Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT INVERNESS

SUMMARY APPLICATION UNDER SECTION 14 OF THE LAND REFORM (SCOTLAND) ACT 2003

B94/08

JUDGMENT OF SHERIFF ALASDAIR LORNE MACFADYEN in the cause AVIEMORE HIGHLAND RESORT LIMITED Pursuer; against CAIRNGORMS NATIONAL PARK AUTHORITY Defender: ­­­­­­­­­­­­­­­­­________________

Act: J.J. Mitchell Q.C.

Alt: R.D. Armstrong Q.C.

INVERNESS, JANUARY 2009

The sheriff, having resumed consideration of the cause, Excludes from probation the averments for the pursuers contained within Articles 4 and 5 of Condescendence, and to that extent Sustains the defenders' first plea-in-law; quoad ultra Allows parties before answer a proof of their respective averments on a date to be afterwards assigned; meantime Reserves the question of expenses of the debate and Appoints parties to be heard thereon on 16^th February 2009 at 10am

NOTE

Introduction

[1] This summary application was an appeal by the pursuers under section 14 of the Land Reform (Scotland) Act 2003 ('the Act') against a notice under that section served on them on 31 January 2008 by the local planning authority, namely the defenders. That notice required the pursuers, among other things, to remove a section of the fence and hedge at the west end of Laurel Bank Lane, Aviemore to allow a gap of a width of no less than two metres.

[2] It was common ground between the parties that the fence was erected in 2004 and that the pursuers were heritable proprietors of land in Aviemore, including Laurel Bank Lane. The pursuers operate a hotel and recreational development in Aviemore. The pursuers aver that there was not a hedge in the area but that some plants were planted in the area in 2004.

[3] The pursuers aver that there are no access rights under the Act interfered with by the erection of the fence. That assertion is founded on the fact that the fence was erected prior to Part 1 of the Act coming into force on 9 February 2005 and separately that the property owned by the pursuers falls within a category of land exempted from the exercise of access rights by virtue of section 6 of the Act, in that it formed the curtilage of a group of buildings none of which was a house.

[4] In those circumstances, the pursuers' primary case was for the quashing of the notice of 31 January 2008 on the basis that it was incompetent or recall of the notice on the basis that no access rights under the Act existed.

[5] The pursuers had a fall-back position. That esto case was that if access rights in terms of the Act applied to the property, then the presence of the fence did not cause unreasonable interference with the exercise of those rights. The pursuers were entitled to direct access through controlled points; other access to their property was available. The erection of the fence was for land management purposes, in particular to prevent or discourage access to the pursuers' development during the hours of darkness other than by the established routes. In those circumstances the notice should be recalled.

[6] In answer the defenders averred that the pursuers own an area of land containing many and varied facilities, all known as 'the Aviemore Highland Resort', that the pursuers seek to secure further planning consent for future development of the resort and that throughout the planning process the Highland Council (the former planning authority) and the defenders have sought to secure improved integration between the resort and 'the wider village community of Aviemore, to strengthen commercial and business interests and enhance the environment for pedestrians, visitors and shoppers'.

[7] As already noticed, the defenders admit that the fence was erected in 2004, prior to the entry into force of Part 1 of the 2003 Act. With regard to the hedge their averment is that it is not known and not admitted when the hedge, vegetation and plants were planted alongside the fence. They go on to make averments regarding lengths of fence between the resort and other parties' properties and appeal procedure followed in respect of an enforcement notice requiring the removal thereof served by the defenders under planning legislation. They describe the hedge as consisting of thirty nine bushes planted in a staggered formation for a distance of twelve metres immediately in front of Laurel Bank Lane.

[8] In Answer 4 the defenders aver that the fence and hedge are barriers to access rights. They aver that prior to the erection of the fence members of the public had unrestricted pedestrian access into the resort from Grampian Road, Aviemore, and across Laurel Bank Lane and that those who worked or stayed in the resort had unrestricted pedestrian access to Grampian Road by travelling across Laurel Bank Lane. Particular groups of access-takers are specified and the defenders aver that Laurel Bank Lane has been used by members of the public since 1963 as a means of gaining access into the resort (formerly the Aviemore Centre).

