Scottish Sheriff Court Decisions

Case Reference No: B401/05

 

 

JUDGMENT BY MHAIRI M STEPHEN, Sheriff of Lothian and Borders at Haddington

 

in the cause

 

CALEDONIAN HERITABLE LIMITED,

 

PURSUERS

 

against

 

EAST LOTHIAN COUNCIL,

 

DEFENDERS

 

 

 

 

Act: R Keen, QC

J Lake, Advocate

Alt: Agnew of Lochnaw, QC

 

 

 

HADDINGTON, 28 April 2006

 

The Sheriff, having resumed consideration of the cause and the submissions of parties, refuses the pursuers' motion for decree in terms of their second crave; thereafter, appoints the cause to a hearing of evidence, leaving all pleas standing, on dates to be afterwards fixed; assigns 10 o'clock on  Monday 15 May 2006 at Haddington Sheriff Court       as a procedural diet to assign dates for the hearing of evidence and to deal with all questions of expenses; appoints parties to lodge with the Sheriff Clerk within ten days from the date of this interlocutor a note of their estimate of the number of days required for the hearing of evidence and availability of counsel for the hearing of evidence..

 

 

 

 

 

NOTE:

 

Introduction

 

The pursuers are Caledonian Heritable Limited (hereinafter referred to as "CHL"), a limited company who are the owners of land at Archerfield Estate, Gullane, East Lothian. The Estate extends to approximately 500 acres and is currently being developed into two golf courses, a golf club house and residential housing. Planning permission was granted for this development together with the restoration of Archerfield House, the construction of a hotel and golf cottages, by the defenders' planning department in or around November 2002. The Estate and proposed development is shown on plan 6/2/2 of process.

 

The defenders are East Lothian Council (hereinafter referred to as "ELC"), a local authority with its headquarters at John Muir House, Haddington. ELC are the local authority or council whose area takes in the Archerfield Estate. As such they have duties and powers in relation to Part I of the Land Reform (Scotland) Act 2003 (hereinafter referred to as "the Act") - particularly Chapter 5.

 

On or about 12 September 2005 ELC served a Notice upon the pursuers, CHL in terms of section 14(2) of the Act. A copy of the Notice is found at 5/1 of process. The Notice refers to the plan attached and a coloured copy of that plan is found as prod. 6/1/4 of process. The plan shows the land owned by CHL Archerfield Estate hatched in red. The plan also purports to plot the location of certain signs to which objection is taken in the Notice and these are marked with green dots with the notation of a barbed wire fence marked by a green line.

 

CHL being the land owner on whom this Notice was served appeal against the Notice by way of summary application in terms of section 14(4).

 

On 20 December a hearing was fixed for 23 and 24 March. The hearing was preceded by a site inspection, at which no evidence was led, but which enabled me to gain an overview of the Estate and visit certain parts of the Estate including certain of the areas marked on the plan attached to the Notice.

 

When the application called for hearing just before lunch time on 23 March there was agreement firstly that evidence could not be led and completed within the remaining time allocated and secondly the parties were further agreed that the hearing should proceed as a debate on the pursuers' preliminary plea.

 

Issue for Debate

 

The pursuers wish to debate their third plea-in-law being a preliminary plea directed towards the specification provided in the Notice served upon them by the defenders. The pursuers submitted that if successful, my sustaining that plea-in-law would result in decree in terms of their second crave, namely the quashing of the Notice. The pursuers accepted that the defenders would be entitled at any time, if grounds existed, to serve a further Notice. Obviously if decree were granted in respect of crave 2 of the application there would be no need for evidence to be led.

 

In the event of the pursuers not satisfying me to the extent that their preliminary plea should be sustained and decree granted they sought to preserve their preliminary plea in the event of my finding that proof was still required. In that event I should effectively allow a proof before answer.

 

The defenders, ELC, urged me to resist the pursuers' motion to grant decree, as from a proper construction of the Act and the law relating to the interpretation of notices, there was sufficient specification to allow parties a proof before answer or hearing on evidence retaining all pleas.

 

Land Reform (Scotland) Act 2003 - "The Act"

 

Part I of the Act relating to access rights is the only relevant part of the Act for the purposes of these proceedings.

 

Section 1 refers to separate access rights "A" rights and "B" rights - as follows:

 

(2) Those rights (in this Part of this Act called "access rights") are -

 

(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and

 

(b) the right to cross land.

 

Subsection (3) circumscribes how "A" rights may be exercised ("A" rights being the right to be on land) that is (a) for recreational purposes; (b) for the purposes of carrying on a relevant educational activity; or (c) for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

 

Subsection (4)(a) further defines "being on land" as being a reference to - (i) going into, passing over and remaining on it for any of those purposes (subsection 3) and then leaving it, or (ii) any combination of those.

 

Subsection (4)(b) further defines "crossing land" as being a reference to going into it, passing over it and leaving it all for the purpose of getting to one place outside the land to another such place.

 

Accordingly it appears that "A" rights entitle a person, without prejudice to other restrictions on location and behaviour, to be on land solely for the purposes set out in section 1, subsection (3).

 

The "B" right is the right to cross land which otherwise may be described as a transit right or right to traverse.

 

Subsection (7) of Section 1 specifies that access rights are exercisable on/over all land except that specified in or under section 6 - which in turn is qualified by section 7.

 

Section 1, read along with sections 2 and 3 form the core of the Act or Part I of the Act relating to access rights subject to these core provisions being further refined in respect of locus, purpose and behaviour (by sections 6, 7 and 9).

 

Section 2, subsection (1) states "a person has access rights only if they are exercised responsibly".

 

Section 3 deals with the reciprocal obligations of land owners Subsection (1) states:

 

"(1) It is the duty of every owner of land in respect of which access rights are exercisable -

 

(a) to use and manage the land; and

 

(b) otherwise to conduct the ownership of it, in a way which, as respects those rights, is responsible."

 

Thus the concept of acting "responsibly" is central to the legislation both in respect of the exercise of access rights and also the use and management of land by land owners.

 

The concept of acting "responsibly" is not a common or familiar test in our law, but sections 2 and 3 do give further assistance as to whether those who may have access rights conferred upon them and those who have obligations as owners of land in respect of which access rights may be excercisable act responsibly. In shedding light on whether those individuals act responsibly the more familiar test of reasonableness is introduced in both sections 2 and 3.

 

A person is presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights of any other person. Likewise an owner is presumed to be using, managing and conducting the ownership of land in a way which is responsible if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them.

 

It is worthwhile setting out these sections:

"2 Access rights to be exercised responsibly

 

(1) A person has access rights only if they are exercised responsibly.

 

(2) In determining whether access rights are exercised responsibly a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person, but -

 

(a) a person purporting to exercise access rights who, at the same time -

 

(i) engages in any of the conduct within section 9 below or within any byelaw made under section 12(1)(a)(i) below; or

 

(ii) does anything which undoes anything done by Scottish Natural Heritage under section 29 below,

 

is to be taken as not exercising those rights responsibly; and

 

(b) regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time -

 

(i) disregarding the guidance on responsible conduct set out in the Access Code and incumbent on persons exercising access rights; or

 

(ii) disregarding any request included or which might reasonably be implied in anything done by Scottish Natural Heritage under section 29 below.

 

(3) In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised.

 

3 Reciprocal obligations of owners

 

(1) It is the duty of every owner of land in respect of which access rights are exercisable -

 

(a) to use and manage the land; and

 

(b) otherwise to conduct the ownership of it,

 

in a way which, as respects those rights, is responsible.

 

(2) In determining whether the way in which land is used, managed or the ownership of it is conducted is responsible an owner is to be presumed to be using, managing and conducting the ownership of land in a way which is responsible if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them, but -

 

(a) an owner who contravenes section 14(1) or (3) or 23(2) of this Act or any byelaw made under section 12(1)(a)(ii) below is to be taken as not using, managing or conducting the ownership of the land in a responsible way;

 

(b) regard is to be had to whether any act or omission occurring in the use, management or conduct of the ownership of the land disregards the guidance on responsible conduct of the ownership of the land disregards the guidance on responsible conduct set out in the Access Code and incumbent on the owners of land.

