SCTSPRINT3

RAYMOND SCOTT FORBES AND MICHELLE FORBES v. THE FIFE COUNCIL


Case Reference Number:

B375/07

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

JUDGMENT OF SHERIFF WILLIAM HOLLIGAN

in causa

PURSUERS RAYMOND SCOTT FORBES and MICHELLE FORBES, residing at 6 Coull Steadings, Glenrothes, Fife KY7 6QL

against

DEFENDERS THE FIFE COUNCIL a Local Authority constituted under Local Government (Scotland) Act 1994 having its principal offices at Fife House, North Street, Glenrothes, Fife KY7 5LT

Act: Cooke, McKenzies; Alt: Macdonald, Department of Law and Administration, Fife Council.

Kirkcaldy 28 May 2009. The Sheriff having resumed consideration of the cause FINDS IN FACT:

1. The pursuers are spouses, they live together at 6 Coull Steadings, Glenrothes, KY7 6QL ("the pursuers' property").

2. The defenders are a local authority having their principal offices at Fife House, North Street, Glenrothes.

3. No. 6/4 of process is a copy of a land certificate title No. FFE44999 ("the land certificate") relating to the pursuers' property. The land certificate inter alia sets out the extent of the pursuers' title and the burdens relative thereto.

4. The pursuers took entry to the pursuers' property in or about September 2004.

5. The pursuers have a right in common with the proprietors of the other six steading dwellinghouses to a path lying adjacent to the rear garden of the pursuers' property running from Maree Way at its northern boundary to an area of land adjacent to Pitcairn Avenue at its southern boundary all as is tinted blue in the plan annexed to the pursuers' land certificate ("the path").

6. The pursuers' right in common to the path is burdened by certain rights in favour of other proprietors.

7. Vehicular access to the pursuers' property is via Coull Steadings Road which leads from Maree Way. Coull Steadings Road is a private road. It is not maintained by the defenders.

8. Access to the path from the northern end is taken from Coull Steadings.

9. On its western-north western boundary the path is bounded by the garden ground forming part of the pursuers' property and No. 5 Coull Steadings. On its eastern-south eastern boundary the path is bounded by subjects known as Nos. 20 and 21 Maree Way and Coull Steadings Farmhouse.

10. At the southern end of the path there is no direct connection to a public road. At that point there is a grass covered area.

11. The path is unlit and unpaved.

12. No. 6/8 of process is a series of photographs numbered 1-15 showing, inter alia, Coull Steadings and the path along its length from the northern end to the southern end.

13. There is an underpass running underneath Pitcairn Avenue near to the southern end of the path. The time taken to travel from Coull Steadings to the underpass via Maree Way is not much greater than by the path.

14. Kevin McArthur and Debbie Coull reside at 5 Coull Steadings, Glenrothes. They have lived there since January 2006. Being heritable proprietors of 5 Coull Steadings, they are owners in common of the path.

15. The path is not a right of way.

16. There is a six foot fence separating the garden at the pursuers' property from the path. The pursuers keep Alsatian dogs. They are often in the garden. They bark at passers by. The pursuers' garden is of reasonable size. The house is situated away from the fence.

17. The path was established at or about the time Coull Steadings was developed.

18. No 7A/1 of process is a copy of a letter sent by Debbie Coull to the other proprietors of Coull Steadings. It was sent on or about June 2006.

19. In 2006 the principal concern of Debbie Coull and Kevin McArthur was the risk of legal liability to the proprietors of the path should someone using the path trip and suffer injury. Mr and Mrs Wylie, the proprietors of No. 3 Coull Steadings replied to No. 7A/1 of process. They did not agree with its content.

20. In or about June 2006, the pursuers and Debbie Coull and Kevin McArthur caused to have erected a notice at either end of the path stating an intention to erect gates to close off the path.

21. Other than Mr and Mrs Wylie no other proprietor of Coull Steadings wrote to Debbie Coull and Kevin McArthur to oppose the erection of the gates.

22. Neither the pursuers nor Debbie Coull and Kevin McArthur received any written objections from neighbours to the proposal to erect gates prior to their erection.

23. Objections to the erection of gates were lodged with the defenders. Nos. 7/1-7/5 of process are copies of the letters.

24. On 30 June 2006 Alison Irvine, access officer of the defenders wrote to Debbie Coull concerning the proposal to erect gates. No. 7/6 of process is a copy of the letter. The letter said, inter alia, that erection of the gates would infringe the Land Reform (Scotland) Act 2003 ("the 2003 Act").

25. The defenders caused to have photographs taken of the path. No. 7/20 of process comprises copies of the photographs.

26. A meeting took place between Alison Irvine on the one hand and the pursuers, Debbie Coull and Kevin McArthur on the other hand at Debbie Coull's house on 6 July 2006. The purpose of the meeting was to discuss the letter from Alison Irvine. By the date of the meeting gates with locks had been erected at either end of the path by or on behalf of the pursuers, Debbie Coull and Kevin McArthur.

27. The meeting involved a discussion as to a number of matters including antisocial behaviour by some of those using the path. Alison Irvine stated that the 2003 Act applied to the path. Neither the pursuers nor Debbie Coull and Kevin McArthur had believed the Act to have any application. Planning permission for erection of the gates was not sought.

28. As the gates had been erected, Alison Irvine believed that the matter was now one for the planning department of the defenders to deal with.

29. A neighbour of the pursuers, Wendy Barbour, continued to object to the closing of the path. No. 7/8 and 7/9 of process are copies of an e-mail and a letter sent by Wendy Barbour to Alison Irvine maintaining her objection.

30. Councillor Kay was approached by Wendy Barbour in or about October 2006 concerning closure of the path. Prior to this he had had no complaints about the use of the path. Councillor Kay contacted the defenders. By letter dated 22 December 2006 (No. 7/15 of process) the defenders wrote to the pursuers requiring, inter alia, that the locks to the gates be removed. The letter was sent to other proprietors of Coull Steadings. Mr and Mrs Wylie replied stating they were willing to do so.

31. The locks on the gates were not then, and have not since, been removed.

32. The defenders issued a notice dated 14 August 2007 pursuant to section 14(2) of the 2003 Act requiring the removal of the locks on the gates to the path. The notice is No 6/1 of Process.

33. There is an underpass running underneath Pitcairn Avenue. It is situated near the southern end of the path. No. 6/10 contains photographs of the underpass.

34. A proposal was put forward to close the underpass. In or about 6 July 2005 the defenders consulted local residents. A number of residents replied. Nos. 7/28-7/30 of process are copies of the documentation.

35. Of the surveys returned by local residents, 51 were in favour of closure and 17 in favour of it remaining open.

36. Antisocial behaviour did take place at or in the vicinity of the underpass.

37. The defenders decided to close the underpass in or about October 2007.

38. Debbie Coull and Kevin McArthur were, at various times, in dispute with Mr and Mrs Thompson, the proprietors of Coull Steadings Farmhouse as to the use of the path.

