire, raised an Action against Picken to negate a claimed public right of way. The Sheriff found against Alexander and upheld the right of way. Alexander appealed to the Court of Session, and the County Council of Kirkcudbright asked leave to enter the proceedings as a party, for the first time, to defend the action. This was allowed.

Comments: This case was reported only very briefly, but it illustrates the right of a local authority (acting under statutory powers) to defend an Action relating to public rights of way.

Case referred to: Alston v Ross (1895) 23 R 273

Torrie v Duke of Atholl Court Report: (1849) 12 D 328, (1852) 1 MacQ 65 and 15 D (HL) 17;

Key points: Right to initiate legal action to vindicate public right of way - right of any member of the public to take action - right of bodies representing the public - right of public residing remote from site.

90 The facts: This is a classic case brought by three members of the public (not residents in the area) to have it declared that the route between Braemar and Blair Atholl (through Glen Tilt) was a public right of way. The Duke claimed that those members of the public, not being residents in the area, had no title to sue. The Court of Session held that they had. The Duke appealed to the House of Lords.

Decision: The House of Lords held that whoever had the right to use the road had the right to sue for Declarator of the existence of a right of way. The Duke had failed to show that the right to sue had previously been limited or ought to be limited (i.e. to those living locally).

Comments: This is the classic case on the right of the public to take legal action to vindicate a public right of way. The Court of Session case is reported at length, and is required reading for anyone interested in the history of public access in Scotland. It established that local residence is not a prerequisite to enable a person to take action in Court to vindicate a public right of way, nor did any special interest in the road require to be proved, nor indeed that any obstruction had taken place.

Cases referred to: (1) Earl of Cassilis v Magistrates of Wigton (1750) Morrison’s Dictionary of Decisions 16 122 (Not in this publication). (2) Guild v Scott (1809) Faculty Collection (Not in this publication). (3) Tait v Lauderdale (1827) 5 S&D 330 (Not in this publication). (4) Marquis of Breadalbane v McGregor (1848) 7 Bell’s Appeals 43 (Not in this publication).

Macfie v Scottish Rights of Way and Recreation Society Limited Case Report: (1884) 11 R 1094

Key points: Right to initiate legal action in rights of way matters - Action to establish that lands were free of rights of way - right of limited company to sue on behalf of the public - findings binding on whole public.

The facts: John Blair raised an Action against Macfie of Dreghorn for Declarator of the existence of four rights of way in the Pentland Hills, near Edinburgh. This Action was abandoned, but Macfie in turn then raised an Action against John Blair and John Bartholomew for Declarator that his lands were free of servitudes of rights of way. The Scottish Rights of Way and Recreation Society Limited then asked the Court for permission to join in the Action as Defenders, in place of Blair and Bartholomew. This permission was granted, and Macfie appealed against this decision.

Decision: The decision of the Appeal Court was that the Company (the SRWRS) was entitled to enter the Court process as a party and that, as they would be representing the general public, any decision against the Company would be binding against the general public.

91 Comments: The report is brief, but the decision is important: it appears to have been based upon the established principle of law that any member of the public is entitled to litigate as Pursuer or Defender in a Court Action regarding public rights of way, and a limited company is accordingly in a like position. It was argued on behalf of the Company that any of the subscribers to the Memorandum of Association of the Company (i.e. members of the Society) could have chosen to raise proceedings as individuals, and this argument may have influenced the decision of the Court.

Cases referred to: (1) Jenkins v Robertson (1869) 7 M 739 (Not in this publication). (2) Duke of Atholl v Torrie (1849) 12 D 328, affirmed in 15 D (HL) 17

Potter v Hamilton Case Report: (1870) 8 M 1064

Key points: Right of members of the public to sue in rights of way matters - effect of judgement on the public - social and financial status of parties suing - position of individuals bringing action on behalf of public.

The facts: This Action was raised by a small number of the inhabitants of Millheugh, Glengowan, Lanarkshire, after a public meeting called to discuss obstructions on a local claimed right of way. Potter and certain others were authorised by those attending the meeting to act for them and for the public generally. It was argued for Hamilton, the owner of the ground, that Potter & Co. were not men of financial substance and should be required to lodge caution (guarantees) for their expenses, should their case be unsuccessful.

Decision: The Court held that: (1) The Action had not been brought by the Pursuers simply as ‘men of straw’, i.e. as a shield for others and to avoid those others being liable for expenses, were the action to fail. (2) The Pursuers were not bankrupt or insolvent, although not men of any considerable means. (3) Accordingly, the Pursuers should not be required to find caution for expenses, nor was it necessary to introduce as parties to the Action all the persons present at the earlier meeting. (4) The decision in the Action would be binding on the public generally and not only on the parties. (5) The case was distinguishable from the case of Jenkins v Robertson.

Comments: This is a case which indicates that an Action by or against one or more members of the public can be binding upon the public generally. It also has a bearing on the title of individuals to raise or defend Actions involving rights of way and reinforces the authority of the Glen Tilt and Dreghorn cases.

Cases referred to: Jenkins v Robertson (1869) 7 M 739 (Not in this publication).

92 Nairn v Speedie Case Report: (1899) 1 F 635

Key points: Right of way claimed - route splitting and re-uniting - route traversing several estates - whether Action competent against only one proprietor.

The facts: A footpath was claimed as a public right of way between Dysart and Kirkcaldy. It passed through Dysart House policies, at one point using a made-up path within the policies and at another point dividing into two paths. Between its two termini, the path also passed through the properties of other proprietors.

Decision: Because the Action involved only one of the proprietors affected by the claim, the case involved difficult legal questions which rendered it unsuitable for trial by jury and consequently required that it should be tried only by a judge.

Comments: This case deals with a point of legal procedure now obsolete, but it is nonetheless some authority for the legal proposition that, in an Action concerning a public right of way, it is not necessary for the proprietors of all the properties affected by the alleged right of way to be called. However, the background to this case is unusual and the decision cannot be treated as one of universal application.

Cases referred to: (1) Napier’s Trustees v Morrison (1851) 13 D 1404 (Not in this publication). (2) Mackintosh v Moir (1872) 10 M 517 (3) Blair v Macphie (1884) 11 R 515 (Not in this publication). (3) Fraser-Tytler's Trustees v Milton (1890) 17 R 670 (Not in this publication).

Hope v Landward District Committee of the Parish Council of Inveresk Case Report: (1906) 8 R 896

Facts: Hope asked for a determination by the court of an admitted right of way and put forward his understanding of it. He called the District Committee of the County Council and the County Council as defenders. When they declined to defend the action the Landward District Committee of the Parish Council sought leave to defend.

Decision: The duty to defend the action was given to the District Committee of the County Council and not the Landward Committee of the Parish Council, and whereas members of the public could defend the action, as had been established in Torrie v Duke of Athole (above), the Landward Committee could not.

Comment: This arose from the terms of the Act concerned. In the case of the Land Reform (Scotland) Act 2003 the Act refers to ‘Local Authorities’ and defines them as the National Park Authority in the case of National Park land

93 and otherwise the relevant Council constituted under the Local Government (Scotland) Act 1994.

See also: Melfort Pier Holidays Ltd v The Melfort Club and Others (Part 2.2). Home Drummond v Another (Petitioners) (Part 2.5). Fife Council v Nisbet (Part 2.9). Hay v Earl of Morton’s Trustees (Part 2.9).

94 PART 3: NAVIGATION RIGHTS AND RIGHTS IN RELATION TO THE FORESHORE

Introduction This Part covers cases concerning navigation rights and rights in relation to the foreshore. More detailed background is provided at the beginning of each sub-heading in this Part.

In 2003 The Scottish Law Commission published a report (Report on Law on the Foreshore and Seabed) in which they recommended that public rights that are exercisable on the foreshore, sea, seabed and inland waters should be placed on a proper statutory footing, and enforced by local authorities. The Commission recognised that some of the existing rights (e.g. the right of recreation on the foreshore) are equivalent to access rights under the Land Reform (Scotland) Act 2003. They said that this caused confusion and therefore that the public rights that existed before the 2003 Act should be abolished insofar as they duplicated rights under the 2003 Act. However, no action has been taken, to date, to implement these recommendations. The Report and previous discussion paper both provide valuable background to this subject. Download both papers (under 2003, Report 190) at http://www.scotlawcom.gov.uk/publications/reports/2000-2009/

3.1 Navigation rights

Introduction

Position at common law There is a presumption in law that there is a right of public navigation on tidal waters, including the sea, sea lochs, tidal rivers, and the foreshore of the sea and tidal rivers. The right of navigation is primarily a right of passage, but there are also rights that are incidental to the right of navigation. In tidal waters these incidental rights include making use of the foreshore for beaching craft, loading or unloading goods, and drying nets.

Rights of navigation on non-tidal inland waterways – rivers and lochs – can be created by prescription, in a similar way to rights of way on land. However, there are some differences in the legal conditions required for establishing rights of navigation. Rights of navigation take twice as long (40 years) to establish; they cannot be lost for lack of use and can only be extinguished by Acts of Parliament; and there is no requirement to have ‘public place’ end points. A right of navigation can only be established on rivers or lochs which are physically navigable, so there can be no right of navigation where craft have to be removed from the water for portages. Once established, a right of navigation on a river is for travel in either direction. In cases where navigation rights apply on non-tidal waters, incidental rights are more restricted than in the case of tidal waters. This is because there is no foreshore and the banks are likely to be in private ownership.

Rights under Part 1 of the Land Reform (Scotland) Act 2003 The 2003 Act now provides a right of access on all inland water for non- motorised craft, subject to exclusions in the Act and provided that the rights are exercised responsibly in accordance with the Scottish Outdoor Access Code. However, rights of navigation continue to be important, particularly for motorised boats.