[9] The defenders aver that in exercise of their duty under the 2003 Act to uphold access rights they were entitled to serve the notice of 31 January 2008 under section 14 thereof. They aver that they did so after a local access forum, formed under section 25 of the Act, expressed the view that the defenders should proceed to secure access, using powers under section 14 if necessary, and after a complaint was received from a member of the public in 2005 regarding the restriction of access caused by the erection of the fence. They aver steps taken to attempt to secure removal of the fence by negotiation and that negotiation failed.

[10] Answer 4 contains the following averments:

'The 2003 Act is not limited to the establishment of new rights of access. It also addresses the need to facilitate the exercise of all access rights. The Act has direct application to the Aviemore Highland Resort and to the fence and hedge.'

[11] The defenders deny that the land is exempted from the exercise of access rights under section 6 and that the land on which the fence and hedge is erected and planted form part of the curtilage of a building or group of buildings.

[12] The defenders aver that the pursuers have variously claimed that they were entitled to erect the fence to create a boundary around their land, to provide security measures and more recently for land management purposes. They call upon the pursuers to specify the land management purposes for which the fence is required.

[13] Both parties tabled pleas to the relevancy and specification.

[14] The action commenced in March 2008. After a period for adjustment of the pleadings, a debate was allowed. It came before me for that debate, with the pursuers being represented by Mr Jonathan Mitchell Q.C. and the defenders by Mr Douglas Armstrong Q.C..

[15] At the outset of the debate counsel for the pursuers intimated that he would be arguing for the quashing of the order on the basis that the service of the notice had been incompetent in that it was admitted that the fence had been erected prior to Part 1 of the 2003 Act coming into force. He suggested that if that submission was accepted, that would be the end of the matter and the action should be dismissed. If I were not persuaded by the pursuer's argument on the issue of the retrospective effect of the legislation, then he indicated that he was content to leave his criticisms of the defenders' averments outstanding, suggested that the defenders should do likewise in respect of the pursuers' averments and that the case should proceed to a proof before answer. He wished to make that clear in case it would matter at a later stage in respect of expenses.

Submissions for the parties

Defenders

[16] Senior counsel for the defenders had three arguments in respect of the pursuers' averments, namely:

1.      The pursuers' averments that the notice was incompetent in that the fence had been erected and the hedge planted prior to part 1 of the Act coming into force were irrelevant.

2.      There was no basis in the pursuers' pleadings for their argument that the land formed part of the curtilage of buildings.

3.      The averments in support of the pursuers' esto case that the fence had been erected and the hedge planted for land management purposes were irrelevant.

Retrospectivity

[17] In respect of the first argument Mr Armstrong recognised that this was a central issue: the pursuers contended in Article 4 of Condescendence that the 2003 Act was not retrospective in nature; the works had been carried out before Part 1 of the Act came into force in 2005 and accordingly the defenders could not exercise their powers under section 14. The defenders' position on this aspect of the case was that section 14 applied to the current state of affairs; whether that state of affairs had existed before the Act came into force was irrelevant. What was relevant was the state of affairs at the time of service of the notice.

[18] Counsel's submission was in three parts:

1.      An examination of the case law on statutory interpretation;

2.      The wording of the Act; and

3.      The application of the law to the present case.

[19] The factual position was that while the fence, and possibly the hedge, had been in place prior to 2005, that was a state of affairs which subsisted both when the enactment had come into force and at the date of service of the notice against which this action was an appeal. In that situation the defenders' proposition was that the Act was not being applied retrospectively: it was being applied to a continuing state of affairs. That proposition was supported by the case law, namely West v Gwynne [1911] 2Ch 1, Hager v Osborne [1992] 2 WLR 610, Powys v Powys [1971] 3 WLR 154, Chebaro v Chebaro [1987] 2 WLR 1090, all as discussed in Bennion on Statutory Interpretation (Fifth edition) pp 315 to 319.