39. Prior to the erection of locked gates at either end, the path was used by members of the public.

40. The path was used to gain access to places at either end.

41. The path was used by adults and children. It was used by persons walking their dogs and cyclists.

42. There was some litter on the path.

43. There was no major police involvement in relation to the use of the path. 7/24 is a note of the incidents reported to the police identified by Chief Inspector Harley.

44. The pursuers' property is situated in a quiet suburban part of Glenrothes.

45. On occasions during the hours of darkness persons using the path did engage in antisocial behaviour. Such behaviour disturbed the pursuers and Debbie Coull and Kevin McArthur.

46. The pursuers' production No 6/12 is a print of an email communication from Mike Loftus Fife Council Transportation Services to Raymond Forbes dated 17 April 2008.

47. The pursuers' production No 6/13 is a print of an email communication with attachments from Mike Loftus, Fife Transportation Services to Raymond Forbes dated 12 May 2008.

48. No 26 of the defenders' First Inventory of productions is a copy letter dated 8 May 2005 from Joanna Pollok asking the defenders to open up the underpass between "Pitcairn and Coull".

49. No 28 of the defenders' first Inventory of Productions is an example of letters dated 6 July 2005 sent to owners/occupiers in John Knox Gardens, Demarco Drive, Maree Way, Garry Court and Fyne Court, Glenrothes seeking their views on the proposed opening up of the underpass.

50. No 29 of the defenders' First Inventory of Productions is an analysis of the replies.

51. No 27 of the defenders First Inventory of Productions of a copy of the report by Transport Services in relation to the proposed opening of the underpass.

52. The purpose or main purpose of the pursuers in erecting the gates was to prevent antisocial behaviour by those using the path.

THEREFORE puts the matter out by order for the making of a final order and to determine questions of expenses; assigns Thursday, 11 June 2009 at 10.00 am within the Sheriff Court House, Whytescauseway, Kirkcaldy as a diet.

NOTE

[1] This is a summary application brought pursuant to the Land Reform (Scotland) Act 2003 ("the 2003 Act") in which the pursuers seek orders to set aside a notice and also for a declarator that the land to which the notice relates is not land to which the 2003 Act applies.

[2] The issue concerns the use, in general terms, of a path which runs through a development known as Coull Steadings, Glenrothes (which I will refer to as "the path"). The pursuers are the heritable proprietors of 6 Coull Steadings. To the south-east of their house is a garden alongside and at the foot of which runs the west and north-west boundary of the path. Immediately to the western boundary of their garden is the garden of No. 5 Coull Steadings belonging to Debbie Coull and Kevin McArthur. The northern boundary of the path runs alongside the foot of their garden. To the east and south-east of the path lies Nos. 21 and 20 Maree Way and Coull Steadings Farmhouse.

[3] The path is marked in blue on the plan annexed to the title No. FFE44999 (No. 6/4 of process). This is the title of the pursuers to the subjects. The description of the subjects includes:-

"(Three) A right in common with the proprietors of the other six steadings dwellinghouses to ... (d) the pathway leading from the said private access to the south boundary of the development also tinted blue on the plan."

The pursuers have lived there since September 2004. Debbie Coull and Kevin McArthur moved into their property in 2006. The pursuers' house is situated within what all the witnesses agree is a quiet suburban part of Glenrothes. There was no specific evidence as to the exact measurements of the pursuer's garden. The evidence was to the effect that the garden is reasonably generous proportions but not excessively so. The house is separated from the fence by most of the garden ground.

[4] No. 6/8 of process comprises 15 photographs. These photographs helpfully show both Coull Steadings and the path itself. Coull Steadings includes a roadway from Maree Way. That roadway is a private road, not adopted by the defenders. That is the vehicular access to Coull Steadings. It is also the northerly entrance to the path leading from the private road. The line of the path follows the gardens of Nos. 5 and 6 on the one side and the gardens of Nos. 21, 20 and Coull Steadings Farmhouse on the other. The path is unlit and unpaved. Its use and condition are very much an issue and I shall deal with that later.

[5] The southern end of the path exits onto a grassy area. There does not appear to be a connection with a specific path or road. The grassy area is immediately adjacent to Pitcairn Avenue, a dual carriageway. There used to be an underpass running underneath Pitcairn Avenue not far from the grassy area. The distance from Coull Steadings to the underpass via Maree Way is not particularly great in the sense that if the path is closed off and persons have to proceed along Maree Way the time taken to travel the extra distance is not great.

[6] There was also some evidence as to the rights of certain other proprietors as to the use of the path. However, I do not think any of that is particularly relevant.

[7] I heard evidence from the following witnesses:-

Mr and Mrs Forbes - the pursuers;

Kevin McArthur and Debbie Coull, proprietors of 5 Coull Steadings;

Ruth Hands, resident 11 Maree Way;

Alison Irvine, access officer, Fife Council;

William Kay, local councillor;

Wendy Barbour, resident 20 Maree Way;

Alistair Wood, resident 5 Maree Way;

Robert Wylie, resident 3 Coull Steadings;

John White, resident 21 Maree Way;

John Birrell, resident 4 Maree Way;

Chief Inspector Harley; and

Mr and Mrs Thompson, the owners Coull Steadings Farmhouse.

[8] Although all the 7 proprietors of Coull Steadings own the path in common, it is only the pursuers, Debbie Coull and Kevin McArthur who took any part in events leading up to the present proceedings. The pursuers initially believed that the path comprised a right of way and that it was not open to them to close it off. Debbie Coull and Kevin McArthur are both employees of the defenders. They are employed as building surveyors. They said they carried out researches of their own. I did not understand their conclusions to be a matter of dispute. Coull Steadings was dismantled and moved from its then location to its current location in order to allow for the construction of houses in Maree Way. The path was constructed as part of that development. Exactly when this was done was not clear from the evidence but it seems to be of relatively recent origin. Debbie Coull and Kevin McArthur established that the path did not comprise a right of way and that it was owned in common by the proprietors of Coull Steadings in accordance with their titles. It would appear that these enquiries prompted Debbie Coull to send a letter to the other proprietors of Coull Steadings. The letter is No. 7A/1 of process. The letter is not dated but the evidence is to the effect that it was sent in or about June 2006. The letter records her conclusion that the path is not a public right of way and that the proprietors of Nos. 6 and 7 (together with Miss Coull) are keen to have gates erected to prevent it becoming a right of way. In short, the letter makes reference to antisocial behaviour but also expresses a concern that the proprietors of the path might become legally liable should any person using the path suffer injury as a result of its use. The letter goes on to make reference to what it claims to be unauthorised use of the path by residents of No. 22 Maree Way (Mrs Barbour) and Coull Steadings Farmhouse (Mr Thompson). Debbie Coull and Kevin McArthur said that they discussed these matters with all the other owners of the path. The letter drew a written response from only one set of owners. Mr and Mrs Wylie, the proprietors of No. 3 Coull Steadings replied by letter dated 23 June 2006 (No. 7A/2 of process) and that, in turn, led to a further response from Debbie Coull dated 27 June 2006 (No. 7A/3 of process). The letter of 27 June 2006 states in terms:-

"the main issue that the other six residents and I worry about is the probability of litigation should some third party sustain a serious injury as a result of using the path".