Wills Trustees v Cairngorm Canoeing and Sailing School Ltd Case Report: 1976 S.L.T. 162; 1976 SC (HL) 30

This is the leading Scottish case on navigation law. It established that there was a public right of navigation on the River Spey, a non-tidal river, and sets out the principles which apply in relation to such a right.

The facts: The Wills Trustees owned lands and held the salmon fishing rights on both banks of the River Spey, along a considerable stretch where the river was non-tidal. The Sailing School organised courses of instruction in canoeing and sailing from Loch Insh, a small loch considerably further upstream, through which the River Spey flowed. Parties of canoeists from the Sailing School traversed the Knockando stretch of the river ten to twelve times each year during the summer season. The Wills Trustees claimed that their fishings at Knockando had been adversely affected by the passage of these canoes and they sought a Declarator that they had the exclusive right of navigation on the stretch of river flowing through their lands, and also sought Interdict against the Sailing School, maintaining that the Spey was a private river.

Decision: It had been proved that from the 17th century until the end of the 19th century, there had been a practice of floating timber and other commodities down the Spey. This practice ceased after about 1885 and there was no general navigation in the Spey until the 1920s, when canoeing began, followed by a significant further increase after the Second World War. The House of Lords held: (1) that the Spey was a public navigable river; (2) that the fundamental requirement for a public right of navigation in a non-tidal river was that it must be navigable as being suitable for the passage of vessels or rafts so as to provide a means of communication and that it must be proved that there had been habitual regular use from time immemorial (at least 40 years); (3) that the right of public navigation was not a servitude and could not be lost by non-use; (4) that the theoretical basis of the public right of navigation was that the Crown had not and could not have alienated the right to use the river for navigation but had retained it in trust for the public; (5) that it was not strictly analogous to a right of way on land and did not require to run between two public places; (6) that in relation to a public right of navigation on a non-tidal river, the question of public interest or benefit was irrelevant; and (7) that the public right of navigation in the River Spey which was established in 1783 and was still in existence, extended to permit any operation by a vessel which could be reasonably described as a boat, including a canoe.

96 Comments: This is the leading case on the subject of the public right of navigation in a non-tidal river. The report extends over 140 pages of the law report, and it is not possible here to give any more than a brief outline of the case; for anyone with an interest in the subject, the whole report is required reading, as it contains a lengthy review of the facts and the law, with copious reference to legal authority.

Crown Estate Commissioners v Fairlie Yacht Slip Ltd. Case Report: 1979 SC 156

This case considered the issue of incidental rights to the right of navigation.

The defenders were a firm of boat builders. They had fixed moorings on the seabed for the use of yachts and other vessels. The pursuers sought a declarator that only the Crown could give permission for such fixtures. They also sought an interdict against the fixing of further moorings at Fairlie Bay (in Ayrshire). The defenders argued that the Crown’s rights were subject to public rights of navigation, and the fixing of moorings was incidental to that right.

Decision: The court said that the right of navigation was primarily a right of passage. It held that (1) that the fixing of moorings on the seabed was not in the course of exercising public rights of navigation. The right is not ancillary to the public right of navigation in tidal waters. (2) That permission for such fixtures lay exclusively with the Crown. (3) This did not prevent the Crown from permitting others to lay such moorings.

Denaby and Cadeby Main Collieries Ltd v Anson Case Report: [1911] 1KB 171

This was an English case, but was quoted with approval in the Fairlie Yacht case above.

The appellants claimed that mooring their coal hulk in Portland Harbour was an incident of the public right of navigation. However, the court decided that the mooring of the vessel was not an incident of the right of navigation as it had been moored for the purpose of carrying on the business of selling coal to vessels using the harbour.

Lord Justice Fletcher Moulton said: “The public have no doubt the free use of the water for the purpose of navigation, and this includes the exercise of all rights ancillary thereto, but that means ancillary to that navigation, i.e. to the navigation of the ship navigated. They have, for instance the right of waiting in a place till the wind or the weather, or probably also the season, permits them to leave it, or until they have obtained a cargo or have completed repairs. ….But all this is in the exercise of the rights of navigation of the ship itself.”

Campbell’s Trustees v Sweeney Case Report: 1911 S.C. 1319; 1911 2 S.L.T. 194

This case considered the extent to which the right to navigate a navigable river includes the right to moor a vessel in the course of such navigation.

The facts: The area of river considered was part of the estate of Tullichewan, held by the trustees of the deceased Campbell. The pursuers claimed that the defender and his associates were infringing upon their rights as proprietors by permanently mooring a houseboat to the bank or bed of the river. The defender claimed that the mooring of a houseboat was incidental to his right of navigation and that a bolt or pinch entrenched in the bed of the river for the attachment of an anchor was just an extension of the right of navigation and one which did not infringe upon the use and navigation of the river by any other party.

Decision: An interdict was granted in favour of the proprietors. It was held that permanently mooring a vessel was not incidental to the right to navigate the river.

Comment: See also Scammell v Scottish Sports Council 1983 SLT 462, in which it was held that the use of a pole on a river bed could be an incident of the right of navigation (e.g. to punt a vessel), but having a picnic on the banks of a river was not an incidental right.

Colquhoun’s Trustees v Orr Ewing & Co Case Report: (1877) 4R344; reversed by the House of Lords (1877) 4R (HL) 116

The facts: In this case the piers of a railway bridge were built on a riverbed. It was claimed that they interfered with the public’s right of navigation.

Decision: The court said that the piers did not interfere with the public’s right of navigation.

Comment: The Crown owns the bed of public rivers in the same way that it owns the bed of the sea. The court looked at the question of what is a ‘public river’. Until the late eighteenth century, the criterion for a public river was whether or not it was navigable. A navigable river was treated in the same way as the sea. However, this case changed the test. A public river became a river that was tidal.

Walford v David Case Report: 1989 SLT 876

The facts: The Crown Estate had provided a grant to use the sea for a fish farm. It was alleged that floating fish farm cages interfered with the public’s navigation rights.

Decision: The court said that the Crown Estate was entitled to make a grant to allow fish farming provided that this activity did not amount to a material interference with the public’s right of navigation. The fact that the use is a nuisance or inconvenience is not enough to constitute a material interference. However, if the exercise of the private right makes the public right impossible, then the public right of navigation prevails.

Comment: In this case the fish farm cages could be avoided easily by exercising normal navigational care and they were therefore not a material interference.

Ellerman Lines Ltd v Clyde Navigation Trustees Case Report: 1911 S.C. 122

The facts: Two steamships collided in a narrow part of the Clyde. The collision occurred due to the attempts by one of the steamships to avoid a tug towing barges. In the dock from which the tug had emerged a cruiser being fitted out had been moored by the shipbuilders in a fashion which was in contravention with the local byelaws. An action was brought by the owners of the steamships against the owners of the tug and the shipbuilders.

Decision: It was held that the primary cause of the accident was the negligent navigation of the tug. Nevertheless, had the cruiser not been so poorly positioned, the collision may have been avoided. On that conclusion, joint fault fell upon the defenders.

Comment: The International Regulations for Preventing Collisions at Sea 1972 (IRPCS) now apply in all tidal waters (e.g. a vessel proceeding along a narrow channel must keep to starboard).

3.2 Rights in relation to the foreshore

Introduction The foreshore is the part of the shore of the sea and tidal rivers and lochs between the high and low watermarks of spring tides. It usually belongs to the Crown. However, over the course of time, large sections of the foreshore have been conveyed to adjoining proprietors.

The public has the usual rights of access on the foreshore under Part 1 of the Land Reform (Scotland) Act 2003. However, common law rights in relation to the foreshore existed before the 2003 Act, and provide more extensive public rights than are contained in the 2003 Act. In addition to the kind of activities that are covered by the 2003 Act (e.g. walking, bathing, picnicking and playing games) the common law gives the public the right to light fires, fish in the sea, gather shell-fish, and shoot wildfowl above the foreshore or sea. These additional rights at common law only apply to the foreshore of the sea and other tidal waters, and so do not apply to the banks of non-tidal waters.

Access is available to the foreshore by boat from the sea, but the public can only use the foreshore from the landward side if there is a legitimate means of access by land. Access rights under the 2003 Act will now usually provide such a means of access, but not for motorised vehicles which are excluded from the Act. In the past, the need for access led to many disputes about whether there was a right of way to the foreshore (see relevant cases in Part 2.2 above). A particular point on the foreshore can become a ‘public place’ in the sense of being a proper terminus for a right of way if the public have been in the habit of resorting to it for a particular purpose such as fishing, loading or unloading vessels, or bathing and recreation (again, see Part 2.2).

Marquis of Bute v McKirdy & McMillan Case Report: 1937 SC 93

The facts: This case related to public access to the foreshore at Scalpsie Bay, near Rothesay, on the Isle of Bute. The proprietor of the foreshore, the Marquis of Bute, sought a Declarator to the effect that no right of way existed over a track about a quarter of a mile in length leading from a public road to the foreshore. It had been established that the track was part of a road, extending to the foreshore, which became a public road in 1819, but which ceased to be maintained at public expense in 1836. It was proved that from 1865 to 1934, when the proprietor first attempted to close the track, it had been used by the public as an access to the foreshore for the purpose of bathing and recreation. The evidence justified the inference that this use had extended as far back as 1836.

Decision: The court analysed previous cases concerning the foreshore and came to the conclusion that “a practice of resort by the public to the shore for recreation must be regarded as an exercise of one of those minor public rights with which the title of the Crown is charged.” (Lord Moncrieff).