 

3. In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights."

 

 

Accordingly arising from these provisions it is necessary to consider section 9 - conduct excluded from access rights - the Access Code, which according to the interpretation section (section 32) means the Scottish Outdoor Access Code issued by Scottish Natural Heritage under section 10 and furthermore these sections introduce reference to section 29 entitling SNH to put up and maintain notices for the purpose of protecting the natural heritage of land in respect of which access rights may be exercisable. These provisions should all be considered.

 

Section 9 lists conduct which is excluded from access rights and which if engaged in by the person purporting to exercise access rights means that the individual is taken as not exercising the rights responsibly thus effectively depriving the person of access rights in terms of section 2(1).

 

Section 9 provides as follows:-

"9 Conduct excluded from access rights

 

The conduct which is within this section is -

 

(a) being on or crossing land in breach of an interdict or other order of a court;

 

(b) being on or crossing land for the purpose of doing anything which is an offence or a breach of an interdict or other order of a court;

 

(c) hunting, shooting or fishing;

 

(d) being on or crossing land while responsible for a dog or other animal which is not under proper control;

 

(e) being on or crossing land for the purpose of taking away, for commercial purposes or for profit, anything in or on the land;

 

(f) being on or crossing land in or with a motorised vehicle or vessel (other than a vehicle or ve3ssel which has been constructed or adapted for use by a person who has a disability and which is being used by such a person);

 

(g) being, for any of the purposes set out in section 1(3) above, on land which is a golf course."

 

 

Thus, sections 1 and 2, read along with section 9, deal with the distinct nature of the access rights conferred on individuals and how these rights may be conducted or exercised.

 

Referring back to section 1(7) the following provisions in sections 6 and 7 restrict where access rights may be exercised by those upon whom access rights are conferred.

 

Section 6 states:

 

6 Land over which access rights not exercisable

(1) The land in respect of which access rights are not exercisable is land -

 

(a) to the extent that there is on it -

 

(i) a building or other structure or works, plant or fixed machinery;

 

(ii) a caravan, tent or other place affording a person privacy or shelter;

 

(b) which -

 

(i) forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

 

(ii) forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

 

(iii) consists of land contiguous to and used for the purposes of a school; or

 

(iv) comprises, in relation to a house or any of the laces mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

 

(c) to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden;

 

(d) to which public access is, by or under any enactment other than this Act, prohibited, excluded or restricted;

 

(e) which has been developed or set out -

 

(i) as a sports or playing field; or

 

(ii) for a particular recreational purpose;

 

(f) to which -

 

(i) for not fewer than 90 days in the year ending on 31 January 2001, members of the public were admitted only on payment; and

 

(ii) after that date, and for not fewer than 90 days in each year beginning on 1^st February 2001, members of the public are, or are to be, so admitted;

 

(g) on which -

 

(i) building, civil engineering or demolition works; or

 

(ii) works being carried out by a statutory undertaker for the purposes of the undertaking,

 

are being carried out.

 

(h) which is used for the working of minerals by surface workings (including quarrying);

 

(i) in which crops have been sown or are growing;

 

(j) which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.

 

(2) For the purposes of subsection (1)(a)(i) above, a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure.

 

Section 7 deals with supplemental and qualifying provisions in respect of section 6 and for the purpose of these proceedings the relevant sub-sections are (1), (2), (3) and (7):

 

7 Provisions supplementing and qualifying section 6

 

(1) Section 6 above does not prevent or restrict the exercise of access rights over any land which is a core path.

 

(2) Land which bears to be within section 6 above by virtue of a development or change of use for which planning permission was or is required under the Town and County Planning (Scotland) Act 1997 (c.8) shall, if -

 

(a) such planning permission has not been granted; or

 

(b) such permission was granted subject to a condition which has not been complied with,

 

be regarded, for the purposes of that section, as if that development or change of use had not occurred.

 

(3) Where planning permission for such a development or change of use of land has been granted, the land shall, for the purposes of section 6 above, be regarded, while that development or change of use is taking place in accordance with the permission, as having been developed or having had its use changed accordingly.

 

(7) Section 6(1)(e) above prevents the exercise of access rights over land to which it applies only if -

 

(a) the land is being used for the purpose for which it has been developed or set out and, in the case of land which is not a sports or playing field, the exercise of those rights would interfere with the recreational use to which the land is being put;

 

(b) the land is a golf green, bowling green, cricket square, lawn tennis court or other similar area on which grass is grown and prepared for a particular recreational purpose; or

 

(c) in the case of land which is a sports or playing field, the surface of the land is comprised of synthetic grass, acrylic, resin or rubber granule.

 

Thus sections 6 and 7 make provision that certain land is excluded in respect of being ring fenced from the exercise of access rights.

 

The proper approach to how section 6 should be interpreted was the subject of submissions by both parties.

 

These provisions, which I have mentioned, form the core provisions relating to access rights and how and where they may be exercised.

 

Careful consideration of chapters 1, 2 and 3 of Part 1 to the Act is required before turning to the issue to be decided following this debate, namely, the terms of the Notice served by the defenders upon the pursuers CHL and the powers bestowed upon the local authority by section 14(2) which states -

 

Section 14(2) Where the local authority consider that anything has been done in contravention of subsection (1) above they may, by written notice served on the owner of the land, require that such remedial action as is specified in the notice be taken by the owner of the land within such reasonable time as is so specified.

 

 

Subsection (1) of section 14 contains a prohibition on land owners acting or failing to act in certain stipulated ways subject to certain conditions being met.

 

It states -

 

 

 

14 Prohibition signs, obstructions, dangerous impediments etc

 

(1) The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so -

 

(a) put up any sign or notice;

 

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

 

(c) position or leave at large any animal;

 

(d) carry out any agricultural or other operation on the land; or

 

(e) take, or fail to take, any other action.

 

 

The Prohibition relates to an owner of land - in respect of which access rights are exercisable from doing any of the acts and omissions listed in paragraphs (a) to (e) for the purpose or for the main purpose of preventing or deterring entitled persons from exercising access rights.

 

I will now turn to look at how the parties consider that these important and novel statutory provisions interact one with the other and then in turn with the notice served by the defenders upon CHL terms of section 14(2) which is the subject of attack by CHL.

 

Submissions for pursuers - CHL

 

Mr Keen for the land owner, CHL, addressed me on the Act. Section 1 conferred separate and distinct rights of access. The section 1(2)(a) right being one of being on land subject to the restrictions found in sub-section (3) and the section 1(2)(b) right being the right to cross land. These were distinct and separate rights. The rights apply to all land with the exception of land specified in section 6.

 

I was referred specifically to section 9(g). That section, of course relates to conduct which is specifically excluded from access rights and sub-section (g) establishes unequivocally that being on a golf course for the purpose of the section 1(2)(a) rights is excluded thereby providing that the only access right available in relation to a golf course would be the right to cross the land with the result that there is no right to be on a golf course for recreational purposes such as picnicking or jogging round the course or even walking the dog round a golf course.

 

Clearly this was a relevant consideration given the nature of the development at Archerfield both completed and proposed. It had been evident from the site inspection that the northernmost golf course known as "Fidra Links" was already being played as a golf course and that the southernmost golf course to be known as "Archerfield Links" was virtually complete and indeed the location and nature of the individual holes on the golf course is apparent from the coloured plan attached to planning permission (6/2/2 of process).

 

Turning to section 2. This provides that access rights only exist if they are exercised responsibly. Whereas it is necessary to read sections 1 and 2 together the result means that it is necessary to have regard to other provisions of the Act in determining whether access rights are exercised responsibly. Clearly section 9 which has been referred to proscribes certain activities and if any are engaged in the individual is taken to be not exercising rights responsibly.

