Forbes & Anor v. The Fife Council [2009] ScotSC 32 (28 May 2009)

Forbes & Anor v. The Fife Council [2009] ScotSC 32 (28 May 2009)

The sheriff held that the path is not excluded from statutory access rights under section 6(1)(b)(iv) of the 2003 Act. The evidence did not establish that the path's use unreasonably disturbed the pursuers' enjoyment of their house or that it provided insufficient privacy. The fence and distance between the house and path were sufficient. The local authority's notice requiring removal of the locks was lawfully issued, as the pursuers' main purpose in locking the gates was to prevent public access, contrary to the Act.

Citation
[2009] ScotSC 32
Parties
Pursuers: Raymond Scott Forbes and Michelle Forbes; Defenders: The Fife Council
Jurisdiction
Scotland
Judgment Date
28 May 2009
Procedural Posture
Summary Application (appeal and Declarator) / Judgment After Proof
Outcome
Application for declarator refused; appeal against notice refused; matter put out by order for final order and expenses.
Legal Topics
Access Rights, Land Reform (scotland) Act 2003, Statutory Interpretation, Right to Privacy, Local Authority Powers, Appeal Procedures
Property Law Administrative Law Human Rights Access Rights Land Reform (scotland) Act 2003 Statutory Interpretation Right to Privacy Local Authority Powers +1 more

Case Brief

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Parties

Raymond Scott Forbes and Michelle Forbes

Pursuers

The Fife Council

Defenders

Procedural Posture

Summary Application (appeal and Declarator) / Judgment After Proof

Legal Issues

  1. 1 Whether the path adjacent to the pursuers' property is land to which statutory access rights under the Land Reform (Scotland) Act 2003 apply
  2. 2 Whether the local authority's notice requiring removal of locks from gates erected on the path was lawfully issued under section 14(2) of the 2003 Act
  3. 3 Whether the pursuers are entitled to a declarator that the land is not subject to access rights

Ratio Decidendi

The sheriff held that the path is not excluded from statutory access rights under section 6(1)(b)(iv) of the 2003 Act. The evidence did not establish that the path's use unreasonably disturbed the pursuers' enjoyment of their house or that it provided insufficient privacy. The fence and distance between the house and path were sufficient. The local authority's notice requiring removal of the locks was lawfully issued, as the pursuers' main purpose in locking the gates was to prevent public access, contrary to the Act.

Court Disposition

Application for declarator refused; appeal against notice refused; matter put out by order for final order and expenses.

Orders

  • Matter put out by order for making of a final order and determination of expenses; diet assigned for 11 June 2009.