[20] Counsel referred to the relevant provisions of the Act, which he said were sections 1, 2, 3, 6(1) and (2), and in particular the critical provisions sections 13 and 14. It is section 14(1)(b). He argued that section 14 applied to the current state of affairs. It contained no provision to the effect that it applied only to actions taken by landowners after the Act came into force. The Act set out rights and duties in relation to the current state of affairs. It was no response to that to say that the fence and plants had been erected and planted prior to the Act coming into force. He submitted that this was not truly a question of whether or not the Act was retrospective in effect: that argument was a red herring. The question was whether there was a right of access over the land and if it is one referred to in sections 6, 13 and 14. The defences set out the background and history of access rights over this land, that was to say the piece of land covered by the fence and hedge, a history and background accepted by the pursuers, subject only to the argument regarding the issue of whether it fell within the curtilage of some buildings.

Curtilage

[21] The pursuer was relying on the provision contained in section 6(b)(1), which exempted land from the exercise of access rights if it formed part of the curtilage of a building which was not a house or a group of buildings none of which was a house. Counsel had two observations on these averments, firstly that the pursuers gave no indication which group of buildings was being referred to and secondly that there was no averment as to how this piece of land, on which the fence and hedge stood, formed part of the curtilage of any buildings or which buildings those were. The defenders had made averments regarding the service of an enforcement notice and the pursuers' appeal against that notice and the decision of the Reporter appointed by the Scottish Ministers. He did not wish to go into the history of that enforcement notice and appeal but referred to it to indicate that in another forum the pursuers had failed to establish that the land in question formed the part of the curtilage of any building. Nevertheless in their averments in the present action they had failed to address the issue by specifying how this formed the curtilage of any building.

[22] Under reference to three decisions, namely Sinclair-Lockhart's Trustees v Central Land Board,1951 S.C.258, Assessor for Lothian Region v BP Oil Grangemouth Refinery Ltd 1985 S.L.T. 453 and Fee v East Renfrewshire Council (2006) Greens Housing Law Reports 99, he explained that there were two routes to land forming the curtilage of a building, namely by reason of geographical proximity or use. His simple submission was that the pursuers' case contained no averments to suggest that either route existed here, or to which building or buildings it was being claimed that the land formed a curtilage. The pursuers' averments on this matter were hopelessly inadequate, unspecific and irrelevant.

Land management

[23] Mr Armstrong then addressed the pursuers' esto case that if access rights applied to the property, then the erection of the fence did not cause unreasonable interference with those in that there was alternative access to the resort elsewhere, that the pursuers were entitled to regulate access through controlled points and that the erection of the fence was for land management purposes.

[24] He submitted that the closest the pursuers came to justify the erection of the fence by reason of land management was in the averments in Article 6 of Condescendence reading:

'In particular, they were entitled to erect the fence to prevent or discourage access to the pursuers' development during the hours of darkness other than by the established routes. The erection of said fence is a reasonable interference with any access rights.'

[25] However there was no averment as to why that situation was relevant for the purpose of land management. The pursuers were not attempting to argue an exception under section 6. Rather they were attempting to reduce the application of access rights set out in section 1 with no legal basis for doing so. Mr Armstrong referred to a passage in a decision of mine, Tuley v Highland Council 2007 S.L.T. (Sh Ct) 97 where I said, at paragraph 106:

'Equally, in my view it would only be in the most obvious or extreme situation that a landowner would be entitled to prevent access to his land by access takers. That is to say that if there existed the possibility of responsible exercise of access rights, then a landowner would fall foul of the prohibition created by section 14 if he impeded access to the land by way of obstruction or notice or any other deterrent.'

[26] He said that the pursuers had not come close to making averments of such circumstances justifying interference with section 1 rights. The averments in Article 6 of Condescendence did not come close to any justification for the recall of the notice.

[27] In all the circumstances, counsel invited me to find that the averments in Articles 4, 5 and 6 of Condescendence were irrelevant and lacking in specification. Accordingly he invited me to sustain the defenders' first plea-in-law and dismiss the action.

Pursuer

Retrospectivity

[28] Mr Mitchell submitted that the central issue was that of retrospectivity. The leading cases were recent decisions of the House of Lords in L'Office Cherifien des Phosphates v Yamashita-Shinnion Steamship Co. Ltd [1994] 1 A.C. 486 (referred to herein as 'Yamashita') and Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816.

[29] He submitted that the rights created by section 1 of the 2003 Act ('access rights') had no existence before 2 February 2005 when the Act came into force. Likewise the obligations placed on owners of land by section 3 had no existence prior to that date.