 

I was also referred to section 2(2)(a)(ii) being another example of activity which if engaged upon would mean that the individual was not exercising rights responsibly and that is the act of doing anything which undoes anything done by Scottish Natural Heritage in terms of section 29 which confirms the power vested in Scottish Natural Heritage and indeed the Scottish Ministers to put up and maintain notices for the purpose of protecting the natural heritage of land in respect of which access rights are exercisable. I was informed that this was an important consideration given the particular locus and the management agreement which had been entered into between the parties and Scottish Natural Heritage in respect of a site of special scientific interest to the north of the land. In this connection I was referred to production 6/2/8 of process, a management agreement dated 2002 amongst Scottish Natural Heritage, ELC and CHL. Part of the Archerfield Estate became part of the management area in terms of the management agreement and I was referred to the Schedule Part 3 which imposes obligations in respect of the management area, in particular section 6.2 on page 5 and following pages dealt with pedestrian access. In particular I was referred to section 6.2.3 and 6.2.4. The former obliges the pursuers to use signage prohibiting public access from CHL land (Archerfield Estate) to the SSSI to the north (ie coast).

 

Paragraph 6.2.4 related to the golf courses obliging the pursuers to restrict access to people playing golf or maintaining the golf course "CHL in so far as permitted by law will use reasonable endeavours to ensure other members of the public or its guests do not access the golf course other than when playing golf".

 

Finally, I was referred to page 9, paragraph 7.2 of the Management Agreement which expressly acknowledges that the pursuers will be required to observe all relevant health and safety legislation within the management area during development work.

 

The pursuers' pleadings in respect of these obligations is set out in condescendence 5 of the summary application.

 

Answer 5 for ELC, who of course are also a party to the management agreement, along with the pursuers and SNH, state that the Act and the rights of access established by the Act, together with the duties or obligations imposed on the defenders in terms of the same Act supersede in effect the management agreement in so far as inconsistent therewith.

 

It was the submission of the pursuers that the Act does not, and cannot trump the management agreement entered into by the various parties for the purpose of protecting and minimising disturbance to the SSSI. In other words the pursuers are obliged to manage the behaviour of visitors on the land and limit access rights in terms of the agreement.

 

Furthermore, in practical terms, as a result of the agreement, the pursuers have been advised to erect fencing in fulfilment of their obligations in terms of clause 6.2.4 of the Management Agreement.

 

In this connection I understood this to be the green fencing erected along part of the area known as the common strip which then returned at 90° in a south easterly direction close to, but quite separate from the area on the plan attached to the Notice, shown coloured green on the plan, but described as a barbed wire fence.

 

Mr Keen then developed his submissions with regard to the nature and extent of access rights over a golf course. In terms of the statute the access rights are restricted to the right to cross or transit a golf course, there being no being no right to be on the golf course for any other purpose. It was difficult, he submitted, to understand in what circumstances the right of crossing the golf course could be exercised given the nature of the development on the estate with construction ongoing and private dwellings bounding the golf course. These areas qualified as excluded areas under section 6 under a variety of headings. Applying section 7(3) they were private dwellings with garden ground and therefore excluded from access rights in terms of section 6 as they are deemed to have been developed as such and, furthermore, there are clear areas surrounding the golf courses where construction work is underway in relation to the development of the housing and also in relation to the golf club house and the southern links.

 

I was also referred to the pursuers' production 2/7 being a Minute of Agreement relating to the granting of planning permission. This is known as a section 75 Agreement - relating to section 75 of the Town and Country Planning (Scotland) Act 1997. The preamble suggests that the grant of planning permission was conditional upon the section 75 agreement being concluded and, indeed upon the conclusion of the Management Agreement referred to previously between the parties and Scottish Natural Heritage, the purpose of the Agreement being to restrict or regulate the development or use of the land which is the subject of the planning permission.

 

Turning to the Agreement which seems to have been concluded around the time of the grant of planning permission, namely, November 2002, I was referred to clause 1.2 which states:

 

"CHL shall provide, at no cost to the Council, the following works, 1.2 measures to close the vehicular access from the East Lodge at Archerfield, aforesaid, except for the emergency services and parties with a pre-existing access right who will be permitted to use this access. CHL will notify the Council of all parties with pre-existing rights. For the avoidance of doubt access both for pedestrians and cyclists will be retained over said access."

 

Mr Keen, referring to the earlier site inspection, reminded me that the gate itself at East Lodge was closed but there remained suitable access for pedestrians, cyclists and indeed horses on either side of the main gate.

 

I was also reminded that the East Lodge gate at Archerfield is indicated on the plan at 6/1/4 of process being the plan attached to the notice, marked with a green dot and the words "locked gate and other signs".

 

Further, paragraph 4 of the section 75 Agreement states that no organised public noisy activity or large scale public recreational event will be permitted without the prior consent of ELC in consultation with Scottish Natural Heritage (except as may be permitted in terms of the Management Agreement) within 150 metres of the SSSI.

 

It was suggested, on behalf of the pursuers, that this may simply mean a game of football but, having regard to the terms of that Agreement and the Act itself, it would not be reasonable or responsible for the land owner to have these activities on the Estate or at least within 150 metres of the SSSI.

 

Leaving the Act and the background relating to the estate I was then addressed on the specific issue for debate, namely, the terms of the notice served under section 14(2) and of course the plan annexed to the Notice.

 

Paragraph 2 of the notice addresses the land affected. In essence this is the entirety of the Archerfield Estate owned by CHL and reference to the plan attached to the notice makes this abundantly clear. The area hatched in red is indeed the entire estate in its undeveloped form.

 

The first attack therefore on the notice is that the extent of the notice or the extent of the land affected by the notice is so wide as to be misconceived. The Notice has to be read indeed having regard to the knowledge of ELC who are also the planning authority, having granted planning permission nearly three years prior. They are aware of the development and they must be deemed to be aware that in terms of the Act therefore there will be areas of the estate where no access rights exist at all. Further, there will be areas having regard to the terms of the statute and, in particular, section 9 where access is restricted to a right of transit or traverse, and further with regard to the provisions of the Act and particularly section 2 read alongside the other provisions, that there were areas where no person could conceivably exercise responsibly a right of access.

 

The Notice demonstrated that there had been no endeavour whatsoever to discriminate between areas where there may be rights of access and areas where there was certainly no right of access and the extent of any such rights.

 

I was referred to a separate but related action at this Court for interdict raised by ELC to interdict the pursuers in relation to activities on the eastern or south eastern boundary of the estate along what is known as the "common strip" in that in these proceedings the Council averred their intention to seek declarator in terms of section 28 of the Act that the land known as the common strip is land in respect of which access rights are exercisable. That declared intention in the view of the pursuers disclosed an element of discrimination which was wholly lacking from the notice, or purported notice in terms of section 14(2), that is the notice before the Court from which these proceedings stem. The failure on the part of the Council to discriminate and then consequentially their failure to specify the land or ground over which access rights do or may exist, is a fundamental flaw which means that CHL cannot know what case or criticism they are expected to meet. Plainly, an assertion of access rights to the entirety of the Archerfield Estate is erroneous and cannot be made given the provisions of the Act and the knowledge of the parties.

 

It was submitted that ELC had not addressed the test laid down in section 14(1) of the Act.

 

Looking at section 14 the first essential requisite is that there has to be an owner of land "in respect of which access rights are exercisable". Thus, according to Mr Keen, it is an essential requirement that this test be met and that there must be specification of the land over which it is alleged access rights exist in line with the usual requirement of notice and specification. If the owner does not know what part of his land or heritage is available for access, he does not know what case he is to meet. These submissions are made against the background of there being undoubtedly areas over which access rights may exist if exercised responsibly, but likewise areas over which there can never be access rights or other areas where there can only be restricted access rights.

 

Accordingly, the pursuers submit that the notice does not get off first base due to that fundamental lack of specification, but turning to the particular terms of the notice Part 3 purports to list four specific actions on the part of the land owner which, by implication, in terms of the notice the defenders, ELC, consider are eloquent of having the effect of the public being prevented or deterred from exercising their rights of access under the Act.

 

The actions listed are (one) erection of several signs that are either misleading or prohibit access; (two) removal of bridge; (three) erection of barbed wire fence over an area of land known as "the common strip" where the public frequently walk; and (four) locking of gates preventing access to other areas within Archerfield Estate.