It ends:

"I hope that you can understand the reasons behind our joint actions and appreciate that we are only trying to improve the locale and most importantly, protect us all from possible litigation in the future".

The letter also makes reference to the acquisition of rights by prescription. It was put to Debbie Coull that her real motivation in erecting gates to the path was not a concern as to antisocial behaviour but a concern as to possible litigation. Debbie Coull's answer was that her second letter concentrated on the liability issue because she thought this was the only thing which would be of interest to Mr and Mrs Wylie. She believed that, because of its configuration, Mr and Mrs Wylie's enjoyment of their garden would not be affected by persons using the path. Mr Wylie confirmed that his position was set out in his letter of 23 June 2006. He did not support the erection of gates, but he was of the view that if there was antisocial behaviour, the answer was to seek advice from the police. The post-script to his letter suggests that by the time his letter was written the notices to which I will refer had already been erected. He confirmed that this had been done without consultation with him. In his evidence, Mr McArthur stated that, as far as he was concerned, the main issue when writing the first letter in June 2006 was the potential for legal liability should someone be injured whilst using the path. The pursuers had been living in their property since September 2004. It seems to me that it was only after Debbie Coull and Kevin McArthur had carried out their enquiries that, contrary to what the pursuers had believed, they discovered that there was no public right of way and that it was open to the proprietors of the path to have it closed. It would appear from the correspondence that the pursuers, Debbie Coull and Kevin McArthur had already discussed the matter amongst themselves and sought support for their position from the other proprietors of the path. There is no direct evidence from anybody other than Mr and Mrs Wylie of any objection from the other proprietors to the course of action proposed, namely the erection of gates at either end of the path. My conclusion is that the motivation of those erecting the gates was mixed. Debbie Coull and Kevin McArthur were more motivated by issues as to legal liability; the pursuers more by a desire to avoid antisocial behaviour.

[9] The pursuers, Debbie Coull and Kevin McArthur caused to have erected at both ends of the path, signs stating an intention to erect gates to close off the path. The precise date upon which the notices were erected was never established but it was clearly some time in June 2006. No. 7/20/7 is a photograph of the notice that was erected. In short, the notice stated that the path is not a public right of way and that gates were to be erected to close off the path to non residents. Queries were directed to Mr Forbes and Debbie Coull.

[10] Mr Forbes said there was no response to the erection of the notice. Mrs Forbes said that she and her husband had met a dog walker on the path. They explained the situation to her about the problem and she accepted that. According to Kevin McArthur there was no response to the notice. Debbie Coull said that with the exception of a brusque refusal to discuss the matter from one male passer-by, she had received no approach from any person in relation to the notice. Accordingly, I accept that there was little, if any, substantive response made directly to the pursuers, Debbie Coull and Kevin McArthur following the erection of the notices. However, it is clear from the evidence of Alison Irvine, the access officer employed by the defenders, that a number of persons did contact the defenders to complain about the proposals. Some of the complaints were initially directed to her colleague, Mr Andrew Kelly who was then

responsible for issues concerning rights of way. She saw some of the correspondence sent to him (Nos. 7/1-5 of process). As the access officer, these complaints were referred to her. Photographs of the path were taken by the defenders. No. 7/20 of process are copies of them. At the time the photographs were taken the gates had not been erected. Alison Irvine chose to contact Debbie Coull to whom she wrote by letter dated 30 June 2006 (No. 7/6 of process). The letter made express reference to the 2003 Act and expressed the view that, in the opinion of the defenders, the Act applied to the path. It goes on to say that no gates should be erected and the notices removed. It also offered a meeting. Debbie Coull contacted Alison Irvine. A meeting was fixed for July 2006. By that time the gates had already been erected. The precise date the gates were erected was not established but it was at some point after the erection of the notices in June 2006 but before the meeting in July.

[11] The meeting took place at Debbie Coull's house. There was a slight difference in the evidence as to exactly who was present but it seems to me, on balance, I can conclude that in addition to Alison Irvine, Debbie Coull, Kevin McArthur and the pursuers were also present. Alison Irvine said, and I accept, that she was prepared to meet with the proprietors to see what the issues were and identify if anything could be done to assist the owners in dealing with the matter other than by way of erection of gates. She did not expect that the gates would have been erected by the time of the meeting. Miss Irvine explained her view that the 2003 Act applied to the path and that access should be permitted. It is clear from the evidence of the other parties to the meeting they believed that the 2003 Act had no application to the path. The 2003 Act, in their view, was principally directly towards access rights across rural land. Given the length of time since the meeting took place it is not surprising there were some slight differences in the evidence as to exactly what was discussed but I do not think there is any dispute that the discussion involved antisocial behaviour on the path and concerns as to legal liability. Debbie Coull asked Alison Irvine for details as to which sections of the 2003 Act the erection of the gates and locks infringed. At some time later, Miss Irvine sent to Debbie Coull a copy of the entire Act because it was not possible to identify specific provisions which were infringed. Miss Irvine walked the length of the path and saw the fences on both sides. As I understand the evidence, given that the gates had been erected, Alison Irvine considered that the matter was now one of planning permission. After the meeting, she made enquiries of her colleagues in the planning department who confirmed that planning permission for erection of the gates was necessary. It would appear that no application for planning permission for erection of the gates was ever received. It is not immediately apparent from the evidence whether the pursuers, Debbie Coull and Kevin McArthur ever thought they needed it. There continued to be difficulties. One feature of Alison Irvine's evidence is that she was struck by the number and consistency of the complaints from local residents as to the closing of the gates. There was a further e-mail from Wendy Barbour dated 2 August 2006 but it was the letter dated 12 October 2006 (Nos. 7/8 and 7/9 of process) which caused Alison Irvine to pursue matters more vigorously. Councillor Kay, a local councillor, also received a complaint from Wendy Barbour as to the closing of the path. That was the first complaint he had received about it. He had received no complaints from constituents about antisocial behaviour in or about the path. If I understood his evidence correctly, he passed on the matter to council officials. It was his understanding that, in short, the 2003 Act meant that the path could not be closed by the proprietors. He also received a letter from Kevin McArthur alleging that Councillor Kay may have been on the path some time in October 2006, something which Councillor Kay strongly denied (see No. 7/23 of process). I do not regard that as being of relevance to this matter.