[30] Section 13 was of no significance insofar as this case was concerned.

[31] Section 14 was critical. That section prohibited the taking of certain steps with the purpose or main purpose of preventing or deterring the exercise of access rights. To have taken any such steps prior to 9 February 2005 did not amount to a breach of that section. The notice served on the pursuers identified the breach of preventing or deterring the exercise of access rights as:

'3....A fence and hedge has been erected and planted on your ground at the west end of Laurel Bank Lane thus blocking a recognised and well used access route from Grampian Road, Aviemore into the said Resort and also previously allowing public access to areas adjoining but outwith the Resort...'

[32] That was meaningless: it characterised as a breach of section 14 of the Act which came into force in February 2005 something which had been done in 2004, namely the closing off of the access route by the erection of the fence. The pursuers accepted that the fence did create a barrier between Laurel Bank Lane and their property. Whether the plants or, as the defenders described it, the hedge did so was not accepted by the pursuers was a matter of controversy between the parties.

[33] .Thus the state of affairs, under reference to the cases, could be characterised as involving an act both commenced and completed before Part 1 of the Act came into force, namely the erection of the fence. Since February 2005 the pursuers had done nothing. The Act could not be applied to such a situation with retrospective effect.

[34] Further, it was relevant that the offending fence did not entirely enclose the pursuers' subjects. Alternative means of access had been and continued to be available.

[35] Section 14 was narrowly expressed and on one reading might be thought only to strike at malicious actings by the landowner.

[36] Turning to the Record, in their defences the defenders did not offer to prove that the hedge had been planted after the commencement date of the Act. However, and more importantly, it was common ground between the parties that the fence had been erected before February 2005.

[37] Mr Mitchell recognised however that there was some distinction between the hedge and the fence in that the defenders may be able to prove that the plants or hedge were planted after Part 1 of the Act had come into force. On any view, it would be helpful for the pursuers to know, if proof were allowed, whether the inquiry was to concern both fence and hedge or hedge only.

Curtilage

[38] Mr Mitchell accepted that the pursuers' averments on this issue were exiguous and recognised that if allowed to proceed, some amendment would be necessary. However there was an averment that the property in question did form part of the curtilage of buildings other than a house and accordingly no access rights existed over it, all in terms of section 6(1)(b)(i). Accordingly the question was one of fact: did this land form the part of the curtilage of a building other than a house. Proof before answer should be allowed in respect of Article 5 of Condescendence.

Land management

[39] Mr Mitchell suggested that the averments in Article 6 of Condescendence regarding the issue of land management were sufficiently relevant to be admitted to probation. Those were to the effect that given that there were established alternative pedestrian and vehicle access routes into the pursuers' property, the presence of the fence and plants did not unreasonably interfere with access rights. The pursuers were entitled in terms of section 3 to regulate access to their property for the purposes of land management. Probation should be allowed in respect of those averments.

Defenders' averments

[40] Mr Mitchell intimated that although he had lodged a note in support of the pursuers' preliminary plea and was critical of the relevancy of certain of the defenders' averments, in particular those concerning a planning authority decision and appeal, he was in general terms content to reserve those criticisms at this stage and suggested that a proof before answer was the appropriate way forward.

Response by the defenders

[41] Mr Armstrong replied to the arguments presented for the pursuers. In the first place he contended that both the notice itself and the defenders' averments in the defences correctly identified the factual position regarding the fence, namely that it was erected before 2005 and continued to be in place now. It was accepted that when the fence was erected in 2004 that did not contravene the terms of the Act. However, what was relevant was the position as at the date of service of the notice, 31 January 2008. As at that date an access route was being impeded by the presence of the fence.

[42] The defenders were making no concession in respect of the date of planting of the hedge.

[43] The situation could be described as an act starting before the enactment and continuing after the enactment of an Act of Parliament.

[44] The pursuers' averments on curtilage and land management did not present a case of sufficient relevancy to merit factual inquiry. The case was irrelevant and should be dismissed. In passing, he suggested that the defenders' averments were entirely relevant.