 

Further, section 5.1 of the notice lists the remedial works to be carried out namely - (one) removing signs with reference to the plan; (two) reinstating the bridge, again referring to a plan; (three) removing barbed wire fence impeding access to the common strip and (four) unlocking gates restricting access, again approximately location marked on the plan attached to the notice.

 

Firstly, it seems to be accepted, and not disputed, that the Notice contains inaccuracies. The approximate location of the bridge on the plan is accepted to be wrong. The location marked is the location of a new bridge carrying a road over a culvert and also giving access to dwellings which have been pegged out, but not yet built but which, in terms of section 7(3) should be deemed to be developed.

 

It is submitted that the reference to barbed wire fencing impeding access along the common strip was likewise erroneous, although I understand that this was not accepted as such by the defenders. According to the pursuers the barbed wire, as marked, does not impede access from the common strip, but only from the neighbouring farm land which is not the issue for this Notice. Furthermore, the reference to gates in paragraphs 3 and 5 is accepted as being inaccurate as there is only one gate referred to in the plan, being the gate at East Lodge, Archerfield. Apart from that inaccuracy the relevance of the gate at the East Lodge is undermined by the defenders own requirement in the section 75 Agreement and also that there is no basis for suggesting that the locking of a gate impedes access for pedestrians and cyclists. It is a provision of the Act that motorised access is conduct excluded from access rights and, furthermore, it is a requirement of the agreement that the east gate access is unsuitable for vehicles other than emergency vehicles and vehicles referred to in the appropriate provision.

 

Finally, the notice confuses the essential further test required to satisfy section 14(1), namely that the actions complained of have been done "for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these (access) rights from doing so "- that is the correct test. The notice confuses the effect, or alleged effect, of the land owner's activities which is the incorrect and inappropriate test with the actual statutory test which has the purpose of the land owner's action at its heart.

 

The Notice is to be regarded as a whole and would stand or fall as a whole or unum quid and that the failure to specify or identify the areas where there is a right of access, as opposed to no right of access, or restricted or limited right of access, is fatal to this notice as it is impossible for the Court to identify these matters. It follows that it is not for the Court to substitute or identify where there may be rights of access to fill this vacuum. The Council having chosen not to avail themselves of the right of declarator cannot complain that the failure to specify where the rights may exist on the Estate is fatal to the notice and that the deficiencies in the notice cannot be cured by proof.

 

Accordingly, I was invited to sustain the pursuers' third plea-in-law and grant decree quashing the Notice it being of no effect. Quashing of the Notice, of course, does not prevent the Council from issuing a further notice complying with the terms of section 14(1), and there being no provision to amend the notice the notice, it being fundamentally flawed due to its lack of specification, decree ought to be granted.

 

 

Submissions for defenders - ELC

 

Senior Counsel for ELC argued that the notice served by the Council on the pursuers under section 14 of the Act should be construed in the light of the surrounding facts and circumstances, particularly the background facts known to the parties, in particular the pursuers being the recipients of the notice. In this regard it was necessary to have enquiry into the facts at proof. Senior counsel for ELC made these submissions on the basis that a proper construction of the Act; perusal of the pursuers' own pleadings, and consideration of the authorities, relating to Notices would clearly demonstrate that this was the correct approach to be taken by the Court.

 

When the Notice is considered against the background facts it can be seen to be sufficiently specific to entitle the defenders to proceed to proof on the background facts and the essential test posed by section 14(1) - whether the purpose or main purpose of the signs etc referred to in the Notice was prevent or deter any person entitled to exercise rights from so doing. Rights of course related to access rights in terms of the Act.

 

Accordingly it was appropriate to consider the proper construction and interpretation of the statute and counsel for the defenders was not able to accept the construction argued for on behalf of the pursuers.

 

The starting point as far as the defenders were concerned was the duty imposed upon them to uphold access rights in terms of section 13 of the Act.

 

Section 13(1) states:

 

"It is the duty of the local authority to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised."

 

It was agreed that there were two separate and distinct rights conferred by section 1(2), the right to be on land for the purposes set out in sub-section (3) and that the right conferred in section 1(2)(b) is the right to cross land for the purpose of getting to one place outside the land to another such place. However, in the context of the present case, and in particular the Archerfield Estate, it was accepted that there was a right to cross the golf course for the purposes of the Act. However, senior counsel for the defenders insisted that the right existed to cross the land to obtain access to another piece of land on which access rights could be exercised, or indeed to cross the golf course to be on another part of the golf course or to proceed, for example, from Dirleton, across the golf course to Yellow Craigs. It was also argued that within the golf course there existed different categories of access rights, that there may be full 'A' rights within the wooded areas of the golf course, whereas these would be only transit or traverse rights to cross the fairways. Likewise an "a" right to use the pond located on the southern links for the purpose of recreation, for example, paddling, would exist, whereas the right in the main was simply to cross the golf course ("b" right).

 

It was agreed that section 1 could not be construed without reference to section 2 which stated the duty on the person exercising access rights was to exercise them responsibly. But it was the defenders' submission that the duty or obligation of the land owner in section 3 was quite separate. Just as the duty to exercise access rights responsibly was a personal duty on the access taker in terms of section 2 the obligations on the owners in terms of section 3 were personal to the owners. The duties and obligations imposed by sections 2 and 3 were personal to the access taker and land owner respectively and did not involve an obligation on the part of third parties such as a local authority, the local authority having separate duties in terms of section 13 already referred to.

 

Counsel for ELC referred to Chapter 3 of Part 1 of the Act and the status of the Scottish Outdoor Access Code. The code had been lodged in process and I was entitled to have regard to the Code as it gave guidance not only to those exercising access rights, but also to the land owners who had obligations in terms of the Act.

 

I was referred to Parts 2 and 3 of the Code. Part 3 deals with exercising access rights responsibly. The guidance deals with access over land on which a management operation is underway. Whilst acknowledging the land owner or managers need to take reasonably practicable steps to protect peoples' safety under the Health and Safety at Work Act it was envisaged that alternative access routes ought to be provided, and that such advice should be followed. At 3.28 it is stated:

 

"Any such precautions need to be for the minimum area and time to let the work be conducted safely and effectively and any alternative routes provided need to be reasonably practicable for people to use."

 

It was submitted on behalf of the defenders that the guidance was not being followed and instead the pursuers had resorted to a blanket ban preventing any entry on to the Estate despite work being carried out on limited areas of the Estate not over the entirety of the Estate.

 

I was also referred to Part 4 of the Outdoor Access Code which is headed "Managing Land and Water Responsibly for Access". The guidance is summarised on pages 53 and 54 which, inter alia, state:

 

"As a land manager you must manage your land or water responsibly for access and this part of the Code explains how you can do this ------ taking access rights into account when planning and implementing any major use of change or development" and

 

"Keeping any precautions to the minimum area and duration required to safeguard peoples' safety."

 

I was referred to paragraph 4.9 at page 57 which gave examples of what might be considered deliberate or reasonable in the context of obstructing or hindering someone from exercising access rights.

 

The example given appears at page 58:

 

"Erecting a sign or Notice worded in a way which intimates or deters the public." And

 

at page 59 -

"Failing to take account of access rights when planning and undertaking major land use change such as planting new forests, building a golf course or developing new buildings and roads."

 

It was therefore submitted on behalf of the Council that the pursuers failed to act responsibly or reasonably in respect of their obligations under the Act by placing what was in effect a blanket ban or cordon round the Estate by the positioning of signs stating "DO NOT ENTER" thus seeking to debar access takers from the entirety of the Estate there being areas which were clearly to the knowledge of the pursuers available for exercising access rights. By adopting a blanket ban, rather than dealing appropriately with, and taking account of access rights when undertaking development or land use changes, their behaviour constituted deliberate and unreasonable activities to obstruct or hinder individuals from exercising access rights.

 

As the land owner is obliged to take account of access rights when planning or implementing any major, land, use, change or development, given the provisions of the Act and the Access Code it would not be acting reasonably for a land owner to seek to impose a blanket ban on access to the entire Estate simply because development was taking place within the Estate. That is precisely the mischief which the defenders sought to address in serving the Notice under section 14(2).

