ANSTALT, APPEAL BY AGAINST LOCH LOMOND AND THE TROSSACHS NATIONAL PARK AUTHORITY [2018] ScotCS CSIH_22 (26 March 2018)

ANSTALT, APPEAL BY AGAINST LOCH LOMOND AND THE TROSSACHS NATIONAL PARK AUTHORITY [2018] ScotCS CSIH_22 (26 March 2018)

The main purpose of locking the gates and maintaining the warning sign was, objectively assessed, to prevent or deter persons from exercising their statutory access rights under section 1 of the Land Reform (Scotland) Act 2003. The test for purpose under section 14 is objective, not subjective. The acts complained of were continuing after the Act came into force and are caught by section 14(1)(e). The land in question is not excepted under section 6. The sheriff and Sheriff Appeal Court erred in law by applying a subjective test and by focusing on the landowner's bona fides. The appeal is refused and the orders of the Sheriff Appeal Court are affirmed.

Citation
[2018] ScotCS CSIH_22
Parties
Pursuers and Appellants: Renyana Stahl Anstalt; Defenders and Respondents: Loch Lomond and the Trossachs National Park Authority
Jurisdiction
Scotland
Judgment Date
26 March 2018
Procedural Posture
Appeal / Final Appellate Judgment
Outcome
Appeal refused; Sheriff Appeal Court's orders affirmed
Legal Topics
Land Reform (scotland) Act 2003, Access Rights, Right to Roam, Statutory Interpretation, Objective Vs Subjective Purpose, Human Rights Act 1998, Article 1 Protocol 1 ECHR
Property Law Administrative Law Human Rights Land Reform (scotland) Act 2003 Access Rights Right to Roam Statutory Interpretation Objective Vs Subjective Purpose +2 more

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Parties

Renyana Stahl Anstalt

Pursuers and Appellants

Loch Lomond and the Trossachs National Park Authority

Defenders and Respondents

Procedural Posture

Appeal / Final Appellate Judgment

Legal Issues

  1. 1 Whether locking gates and erecting a warning sign on the estate contravened section 14 of the Land Reform (Scotland) Act 2003 by preventing or deterring public access rights
  2. 2 Whether the purpose test under section 14 is subjective or objective
  3. 3 Whether actions taken before the Act came into force are caught by section 14

Ratio Decidendi

The main purpose of locking the gates and maintaining the warning sign was, objectively assessed, to prevent or deter persons from exercising their statutory access rights under section 1 of the Land Reform (Scotland) Act 2003. The test for purpose under section 14 is objective, not subjective. The acts complained of were continuing after the Act came into force and are caught by section 14(1)(e). The land in question is not excepted under section 6. The sheriff and Sheriff Appeal Court erred in law by applying a subjective test and by focusing on the landowner's bona fides. The appeal is refused and the orders of the Sheriff Appeal Court are affirmed.

Court Disposition

Appeal refused; Sheriff Appeal Court's orders affirmed

Orders

  • The main gates, Kennels gate, and Altskeith gate must be unlocked to permit public access under the 2003 Act.
  • The 'Danger Wild Boar' sign must be removed from the Main Gate.