Comments: This is a lengthy but illuminating case containing a wealth of citation of authorities and including a study of public rights to and recreation on the foreshore. It also has relevance to the question of routes formerly but no longer maintained by a local authority.

The case has also been placed in Part 2.2 in relation to the foreshore as a public place for a right of way.

100

Cases referred to: There was a copious citation of cases, including the following: (1) Winans v Lord Tweedmouth (1888) 15 R 540 (Not in this publication). (2) Campbell v Walker (1863) I M 825 (Not in this publication). (3) Lang v Morton (1893) 20 R 345 (Not in this publication). (4) Town Council of Perth v Kinnoul (1909) SC 114 (Not in this publication). (5) Bell v Magistrates of Prestwick (1930) SC 241 (Not in this publication). (6) Duncan v Lees (1871) 9 M 855 (7) Scott v Drummond (1866) 4 M 819 (8) Hope v Bennewith (1904) 6 F 1004 (Not in this publication). (9) Young v North British Railway (1887) 14 R (HL) 12 AC 544 (Not in this publication). (10) Darrie v Drummond (1865) 9 M 496 (11) Macpherson v Scottish Rights of Way Soc’y (1888) 15 R (HL) 68

Leith-Buchanan v Hogg Case Report: 1931 SC 204

The facts: This case related to a claim by Hogg that he was entitled to use a part of the shore of Loch Lomond, which belonged to Leith-Buchanan, for his (Hogg’s) boat-hiring business.

The River Leven, which is navigable but non-tidal, flows from Loch Lomond to the sea. In this case, both parties assumed that Loch Lomond was an extension of the navigable but non-tidal River Leven. The Court, however, while accepting that assumption for the purposes of this case only, expressed doubt about whether there could be a right of navigation on inland lochs. [Editor’s note: but see comment below.]

Decision: The banks of a navigable non-tidal river or loch are the property of the riparian owners. A navigable non-tidal river or loch has no foreshore, and the public has none of the rights it enjoys on the foreshore of the sea. Any public rights on a navigable river or loch are therefore only those that are incidental to navigation of the river or loch itself.

Comment: Although the court expressed doubt about whether navigation rights could apply on inland lochs, the Wills Trustees case, above, appears to accept that navigation rights may apply in respect of inland lochs.

This case has also been placed in the Part on rights of way in relation to the issue of the foreshore as a terminus for a right of way (Part 2.2).

Cases referred to: A number of cases were referred to, of which only the following appears in the present publication: Duncan v Lees (1871) 9 M 855.

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Officers of State v Smith Case Report: (1846) 8 D 711; affirmed (1849) 6 Bell 487

The Facts: Smith had erected a wall, which encroached on the seashore. The local inhabitants had become accustomed to using the seashore for recreation and it had also been used for a military review. They raised the issue of restricted access to the shore with the local council.

Decision: The Officers of State in Scotland obtained an interdict against Smith on the basis that the public had a right of access along the foreshore, and this was confirmed on appeal. The public’s right was said to include passage, ‘or of mere enjoyment and healthful exercise’.

See also: Darrie v Drummond (Part 2.2) Duncan v Lees (Part 2.2) Lauder v MacColl (Part 2.2) Oswald v Lawrie (Part 2.2)

102 PART 4: LIABILITY CASES

Introduction Occupiers of land have a duty under the Occupiers Liability (Scotland) Act 1960 to take reasonable care for the safety of people coming onto their land. ‘Occupiers’ include landowners and others who have control of the land, such as tenants. As will be seen from the cases below (4.1), occupiers are not usually liable when people are injured as a result of natural hazards on the land, provided that the dangers are obvious. However, liability is more likely to arise where children are involved (4.2). The issue of liability has been a concern raised by land managers as part of the introduction of statutory access rights, but section 5(2) of the 2003 Act clarifies that the duty of care owed by an occupier to another person on the land is not affected by this part of this Act or by its operation. There is a caveat for a compulsory path order made by a local authority under Section 22(1), whereby at section 22(4) regard may be had to whether the local authority has control of the path for the purposes of the Occupiers Liability (Scotland) Act 1960.

Occupiers may be liable if people are injured on the premises of facilities that they provide for visitors, such as toilets (4.3). But liability will only arise if the injuries are the result of the occupier’s negligence.

Special provisions may apply in relation to accidents caused by animals (4.4).

This Part also includes cases relating to liability of one recreational user to another (4.5), and cases relating to contributory negligence (4.6), i.e. where it is claimed that the claimant is partly or wholly responsible for his own injuries – leading to a reduction in any compensation awarded.

See also Scottish Natural Heritage’s publication A Brief Guide to Occupiers’ Legal Liabilities in Scotland, which can be downloaded at: http://www.snh.org.uk/pdfs/publications/heritagemanagement/occupiers.pdf

4.1. Occupiers’ liability: Cases involving ‘hazards’ in the outdoors

Fegan v Highland Regional Council Case Report: 2007 SLT 651; [2007] CSIH 44 XA54/06

Scottish Courts Service ref: http://www.scotcourts.gov.uk/search- judgments/judgment?id=cc3386a6-8980-69d2-b500-ff0000d74aa7

An Inner House decision, on appeal from Wick Sheriff Court.

103 The facts: The claimant fell from a cliff top in Thurso having been sitting on a bench provided by the defenders, Highland Regional Council, a few feet from the cliff top. She sued the Council for failing to fence it off.

Decision: The claimant’s case was rejected by the Inner House on appeal on the basis that there was no unusual or special danger requiring the local authority as occupier of the site to provide a fence.

The court held that the law in Scotland remained as stated historically in earlier Scottish cases, in particular Stevenson v Glasgow Corporation 1908 SC 1034 (see below, Part 4.2) and Glasgow Corporation v Taylor [1992] 1AC 44 (see under Part 4.2), to the general effect that an occupier of land containing naturally dangerous phenomena is not required to take precautions against persons becoming injured by reason of those dangers unless there were special risks such as unusual or unseen sources of danger. In this case the location of the seat did not amount to such a special risk.

Graham v East of Scotland Water Case Report: 2002 SCLR 340 Scottish Courts Service reference: http://www.scotcourts.gov.uk/search- judgments/judgment?id=f73387a6-8980-69d2-b500-ff0000d74aa7

This was an Outer House case in the Court of Session (Lord Emslie).

The facts: In this case a person was drowned in a reservoir at night. It was claimed that the reservoir should have been fenced at a point where the wall adjoining the reservoir was low. There had been no previous accidents or complaints about safety although the road next to the reservoir was heavily used. The person who had drowned lived locally and should have been aware of the lie of the land.

Decision: In line with earlier cases, the court held that there is no duty on the occupier of land to fence off obvious dangers on land. It was noted that the reservoir and wall were man-made, rather than natural features. However, they were well-established, permanent and familiar features of the landscape. There is no duty to fence long-standing artificial features where they are not concealed or unusual. The court commented, however, that an occupier had a duty to fence off any particular, or unfamiliar, hazard on his land, such as industrial machinery.

Duff v East Dunbartonshire Council Case Report: 1999 GWD 22-1077; 2002 G.W.D. 26 – 921 Scottish Courts Service website ref: http://www.scotcourts.gov.uk/search-judgments/judgment?id=13d786a6-8980- 69d2-b500-ff0000d74aa7

The facts: The claimant had been injured when he slipped down a steep

104 embankment adjoining a car park.

Decision: This was an Inner House case in the Court of Session on appeal from a decision by Lady Cosgrove in the Outer House. Both the Outer House and Inner House of the Court of Session indicated that there was no duty to fence off a natural hazard that is obvious. However, the pleadings on behalf of the claimant were amended prior to the appeal to the Inner House, to put in question the safeness of the exit from the car park and the steepness of the ground immediately outside the exit; on this basis the Inner House reversed the decision to dismiss the case outright and sent it back to the Outer House for a proof (i.e. to hear the evidence of witnesses in full). The final outcome is not reported.

Strachan v Highland Council Case Report: 1999 G.W.D 38 - 1863 Dingwall Sheriff Court, 11th November 1999.

The facts: The claimant was injured when he fell from a cliff top path. He had accessed the path from a car park by stepping over a fence. It was claimed that the fence was in disrepair.

Decision: Following earlier cases, the court said that there was no duty to fence off the cliff because it was a natural and obvious hazard. On the question of the failure to maintain the fence, the court said that the Council had not known of the damage to the fence. However, even if they had known that it was in disrepair, it remained a visible barrier. If an adult deliberately chose to cross such a barrier then any resulting injury was entirely his own fault.

Brown v South Lanarkshire Council Case Report: 2001 G.W.D 6 - 189

The facts: The pursuer slipped on a snowy path in Carluke while walking his dogs. The path was in Moor Park, which was owned and occupied by the defenders. The purser claimed that the defenders failed to take reasonable care to clear the path of snow on that day. The job of clearing snow/ gritting paths had been given to a contractor who gave evidence to the effect that neither he nor his employees ever went into the parks to clear the paths, including Moor Park.

The decision: The pursuer accepted that clearing the path was not a priority for the Council. The issue was therefore not whether there had been a failure to clear the path in the park, but whether there had been a failure to carry it out in a reasonable manner. As there had been no evidence to show that either the Council or their contractors had cleared the path at all, the court held that there had been no breach of a duty of care on the part of the Council. It was further held that even if the defenders had been found to be in

105 breach of a duty of care, 50% contributory negligence would have been attributed to the pursuer as he was aware that the path had not been cleared or gritted.

