Creelman & Anor v. Argyll And Bute Council [2009] ScotSC 40 (24 September 2009)

Creelman & Anor v. Argyll And Bute Council [2009] ScotSC 40 (24 September 2009)

The land owned by the Pursuers, including the track and garden area adjacent to Stronardron and Dunans Lodge, is sufficiently close to the houses that public access would unreasonably interfere with the reasonable privacy and enjoyment of the occupants. The area is relatively small for such properties in a rural location, and the objective test requires exclusion of this land from access rights under Section 6(1)(b)(iv) of the 2003 Act. Accordingly, the notices served by the Council were invalid and are quashed.

Citation
[2009] ScotSC 40
Parties
Pursuers: Robin Laird Creelman & Moyra Jane Creelman; Defender: Argyll and Bute Council
Jurisdiction
Scotland
Judgment Date
24 September 2009
Procedural Posture
Summary Application (sheriff Court) / Judgment After Hearing
Outcome
For the Pursuers; declarator granted; notices quashed; hearing on expenses appointed.
Legal Topics
Land Reform (scotland) Act 2003, Public Access Rights, Privacy and Enjoyment of Property, Curtilage and Adjacent Land, Summary Application Procedure
Property Law Administrative Law Land Reform (scotland) Act 2003 Public Access Rights Privacy and Enjoyment of Property Curtilage and Adjacent Land Summary Application Procedure

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Parties

Robin Laird Creelman & Moyra Jane Creelman

Pursuers

Argyll and Bute Council

Defender

Procedural Posture

Summary Application (sheriff Court) / Judgment After Hearing

Legal Issues

  1. 1 Whether the land owned by the Pursuers is excepted from statutory public access rights under Section 6(1)(b)(iv) of the Land Reform (Scotland) Act 2003 as being sufficient adjacent land to enable reasonable privacy and enjoyment of the houses.
  2. 2 Whether the notices served by the Council under Section 14 of the Act requiring removal of a sign and barbed wire were valid.

Ratio Decidendi

The land owned by the Pursuers, including the track and garden area adjacent to Stronardron and Dunans Lodge, is sufficiently close to the houses that public access would unreasonably interfere with the reasonable privacy and enjoyment of the occupants. The area is relatively small for such properties in a rural location, and the objective test requires exclusion of this land from access rights under Section 6(1)(b)(iv) of the 2003 Act. Accordingly, the notices served by the Council were invalid and are quashed.

Court Disposition

For the Pursuers; declarator granted; notices quashed; hearing on expenses appointed.

Orders

  • Declares that the land owned by the Pursuers is excepted from access rights under Sections 6(1)(b)(iv) and 6(1)(c) of the Land Reform (Scotland) Act 2003.
  • Quashes the notices served by Argyll & Bute Council under Section 14 of the Act.