 

It was further argued that with reference to the detailed plan attached to planning permission that within the Estate there were various areas whose access characteristics altered from time to time due to development. However, as a matter of fact there are two golf courses, one of which has been played as a golf course since April 2005 and indeed it was suggested by Senior Counsel for the defenders that even within the golf course there might be areas upon which 'A' rights could be exercised such as the wooded areas; the road leading to the fourth hole and the pond in the middle of the golf course under development.

 

In effect, according to the defenders, they are offering to prove that at the relevant time, September 2005, construction was ongoing within, but not throughout the Estate and the location of the work was changing daily. Having regard to the provisions of the Act and the Code it would be unreasonable for a land owner to place notices on the boundary of the Estate rather than make specific provision or warnings relating to the development work. The notices erected by CHL do not offer guidance and suggest alternative routes. They are simply notices telling members of the public not to enter backed by a threat of prosecution. The defenders further offered to prove that the siting and wording of the notice is such that they would show that the third part of the section 14 test would be proved, namely, that the purpose or main purpose of the notice was to prevent or deter a person from exercising access rights.

 

It was submitted on behalf of the defenders that there would be a dispute as to fact relating to whether any access at all, whether vehicular or pedestrian, was allowed at the east gate at the relevant time, 13 September 2005 and it was the contention of the defenders at that stage, apart from the main gate, two side gates were in situ preventing access by pedestrians, cyclists or horse riders as required by the Act and also as required by the section 75 Agreement referred to (5/2/7 of process). Further, the placing of a large sign on the gate stating "DO NOT ENTER" is not consistent with allowing access of any kind.

 

It was accepted on behalf of the defenders that the land of the Archerfield Estate included access land and non-access land. However it was not reasonably practicable for the defenders to specify precisely which land from time to time was available for the exercise of access rights or not.

 

Clearly there were areas such as the common strip and the golf courses over which access rights applied. He did not accept that the access rights over the golf course were circumscribed as the golf course was bounded by two areas of excluded land for access rights. It was the contention of the defenders that although garden ground was excluded ground it could not be said that there was no land available for access on either side of the golf course and, further, it was the contention of the defenders that even areas within the boundary of the golf course was land on which 'A' rights could be exercised.

 

Turning to the construction of the notice. I was referred to three authorities by Counsel for the defenders. They are Eldon Garages Ltd -v- Kingston-upon-Hull Corporation, 1974 WLR 276; Cayser -v- Hamilton (No 1), 1996 SLT (Land Ct) 18 and the House of Lords Decision in Mannai Investment Co Ltd -v- The Eagle Star Life Assurance Co Ltd, 1997 AC 749.

 

"Mannai" related to a notice terminating or determining a lease which ran for 10 years from 13 January 1992. The lease could be determined or terminated by serving not less than six months' notice in writing on the landlord or his solicitors to expire on the third anniversary of the term commencement day. The tenant purported to give notice determining the lease on 12 January 1995. The Appeal Court held following binding authority that the notice referring to the wrong date could not operate to determine the lease on 13 January and that the notice was ineffective for that purpose.

 

The House of Lords held that the construction of the notices had to be approached objectively and the question was how a reasonable recipient could have understood them bearing in mind their context that the purpose of the notice was to inform the landlord of the tenant's decision to determine the leases in accordance with the break clauses; that a reasonable recipient with knowledge of the terms of the leases at the third anniversary date would have been left in no doubt that the tenant wished to determine the leases on 13 January 1995 but had wrongly described it as 12 January and that accordingly the notices were effective to determine the leases.

 

I was referred to the speeches of Lords Hoffman, Steyn and Clyde. (Lord Goff and Lord Jauncey dissented.)

 

According to Senior Counsel for ELC the following passages point clearly to proof being required before the Notice can be construed.

 

Lord Steyn at page at page 767 - G

 

"The question is not how the landlord understood the Notices. The construction of the Notices must be approached objectively. The issue is how a reasonable recipient would have understood the Notices. And in considering this question the Notices must be construed taking into account the relevant contextual scene."

 

and on page 768A/B -

 

"The real question is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation."

 

and at page 772 including the passage at letter H

 

"Does the Notice construed against its contextual setting unambiguously inform a reasonable recipient how and when the Notice is to operate."

 

Lord Hoffman at page 775E

 

"When, therefore, lawyers say that they are concerned, not with subjective meaning but with the meaning of the language which the speaker has used, what they mean is that they are concerned with what he would objectively have been understood to mean. This involves examining not only the words and the grammar but the background as well."

 

and at page 780 D/E and G I was also referred to the dicta of Lord Clyde in the same case.

 

I was also referred to the Scottish Land Court decision in Cayser -v- Hamilton (No 1), 1996 SLT (Land Court) 18 which related to the validity of the Notice to remedy under an agricultural lease. In that case the Court took the view that it was entitled to have regard to extrinsic evidence in relation to the Notice to remedy in order to ascertain what the tenant's state of knowledge was in relation to all material matters at the time of his receipt of the Notice.

 

Further, the case of Eldon Garages Ltd -v- Kingston-upon-Hall Corporation was considered to be of some importance by Counsel for the defenders. That case related to an Enforcement Notice under the Town and Country Planning Act 1968. I was referred to the Decision of Mr Justice Templeman who, in dealing with an action seeking declarator that an Enforcement Notice was void , decided that the Notice was valid, and in so doing decided that he was entitled to take account of how the recipients (plaintiffs) had responded to a Notice being served and indeed their grounds of appeal.

 

It was argued on behalf of the defenders that these authorities point to an objective and commonsense approach and that the knowledge of the land owner and indeed the whole background context to the notice is important in interpreting the Notice. The Eldon case, in particular, is a very good example of taking account of how the recipients respond to the Notice.

 

It is submitted that the pursuers here knew precisely what the Notice was about and indeed one only requires to look at their pleadings in this appeal to find the true position. It is clear from the detailed averments made by CHL that they are aware of the case that they are to meet. It is unreasonable for the pursuers to ring fence the Estate as regards members of the public who may have access rights when they are aware of public requiring to be on the site as they invite members of the public to view house plots or sites and also to play golf. The actions of CHL in erecting signs around the perimeter of the land circumscribes the entire Estate and the land owners' indiscriminate approach has required the local authority likewise to deal with the mischief presented by that indiscriminate approach by framing the Notice to include the entire Estate.

 

Furthermore, the authorities referred to provide assistance in determining the terms of the Notice. It being accepted on the part of the defenders that the Notice contains certain inaccuracies, firstly the position of the bridge referred to in the Notice and as related to the plan attached and the reference to gates when, as a matter of fact, it is conceded that the Notice should refer to one gate, (only one gate being marked on the plan attached to the Notice). Having in mind the authorities I should interpret the Notice in a purposeful fashion and allow the defenders latitude to demonstrate that the inaccuracies are of no material effect as the pursuers are clearly aware of the areas of objection both with regard to the whole background to the case and also with regard to consideration of their pleadings.

 

I was also addressed by Senior Counsel for the defenders on the Management Agreement 6/2/8 of process which both CHL and the defenders are parties to along with Scottish Natural Heritage. This relates to the SSSI to the north of the Estate, albeit that part of the management area for the SSSI takes in part of the Estate.

 

It is the contention of the defenders that the Act does indeed supersede the Agreement, or rather that the management Agreement has to be read in the light of the current legislation. Further, referring to paragraph 6.2.4 on page 5 of the Schedule that should be read as a whole and it is recognised that the Agreement is circumscribed by the words "in so far as permitted by law".

 

I was also referred to the section 75 Agreement 5/2/7 of process. Counsel for the defenders took issue with the interpretation of paragraph 4 argued for on behalf of the pursuers. It would be suggested on behalf of the defenders that Archerfield having been undeveloped for some time had been a venue for raves or rock concerts in the past and the reference to organised public noisy activity or large scale public recreational events would relate to a large scale concert or gathering of people of that scale rather than a game of football unless of course it was anticipated that a very substantial number of spectators would attend that football match.