Trueman v Aberdeenshire Council Aberdeen Sheriff Court, 20th November 2007 Scottish Courts Service website: http://www.scotcourts.gov.uk/search- judgments/judgment?id=13d786a6-8980-69d2-b500-ff0000d74aa7

The facts: Mrs Trueman sued Aberdeenshire Council under the Occupiers Liability (Scotland) Act 1960, as owners and occupiers of her local park, Burnside Park, Portlethen. Mrs Trueman fell into a burn in the park in the early hours of 1st January 2000, while taking a short cut across the park to visit friends as part of the millennium celebrations, in the course of which she had enjoyed a number of alcoholic drinks. She suffered injuries as a result of which she had to give up her work.

The Council had erected a light demarcation fence parallel to the burn, at the top of the bank, to prevent pedestrians from encroaching onto a planted area between the path and the burn. The fence had been vandalised regularly leaving top and bottom strands of wire exposed. The bottom wire was just a few inches from the ground. As Mrs Trueman was coming up to a bridge across the burn, she mistook where she was in relation to the bridge, stumbled, tripped on the bottom strand of wire and fell down the bank into the stream.

Decision: In his decision, Sheriff McLernan said that the Council had a duty under the 1960 Act to care for the safety of people using the park. They had no duty to erect a fence but, once the fence had been constructed, they had a duty to maintain it in a condition that would not cause a danger to people using the park. The Council had failed to take reasonable care to maintain the fence and the exposed wire was a reasonably foreseeable source of danger. The fence had been in a depleted condition for several months.

However, on the issue of contributory negligence, the Sheriff said that Mrs Trueman’s own contribution to the accident had been very high. The main reason for her fall was because of her failure to keep a proper lookout where she was going and retain control of her movements. Even if she had not tripped over the wire, she might not have managed to regain her balance after stumbling. He found that she was 80% responsible for the accident, and that the damages would therefore be reduced accordingly. Full damages had been previously agreed at £35,000, inclusive of interest.

106 Marshall v North Ayrshire Council Kilmarnock Sheriff Court: 30th August, 2005 Scottish Courts Service Ref: http://www.scotcourts.gov.uk/search- judgments/judgment?id=3dd086a6-8980-69d2-b500-ff0000d74aa7

The facts: The claimant had been injured when he had fallen from a public footpath onto rocks on the seafront at Saltcoats. He had been walking with a friend, at night, and had leaned against a wall that bounded the path. He claimed that the wall was in disrepair and, as a result, he fell through a gap onto the rocks 20 feet below. He also claimed that the area was not sufficiently lit, and that there was a duty to maintain the wall under the Coast Protection Act 1949.

Decision: The Sheriff was asked to dismiss the case because the danger should have been obvious. However, the Sheriff said that there were public safety issues to be considered, and he would not dismiss the case outright, before hearing the evidence in full. The final outcome is not reported.

Tomlinson v Congleton Borough Council Case Report: [2003] 3WLR 705; (2003) UKHL 47

The facts: The claimant had been seriously injured when he dived into a pond in a country park.

Decision: This is an English case, but an authoritative House of Lords determination, which discusses and applies the Scottish approach to cases on liability for injuries from natural hazards out of doors. The claimant had been successful in obtaining compensation for his injuries in the lower courts and the Council appealed to the House of Lords. The House of Lords allowed the appeal by the Council. They said that the claimant had voluntarily engaged in an activity which was inherently dangerous and that there was no duty on the Council to take steps to prevent people from diving, or to warn people about dangers that were perfectly obvious. An occupier has no duty to provide protection against an obvious danger arising on his land, arising from a natural feature such as a lake or a cliff. However, Lord Hutton said that there might be exceptional cases where a claimant might be able to establish that a hazard from a natural feature was sufficiently great that it required the occupier to take steps to protect people, e.g. a particularly dangerous cliff-top path from which people had already fallen.

Lord Scott said (at p. 735) “Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone”.

Lord Hoffman said: "I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course

107 the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so."

Johnstone v Sweeney Case Report: 1985 SLT (ShCt) 2

The facts: A couple walking on a towpath which was a right of way came to a watercourse running across the path. This had broken up the path and a metal girder had been placed across the eroded section of the path. The couple were both injured when the metal girder gave way as they were crossing it. It was not alleged that the defenders had placed the girder there (or when), nor that they should have known either of its existence or of its rotten state.

Decision: This is an interesting case in relation to occupiers liability and rights of way. The Sheriff dismissed the claim, holding that  the existence of a right of way does not, in itself, exclude an occupier’s liability under the 1960 Act; but  there is no positive duty on an occupier of ground which is a right of way to maintain the right of way, but only a negative duty to allow passage; and  the occupier is not liable for an injury caused by the dangerous state of the path except where he is proved to have created the danger himself.

McCluskey v Lord Advocate Case Report: 1994 SLT 452 (N) An Outer House decision by Lord Kirkwood.

The facts: The claimant slipped on a narrow track leading to the Rogie Falls, in the Forestry Commission’s Torrachilty Forest. She fell onto rocks and was injured.

Decision: The action was unsuccessful. The Court found that the path on which the pursuer fell was not in the network of Forestry Commission paths for which the defender was responsible and was not really a path at all but a rough shortcut to the Falls. The Forestry Commission was not in occupation or control of that path and had no duty to prevent people straying off their own network of paths onto it. The court also indicated that if it had found the defender to have any liability it would have found contributory negligence of two thirds on the part of the pursuer for her footwear and choice of route and apportioned damages accordingly.

108 Lang v Kerr Anderson & Co. Case Report: (1878) 5 R (HL) 65

The facts: The property of Kerr Anderson & Co. was bounded by a wall. There was a public footpath between this wall and the River Clyde. Kerr Anderson & Co. made no use of this footpath. Lang, the Master of Works of the City of Glasgow, considered that the bank of the river was dangerous and required the erection of a wooden fence by Kerr Anderson & Co., who appealed against that requirement.

Decision: The Master of Works was not entitled to call upon Kerr Anderson & Co. to erect a fence (in addition to the wall already bordering their ground) outwith the ground owned and used by them, for the protection of the public on the public footpath.

Comment: This case turns upon a speciality in a Local Act of Parliament, but the general principle is that a proprietor is not bound to fence a right of way which lies outwith his property and of which he makes no use.

Wright v Nevis Range Development Company Case Report: [2006] CSOH 68 Scottish Courts Service website link: http://www.scotcourts.gov.uk/search-judgments/judgment?id=9f9586a6-8980- 69d2-b500-ff0000d74aa7

Court of Session, Outer House, 4 May 2006

The facts: The pursuer was seriously injured in a skiing accident at Aonach Mor near Fort William, where the defenders provided skiing facilities. The pursuer was an experienced skier who had skied at Aonach Mor many times. A change of weather while he was skiing had resulted in poor visibility and he accidentally went off piste and fell through a cornice over a cliff. The pursuer claimed that there should have been warning signs along the edge of the cliff.

Decision: In line with previous cases, the defenders had no duty to fence off, or give warning of, natural dangers. Even if there had been such a duty, a balance had to be struck, and the Court considered that it was not reasonable to expect signs to be placed at the location of the accident - they could become covered by snow. Signs would also have an impact on the natural beauty and attractiveness of the wilderness site. The area where the accident occurred was only used by experienced skiers and the defenders’ literature made it clear that there was a steep slope in this area. The danger also had to be weighed against the fact that there had never before or since been an accident of the type complained about by the pursuer. The defenders were therefore not liable for the pursuer’s injuries.

See also: Stevenson v Glasgow Corporation 1908 SC 1034 (Part 4.2). Glasgow Corporation v Taylor (Part 4.2).

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4.2 Occupiers’ liability: Cases involving children

Dawson v Scottish Power Case Report: 1999 SLT 672

The facts: A child of 11 was injured when climbing over a fence round an electricity sub-station in order to retrieve his ball. The fence was only 4 foot high at the relevant point.

Decision: The occupier was found to be at fault for not making the fence higher all round to deter children from trying to climb it. Following earlier cases, the court said that the claimant belonged to a group of persons who could be reasonably foreseen to attempt to cross the fence. However, a finding of one third contributory negligence was made against the boy pursuer for attempting to climb over a fence which was obviously dangerous (with a row of spikes on the top).

Jolley v Sutton London Borough Council [2000] 1WLR 1082; [2000] 3 All E.R. 409; [2000] Lloyd’s Rep.65

The facts: The claimant was a child of 14 who was injured when an abandoned boat fell on him. He had jacked it up while he was trying to repair the boat at the time of the accident.

This was an English House of Lords case. The court held that the defendant was liable because the abandoned boat on its ground might cause injury to a child, even though the accident was not of a type that was reasonably foreseeable. This was because the defendant conceded that it should have removed the old boat hulk for a more minor but foreseeable risk (that children might fall through its rotten deck planking) and the court felt that its duty of care thereby extended to the more serious, but not readily foreseeable, risk that it might fall on top of children who had decided to jack it up for repair.

In doing so the court followed its own decision in the (Scottish) case of Hughes v Lord Advocate 1963 SC (HL) 31 where the occupiers who had left an open manhole in the road were held liable to a child who was injured not by falling down the manhole (which would have been readily foreseeable) but by an explosion caused by the child climbing into the manhole then knocking a lit lamp into the manhole when climbing out of it (which was not itself readily foreseeable).

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Stevenson v Glasgow Corporation Case Report: 1908 SC 1034

Facts: a small child fell into a river in a public park and was drowned.

Decision: The Court found that there had been no duty on Glasgow Corporation to take protective measures to guard against this kind of accident where the danger was obvious. It was up to the parents to ensure that the child did not come to harm.