Discussion and decision

Retrospectivity

[45] In my view, on the issue of what was described in this debate as 'retrospectivity' the argument of the defender is to be preferred. Strictly, I do not consider that this case involves any question of the retrospective application of an Act of Parliament. Taking the defenders' admitted averments pro veritate it was clear that for many years members of the public had travelled on foot for legitimate purposes from Laurel Bank Lane across where there now was a fence and some vegetation into what was now known as the Aviemore Highland Resort.

[46] On 9 February 2005, when Part 1 of the Act came into force, the act of travelling from Laurel Bank Avenue into the defenders' property could be characterised as the exercise of an 'access right' in terms of section 1 of the 2003 Act. It did not matter that the fence, which by concession impeded such a journey, had been erected before that date. The fact of the matter was that the making of that journey was the exercise of an access right. Provided that they act responsibly and seek to enter the pursuers' property for one or more of the reasons set out in section 1 of the Act, the general public (described in the Act as 'Everyone') has the right to be on the pursuers' property.

[47] The fence was erected in 2004. At that time it impeded an existing route used by members of the public. It continued to impede that route on 9 February 2005. It was still there when the notice was served on 31 January 2008. In my view the situation was, as suggested by senior counsel for the defenders, one of an act commencing before the coming into force of the relevant legislation and continuing thereafter.

[48] In that situation, no question arises as to whether the Act should be read with any retrospective effect. The defenders offered to prove that as at 31 January 2008 an access right was being unlawfully impeded. Further, I would find it difficult to conclude that a route over which members of the public had previously enjoyed access and which was said to have been blocked off between the enactment of the Act and the bringing into force of Part 1 thereof was anything other than an area of land over which an access right in terms of section 1 of the Act existed.

[49] In those circumstances, I have decided that the pursuers' averments to the effect that there are no access rights by reason of the date of erection of the fence in relation to the date of coming into force of Part 1 of the Act are irrelevant and I have excluded them from probation.

Curtilage

[50] The pursuers' averment in support of their assertion that access rights do not exist by reason of the exception provided by section 6(1)(b) is in the following terms (found in Article 5 of Condescendence):

'Access rights do not apply to the property owned by the pursuers as the land owned by them forms part of the curtilage of a group of buildings, none of which is a house.'

[51] It was common ground between the parties that an area of ground may form the curtilage of a building by reason of either geographical proximity thereto or use. While it is inappropriate to plead evidence, nevertheless if averments are to pass the test of specification, they must contain sufficient facts to allow the party to lead all the evidence which he desires to lead at proof and to give his opponent fair notice of what he hopes to establish in fact. In my view, at the very least the defenders are entitled to know which of which building or buildings this area of ground is said to be a curtilage and by which route, use or geographical proximity. The defenders are entitled to that information to allow them to investigate and prepare for the proof. In my view it is insufficient for the pursuers simply to mirror the terms of section 6(1)(b) as their averment in Article 6 does. The reason for the assertion must be stated so that it can be considered, checked and, if appropriate, challenged.

[52] The averment as it stands is so unspecific as to give no notice whatsoever of the curtilage case to the court or the defenders.

[53] The court can only deal with the averments as they stand at the time of the debate. It is incompetent for the court ex proprio motu to allow a party the opportunity to amend, Lord Advocate v Johnston 1983 S.L.T. 290. In my view the pursuers' pleadings on the issue of curtilage as they stood at the debate were so lacking in specification as to fail the test of relevancy and specification. Accordingly, I have excluded Article 5 of Condescendence from probation.

Land management

[54] I preferred the submission of counsel for the pursuers in respect of the averments found in Article 6 of Condescendence. Those averments give sufficient notice of the pursuers' reasons for the erection of the fence and planting of the bushes. They aver a case of entitlement to interfere with access rights for reasons justifiable in terms of the Act. In my view, those averments are relevant and sufficiently specific to allow them to be the subject of a proof before answer. It cannot be said that the case found in Article 6 of Condescendence is bound to fail. It is however correct that the averments on the issue of land management are sparse. For that reason, I have allowed the defenders to retain their preliminary plea and consider that the appropriate form of inquiry in respect of Article 6 of Condescendence is a proof before answer.

Further procedure and Expenses

[55] It is appropriate for parties to address the court on the question of the expenses of the debate and I have assigned a hearing thereon. On that date I propose to assign the date for the proof before answer which I have allowed so parties should be able to inform the court of the likely duration thereof.