 

Accordingly I was asked to repel the third plea-in-law for the pursuers and allow a proof before answer, proof being required in respect of all parts of the section 14(1) test and, in particular, the defenders were entitled to proof on whether the purpose or main purpose of the notices and other objectionable acts on the part of the pursuers prevented or deterred persons from exercising rights.

 

I was also asked to certify the cause as suitable for the employment of Senior Counsel.

 

SUBMISSIONS FOR CHL - in reply

 

Mr Lake, for the pursuers, in reply referred to the submissions made by his Senior and argued that the defenders had not addressed the correct test. The indiscriminate approach adopted by the defenders sought to achieve an illegitimate purpose, namely, blanket access to an area of ground in respect of which all parties accepted that access rights did not exist or were excluded in parts.

 

Mr Lake fundamentally disagreed with the defenders' interpretation of the distinct types of access right. The transit or traverse right 'B' is a right to get from A to B. There was no 'B' right entitlement to cross a golf course unless the individual had access rights entitling him to be there. Therefore an individual could not cross from A to B across a golf course unless there was an entitlement to be on "B" land, or, of course, "A" land.

 

Mr Lake reminded me of the proper interpretation of the act, whereas sections 1 and 2 required to be read in conjunction. It was submitted that section 2 cannot solely relate to an individual's behaviour. Section 9 proscribes certain behaviour, but in fact section 9 also deals with location in so far as it relates to a golf course, for instance.

 

The third area of statutory construction related to the land excluded from access rights and is dealt with in sections 6 and 7. It seemed to be accepted on behalf of the pursuers that certain issues relating to the construction of what is or what is not excluded ground may have to be dealt with by proof of fact, in particular the so called privacy issue.

 

It is an important pillar of the pursuers' case that the Notice is fundamentally defective by its lack of specification. It is not only lacking in specification, but inaccurate. It is not correct for the defenders to suggest that if one part of a Notice is wrong or inaccurate that can be put to one side and reliance placed on the remaining parts of the notice. That would be an improper construction and, given that the Notice must be read as a whole, if any one aspect of the notice is wrong or inspecific, the whole Notice must be quashed. On the pursuers' submissions it was evident that the deficiencies in the notice were such that they could not be cured by proof and that in the event of proof being allowed the pursuers are entitled to retain their preliminary pleas. The failure on the part of the defenders to identify the specific land over which access rights are exercisable means that the notice is flawed as the defenders have not addressed the first part of the test imposed in section 14. Proof dealing with the "purpose" of the signs would have no effect in curing or addressing the deficiencies in the notice failing to specify or identify the land over which access rights are exercisable.

 

Further, the Notice does not begin to address in a relevant manner, how the Notices etc hinder access and how the remedial works would improve or assert access rights as land had not been identified over which access rights are exercisable.

 

Mr Lake renewed the pursuers' motion that the first plea-in-law be sustained and the Notice quashed. In the event that I was against him on that he sought, in effect, a proof before answer retaining preliminary pleas.

 

Decision

 

The Land Reform (Scotland) Act 2003, according to its preamble is, inter alia, "an Act of the Scottish Parliament to establish statutory public rights of access to land for recreational and other purposes".

 

Part 1 of the Act deals with access rights. That part is briefly summarised at paragraph 1.1 of the Scottish Outdoor Access Code "Part 1 of the Land Reform (Scotland) Act 2003 gives everyone statutory access rights to most land and inland water. People only have these rights if they exercise them responsibly by respecting peoples' privacy, safety and livelihoods and Scotland's environment. Equally, land managers have to manage their land and water responsibly in relation to access rights".

 

The Code is issued by Scottish Natural Heritage and sets out guidance in compliance with the duty imposed by section 10 of the Act. The Code was approved by the Scottish Parliament on 1 July 2004.

 

I have earlier referred to the important provisions of Part 1 of the Act which bear upon the whole context of "access rights" and the particular background to these proceedings.

 

It is neither necessary or appropriate to interpret in abstract the provisions of the Act save as they have bearing upon the issue before me - which is, whether the Notice served by the defenders, ELC upon the pursuers, CHL is so inspecific and therefore irrelevant so as to be incompetent entitling the pursuers to have the notice quashed in terms of their second crave, without the requirement to have proof of fact.

 

It appeared to me to be clear from study of the first two chapters of Part 1 of the Act, and from the submissions of parties, that the Act (S1) conferred two separate and distinct access rights.

 

(A) These being the right to be on land for certain purposes - recreation; carrying on a relevant educational activity or, the curiously worded 1(3)(c) provision - "for the purpose of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit". I call this the "A" right (section 1(2)(a) of the "Act").

 

(B) These being the right to cross land - being a reference to "going into it, passing over it and leaving it, all for the purpose of getting from one place outside the land to another such place" - I call this the "B" right (section 1(2)(b) of the Act) - or more correctly transit or traverse right.

 

Having bestowed these rights upon everyone of us and specified that the "land" in respect of which access rights are exercisable is ALL land, the Act thereafter, properly and reasonably, restricts how these rights may be exercised and where.

 

Section 2, read together with section 9, regulates the conduct aspect of access rights and indeed states quite clearly (section 2(1)) that a person has access rights only if they are exercised responsibly. Persons are presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights of any other person. Here rights are all rights of the other person, but specifically including their access rights, and importantly rights associated with land ownership. However the Act goes on at section 2(2)(a) to specifically disentitle persons if they engage in certain conduct, that is conduct specified within section 9 of the Act, or within a byelaw or if the person "does anything which undoes anything done by Scottish Natural Heritage under section 29 below". (Section 2(2)(a)(ii)) as such behaviour is to be taken as not exercising access rights responsibly. Such conduct or behaviour would mean that the individual would be exercising rights or purporting to exercise rights in a way which is neither lawful nor reasonable (section 2(3)). There is also provision for having regard to the guidance on responsible conduct set out in the Access Code.

 

In considering how access rights are to be exercised it is necessary to look at section 9 of the Act which lists the prohibited conduct which if engaged in would disentitle the person so behaving, from having his or her statutory access rights. That section lists seven categories of conduct excluded from access rights. Inter alia it proscribes being on land or crossing land with a motorised vehicle or vessel except such adapted or constructed for a person with a disability, provided it is used by such a person; being on or crossing land with a dog or other animal not in control; hunting, shooting or fishing; being on or crossing for the purpose of taking away, for commercial purposes or for profit, anything in or on the land. Also it is prohibited to be on a golf course for any of the "A" right purposes, thus only "B" rights are exercisable on a golf course, which may indeed be relevant in the present case given that two golf courses are or are to be situated on the Estate. It is also interesting to note that paragraph (g) of section 9 dealing with access on a golf course relates in a hybrid way to both conduct and location thus it would appear that section 2 which has to be read along with section 9 relates not solely to conduct or behaviour issues of an individual, but also to location. It is indeed difficult to consider these provisions without taking a holistic approach to the exercise of access rights. Thus although these sections purport to restrict and control access rights and the exercise of access rights by referring to the manner of exercising or purporting to exercise rights it cannot be said that these provisions relate wholly and solely to conduct.

 

Access rights are further restricted or refined by reference to where they may be exercised by sections 6 and 7. For the purpose of these proceedings section 6(1)(a)(b)(e) and (g) have particular relevance. Access rights are not exercisable for example on

 

(a) land to the extent that there is on it -

 

(i) a building or other structure or works, plant or fixed machinery;

 

(ii) a caravan, tent or other place affording a person privacy or shelter;

 

(b) which -

 

(i) forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

 

(ii) forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

 

(iii) consists of land contiguous to and used for the purposes of a school; or

 

(iv) comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

 

(e) which has been developed or set out -

 

(i) as a sports or playing field; or

 

(ii) for a particular recreational purpose - but only if these are in use and the exercise of access rights would interfere with such use. Access rights are not exercisable over a golf green, bowling green, cricket square, lawn tennis court or other similar area on which grass is grown and prepared for a particular recreational purpose. (section 7(7)).

 

(g) on which -

 

(i) building, civil engineering or demolition works; or

 

(ii) works being carried out by a statutory undertaker for the purposes of the undertaking,

 

are being carried out.