Lord McLaren stated: "In a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town on the banks of a river is a familiar feature; and whether the stream be sluggish like the Clyde at Glasgow, or swift and variable like the Ness at Inverness, or the Tay at Perth, there is always danger to the individual who may be so unfortunate as to fall into the stream. But in none of these places has it been found necessary to fence the river to prevent children or careless persons from falling into the water. Now, as the common law is just the formal statement of the results and conclusions of the common sense of mankind, I come without difficulty to the conclusion that precautions which have been rejected by common sense as unnecessary and inconvenient are not required by the law."

Lord Kinnear said (p.1043): “… there is no authority for imposing on the proprietors or managers of public parks a duty to protect children from such risks as are incident to their childhood … The only real security is that children who are too young to take care of themselves should be taken care of by somebody else.” At the end of his judgment he said (at p. 1045): “It is impossible to lay upon the defenders a duty to protect children from risks which arise only from their own childishness and helplessness. That is the office of their parents or guardians.”

Lord Mackenzie said (p. 1046) that the danger was an obvious one and that the proximate cause of the accident was that a child of tender years went there unattended: “… if the child was in a position to take care of itself the same standard must be applied as would be applied in the case of an adult. If the child was so young as not to be able to take care of itself, it should never have been allowed to go there unattended …”.

Glasgow Corporation v Taylor Case Reports: [1922] 1 AC 44; 1922 SC (HL) 1; [1921] All ER Rep 1; [1921] UKHL 2; 1921 2 SLT 254; 29 ALR 846

Facts: A father brought an action for damages for the death of his 7 year-old son who had eaten poisonous berries growing in a park in Glasgow. The plants were easily accessible from a children's play area and it was said that

111 the defender had a duty to warn children against the danger or to prevent them from reaching the shrubs.

Decision: This was a hearing on the issue of whether there was a sufficient cause of action to proceed to trial. The Court said that there was sufficient cause. The berries, which looked like cherries or blackcurrants, were found by the House of Lords to constitute an ‘allurement’ to the child. Lord Shaw of Dunfermline said that in grounds open to the public, the duty resting upon the proprietors to make them reasonably safe does not include an obligation of protection against dangers which are themselves obvious. However, where there are dangers which are not obvious, they should be made the subject either of effectively restricted access or “of such express and actual warning of prohibition as reaches the mind of the persons prohibited."

4.3 Occupiers’ liability: cases involving facilities/indoor premises

Porter v Borders Council Case Report: [2008] CSOH163 Scottish Courts Service website ref: http://www.scotcourts.gov.uk/search- judgments/judgment?id=12948aa6-8980-69d2-b500-ff0000d74aa7

Outer House, Court of Session, 4th December 2008

The facts: Mr Porter slipped and fell in the toilet and was injured. It was claimed that he fell because the floor tiles were slippery and that they should have been replaced by non-slip tiles.

Decision: The judge said that there had been no evidence to indicate that the tiles were dangerous. The kind of tile in question had been used by the Council for 39 years without previous complaint. There was no duty on the Council to embark on a programme of replacing them with non-slip tiles. It was not reasonable to expect the defenders to do any more than they already did to keep the public toilets clean and dry for the safety of those entering them at the relevant time. It was unreasonable to expect the tiles to be dry at all times. -

Comment: This case on an accident in a public toilet in Hawick and will be of relevance to those who provide toilet or similar facilities for the public, e.g. in car parks and visitor centres.

112 Poppleton v Peter Ashley Activities Centre Reported in the Daily Telegraph, 12th June 2008

The facts: This is an unreported English Appeal Court decision. It was an appeal against an award of damages to a man who was injured in a fall from a climbing wall. He claimed that the Activities Centre had not given him any training or warned of the potential dangers. At first instance he was awarded damages on the basis that the Activities Centre was 25% at fault. However, this was overturned on appeal.

Decision: The Appeal Judges said that it was quite obvious that a serious injury could result from a fall, and that no amount of matting could remove all risk. They rejected his claim that the Centre should not have allowed him to climb without assessing him first, indicating that otherwise it would have wide- ranging implications for dry ski slopes, mountain bike tracks, swimming in pools or the sea, and gymnasiums. The case confirms that where people engage in activities that involve a degree of unavoidable risk, they may have no recourse if they are injured, even if they are paying for the use of facilities and/or equipment.

McCondichie v Mains Medical Centre Case Report: 2004 Rep L.R. 4 Scottish Courts Service ref: http://www.scotcourts.gov.uk/search-judgments/judgment?id=5cde86a6-8980- 69d2-b500-ff0000d74aa7 Decision in the Outer House dated 31 October 2003.

The facts: The claimant was injured when she slipped and fell in an icy car park.

Decision: The court found that there was a suitable system in place for treatment of the ice, and it had been properly implemented. The claim therefore failed.

Comment: This is a standard example of ice clearing cases which are regular court fodder and generally involve employees suing their employers for unsafe workplace conditions. The same standards are unlikely to apply in the case of icy conditions in car parks and footpaths in remoter parts of the countryside.

4.4 Cases involving animals

Introduction Cases under this heading may involve not only the Occupiers Liability (Scotland) Act 1960 but also the Animals (Scotland) Act 1987 or the common law of negligence. The 1987 Act imposes strict liability (i.e. without the need to prove negligence) on the owners of animals which by their physical attributes

113 or characteristics are likely to injure severely or kill people or other animals. Dogs are deemed to fall within that description in cases where they bite, savage, attack or harry a person or other animal.

Gardiner v Miller Case Report: 1967 SLT 29

The facts: This case concerns liability for the escape of animals onto the public highway. The claimant was a motorist who was injured when his car collided with a horse which had escaped from an adjoining field. The horse had escaped through a gate that had not been properly secured with a rope.

Decision: The court held that although there was no absolute duty on the field occupier to keep the gate shut, the issue to be decided at a full hearing of the evidence was whether reasonable care had been taken in securing the gate so as to prevent animals straying onto the public road, with a foreseeable risk of causing damage to people using the road.

Comment: Whether an occupier is liable depends on the particular facts of the case. For example, he might not be liable if a horse escaped because an unauthorised person opened a gate. For a similar case, see Wormold v H J Walker & Co, a decision in the Outer House dated 30 December 2003 (Scottish Courts Service website ref: http://www.scotcourts.gov.uk/search- judgments/judgment?id=01d186a6-8980-69d2-b500-ff0000d74aa7).

Shirley McKaskie v John Cameron Blackpool County Court 1 July 2009

The facts: This was an English personal injuries case. The claimant claimed damages for injuries she suffered when she was attacked by a herd of cows as she was walking along a path across a field with her dog.

The decision: The judge held the farmer liable under the (English) Animals Act 1971, under which there is strict liability for injuries caused by animals in certain circumstances. The judge said the Act applied in this case because the cows had calves at foot which meant that they had unusual characteristics. The 1971 Act does not apply in Scotland, but the Animals (Scotland) Act 1987 also makes provision for strict liability for injuries caused by animals in certain circumstances, although the wording is different from the English Act.

The judge also said that the farmer was negligent because he had not taken appropriate steps to reduce the risks to the public. He could have kept the cows in a field where there was no footpath, or fenced off the path. The claimant had not been on a designated footpath, but she had been entitled to deviate from the designated path because it was overgrown with nettles. Also, the farmer was aware that people used the route she had taken.

114

Welsh v Brady Case Report: 2008 SLT 363; [2009] CSIH 60 Scottish Courts Service ref: http://www.scotcourts.gov.uk/search- judgments/judgment?id=99b286a6-8980-69d2-b500-ff0000d74aa7 (Outer House) http://www.scotcourts.gov.uk/search-judgments/judgment?id=52a686a6-8980- 69d2-b500-ff0000d74aa7 (Inner House Appeal)

The facts: The claimant was knocked over, but not attacked, by a ‘high- spirited’ black Labrador dog.

Decision: A judge in the Outer House of the Court of Session had described it as ‘an unfortunate and unforeseen collision’....’a pure accident’ and held that the defender was not liable on the basis that reasonable care did not require a dog of this kind and general characteristics to be kept on a lead even if it did not always respond to commands. Mrs Welsh appealed to the Inner House of the Court of Session.

The appeal, heard by Lord Nimmo Smith, Lady Dorrian and Sir David Edward QC, considered possible liability of the keeper of an animal under the Animals (Scotland) Act 1987. The Act provides that a person will be liable for injury or damage caused if the animal belongs to a species which is generally likely to seriously injure or kill or cause damage to property. Sir David said the question for the appeal judges became: "Are fully grown black Labradors, by virtue of their physical attributes or habits, likely, unless controlled or restrained, to injure severely or kill persons or animals?"

The dog involved in the incident was a Labrador bitch, weighing 25kg. She was described as large, lively and boisterous. She was considered excitable but not aggressive, although she did not always respond to commands to return to her owner.

Sir David said that Mrs Welsh's counsel, Colin MacAulay QC, had "sought valiantly" to persuade them that there was evidence to show that Labradors could be dangerous, but he said the appeal judges considered it "fell far short" of what was required to meet the legal test of strict liability and his arguments went no distance at all towards demonstrating that black Labradors are, by virtue of their physical attributes or habits, likely to injure severely or kill persons or animals. The appeal was therefore rejected.

Comment: An earlier case (Fairlie v Carruthers 1996 SLT (Sh Ct) 56) also involved someone being knocked over by a black Labrador in almost identical circumstances. The pursuer argued that the defender was strictly liable under the 1987 Act specifically because the dog had attacked or harried her. This

115 was rejected by the Sheriff and her case dismissed because (as was also the case in Welsh v Brady) the dog had accidentally collided with the pursuer without the intention of attacking or harrying her.