[12] Debbie Coull and Kevin McArthur believed that those proprietors living to the east and south of the path, Mrs Barbour and Mr and Mrs Thompson, had no right to use the path other than for very limited purposes, namely maintenance. The up-shot of the letter of 12 October 2006 was to ask the defenders to take action regarding the path. In the letter, confirmed by Mrs Barbour in evidence, she complained as to what she saw as the antisocial behaviour of Debbie Coull and Kevin McArthur. There was a certain quantity of evidence as to issues between Mrs Barbour and Mr and Mrs Thompson on the one hand and Debbie Coull and Kevin McArthur on the other. I do not think that either party to this action laid great store upon such matters at least in relation to the substance of whatever the dispute was. It is clear from the demeanour, in particular of Kevin McArthur, that the dispute with Mr and Mrs Thompson is a matter which exercised him greatly. I do not consider that these matters are directly relevant to the issues raised before me. After Alison Irvine had spoken to Councillor Kay in about October 2006 she then contacted her colleagues in the Department of Law and Administration who caused to have issued a letter dated 22 December 2006 (No. 7/15 of process). That letter required that the locks on the gate be removed and that if they were not removed the defenders might do so themselves and seek to recover the costs thereof from the pursuers. The letter was issued pursuant to the powers was conferred upon the defenders by the 2003 Act. It also covered concerns as to liability to persons using the path. The defenders offered to enter into negotiations to conclude a maintenance agreement. The letter was sent to all proprietors of the path. Mr and Mrs Wylie replied stating their willingness to co-operate with the defenders. However, the locks were not removed and the defenders issued the notice which is the subject of this appeal. The notice is dated 14 August 2007 and is No. 6/1 of process. The notice is issued pursuant to the powers conferred upon the defenders by section 14(2) of the 2003 Act. The notice goes on to state that locking the gates is in breach of the 2003 Act and that, despite having been informed by the defenders of the breach, the pursuers had done nothing to remedy it. The notice requires that the locks be removed within four weeks of the date after the notice takes effect. The notice is said to take effect on 15 August 2007 unless appeal is otherwise made. Quite what caused the delay in the issuing of the notice between October 2006 and August 2007 was not explained.

[13] At this point I turn now to the question of the underpass situated at the southern end of the path running underneath Pitcairn Avenue. The underpass is shown in photographs No. 6/10 of process. The underpass is now closed. The decision to close the underpass was taken by the defenders in or about October 2007 and was only reached after a period of consultation with local residents. The factual position surrounding this process is not in dispute. Letters were sent by the defenders (No. 7/28) to local residents thought to have an interest in the underpass. The letters were sent in or about 6 June 2005. Nos. 7/29 and 7/30 contain copies of the replies and an analysis of the replies. Of the surveys returned, 51 were in favour of closure, 17 in favour of it remaining open. The letters were sent to persons residing at John Knox Gardens, Demarco Drive, Maree Way, Gary Court and Fyne Court. The reply forms gave the residents an opportunity to comment. A number of these forms were put to various witnesses. Their comments included complaints about youths gathering at the underpass, the lighting of fires, broken glass, use as a "drinking den", an unwillingness to use the underpass for these reasons. Closure of the underpass was supported by two councillors, including Councillor Kay. Mr Forbes said that the under paths were some 65 metres from the end of the path; Mrs Forbes 60-65 metres away; Kevin McArthur measured it at 83 metres. Councillor Kay was contacted as to his view whether the underpass should be closed. He said in evidence that he had no objection. I gained the impression from Councillor Kay's evidence that he was not closely involved in the decision to close the underpass. I also did not detect a detailed knowledge of the precise geography of the area. That is not a criticism. It is more of a reflection that it did not feature greatly as an issue for Councillor Kay. The pursuers relied upon this evidence to support their views as to the antisocial use of the underpass. The distance between the southern end of the path and the underpass, whatever measurement is taken, is not great.

[14] I turn now to the evidence concerning the use of the path itself. Mr and Mrs Forbes described how they said use of the path made their lives "a misery". They said that they were consistently removing rubbish from their garden thrown from the path over the fence. The rubbish included: bottles (whole and broken); tin cans (whole and broken); sanitary towels; condoms; a syringe. The path itself was strewn with similar rubbish and dog excrement. There had been two to three fires lit over the summer. It was used by persons drinking late at night. The path was consistently used by youths late at night. Quad bikes were driven down it. Any attempt to remonstrate with persons was met with abuse. The pursuers felt unable to use their garden because they were overlooked by passers-by. There was noise from passers-by, especially from those who were returning from the nearby pub. Neither Mr nor Mrs Forbes felt safe using the path. Debbie Coull and Kevin McArthur said that the weekend was a particular problem from the persons coming back from the pub. Ruth Hans lives at 11 Maree Way and has done so since July 2004. She said she rarely used the path but when she did she noticed litter, broken glass, cigarette ends, beer cans and a syringe. She would not use the path at night. In her view the path led nowhere. Wendy Barbour has lived at 20 Maree Way for seven years. She said she used the path once a week. Her garden was next door to the path. She had not detected rubbish in her garden nor had she seen teenagers using the path causing trouble. She also said that she did not see any litter. She did say that her daughter used the path and one area of concern was the dogs which were in the garden of the pursuers. Their loud barking and behaviour caused her daughter some concern. Alistair Wood has lived at 5 Maree Way for eight years. He said that he used the path a few times a week with his daughter as a short cut. He had not seen quantities of litter on the path nor any sign of youths in the area. He also made a comment about dogs barking in the pursuers' garden. He used the path principally during the daytime. Mr Wylie said he did use the path. He had not detected litter and had not seen many people use it nor did he detect any great noise from it. John White lives at 21 Maree Way. He said he used the path on a daily basis when walking his dogs. He described the path as being in a reasonable condition and had not detected any trouble in relation to litter or dog mess. He had not had any difficulty with youths. He also commented that there was a fence some two metres high running along side the path. John Birrell lives at 4 Maree Way and has done so since April 2001. He said he used the path two to three times a month. He did so when walking his dog. He also commented on the height of the fence on both sides. He noticed wind-blown litter but nothing exceptional. He did know that someone in the neighbourhood had a quad bike. He had not detected any broken glass and would not have taken his dogs for a walk down the pathway had there been such glass. Mr and Mrs Thompson's property also adjoins the path. Of the two witnesses, Mrs Thompson seemed to have more knowledge as to the use of the path as Mr Thompson was often abroad on business. Mrs Thompson described use of the path by young persons, people walking dogs and the occasional cyclist. She had not found litter in her garden as a result of the use of the path and had never felt any discomfort in using her garden, nor had she noticed any antisocial behaviour. Mr Thompson's evidence was broadly to the same effect. The evidence of Chief Inspector Harley was to the effect that this particular area was not a "hot spot" for antisocial behaviour. He had checked the records of the police and a note of all he had found was set out in No. 7/24 of process.