 

 

Further, section 7 provides qualification and supplementary provisions to section 6. Sub-sections (2) and (3) deal with land where planning permission has been granted subject to conditions as is the case with the Archerfield Estate.

 

The Act came into force only last year and I am led to understand that there has not been an opportunity before this for a judicial determination at all whether in terms of section 14 or section 28. Certainly I was not alerted to any authorities at all, quite apart from any that might be binding upon me.

 

Furthermore, at this stage, I only require to consider the Act in so far as it allows me to decide upon the relevance and specification of the notice served by the defenders on the pursuers last September. That being so, it is difficult to see how I can approach that task without looking to the provisions of the Act against which background the defenders in the exercise of their duty set out in section 13 ought to proceed.

 

It is not difficult to identify behaviour which is so evidently prohibited so as to remove any right to access, both in respect of behaviour and location. For example - picnicking in a school playground or a family barbeque on the lawn in another's garden; riding a Harley Davidson over land or indeed galloping through land on horseback wearing a pink jacket, with a pack of hounds running free. The latter example would immediately contravene two conduct prohibitions - section 9(c) and (d).

 

Now the manner in which I interpret the Act is such that the Harley Davidson rider and the horseman have no access rights because of their conduct and could properly be turned away at the gate or otherwise refused access. However the picnickers and family enjoying the barbeque are in a different category. They have access rights as they are presumed to be exercising their rights responsibly until they encroach on excluded land when their rights cease, at least for the time being. Therefore the family carrying the picnic hamper or the barbeque proceed with access rights responsibly exercised until they make the decision to dine on excluded land where they cannot exercise access rights. If instead the lone walker with a picnic identifies an idyllic spot on grassy wooded land which lies fairly close to, but outwith the ornamental garden ground of a house - whether he or she exercises his or her rights responsibly becomes an issue of fact and circumstances and that with regard to the issue or question of whether the land is land over which access rights are exercisable or not in terms of section 6(1)(b)(iv) ------ in relation to a house ---- "sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed".

 

In this situation what is sufficient to allow reasonable measures of privacy for the dwellers becomes an issue relating not only to location but conduct. Quiet enjoyment of a packed lunch by the lone walker would have a different impact on privacy than a noisy group playing music in the same location.

 

The access taker may well have access rights as he is behaving responsibly by remaining on roads and paths until he decides to closely inspect the interior design of a house by pressing his/her face to the window when he or she loses them by entering the garden and peering into the window. There seems to be little difficulty in accepting that the location is excluded land and the behaviour is indicative of not exercising rights responsibly. Then, rather like a halo, do the rights float back over the walker when he proceeds onwards down the road? Are the rights capable of being lost and re-acquired?

 

The Access Code which has statutory effect (sections 2, 3 and 10) gives guidance in exercising rights responsibly both in respect of conduct and indeed location. The Code deals with excluded land - houses and gardens - at page 23, 3.13 onwards. It suggests at 3.15 that there may be need for the exercise of judgement in determining what may be "sufficient adjacent land".

 

Therefore it does appear that it is inevitable that there will be many situations where facts and circumstances have to be taken into account before it can be ascertained whether access rights exist from time to time. It can properly be said that access rights are conditional upon them being exercised responsibly and determining whether they have been so exercised involves consideration of whether an individual has or has not caused unreasonable interference with the rights of another which, in other than the obvious and extreme situations is likely to require proof of or consideration of fact if disputed.

 

For instance it would not be exercising rights responsibly to drive a car on to land not excluded by virtue of section 6. The driver has no access rights. That vehicle could properly be stopped and turned away unless it was a vehicle adapted for use by a person with a disability and has been used by such a person, who would, in these specific circumstances, have access rights.

 

It seems to be a fair interpretation of the Act to suggest as regards a golf course, the right to cross the golf course or traverse it is only the right to cross the golf course or traverse it, but there is no right to stop, get out an easel and make a painting of the course or indeed to stop and fly a kite or have a picnic. There is no right to be on the golf greens for any purpose. Accordingly a legitimate right to be there for the purpose of crossing the course would fly off like the kite if "A" rights were indulged in - standing the terms of section 9(g).

 

Again this situation would indicate that the access might may well be a moveable feast depending on the facts and circumstances and degree of behaviour and location.

 

Of course the duty to be responsible as regards access rights extends to the land owners also and his use and management or otherwise his conducting of the ownership of land in respect of which access rights are exercisable. (Section 3 of the Act).

 

Against that background I turn to consider section 14 of the Act and the notice served by the defenders on the pursuers now objected to as being so inspecific as to be irrelevant and of no effect.

"(1) The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so -

 

(a) put up any sign or notice;

 

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

 

(c) position or leave at large any animal;

 

(d) carry out any agricultural or other operation on the land; or

 

(e) take, or fail to take, any other action."

 

 

The key words or phrases are:-

 

1. Owner of land in respect of which access rights are exercisable

 

shall not do certain things. These are:-

 

2. -

 

(a) put up any sign or notice;

 

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

 

(c) position or leave at large any animal;

 

(d) carry out any agricultural or other operation on the land; or

 

(e) take, or fail to take, any other action."

 

(3) For the purpose or main purpose of preventing or deterring any person entitled to exercise these rights from doing so.

 

I accept that the section involves a three part test which requires to be met.

 

Essentially the pursuers say that the defenders' notice does not get off first base as they do not satisfy the first element, ie, there must be land over which access rights are exercisable and therefore ELC as the local authority upon whom the section 13 duties are vested must specify the land and the particular access right which applies and which it is said persons are prevented or deterred from exercising.

 

The pursuers demand proper specification as they require to know the case they have to meet. I can well understand why the pursuers demand such information. For instance the intention of the notice may be to allow persons to exercise "A" rights (eg, picnicking, paddling in a pond, on the golf course), whereas the land owner can properly say that there is no such entitlement on a golf course where "B" rights only exist and in respect of which a golf course must be looked at in its entirety with the pond being an integral part of the course.

 

Indeed in his submissions to me Senior Counsel for the defenders asserted just such a proposition, namely, that within the area accepted to be the golf course at Archerfield there were areas where "A" rights could co-exist such as the wooded areas in the northern golf links or Fidra Links.

 

Clearly this is a submission based on fact and it is not for me to decide issues of fact at this stage. It may indeed have been a submission made in response to the pursuers' argument that even "B" rights to traverse the golf course only exist if the person is travelling from one area where he has an entitlement to be, ie, not excluded land, to another area where he is entitled to be.

 

However as a matter of law it may not be difficult to reject that proposition made by Senior Counsel for the defenders as to hold otherwise would subvert the provisions of the Act which clearly intend to exclude persons from being on land which is a golf course for any of the "A" right purposes. To seek to categorise and separate different areas within a golf course would be artificial and contrary to the very specific provisions of the Act excluding all but rights of traverse from a golf course. This is reiterated in the Access Code. To interpret otherwise would indeed be an affront to commonsense and lead to a plethora of disputes/confrontations and likely litigation. Unless specific features exist such as a course being intersected by a public highway for instance, a golf course has to be regarded as a whole and not merely a collection of individual holes, (tee, fairway and green). A wooded area is as much a part of a golf course as a bunker, both being hazards of the game and features of the course.

 

However my task is not to interpret the provisions of the statute or make a determination in terms of section 28 of the Act. It was accepted by both parties that the Estate comprised land over which access rights existed; land upon which there could never be access rights such as garden ground attached to dwellinghouses and land on or over which there currently existed no access rights such as land on which construction, building, demolition or other civil engineering works were being carried out.

 

The pursuers argue that the precise or distinct rights of access "A" or "B" ought to be stipulated by ELC in the notice given that separate discrete rights are conferred by section 1.

 

On the other hand ELC argue that whilst accepting that the Act refers to types of access rights the provisions in section 14 do not require them to specify the land to which the separate types of right apply, or whether both apply, as long as there exist in respect of the land any access rights.

 

The duty imposed upon the local authority by section 13 is to "Assert, protect, keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised."