4.5 Liability of recreational users to one another

Pearson v Lightning Case Report: 1998 EWCA Civ 591; 1998 142 S.J.L.B 143 (Times)

The Facts: This was an English decision in the Court of Appeal concerning liability for injury caused by a golf ball. The defendant had hit a golf ball which was deflected by a bush and hit the plaintiff in the eye.

Decision: The Court of Appeal approved the earlier decision which found the defendant liable for the plaintiff’s injury. They said that it was extremely unfortunate for both parties that the golf ball, having been deflected by the bush, should then have happened to hit the plaintiff in the eye. However, in the particular circumstances of the case, the defendant owed the plaintiff a duty of care and in striking the ball at the time when he did, without waiting for the plaintiff to pass by him and, without prior warning to the plaintiff, the defendant was in breach of that duty and thereby caused the plaintiff injury.

Comments: It was noted that the outcome of any case concerning golf course injuries must depend on its particular facts.

Milne v Duguid Case Report: 1999 S.C.L.R. 512

The facts: This case considers restrictions on club members suing one another. A member of a golf club was injured when a golf ball rebounded off a stone and hit her in the eye. The pursuer sued firstly, the green keeper (who was also a member of the club); secondly the green committee; and thirdly, the office-bearers of the club as representing the club. She sued the green keeper on the basis that he had failed in his duty to take reasonable care to inspect the relevant area every two weeks. She sued the green committee on the basis that they had failed in their duty to take reasonable care to inspect the relevant area every two months. She sued both the green committee and the office bearers as representing the club as occupiers in terms of the Occupiers Liability (Scotland) Act 1960 and as being vicariously liable for the negligence of their employee, the green keeper.

116 Decision: Sheriff Kelbie said that the claimant could not sue the golf club because, as a member, she was jointly responsible with all other members for the golf club’s debts, and it would be tantamount to suing oneself. She could not sue other members (as such) for similar reasons. However, he considered that there might be a case against the green keeper, which would require a full hearing of the evidence.

See also: Welsh v Brady, Part 4.4 above.

4.6 Cases relating to contributory negligence

Smith v Finch Case Report: [2009] EWHC 53 (QB)

The facts: In this case the claimant was a cyclist who suffered serious head injuries when he collided with a motorbike ridden by the defendant. The motorcyclist was found liable for the accident but argued that damages should be reduced because the claimant was not wearing a helmet.

Decision: This was an English High Court decision which indicated that in some circumstances a cyclist could have damages reduced for contributory negligence for failing to wear a helmet. However, it is up to the person defending the claim to show that, in the particular case, injuries would have been reduced by wearing a helmet.

The court referred to comments in an earlier decision (Froom v Butcher [1975]) about the sensible practice of wearing motorbike helmets, which the court held should also apply to the wearing of helmets by cyclists. The fact that cyclists are not legally compelled to wear helmets did not matter, as there could be no doubt that the failure to wear a helmet might expose the cyclist to a risk of greater injury. However, it is up to the person defending the claim to show that, in the particular case, the claimant had failed to take proper care for their own safety, and that the failure to wear a helmet was a contributory cause of the injury. In this case the court found that the cyclist’s injuries would not have been reduced or prevented by the wearing of the helmet and contributory negligence therefore did not apply.

See also: McCluskey v Lord Advocate 1994 SLT 452 (N) (3.1 above) Brown v South Lanarkshire Council (3.1. above) Trueman v Aberdeenshire Council (3.1 above) Dawson v Scottish Power 1999 SLT 672 (3.2 above)

117 PART 5: OTHER CASES OF INTEREST

Neizer v Rhodes Case Report: 1995 GWD 39-2000

Key points: Criminal Justice and Public Order Act 1994 - definition of trespass - intention to reside on land - disputed ownership of land.

The facts: This was a prosecution in terms of the Criminal Justice and Public Order Act 1994. Three accused persons were charged, with others, with encamping on land and failing to remove from it as soon as reasonably practicable, in breach of section 61 of the Act, after having been directed to do so by representatives of the proprietor and by a senior police officer.

Decision: There was a dispute between the two parties as to who was the owner of the land in question, and the Sheriff held that as there was no clear evidence as to who was the owner of the land, the prosecution case was without legal basis. On appeal, however, it was held that it was not necessary for the Crown to prove who owned the land, as both of the two possible owners had given evidence that they had not consented or given lawful authority for the accused to enter or to remain on the land.

Comments: For a prosecution under this Act, the element of ‘a common purpose to reside on the land’ is essential. The definition of ‘trespass’ in the Act is particular to and only applicable for the purposes of this Act.

Although ‘wild camping’ is now acceptable provided that the guidance in the Scottish Outdoor Access Code is followed, it would still theoretically be possible for a prosecution to be brought under the 1994 Act. However, prosecutions of people using rights of way or exercising their access rights under the Land Reform (Scotland) Act 2003 are unlikely, according to a statement in a Scottish Office Circular (HHD 17/1994): “While there may be circumstances in which it could be alleged that hill-walkers, etc., are disrupting a lawful activity merely through their presence on land, the Crown Office has indicated that procurators-fiscal are likely to confine themselves to taking proceedings against persons who can be said to have acted with the specific and ulterior motive and intention of obstructing or disrupting, or intimidating persons engaged in lawful activities”.

R v Howard Aylesbury Magistrates Court, 8th July 2008

The facts: In an English criminal case in Aylesbury Magistrates Court on 8th July 2008, a cyclist, Jason Howard had collided with a teenage girl who hit her head on the pavement and died a few days later. The court heard that Mr Howard could have swerved to avoid the collision and had shouted to the girl

118 “Move because I’m not stopping”. There was conflicting evidence about whether the cyclist had mounted the kerb at any point during the incident.

The decision: Mr Howard was fined £2,200 pounds for dangerous cycling (under the Road Traffic Act 1988, section 28, as substituted by the Road Traffic Act 1991, section 7). The Crown Prosecution Service defended their decision to charge the cyclist with dangerous cycling rather than manslaughter. An inquest had previously returned a verdict of accidental death.

Comments: The offence of dangerous cycling is under the Road Traffic Act 1988, section 28, as substituted by the Road Traffic Act 1991, section 7, as follows:

‘7. Cycling offences For section 28 of the Road Traffic Act 1988 there shall be substituted—

‘28 Dangerous cycling (1) A person who rides a cycle on a road dangerously is guilty of an offence.

(2) For the purposes of subsection (1) above a person is to be regarded as riding dangerously if (and only if)—

(a) the way he rides falls far below what would be expected of a competent and careful cyclist, and (b) it would be obvious to a competent and careful cyclist that riding in that way would be dangerous.

(3) In subsection (2) above ‘dangerous’ refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of that subsection what would be obvious to a competent and careful cyclist in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.’

119 Table of Cases

Note: This is an alphabetical list of cases with their case reports and/or court references, and the references to the Parts in which they appear in this publication. For page numbers for the Parts, see the Table of Contents.

Case Report and/or Case Name Part Court Reference Aberdeen City Council v Alok 2008 S.L.T 106 2.3 Wanchoo Aberdeenshire Council v Lord 1999 SLT 1456 2.6 Glentanar Aitchison v India Tyre & Rubber Co. 1950 CLY 4878 2.9 Alexander v Picken 1946 SLT 91 2.10 Allan v McLachlan 1900 2 F 699 2.8 Alston v Ross (1895) 23 R 273 2.10 Alvis v Harrison 1991 SLT 64; 1991 62 P. & C.R. 10 2.1.1 Anderson v Earl of Morton (1846) 8 D 1085 2.9 Aviemore Highland Resort v Inverness Sheriff Court, 1 Cairngorms National Park Authority Ref B94/08 Ayr Burgh Council v British Transport 1955 SLT 219 2.3 Commission Ayr Harbour Trustees v Oswald (1883) 10 R (HL) 85 2.7 Brian Gregory Hamilton v Dumfries See Hamilton v Dumfries & Galloway Council and Galloway council and others British Transport v Westmoreland [1957] 2AER 372 2.7 County Council Brown v South Lanarkshire Council 2001 G.W.D 6 - 189 4.1 Burt v Barclay (1861) 24 D 218 2.3 Cadell v Stevenson 1900 8 SLT 8 2.3 Caledonian Heritable Ltd v East Haddington Sheriff Court, Court ref: 1 Lothian Council B401/05 Campbell’s Trustees v Sweeney 1911 S.C. 1319; 1911 2 S.L.T. 194 3.1 Carstairs v Spence 1924 SC 385, 394 2.6 Colquhoun's Trustees v Orr Ewing (1877) 4R (HL) 116 3.1 Crawford v Lumsden 1951 SLT 64 2.6 Creelman v Argyll & Bute Council Dunoon Sheriff Court, Court ref.: 1 B12/08 Crown Estate Commissioners v Fairlie 1979 SC 156 3.1 Yacht Slip Ltd. Cumbernauld & Kilsyth District Council 1993 SC (HL) 44 2.3 v Dollar Land (Cumbernauld) Ltd Cuthbertson v Young (1851) 14 D 304 2.2 Darrie v Drummond (1865) 3 M 496 2.2 Davidson v Earl of Fife (1863) I M 874 2.1.2 Dawson v Scottish Power 1999 SLT 672 4.2 Denaby & Cadeby Main Collieries Ltd [1911] 1KB 171 3.1

