AVIEMORE HIGHLAND RESORT LIMITED v. CAIRNGORMS NATIONAL PARK AUTHORITY [2009] ScotSC 121 (26 June 2009)

AVIEMORE HIGHLAND RESORT LIMITED v. CAIRNGORMS NATIONAL PARK AUTHORITY [2009] ScotSC 121 (26 June 2009)

Section 14(1) of the Land Reform (Scotland) Act 2003 cannot be contravened by acts completed before the Act came into force. The erection of the fence and planting of the hedge in 2004, before the statutory access rights existed, cannot constitute a contravention under section 14(1). The continuing presence of the fence and hedge does not amount to a continuing contravention unless the Act expressly includes maintenance, which it does not. The defenders failed to prove the hedge was planted after commencement, so the notice was incompetent.

Citation
[2009] ScotSC 121
Parties
Pursuer/appellant: Aviemore Highland Resort Limited; Defender/respondent: Cairngorms National Park Authority
Jurisdiction
Scotland
Judgment Date
26 June 2009
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed; interlocutor of sheriff recalled; notice quashed.
Legal Topics
Statutory Interpretation, Retrospectivity, Access Rights, Land Reform (scotland) Act 2003
Property Law Public Access Law Statutory Interpretation Retrospectivity Access Rights Land Reform (scotland) Act 2003

Case Brief

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Parties

Aviemore Highland Resort Limited

Pursuer/appellant

Cairngorms National Park Authority

Defender/respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether a notice under section 14 of the Land Reform (Scotland) Act 2003 can be served in respect of works/actions completed prior to the commencement of the Act
  2. 2 Whether the continuing presence of a fence and hedge erected before the Act constitutes a contravention under section 14(1)

Ratio Decidendi

Section 14(1) of the Land Reform (Scotland) Act 2003 cannot be contravened by acts completed before the Act came into force. The erection of the fence and planting of the hedge in 2004, before the statutory access rights existed, cannot constitute a contravention under section 14(1). The continuing presence of the fence and hedge does not amount to a continuing contravention unless the Act expressly includes maintenance, which it does not. The defenders failed to prove the hedge was planted after commencement, so the notice was incompetent.

Court Disposition

Appeal allowed; interlocutor of sheriff recalled; notice quashed.

Orders

  • Recall the interlocutor of the sheriff dated 14 January 2009.
  • Sustain the first, second, and third pleas in law for the pursuers/appellants.