[15] This is not a case in which I can say that certain witnesses were patently untruthful or unreliable. I have no difficulty in accepting as entirely credible and reliable Alison Irvine and Councillor Kay. Subject to what I have to say later, I can say the same in relation to John Birrell, John White, Robert Wylie, Alistair Wood and Ruth Hans. Of course, an immediate difficulty is that, particularly in relation to the evidence of Mrs Hans, it might be said to be at odds with the evidence of the other witnesses. However, I do not think that is necessarily the case. Although there was some evidence as to issues between Mr and Mrs Thompson on the one hand and Kevin McArthur and Debbie Coull on the other, Mr and Mrs Thompson were not cross-examined on these issues and I can see why. In short, there have been disagreements between Debbie Coull and Kevin McArthur on the one hand, and Mrs Barbour and the Thompsons on the other, as to just what access rights the latter enjoy to the path. It is unnecessary for me to express a view on this. Of all the witnesses, I would have to say that I found Debbie Coull and Kevin McArthur probably the least reliable if only because it seemed to me that they had become somewhat exercised by disagreements with Wendy Barbour and Mr and Mrs Thompson. I conclude that their principal motivation in 2006 was concerns as to legal liability more than antisocial use. Their letter would suggest as much. As to the pursuers themselves, subject to one qualification, I did not judge them to be incredible and unreliable. My conclusion as to the path and its use is this. It is unlit and unpaved. The area in which it is situated is predominately a quiet neighbourhood which has not given rise to great police involvement. The path was used, perhaps not extensively, but certainly regularly. It was used by a variety of different people for different purposes. Sometimes children, sometimes adults, sometimes dog walkers and occasionally a cyclist. It seemed to me that the evidence of those who used the path was predominately related to use during the day time. It is hardly surprising. As, I have said it is unlit. It is more probable than not that use during daylight hours has given rise to few difficulties. I can well see that persons passing the fence might have excited interest on the part of the dogs in the pursuers' property. The fences are of a substantial height. The evidence is that the height on both sides is about two metres. It also seems to be more probable than not that there is some litter on the path but I hesitate to say that this is significant. However, I also consider that it is more probable than not that any persons using the path at night may well have engaged in what I will describe as antisocial behaviour. That includes noisy and rowdy behaviour. If, as I accept, it is used by persons making their way home after a night out at a public house, it is by no means improbable during that time they would engage in antisocial behaviour. The presence of antisocial behaviour at the underpass, situated in reasonable proximity to the path, supports the proposition that such behaviour can occur in the neighbourhood. Therefore, I conclude that there is antisocial behaviour, and that it is takes place during the hours of darkness rather than during the day time. I also conclude that such behaviour would be of concern to the pursuers and their young family.

Legal Issues


[16] Before I turn to the legislation, I should record that in the period between my taking this matter to avizandum and issuing my judgement the opinion of an Extra Division was issued in the case of Tuley v Highland Council (21 April 2009). Both parties referred to the report of the case when at first instance (2007 SLT (Sh Ct) 97). In addition, I also sought the assistance of parties as to whether the authorities to which they referred me concerning the nature of any appeal ought to be considered in the light of certain issues to which I will later refer. Both parties submitted written submissions which are lodged in process. I have incorporated these where relevant into the judgement. Resolution of this case turns upon the interpretation of the 2003 Act. In summary, the Act confers certain statutory rights, known as "access rights". The rights are set out in section 1(2). Although nothing turns upon it, the evidence is to the effect that the relevant rights are those contained in section 1(2)(b). A person has access rights only if they are exercised responsibly (section 2(1)). The right of every person to exercise access rights is matched by a corresponding duty imposed upon a landowner in respect of which access rights are exercisable to use the land in a way which is, in relation to those rights, responsible (section 3(1)). "Land" in respect to which access rights are exercisable is "all land" other than that specified in section 6 (section 1(7)). It was accepted that the definition of "land" in section 32 is not relevant here. The definition includes certain areas which might not otherwise fall within the definition of land. Similarly, the definition of "owner" in the same section does not add much to the present action. Exercise of the access rights does not, of itself, constitute trespass (section 5(1)).

[17] Section 6(1)(b)(iv) provides that land which:

"(iv) comprises in relation to a house ... sufficient land to enable persons living there to have reasonable measures of privacy in that house ... and to ensure that their enjoyment of that house ... is not unreasonably disturbed

is not land in respect of which access rights are exercisable."

[18] Section 7(5) provides:-

"There are included among the factors which go to determine what extent of land is sufficient for the purposes mentioned in section 6(1)(b)(iv) above, the location and other characteristics of the house ...".

I have deleted from the quotation the reference to "place" which is irrelevant for present purposes.

[19] Section 13 imposes upon the local authority the duty to keep open routes by which access rights may "reasonably be exercised". Section 13(3) gives to the local authority the right to institute and defend legal proceedings.

[20] Section 14(1) provides that 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" take certain steps. Section 14(2) provides :-

"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".

Section 14(4) provides:-

"An owner on whom a notice has been served may, by summary application made to the sheriff, appeal against it."

[21] Chapter 6 provides for the judicial determination of the existence and extent of access rights and rights of way. Section 28(1)(a) provides:-

"(1) It is competent, on summary application made to the sheriff, for the sheriff-

(a) to declare that the land specified in the application is or, as the case may be, is not land in respect to which access rights are exercisable ......

(3) The proceedings for a declaration under subsection (1) or (2) above are those where an action of declarator initiated by summary application to the sheriff.

(4) A summary application for a declaration shall be served on the local authority.

(5) The local authority are entitled to be a party to proceedings for a declaration.

(6) Where the person seeking a declaration is the owner of the land, it is not necessary to serve the application on any person but the local authority.

(7) In any other case, the person seeking the declaration shall serve the application on the owner of the land."

[22] It is clear from the evidence of certain witnesses that, at one point, they believed that the 2003 Act applied only to rural land. Mr Cooke did not seek to support that view and in my opinion he was correct. Whatever the popular conception of the extent of the 2003 Act may be, Parliament has provided that, subject to certain significant restrictions contained within it, access rights conferred by the 2003 Act apply to all land throughout Scotland wherever that land may be. There is no restriction limiting it to rural land. Section 1(7) makes that clear:

"The land in respect of which access rights are exercisable is all (my emphasis) land except that specified in or under section 6 below."