120 Case Report and/or Case Name Part Court Reference v Anson Drury v McGarvie 1993 SLT 987 2.9 Duff v East Dunbartonshire Council 1999 GWD 22-1077; 2002 G.W.D. 26 4.1 - 921 Duffield Morgan v Lord Advocate 2004 S.L.T. 413; 2004 G.W.D. 10- 2.3 239 Duncan v Lees (1871) 9 M 855 2.2 Earl of Morton v Anderson (1846) 8 D 1249 2.9 Edinburgh Corporation v North British (1904) 6 F 620 2.7 Railway Co. Ellerman Lines Ltd v Clyde Navigation 1911 S.C. 122 3.1 Trustees Ellice’s Trustees v Commissioners for (1904) 6 F 325 2.7 the Caledonian Canal Fairlie v Carruthers 1996 SLT (Sh Ct) 56 4.4 Fegan v Highland Council 2007 SLT 651 4.1 Fife Council v Nisbet Cupar Sheriff Court. 2.9 Court Ref: A149/08 Forbes v Fife Council Kirkcaldy Sheriff Court B375/07 1 Gardiner v Miller 1967 SLT 29 4.4 Geils v Thomson (1872) 10 M 327 2.9 Glasgow and Carlisle Road Trustees v (1828) 7 S 115 2.9 Whyte Glasgow Corporation v Taylor [1922] 1 AC 44; 1922 SC (HL) 1; 4.2 [1921] All ER Rep 1; [1921] UKHL 2; 1921 2 SLT 254; 29 ALR 846 Glasgow and Carlisle Road Trustees v (1854) 16 D 521 2.9 Tennant Gloag v Perth & Kinross and Ramblers 2007 S.C.L.R. 530 1 Graham v East of Scotland Water 2002 SCLR 340 4.1 Graham v Sharpe (1823) 2 S 540 2.9 Hamilton v Dumfries & Galloway 2009 SLT 337 2.1.2 Council Hay v Earl of Morton's Trustees (1861) 24 D 116 2.9 Home Drummond & Another (1868) 6 M 896 2.5 (Petitioners) Hope v Landward District Committee (1906) 8 R 896 2.10 of the Parish Council of Inveresk Hozier v Hawthorne (1884) 11 R 766 2.5 Jenkins v Murray (1856) 4 M 1046 2.2 Johnstone v Sweeney 1985 SLT (Sh Ct) 2 4.1 Jolley v Sutton London Borough [2000] 1 WLR 1082 4.2 Council Kinloch's Trustees v Young 1911 SC (HL) 1 2.3 Kinross County Council v Archibald 1900 VII SLT 305 2.7

121 Case Report and/or Case Name Part Court Reference Kirkpatrick v Murray (1856) 19 D 91 2.9 Lanarkshire Water Board v Gilchrist 1973 SLT 58 2.9 Lang v Kerr Anderson & Co. (1878) 5 R (HL) 65 4.1 Lauder v MacColl 1993 SCLR 753 (OH) 2.2 Leith-Buchanan v Hogg 1931 SC 204 2.2 and 3.2 Lord Advocate v Strathclyde Regional 1988 SLT (SC) 546 and 1988 SLT 2.7 Council and Lord Advocate v (SC) 546 Dumbarton District Council Lord Burton v Mackay 1995 SLT 507 2.8 Lord Donington v Mair (1894) 21 R 829 2.9 Macdonald v Watson (1830) 8 S 584 2.9 Macfarlane v Morrison & Others (1865) 4 M 257 2.6 (Robertson’s Trustees) Macfie v Scottish Rights of Way and (1884) 11 R 1094 2.10 Recreation Society Limited Mackenzie v Bankes (1868) 6 M 936 2.6 Mackintosh v Moir (1872) 10 M 517 2.5 Magistrates of Dunblane v Arnold- 1951 SLT (Notes) 19 2.2 McCulloch Magistrates of Edinburgh v North See Edinburgh Corporation v North British British Railway Company Railway Co. Magistrates of Elgin v Robertson (1862) 24 D 301 2.3 Malcolm v Lloyd (1886) 13 R 512 2.6 Mann v Brodie (1884) 11 R (SC) 925 and 1885 12 R 2.4 (HL) 52 Marquis of Bute v McKirdy & McMillan 1937 SC 93 2.2 and 3.2 Marshall v North Ayrshire Council Kilmarnock Sheriff Court, 30/08/05 4.1 McCluskey v Lord Advocate 1994 SLT 452 (N) 4.1 McCondichie v Mains Medical Centre 2004 Rep L.R. 4 4.3 McGavin v McIntyre (1874) I R 1016 2.1.1 McGregor v Crieff Co-operative 1915 SC (HL) 93 2.3 Society Ltd McInroy v Duke of Athole (1891) 18 R (HL) 46 2.3 McKaskie v Cameron Blackpool County Court 1 July 2008 4.4 McRobert v Reid 1914 SC 633 2.8 Melfort Pier Holidays Ltd v The Melfort [2006] CSOH 1 30 2.2 Club and Others Midlothian Council v Crolla Court of Session CSIH 61 2.2 Midlothian District Council v 1985 SLT 36 2.9 MacKenzie Milne v Duguid 1999 SCLR 512 4.5

122 Case Report and/or Case Name Part Court Reference Milne v Inveresk Parish Council (1899) 2 F 283 2.8 Moncrieff v Jamieson 2005 CSIH 14; [2007] UKHL 42 2.8 Nairn v Speedie (1899) 1 F 635 2.10 NE Fife Council v Nisbet 2000 S.C.L.R. 413 2.9 See under Fife Council v Nisbet Neizer v Rhodes 1995 GWD 39-2000 5 Neumann v Hutchison A211/04 2.3 Norrie v Magistrates of Kirriemuir 1945 SC 302 2.3 Oban Town Council v Callander & (1892) 19 R 912 2.7 Oban Railway Officers of the State v Smith (1846) 8 D 711 3.1 Oswald v Lawrie (1828) 5 Murr 6 2.2 Pearson v Lightning 1998 EWCA Civ 591; 1998 142 4.5 S.J.L.B 143 (Times) Poppleton v Peter Ashley Activities Reported in Daily Telegraph, 12th 4.3 Centre June 2008 Porter v Borders Council [2008] CSOH163 4.3 Potter v Hamilton (1870) 8 M 1064 2.10 Preston's Trustees v Preston (1860) 22 D 366 2.8 R v Howard Aylesbury Magistrates Court July 08 5 Rhins District Committee of the County 19l7 2 SLT 169 (Court of Session) 2.3 Council of Wigtownshire v Cunninghame Richardson v Cromarty Petroleum Co 1982 SLT 237 2.3 Ltd Rodgers v Harvie (1829) 7 S 287 2.9 Rome v Hope Johnstone (1884) 11 R 653 2.3 Scammell v Scottish Sports Council 1983 SLT 462 3.1 Scott v Drummond (1866) 4 M 819 2.2 Scottish Rights of Way & Recreation (1887) 14 R 875 and (1888) 15 R 2.3 Society Ltd v Macpherson (HL) 68 Smith v Finch [2009] EWHC 53 (QB) 4.6 Smith v Saxton 1927 SN 98, 142 2.2 Snowie v Stirling Council and 2008 S.L.T. (Sh Ct) 61 1 Ramblers Association Soriani v Cluckie 2001 GWD 28-1138 2.9 Stevenson v Glasgow Corporation 1908 SC 1034 4.2 Stewart, Pott & Co. v Brown Brothers (1878) 6 R 75 2.9 & Co Strachan v Highland Council 1999 G.W.D 38 - 1863 4.1 Strathclyde (Hyndland) Housing 1983 SLT 61 (Sheriff Court) 2.3 Society Ltd v Cowie Struthers-Wright v Nevis Range See Wright v Nevis Range Sutherland v Thomson (1876) 3 R 485 2.9 Thomson v Murdoch (1862) 24 D 975 2.1.1

123 Case Report and/or Case Name Part Court Reference Tomlinson v Congleton Borough [2003] 3WLR 705; (2003) UKHL 47 4.1 Council Torrie v Duke of Atholl (1849) 12 D 328, (1852) 1 MacQ 65 2.10 and 15 D (HL) 17 Trueman v Aberdeenshire Council Aberdeen Sheriff Court, 20/11/07 4.1 Tuley v Highland Council [2009] CSIH 31; 2009 S.L.T. 616 1 Walford v David 1989 SLT 876 3.1 Welsh v Brady (appeal) [2009] CSIH 60 4.4 Williamson v Highland Activities (A338/09) Court of Session 1 Wills Trustees v Cairngorm Canoeing 1976 SC (HL) 30; 1976 SLT 162 2.3 & and Sailing School Ltd 3.1 Wilson v Jamieson (1827) 4 Murr 364 2.3 Wood v North British Railway (1899) 2F.1 2.2 Wright v Nevis Range [2006] CSOH 68 4.1

124 BIBLIOGRAPHY

Please note that, where links are given to web pages, you may need to copy and paste the links into your web browser, rather than going to them direct from this document.

Text books Access Rights and Rights of Ways: A guide to the law in Scotland, by Professor R. Paisley Published by ScotWays, 2005

Servitudes and Rights of Way by Professors R Paisley and DJ Cusine. Pub: W. Green, 1998.

Scottish Land Law, by Professor William M Gordon and Scott Wortley. Pub: W Green, 2009.

Law Society of Edinburgh (1987-96). The Laws of Scotland – Stair Memorial Encyclopedia. Vol 18. Property (1993) Principal author and coordinator: K C G Reid. Pub: Butterworths.

