By Fergus Colquhoun, Trainee Solicitor

Anstalt v Loch Lomond & The Trossachs National Park Authority 2018

The Court of Session has recently issued an important opinion on the interpretation of the Land Reform (Scotland) Act 2003 (‘the 2003 Act’), which enacted the Right to Roam into Scots Law.

Background

The case concerned an appeal by the owners of Drumlean Estate, Renyana Stahl Anstalt, against a notice served on them by the Loch Lomond and The Trossachs National Park Authority (LLTNPA) alleging a breach of section 14 of the 2003 Act.

Anstalt had surrounded a portion of the estate amounting to 300 acres with a tall fence, in which there were three gates kept permanently locked. The enclosed area included the home farm, inbye, an enclosure formerly used to keep wild boar, woodland, and open hillside. Next to one of the gates, they had erected a sign stating ‘Danger Wild Boar’. The sign had been put up in order to keep people out of the area prior to the passage of the 2003 Act, and it was not disputed that this was done so at the request of Stirling Council when the licence to keep wild boar was issued.

The LLTNPA had issued a notice alleging that keeping the three gates locked and erecting the sign constituted a breach of s14 of the 2003 Act. Anstalt appealed to the Sheriff, who found in their favour. Having been appealed to the Sheriff Appeal Court, the case finally made its way to the Inner House of the Court of Session.

The Issue

Section 14 of the 2003 Act prohibits owners from taking action ‘for the purpose or for the main purpose of preventing or deterring’ the public from exercising their access rights.

The Sheriff Appeal Court held that Anstalt had infringed on the public access rights enshrined in the 2003 Act by locking the three gates and by erecting the sign. Anstalt appealed to the Court of Session arguing that:

  1. Because the gates had been locked before the 2003 Act came into force, the access rights granted by the act did not affect the enclosed area (for which they relied on Aviemore Highland Resort v Cairngorms National Park Authority 2009 S.L.T. (Sh. Ct.) 57)
  2. The purpose of the landlord in locking the gates needed to be considered subjectively. Anstalt had not locked the gates to prevent the exercise of access rights, but to avoid danger to the public and damage to property.

Decision

The Inner House disagreed with Anstalt on both counts. They held that the enclosed area was land over which access rights were exercisable under the 2003 Act. They, therefore, held that Anstalt was required to take steps to facilitate public access. The Court held that unlocking two of the three gates would be sufficient for this purpose. As the sign warning of wild boar had been put up at the request of Stirling Council, the Court held that it did not constitute a breach of the Act.

The court further held that the purpose of a landlord in taking action which could hinder access rights is to be assessed objectively. The fact that the landlord took action for a legitimate purpose is irrelevant if, on an objective assessment of the facts, it appears that the action was taken in order to deny public access. In coming to this view, the Court disapproved of the obiter dicta made in the case of Tuley v Highland Council 2009 SC 456.

What does this mean for landowners?

The decision provides a useful guide to the interpretation of the 2003 Act, and clarifies the position with regard to the interpretation of a landowner’s action. Actions will be assessed objectively when considering whether they breach the Act: the actual intention of the landowner is not a relevant consideration.

It will, therefore, be important for landowners to manage their land in a manner compatible with the public’s right of access. Failure to do so may mean that a landowner may be found in breach of the Act even on the basis of what may have appeared quite reasonable actions, and even where the alleged hindrance to public access has been in place for many years.