In addition to the provisions of section 6, section 11 confers powers to exempt particular land from access rights and to enact bye-laws over certain land over which rights are to be exercisable.

[23] Having prescribed the categories of land to which access rights applies, the 2003 Act deals with the exercise of the rights. The rights themselves are set out in section 1(2) and (3). In my opinion, it is important to note that a person only has such rights if they are "exercised responsibly". Section 9 excludes certain conduct from constituting access rights. Section 10 imposes upon Scottish Natural Heritage a duty to draw up a Code relating to access rights, including guidance as to what will constitute responsible and irresponsible exercise of those rights. Both agents were of the view that the Code is not directly relevant for the purposes of this action. Accordingly, in my opinion, by prescribing that a person has access rights only if exercised responsibly, it follows that should a person purport to exercise the rights in a way which is irresponsible, such a person is no longer exercising access rights conferred by the 2003 Act and is therefore no longer entitled to such protection as the 2003 Act confers upon someone who does exercise the rights responsibly. The practical difficulty for the landowner is one of remedy. I will return to this issue.

[24] The pursuers seek two remedies. Pursuant to section 14(4) they have appealed to the sheriff in relation to the notice. Pursuant to section 28 they also seek a declarator that the land is not land in respect of which access rights are exercisable. They rely upon the application of section 6(1)(b)(iv). Parties were agreed that if I were to uphold the pursuers' argument under section 28, then it would follow that the appeal against the issue of the notice would succeed because the land is not subject to the 2003 Act.

[25] I therefore turn to section 28 first. In this case, the pursuers are one of seven co-proprietors of the path. The other co-proprietors are not pursuers. No issue was taken in relation thereto. Indeed, it would seem from a combination of section 28(6) and (7) that the pursuer in a section 28 application need not be the owner of the land at all. The application must be served upon the local authority which is entitled to be a party to the proceedings. Pursuant to the duties and powers conferred by section 13(1) and (3) the local authority is then entitled to maintain a defence to the action.

[26] I have set out the relevant terms of section 6(1)(b)(iv) above. The provision requires to be read in conjunction with section 7(5). For the pursuers, Mr Cooke submitted that I should take into account and accept the evidence of the pursuers as to the extent to which the enjoyment of their property has been adversely affected as a result of the use of the path. For the defenders, Mr McDonald submitted that the evidence as to the antisocial use of the path was nowhere near as bad as the pursuers made out and that, on any view of the evidence, not everyone using the path did so in an antisocial manner. One of the major issues separating the parties was whether, on a proper construction, section 6(1)(b)(iv) related to "house" or whether it is legitimate to have regard to the garden ground also when construing its terms. Mr McDonald contended for the former, Mr Cooke for the latter. Mr McDonald submitted that, a house owner could take various steps in order to ensure privacy such as erecting blinds or curtains. Mr Cooke submitted that a distinction between "house" and "garden" was not a true distinction at all. Both parties referred to, and to some extent, relied upon the case of Gloag v Perth & Kinross Council 2007 SCLR 530. Mr McDonald relied upon that part of the decision which stated that section 6(1)(b)(iv) did not, as Mr McDonald put it, confer upon an owner a right of veto. Mr Cooke noted that in Gloag, the sheriff took into account the extent of the garden ground when determining what is sufficient land for the enjoyment of the house.

[27] As I have already said the structure of the Act is to apply access rights to all land throughout Scotland. Given the application of the Act to all land it is impossible to set out anything other than a general formula designed to maintain a balance between the rights of those exercising the rights and the rights of those over whose land they are being exercised. The 2003 Act leaves to the courts resolution of difficult cases. Mr Cooke was correct to say that each case turns upon its own facts. Section 7(5) provides that location and other characteristics are factors in determining the extent of the land referred to in the provision. The use of the word "included" is significant in that it recognises that there may be other factors to which the court may have regard. I am not inclined to enlarge upon the words of section 6(1)(b)(iv) themselves. Whether the provision is satisfied or not, is, in my opinion, a matter of judgement having regard to the evidence led. Determining the application of the provision to a large country house in an estate will clearly be a different evidential process from that involving a suburban house and garden. During the course of the debate there was a discussion as what would happen if the factual circumstances should change. The relevant factors relating, for example, to a large house occupied by one person may be different should the house fall to be divided into flats and occupied by families. For my own part, I see no reason in principle why a determination under this provision should not be subject to revision in the event of a material change of circumstances but it is unnecessary for me to express a concluded view.

[28] In my opinion, the starting point in this aspect of the case is the house itself. It is a suburban house. There appears to be nothing particularly unusual in its construction or its location. It is located amongst other similar properties in what all the witnesses described as a quiet suburban part of Glenrothes. Similarly, the garden ground attached thereto is, if anything, somewhat larger than one might otherwise expect but, otherwise, it is nothing unusual. The pursuers have a young child. At the date of the proof, Mrs Forbes was expecting another child. The path runs at the foot of the garden. It is easier perhaps to see how these provisions apply in the case such as Gloag where the subjects are extensive and the boundaries more open to delineation. As with most suburban properties, the property here already has a clearly marked boundary, being the fence which separates the garden from the path. Mr Cooke submitted that there was really no room in this case to divide up the path. Either it was entirely included or entirely excluded. In that I think he is correct.

[29] On the basis of what I have set out so far, I could conclude that the terms of section 6(1)(b)(iv) are satisfied in that the extent of the garden, in itself, gives sufficient adjacent land. (I will use the words "sufficient adjacent land" as a shorthand way of referring to the test set out in the sub-section). In determining what is sufficient adjacent land I consider that I can take into account evidence as to how the access rights are actually being used and the occupants' experience of their exercise. If there is material to show what is happening on the land I consider that is a factor to which regard may be had, along with all the other factors, before reaching a decision as to what is sufficient adjacent land. At the end of the day, the judgement of the court involves an analysis of what are "reasonable measures" and whether the enjoyment is "unreasonably disturbed". Take a simple example of a house in the middle of an area of land. If there is evidence that persons regularly exercising rights of access over the field do so by passing very close to the house, that evidence may be relevant in helping to set the bounds of what is sufficient adjacent land. It does seem to me that the statutory provision has been drafted so as to focus attention upon the house. Section 6(1)(b)(iv) refers on two separate occasions to "that house". It does not say garden. The distinction between house and garden is something to which the draftsman was alert. Section 6(1)(c) makes express reference to a "private garden". The qualifications as to "reasonable measures of privacy" and "enjoyment ... not unreasonably disturbed" both refer to the house. In theory at least, the exercise which the court is enjoined to undertake by section 6(1)(b)(iv) anticipates the starting point of the house. Looking then at all the relevant factors, including those prescribed by section 7(5) what then would be sufficient land so as to satisfy the remaining conditions contained within the statutory provisions? Implicit within that process is a determination of a physical distance, however big or small, so as to satisfy the terms of the provision. One of the features of this case is that the path has existed for some time and that if I grant the pursuers the remedy they seek the result will be extinction of the access rights in their entirety and not simply an extension of the boundary beyond which access rights may be exercised. There was evidence that use of the path itself relates to the pursuers' enjoyment of the garden rather than the house itself. It seems to me that the erection of a fence and the distance between the fence and the house is sufficient to permit the pursuers reasonable measures of privacy in the house. I have said that one can look at the evidence as to the use of the path. However, I make clear that, in my opinion, the exercise of judgement in section 28 assumes the responsible exercise of access rights. As I have said those exercising the rights irresponsibly do not have the rights. When the path was constructed it seems to me a reasonable inference that the use of the path itself would not constitute a difficulty for those living in the adjoining properties. Why else would it be constructed? It was not suggested that the path was designed for use as anything other than a path. Its use has not, in some way emerged, with the passage of time. A number of adjoining proprietors do not have a difficulty with its use. There is a six foot fence separating the path from the pursuers' property. Their house is some distance from the fence. Accordingly, proceeding on the hypothesis of a responsible use of the path, I do not consider that the pursuers have established the application of section 28.

