SCOTWAYS COURT CASES UPDATE NOVEMBER 2009

Fife Council v Nisbet

Cupar Sheriff Court. Court ref: A149/08

A couple who interfered with use of a right of way near Newburgh in Fife have been fined by a Sheriff in Cupar, at the conclusion of a long legal battle with Fife Council.

Mr and Mrs Nisbet own a property at Bloomfield, near Newburgh, adjacent to a right of way which runs from Whinnybank in Fife to Macduff’s Cross in Perth & Kinross. The route was declared to be a right of way in a court action in 1997, and an interdict was imposed at that time, requiring the Nisbets not to obstruct the right of way or interfere with its use. This was confirmed in subsequent appeals. However, Mr and Mrs Nisbet continued to interfere with use of the right of way. They erected gates on the route, extended their garden over it, and challenged people using the route.

Sheriff Johnston ruled at the end of September that Mr and Mrs Nisbet were in breach of the interdict because they had obstructed the right of way and interfered with its use. Witnesses included 4 members of ScotWays who described how they had been repeatedly challenged when they tried to use the route, and their difficulties in opening the gates that the Nisbets had erected on the route. Sheriff Johnston commented that Mr Nisbet’s evidence ‘illustrated an ongoing determination to thwart the order of the court’.

In a final hearing on 2nd November the Sheriff ordered that Mr and Mrs Nisbet should each pay a fine of £500, and they will also have to pay the full legal costs of the case, including those of Fife Council. The costs will very considerably exceed the amount of the fines. It was made clear in the course of the case that there had been considerable effort by both the Council and ScotWays to persuade Mr and Mrs Nisbet to realise the seriousness of the position without going to court.

The case highlights the continuing importance of rights of way. The Sheriff reiterated that the public had a right to use the route, and dismissed the Nisbets’ claim that access along the route was an invasion of their privacy and against their human rights.

Creelman v Argyll & Bute CouncilDunoon Sheriff Court, Case ref.: B12/08

This was an appeal by Mr and Mrs Creelman against a Section 14 Notice served on them by Argyll & Bute Council under the Land Reform (Scotland) Act 2003. The Notice required them to remove a sign that said ‘Private Road. No Access Without Permission’ at one end of a track through their ground, and also to remove barbed wire at the other end of the track.

Mr and Mrs Creelman are the owners of two properties at Stronardon: a five bedroom house in which they live, and a lodge house – Dunans Lodge – which is used for short term holiday lets. The attached land is about 6 acres, in a long, thin shape. There is a track through the property, which passes close to Dunans Lodge, and from which the main house can also be seen. Part of the ground was unusable as it was steeply sloped, with a vertical drop down to a river at one point. The land had originally been laid out as a garden for the adjacent Dunans Castle. It was the owner of Dunans Castle who had complained about lack of access. He wanted people visiting the Castle to be able to access the land. The track past the Lodge House had been overgrown for many years until the Creelmans cleared it. The Local Access Forum had been consulted and supported the Council’s view that part of the land was within access rights, although the Sheriff noted that there had been no site visit.

Sheriff Derek Livingston decided in favour of Mr and Mrs Creelman, and found that the whole area of their land was excluded from access rights. He said that the track was sufficiently close to the two houses involved that people walking on the track would interfere with the reasonable privacy of people occupying the houses. In addition, the whole garden area was excluded in order to ensure that enjoyment of the houses was not unreasonably disturbed. He said that the property was in a relatively secluded part of the country, where people would expect more privacy than if living in an urban location. The Sheriff noted that the impetus for the case did not seem to have come from disaffected walkers but from a neighbour who wanted to use the Creelmans’ land for business purposes.

For a full report see: http://www.scotcourts.gov.uk/opinions/b12_08__.html

ScotWays