 

Section 14 refers to land in respect of which access rights are exercisable. It would appear therefore that it is reasonable to suggest that the provision is directed to the actings of the owners of all land with the exception of excluded land under section 6 ."Access rights" are not qualified by the language of the section. It seems reasonable to me that the legislation therefore means any access right.

 

I have earlier mentioned that there would appear to be an almost limitless number of permutations of location and conduct which would, at times, entitle a person to access rights and then due to the nature or location of the land or by conduct disentitle the same person. It is like a kaleidoscope or, potentially so, ever changing. Many situations will require careful consideration of fact and circumstances.

 

Allowing for the effect of section 7(3) of the Act it is still problematic for the local authority, here ELC, to specify the land, or parts of the land, over or on which access rights exist from time to time.

 

In this case ELC say the land over which rights exist is the entire Estate except land excluded by virtue of the operation of section 6 being the statutory exception or by conduct in terms of sections 2 and 9. They offer to prove that access rights may be exercised responsibly on land within the Estate and to establish by proof of fact what areas these may be, over which access rights exist, from time to time.

 

This is not specific. However the defenders argue that the nature of the mischief which their notice seeks to address is the ring fencing of the entire Estate with notices which are far from advisory, but which prohibit entry and therefore any access. The defenders say that their notice lacks discrimination because it deals with indiscriminate acts of the pursuers and when land is being developed and construction work is ongoing and changing in nature and location it is not possible to specify which land is excluded from access rights and which land is available for the exercise of access rights without proof of background facts and circumstances. Further, with reference to the authorities, the defenders say that the knowledge and appreciation of the respective parties is an important consideration in construing the notice and that even although knowledge on the part of the pursuers is not averred by the defenders it is self-evident from their own pleadings that the pursuers are well aware of the case they have to meet.

 

How are the categories of land to be specified, and in particular, how is excluded land to be determined? There is a distinction to be drawn between the provisions of section 14 and section 28. Section 28 makes provision for judicial determination or declaration that land is or is not land in respect of which access rights are exercisable. The local authority may bring such proceedings by summary application or be a party to such proceedings.

 

On the other hand section 14 is effectively an enforcement provision based upon the duties imposed on the local authority by the Act. It was accepted that the local authority are entitled to serve a notice whether or not there has been a declarator in terms of section 28.

 

It is worth considering the terms of section 14(2) also. That states:-

"(2) Where the local authority consider that anything has been done in contravention of subsection (1) above they may, by written notice served on the owner of the land, require that such remedial action as is specified in the notice be taken by the owner of the land within such reasonable time as is so specified."

 

The local authority are empowered in the event of them considering that "anything has been done in contravention of subsection (1)" to serve a notice requiring that such remedial action as specified in the notice be taken by the owner of the land. Thus the notice is to require certain specified remedial action to be taken and it is against that that the pursuers appeal.

 

The basis of the appeal is set out in the summary application and in essence the appeal is based upon justification - the signs and barbed wire fence being necessary to minimise the risks to the health and safety of the public given that construction, engineering and building work is ongoing on the Estate, but in any event the pursuers are obliged to restrict access to the Estate in terms of a section 75 Agreement between the parties and the Management Agreement relating to the SSSI entered into between the parties and Scottish Natural Heritage.

 

The pleadings also indicate that the pursuers considered the notice to be insufficiently specific to enable them to comply with it, although the averments relating to specification deal with the specification of the remedial works and the location of the signs to be removed.

 

The pursuers also aver that the local authority could not reasonably have been of the view that signs, a locked gate and a barbed wire fence had the purpose or main purpose of preventing or deterring the exercise of rights under the Act and offer so to prove with reference to certain averments of fact and the Management Agreements referred to. The pursuers make similar averments that the defenders could not reasonably have been of the view that the removal of the bridge had the purpose or main purpose of preventing or deterring the exercise of access rights. Further factual averments are made. Finally, the pursuers aver that the notice is premature.

 

Accordingly the specification complained of in the pleadings relates to the remedial work to be carried out and not with regard to the specification of the land available for the exercise of access rights.

 

I have considered the two Agreements referred to by Mr Keen in his submissions for the pursuers. These are the Section 75 Agreement (6/2/7 of process) and the Management Agreement among SNH, ELC and CHL (6/2/8 of process). Of course it was not suggested that either of these documents are determinative of the issue, however the pursuers argue that the Notice served on them by the defenders require them to act in breach of the Management Agreement (6/2/8) and indeed certain provisions of the section 75 Agreement.

 

It appears to me that the relevant provision of the Section 75 Agreement (paragraph 1.2) refers solely to the part of the Notice relating to the locked gate at the East Lodge, whereas that paragraph requires CHL to close vehicular access from the East Lodge other than for certain services. It specifically upholds access for both pedestrians and cyclists and it was clear from the submissions that there was a factual dispute as to whether pedestrian/cycle access had been retained at the relevant time when the Notice was served.

 

Furthermore with regard to the Management Agreement (6/2/8 of process) one of the provisions referred to in submissions - 6.2.4 is qualified by the words "in so far as permitted by law" and it is self-evident that that provision cannot be interpreted in isolation without consideration of the Act which clearly confers statutory rights and obligations.

 

Dealing briefly with the authorities I did not find that the decision in Cayser was of particular assistance or relevance to the present case. The speeches of their Lordships in Mannai make exceedingly interesting reading and clearly the decision is a triumph for objectivity and common sense. The Eldon case and Mannai indicate that context or background and the knowledge of the parties are important considerations in determining or construing a Notice. In real terms however the Decision of Mr Justice Templeman in Eldon was more akin to the present case, that case of course dealing with an Enforcement Notice under the Town and Country Planning Act with the local authority being the planning authority. Here the local authority is the body vested with powers under Section 13 of the Act to assert, protect and keep open and free from obstruction any route, waterway or other means by which access rights may reasonably be exercised. It can best be said that both cases inform as to how the construction of Notices should be approached, namely objectively, having regard to surrounding circumstances and how the recipient or a reasonable recipient would have understood the Notice. In so far as they are in point they in turn tend to lead to the view that a proof is necessary before the question of the construction of the Notice can be considered properly.

 

Furthermore, in terms of Section 14 of the Act, the local authority, here ELC have the power to require remedial action to be taken by the owner of land, if they consider that "anything" has been done in contravention of subsection (1), the terms of which have already been considered. They may do so by way of serving a written Notice and the remedial action must be specified in the Notice and that action is to be taken within "such reasonable time as is so specified". That is the statutory power bestowed upon local authorities in whom the Section 13 powers are vested and which ELC purport to have acted upon in this case. Of course, fairness would require the local authority to specify the "thing" which has been done, or indeed not done, in contravention of Section 14(1). However the provision of Section 14, subsection (2) does not offer any requirement or stipulation regarding what such specification should be. That leads me, at this stage, to the conclusion, firstly, that it would be premature to strike out the Notice on the basis of lack of specification without hearing evidence, and, secondly, the word "anything" in Section 14(2) tends to suggest that the Notice is capable of being looked at in terms of its constituent parts and need not necessarily be looked at in its entirety, in so far as it would suggested that the Notice must be looked at as a unum quid which would mean that it would stand or fall depending upon whether there exists any deficiency in the Notice or the specification provided in the Notice.

 

Therefore, for the reasons given, and having considered the submissions and the provisions of the Act, I take the view that the local authority, ELC, who are entitled to serve the Notice are entitled likewise to proof in respect of the provisions of Section 14(1), and the facts and circumstances upon which they relied in discharging their duties under Section 13 and 14.

 

Accordingly I will allow parties a proof which will, in effect, be a proof before answer leaving all preliminary plea standing.

 

I was not addressed on the question of expenses and it may be that the parties themselves are content to allow the question of expenses thus far to be reserved until the conclusion of these proceedings or it may be that the parties may wish to agree otherwise.

 

I was however asked to certify the cause as suitable for the employment of Senior Counsel. I have no hesitation in so certifying. The novelty, and indeed complexity of the legislation, the importance of the matter to the pursuers and the obvious public interest demand that the Appeal requires careful preparation and presentation and it is therefore entirely appropriate that Senior Counsel, and wherever appropriate Junior Counsel, be instructed.