[30] I now turn to the second aspect of this case, namely the appeal brought pursuant to section 14(4). The striking feature of this provision is that, other than saying that the appeal is by way of summary application, the section is silent as to the grounds of appeal and the court's powers on appeal. I record at the outset of this part of my note the acceptance by both parties that, although nowhere stated, the court must have the power to set aside, vary or confirm the notice, otherwise the section would be devoid of any substance at all. I agree with that conclusion.

[31] The question of what, using the term loosely, is the nature of the appeal to the sheriff is an issue. Many statutes contain within them provisions enabling an appeal to be made to the sheriff. Statutory appeals to the sheriff have a lengthy history, stemming to a certain extent from the historical development of the office of the sheriff. The sheriff was both a judicial and an administrative officer. Some of the authorities relating to this issue make a distinction between the sheriff exercising a judicial and an administrative function. Although this point was adverted to in the case of Tuley v The Highland Council 2007 SLT (Sh Ct) 97 (at paragraph [59] ), so far as I can tell, it was not expressly resolved nor did the issue feature in the appeal. I was referred to Summary Applications and Suspensions by George Jamieson; Carvana Ltd v Glasgow Corporation 1976 SLT (Sh Ct.) 3; Denton v Chief Constable for Dumfries & Galloway 26 October 2000 (unreported); Licensing (Scotland) Act 1976; Civic Government (Scotland) Act 1982; Firearms Act 1968. As a matter of generality, the nature of an appeal can vary. At one end of the spectrum, the person to whom an appeal is made may be put in the same position as that of the original actor, sometimes with the right to take into account events which have occurred subsequent to the original decision. At the other end of the spectrum, an appeal may be limited to reviewing certain aspects of the act or decision only. In between these two, there may variations. There is no single model prescribing the nature of statutory appeals to the sheriff. Each appeal depends very much upon the nature of the specific enactment. Some appeals permit the court to review a decision on its merits and to reach its own decision. Others limit the court to establishing the accuracy of material facts or the jurisdictional basis of the authority's actions which does not involve a review of the merits. The appeal provisions in the Licensing (Scotland) Act 1976 and the Civic Government (Scotland) Act 1982 contain within them very limited bases upon which the court may interfere with the decision under review. At the end of the day, both parties agreed that, to use Mr Jamieson's words, the appeal in this case is an "open" appeal but they disagreed somewhat as to what the consequences of that analysis actually were. Mr Cooke contended that I can look at the merits of the whole matter and reach my own decision on the material before me. Mr McDonald submitted that my powers were more limited.

[32] The authorities to which I was referred predate the application of the European Convention on Human Rights ("the Convention") which, in one form or another, is applied to the law of Scotland by the Scotland Act 1998 or the Human Rights Act 1998. I raised this because it seems to me that the 2003 Act sets out in careful terms, and uses the language of, the rights, duties and obligations of the various parties involved in the exercise of access rights. The exercise by the local authority of the powers conferred by section 14 prima facie involves an infringement of the rights of the land owner but also involves the maintenance of statutory access rights. Throughout the 2003 Act there are references to rights and duties. Article 6 of the Convention provides that, in determining civil rights and obligations, parties are entitled to access to a fair and impartial tribunal. In their written submissions, both parties accepted that the appeal before me engaged Article 6 and called for the determination of civil rights and obligations before an independent and impartial tribunal. Mr Cooke submitted that the hearing before me was the first time the pursuers had had such a right. The decision of the defenders was purely administrative. Mr Cooke went further than I had called for, in that his written submissions strayed into consideration of Article 1 of the First Protocol which did not form part of the pursuers' written pleadings. Although Mr MacDonald did touch briefly on this, I am not inclined to deal further with this aspect of the written submissions in the absence of any record therefor. Such Convention issues as do arise in this case are limited to Article 6. In Mr MacDonald's submission, having regard to the provisions of sections 11,12 and 13, the court should not lightly interfere with the exercise by a local authority of its statutory powers. The actions of the defenders in issuing the notice was proportionate to the aims sought to be achieved by the 2003 Act namely the grant of access rights to everyone, subject to the qualification as to the responsible exercise of those rights. The scope of the appeal should be restricted to whether the pursuers' underlying purpose or main purpose was sufficient to justify the step they took and whether that step was an unreasonable interference in the responsible exercise of access rights. The 2003 Act itself strikes a balance between the rights of owners and those exercising access rights. There is no Convention reason for the court to step in and attempt to strike the balance. The court should not lightly remove the rights of responsible access takers conferred upon them by statute.

[33] It may be that, where Article 6 rights are engaged the traditional analysis into administrative and judicial functions requires to be reconsidered. In my opinion, where Article 6 rights are engaged, the function of the sheriff is judicial rather than administrative. However, neither the Article nor the European Court of Human Rights prescribes in any detailed way what is necessary to satisfy compliance with Article 6. The starting point is what rights and obligations are engaged and the statutory framework itself.