Government publications The Land Reform (Scotland) Act 2003 can be downloaded at http://www.legislation.gov.uk/asp/2003/2/contents

The Land Reform (Scotland) Act 2003 – Guidance for local authorities and national park authorities, 2005. Download at: http://www.scotland.gov.uk/Publications/2005/02/20645/51835

Explanatory Notes to Land Reform (Scotland) Act 2003. Download at: http://www.opsi.gov.uk/legislation/scotland/acts2003/en/aspen_20030002_en _1

The Land Reform (Scotland) Act 2003 (Directions for the Purposes of Defence or National Security) Order 2003, S.I. 2003 No 2250. Download at: http://www.legislation.gov.uk/uksi/2003/2250/contents/made See also section 129 of the Serious Organised Crime and Police Act 2005, as amended by the Terrorism Act 2006, in relation to exclusion of the public from designated sites. See: http://www.legislation.gov.uk/ukpga/2005/15/section/129, and http://www.legislation.gov.uk/uksi/2005/3447/contents/made

The Land Reform (Scotland) Act 2003 (Modification) Order 2005, SI 2005 No 65. Download at: http://www.legislation.gov.uk/ssi/2005/65/pdfs/ssi_20050065_en.pdf

Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (Land Reform (Scotland) Act 2003) 2005, SI 2005 No 61. Download at: http://www.legislation.gov.uk/ssi/2005/61/contents/made

The Land Reform (Scotland) Act 2003 (Path Orders) Regulations 2007, SI 2007 No 163. Download at:

125 http://www.legislation.gov.uk/ssi/2007/163/contents/made

For other statutes and subordinate legislation see: http://www.legislation.gov.uk/

Scottish Natural Heritage Publications The Scottish Outdoor Access Code, 2005. Download at: http://www.outdooraccess-scotland.com/outdoors-responsibly/access-code- and-advice/soac/

A Brief Guide to Laws Relevant to Outdoor Access in Scotland, 2007 Download at: http://www.snh.org.uk/pdfs/publications/heritagemanagement/lawsrelevanttos oac.pdf

A Brief Guide to Occupiers’ Legal Liabilities in Scotland, 2005. Download at: http://www.snh.org.uk/pdfs/publications/heritagemanagement/occupiers.pdf

Public access to the countryside: A guide to the law, practice and procedure in Scotland, by Jeremy Rowan-Robinson, 1993. Published by SNH in co- operation with COSLA

Recreational Access to Scotland's Waters - A Summary of the Law, 1996. Prepared for SNH by Brodies, Solicitors.

Scottish Law Commission Report on Law of the Foreshore and Seabed, Scot Law Com No 190, 2003 and Discussion Paper on the Law of the Foreshore and Seabed, ref Discussion Paper 113. Download both papers (under 2003, Report 190) at http://www.scotlawcom.gov.uk/publications/reports/2000-2009/

Discussion Paper on Level Crossings, 2010, Discussion Paper 143 (a joint consultation with the Law Commission) can be downloaded at: http://www.scotlawcom.gov.uk/consultations/

USEFUL WEBSITES www.Scotways.com www.snh.org.uk www.scotcourts.gov.uk/ www.outdooraccess-scotland.com www.pathsforall.org.uk

126 www.heritagepaths.co.uk www.livingstreets.org.uk www.ruralscotland.btik.com/ www.planningaidscotland.org.uk

Access User Organisations in Scotland www.ramblers.org.uk/scotland www.mcofs.org.uk www.bhsscotland.org.uk www.canoescotland.org

Land Management Organisations in Scotland www.srpba.com www.nfus.org.uk

127 Update 1, March 2011

 Cases under the Land Reform (Scotland) Act 2003 We are not aware of any new court cases under the 2003 Act, but see the reference to the Act in the Law Society of Scotland case under ‘Other Cases of Interest’, below.

 Rights of way cases

Public rights of way and ‘roads’ under the Roads (Scotland) Act 1984

Hamilton v Nairn Court ref: [2010] CSIH 77 http://www.scotcourts.gov.uk/opinions/2010CSIH77.html

This case was an appeal to the Inner House of the Court of Session and contains useful discussion about the legal status of the verges of roads, and the distinction between public roads and private roads/public rights of way.

Mr and Mrs Hamilton wished to carry out work to improve vehicular access to their property (as authorised by the local authority), including work on the verges of a public road over land owned by Mr Nairn. Mr Nairn claimed that there was no public right of passage for vehicles over the verge over which the Hamiltons wished to take access. He argued that the verge was only intended as a refuge for pedestrians, and the Hamiltons had no right to carry out work to improve access for vehicles.

The court said that a public road was maintainable by the local authority and the proprietor had no right to interfere with any work on the road, including its verges. This was different from a private road or public right of way where there may be a public right of passage, but maintenance remains in the control of the proprietor. Also, the public right of passage over the verges of public roads extended to all users.

The court therefore upheld the right of the Hamiltons to improve access over the disputed verge, on the basis that it was part of the ‘road’, and they also upheld an interdict against Mr Nairn to prevent him from interfering with the proposed work.

See also an analysis of this case (and other roads cases) by Biggart Baillie at: http://www.biggartbaillie.co.uk/ideas--insights/all-articles/planning-- construction/are-roads-like-buses

 Navigation Law

Kames Bay Case Petition of the Crown Estate Commissioners Court ref: [2010] CSOH 70 http://www.scotcourts.gov.uk/opinions/2010CSOH70.html

128 This case in the Outer House of the Court of Session was an application by the Crown for a court order entitling them to remove private mooring equipment from Kames Bay, on the basis that there is no right of free mooring in Kames Harbour. The moorings were fixed permanently or semi- permanently to the seabed with buoys to mark them. Some moorings in the Bay were licensed by people who paid fees to use them, and the Crown wished to remove the unlicensed moorings.

Kames harbour was within a large area covered by a Royal Charter dated 1584, which made it a ‘free port or harbour’. However, the court said that this only meant that the public had free unimpeded access, not gratuitous use of the port or harbour. The public right of navigation only allows temporary anchoring, not mooring by use of permanent or semi-permanent fixtures on the seabed. Also, the public cannot gain a right to moor boats by prescription. An order was therefore granted, entitling the Crown to remove all unlicensed mooring equipment from the Harbour.

The case contains interesting discussion about the Crown’s ownership of the seabed and the public’s rights in relation to the use of ports and harbours.

 Liability cases

Anderson v The Scottish Ministers Court ref: [2009] CSOH 92 http://www.scotcourts.gov.uk/opinions/2009CSOH92.html

This was a case in the Outer House of the Court of Session. A cyclist was injured in Holyrood Park, Edinburgh, when cycling along a cycle path. He claimed that he had inadvertently left the cycle path at a bend and fallen into a drain and gully adjacent to the cycle path. It was dark at the time and there was no lighting. The cyclist could not remember clearly what had happened at the time of the accident, but evidence was given by people who had witnessed the accident. It was claimed for Historic Scotland (who control the Park) that the accident could have been caused by defects in the bike, rather than a fall into the gully.

The court found that the accident was caused by the cyclist falling into the drain and gully that was alongside the cycle path. This was a danger that should have been obvious to the managers of Holyrood Park. The Scottish Ministers were therefore liable (on behalf of Historic Scotland) because of their negligence both at common law and in terms of the Occupiers’ Liability (Scotland) Act 1960.

It was not clear why the cyclist had left the path but he might have been dazzled by the headlights of on-coming traffic, or he might have been confused by the sudden bend in the path. As there was nothing to indicate that the cyclist had been at fault, there was no finding of contributory negligence.

129  Other cases of interest

Law Society of Scotland v Scottish Legal Complaints Commission Court ref: [2010] CSIH 79 http://www.scotcourts.gov.uk/opinions/2010CSIH79.html

This was a case in the Inner House of the Court of Session. It concerned a complaint to the Scottish Legal Complaints Commission about a letter written by a solicitor to the complainants. The letter claimed that they were going onto his client’s land in circumstances where the Land Reform (Scotland) Act 2003 did not apply, and threatened legal proceedings. The complainants said that the allegations were untrue and that they had found the letter aggressive, intimidating and threatening.

The Scottish Legal Complaints Commission had found that the complaint against the solicitor was ‘not totally without merit’ and had referred the complaint to the Law Society of Scotland for further investigation. The Law Society appealed against this decision as they considered that there was no merit in the complaint.

Lord Kingarth allowed the appeal (with Lord Reed’s agreement) and substituted a decision that the complaint was without merit. He said that the letter had been based on instructions from the client and there was no duty on the solicitor to investigate the allegations for himself. Bearing in mind the context of potential court proceedings, there had been no inappropriate threats in the letter and the language used had not been intemperate.

In a dissenting judgement, Lord Malcolm said he did not agree and thought that further investigation of the complaint by the Law Society was appropriate. He said that solicitors might not be able to avoid upsetting people to whom they write, but he did not think that the likely effect of the letter on the recipients was wholly irrelevant.

Prosecution by the Health & Safety Executive Dunoon Sheriff Court, 18th August 2010

The Health and Safety Executive has reported the prosecution of Argyll and Bute Council after a man drowned when he accidentally drove his car into the sea off the unprotected edge of a car park on the pier at Dunoon.

Dunoon Sheriff Court heard that when Argyll and Bute Council officially turned the former coal pier into a visitor car park in 2006, the Council failed to carry out an adequate risk assessment which would have identified the need for barriers at the edge of the pier. There were 19 parking bays that were positioned right next to the edge of the pier along a low concrete curb, with a sheer drop to the sea below.

The Council pleaded guilty to breaching Section 3(1) of The Health and Safety At Work Act 1974 by failing to ensure public safety, and was fined £20,000.

Following the incident the Council closed the car park and carried out a

130 detailed risk assessment of the car park and the pier, as a result of which they installed a traffic barrier and pedestrian handrails.

For the Health & Safety Executive’s press release, see: http://www.hse.gov.uk/press/2010/coi-sco-16110.htm

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