Aviemore Highland Resort Ltd v. Cairngorms National Park Authority [2009] ScotSC 1 (15 January 2009)

Aviemore Highland Resort Ltd v. Cairngorms National Park Authority [2009] ScotSC 1 (15 January 2009)

Section 14 of the Land Reform (Scotland) Act 2003 applies to continuing barriers to access rights, even if erected before the Act's commencement, as the relevant consideration is the state of affairs at the time of the notice. The pursuers' averments regarding exemption as curtilage were insufficiently specified and thus excluded from probation. The averments on land management, though sparse, were sufficiently relevant to proceed to proof before answer.

Citation
[2009] ScotSC 1
Parties
Pursuer: Aviemore Highland Resort Limited; Defender: Cairngorms National Park Authority
Jurisdiction
Scotland
Judgment Date
15 January 2009
Procedural Posture
Summary Application Under Section 14 of the Land Reform (scotland) Act 2003 / Interlocutory Judgment on Relevancy and Specification; Exclusion From Probation of Certain Averments; Proof Before Answer Allowed
Outcome
Averments in Articles 4 and 5 of Condescendence excluded from probation; defenders' first plea-in-law sustained to that extent; proof before answer allowed on remaining averments; expenses reserved.
Legal Topics
Public Access Rights, Retrospective Application of Statutes, Curtilage Exception, Land Management Justification, Specification of Pleadings
Property Law Administrative Law Statutory Interpretation Public Access Rights Retrospective Application of Statutes Curtilage Exception Land Management Justification Specification of Pleadings

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Parties

Aviemore Highland Resort Limited

Pursuer

Cairngorms National Park Authority

Defender

Procedural Posture

Summary Application Under Section 14 of the Land Reform (scotland) Act 2003 / Interlocutory Judgment on Relevancy and Specification; Exclusion From Probation of Certain Averments; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether Section 14 of the Land Reform (Scotland) Act 2003 applies to barriers erected before the Act's commencement
  2. 2 Whether the land in question forms part of the curtilage of non-residential buildings and is thus exempt from access rights
  3. 3 Whether the erection of the fence and hedge was justified for land management purposes under the Act

Ratio Decidendi

Section 14 of the Land Reform (Scotland) Act 2003 applies to continuing barriers to access rights, even if erected before the Act's commencement, as the relevant consideration is the state of affairs at the time of the notice. The pursuers' averments regarding exemption as curtilage were insufficiently specified and thus excluded from probation. The averments on land management, though sparse, were sufficiently relevant to proceed to proof before answer.

Court Disposition

Averments in Articles 4 and 5 of Condescendence excluded from probation; defenders' first plea-in-law sustained to that extent; proof before answer allowed on remaining averments; expenses reserved.

Orders

  • Excludes from probation the averments for the pursuers contained within Articles 4 and 5 of Condescendence.
  • Sustains the defenders' first plea-in-law to that extent.