[34] The appeal is against the issue of the notice. Unlike section 28, it is only an owner upon whom a notice has been served who may appeal against it. The notice was issued pursuant to section 14(2). The issue of the notice, in turn, relates back to section 14(1) which provides that 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, take certain action. In my opinion, section 14 needs to be read in conjunction with the provisions of section 13. That provision imposes upon the local authority the statutory duty to uphold access rights. The duty to uphold access rights is not absolute. During the debate reference was made to the use of the word "reasonably" (as opposed to "responsibly") in section 13(1). It seems to me that use of the word "reasonably" in that subsection is a reference to a route by which access rights may be exercised. That is different from the way in which the rights themselves are exercised, i.e. responsibly or irresponsibly. Put another way, a local authority has no obligation to uphold an access right where the route itself is not one over which access rights may reasonably be exercised. In my opinion, properly construed, section 14(1) is directed to preventing land owners from obstructing the exercise of access rights by those entitled to exercise them. As I have said earlier, section 2(1) provides that persons only have access rights if they are exercised responsibly. Accordingly, in my opinion, section 14 does not prevent a land owner from stopping somebody exercising access rights where they are doing so irresponsibly. There is a practical problem which is easier to state than it is to resolve. Where there is both responsible and irresponsible use of access rights action by the landowner may have the effect of curtailing the latter at the expense of the former. Mr McDonald submitted that, on any view of the evidence, there were those who exercised their access rights along the path responsibly. Erecting locked gates prevented those persons from exercising their rights and therefore, given the duty to uphold access rights, the local authority had the power to issue the notice. Mr McDonald also relied upon Tuley v The Highland Council at paragraph [106] in which the learned sheriff took the view that it would only be in "the most obvious or extreme situation that a landowner would be entitled to prevent access to his land by access takers". Although the 2003 Act distinguishes between responsible and irresponsible exercise of access rights, in practice, matters are rarely that simple. Some persons may choose to exercise their rights responsibly, others may not. One of the questions debated before me was what remedy an owner has in a situation such as that. The problem is not a new one. Mr Cooke referred to paragraph 5-16 of "Access Rights" (Guthrie) in The Promised Land: Property Law Reform (ed. Rennie) in which the author quotes from Cameron of Locheil, writing in 1892, to the effect that at common law the remedy of interdict was virtually useless against trespassers. A person exercising the rights irresponsibly loses the protection of the 2003 Act but all does is put the landowner back into the position he is in at common law. The protection against trespass is removed and the landowner is entitled to apply for an interdict against the person concerned. The difficulties with that are almost too obvious to state. It does not seem to me that provisions such as section 28(1)(b)(i) provide much assistance either. That provision appears to be designed more to do with what may, or may not, constitute the responsible exercise of access rights rather than giving any practical mechanism to the landowner to protect himself from irresponsible use of the right.

[35] Both agents sought to derive support for their position from the opinion of the Extra Division in Tuley. In that case, it was not disputed that the pursuers actively encouraged public access to their land. The issue was the use by horses of a part of the land. By erecting gates at a particular point the pursuers had prevented access by those on horseback. The main issue was the treatment of the relevant expert evidence by the learned sheriff (see paras [26]-[35]). In essence the Extra Division held that the learned sheriff had erred in concluding that the pursuers had acted prematurely in erecting gates. On a correct reading of the evidence, damage would occur to the path from equine use and as the main purpose of the pursuers was to prevent damage, which was a responsible act of land management, the pursuers were not in breach of section 14. Put another way, their conduct was not infringing access rights because the exercise of such rights would not be responsible. Although not strictly necessary for their decision (para [36]) the court went on to hold that in determining the "purpose" of the landowner, the court should have regard to the actual purpose of the landowner in taking the steps he did. Contrary to the view of the opinion of the learned sheriff, the test was not solely objective. On the evidence, given the landowners' main purpose was to avoid damage to the track and associated paths, there was no contravention of section 14.

[36] For the pursuers, Mr Cooke submitted that the purpose of the pursuers in erecting the gates was to prevent antisocial behaviour on the path and that the pursuers' belief was genuine. It followed that there was no contravention of section 14. For the defenders, Mr MacDonald submitted that the conclusion of the learned sheriff (at para [106] )of Tuley was good law thus that where there is the possibility of responsible access only in "an obvious and extreme situation" could access rights be terminated. In the present case, whilst one of the pursuers' purposes was the prevention of antisocial behaviour, the pursuers also sought to avoid liability for injury and to avoid prescriptive rights being acquired. The prevention of all access rights was not justified. There was no attempt to distinguish between the responsible and irresponsible exercise of access rights. Mr MacDonald summarised the opinion of the court as follows: (a) if the purported taking of access is in the circumstances irresponsible (being therefore not the exercise of an access right at all) section 14 is not contravened if the step taken only prevents that purported exercise because no access right is affected; (b) even if the step taken does deter or prevent the responsible exercise of access rights, that may be justified by the landowner's underlying purpose; (c) however, where there is the possibility of responsible access, only the most obvious or extreme situation would be capable of justifying the step.

[37] In this case I have concluded that use of the path has been "mixed" in the sense that there are those who use the path responsibly and those who do not. It is the purpose or the main purpose of the pursuers which is the issue here. I am not concerned with the motives and intentions of Debbie Coull or Kevin MacArthur. I do not consider that the Extra Division approved a formulation that it is only in exceptional circumstances that access rights may be terminated. In my opinion, what section 14 does is to focus on the purpose of the landowner in relation to the responsible exercise of access rights. I do not consider that the provisions of sections 11 to 13 in some way act as a fetter or limit on the function of the court imposed by section 14. The difficulty here is that the consequence of the pursuers' action is to prevent both responsible and irresponsible users having access. The Tuley case does not assist because there was no dispute that the pursuers actively encouraged public access to their land but had what was found to be a justified apprehension of damage through equine use. The measures they took dealt with the apprehension they had and did not prevent pedestrian access. It seems to me that I have to form an assessment of the purpose or main purpose the pursuers had in erecting the gates and also whether they were acting in good faith when doing so (see para [41] of Tuley). My assessment is that it was their main purpose to stop antisocial (or irresponsible) use of the path and that, on the evidence, such use happens at night and in particular at weekends. Put another way, had access users taken access in a responsible way the pursuers would not have erected the gates.

[38] That leaves me with the question of remedy. In a situation such as this, where there is evidence of both responsible and irresponsible use of access rights, I am reluctant to conclude that the court is faced with a stark choice between upholding and refusing the appeal. There is no statutory direction as to the court's powers on appeal. I have the misfortune to disagree with the proposition that it is only in the most obvious and extreme situation that access rights should be curtailed, at least in a situation such as this. I do not think there should be any particular bias towards the status of the local authority in respect of its duty to uphold access rights. There are interconnected rights and duties. The extent of the rights conferred and their responsible exercise does not admit of a prescriptive and all encompassing statutory formula for resolution of disputes. On the facts of this case, I have found that the pursuers do wish to curtail the exercise of access rights primarily because of antisocial behaviour at night. The erection of locked gates on a permanent basis prevents such antisocial behaviour but also impedes responsible use of the path. In my opinion, allowing access rights to be exercised during daytime is consistent with the main purpose of the pursuers and the evidence as to when antisocial behaviour is likely to occur. I shall therefore put the matter out by order for parties to address me as to the form of the final interlocutor and to deal with expenses.