SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

B94/08

Act: Mr Jonathan Mitchell QC, instructed by Paull & Williamsons, Aberdeen

Alt: Mr Douglas Armstrong QC, instructed by Ledingham Chalmers LLP, Aberdeen

Inverness: 26th June 2009

The sheriff principal, having resumed consideration of the cause, allows the appeal and recalls the interlocutor of the sheriff dated 14th January 2009; sustains the first, second and third pleas in law for the pursuers and appellants and quashes the requirements of the written notice dated 31st January 2008 served by the defenders and respondents on the pursuers and appellants in terms of which the pursuers and appellants were, among other things, required to remove a section of the fence and hedge at the west end of Laurel Bank Lane, Aviemore to allow a gap of no less than two metres width as said fence and hedge were outlined on Plan 1 and Plan 2 annexed to the said notice; reserves meantime all questions of expenses and appoints parties to be heard thereon at Inverness Sheriff Court on 27^th July 2009 at 12 noon.

Note

[1] The pursuers and appellants are the owners of land in Aviemore, including part of a road named Laurel Bank Lane. Various hotels and retail and recreational facilities have been built upon this land, and these are collectively known as "the Aviemore Highland Resort". It is accepted in the context of this case that the defenders and respondents are the relevant local authority for the purposes of Part 1 of the Land Reform (Scotland) Act 2003 ("the Act") which, it is also accepted, came into force on 9th February 2005.

[2] In days gone by members of the public evidently had unrestricted pedestrian access along Laurel Bank Lane from the main shopping area in the centre of Aviemore into the resort and likewise those employed in, or staying at, the resort had access along the lane from the resort to the centre of Aviemore. But sometime in 2004, in other words after the Act received Royal Assent but before Part 1 came into force, the pursuers erected a fence across the west end of the lane. This the defenders admit. The pursuers aver that in the course of 2004, and again before Part 1 came into force, they also planted some plants behind the fence. In their answers the defenders aver that they do not know and do not admit that these plants were planted in 2004. They describe these plants as a hedge, but the pursuers aver that no hedge has been erected (sic).

[3] On or about 31st January 2008 the defenders issued a written notice to the pursuers under section 14(2) of the Act. The material parts of this notice read as follows:

1. THIS IS A FORMAL NOTICE issued to you (the pursuers) by (the defenders) in exercise for (sic) the powers conferred by section 14(2) of the Land Reform (Scotland) Act 2003 ("the Act"), because it appears to them that you have contravened the terms of section 14(1) of the Act on the land referred to in article 2, of which you are the owner.

2. THE LAND AFFECTED

The land on which it appears a breach of section 14(1) of the Act has taken place is Aviemore Highland Resort ................

3. THE BREACH OF PREVENTING OR DETERRING THE EXERCISE OF ACCESS RIGHTS

A fence and hedge has been erected and planted on your ground at the west end of Laurel Bank Lane thus blocking a recognised and well used access route from Grampian Road, Aviemore into the said resort and also previously allowing public access to areas adjoining but outwith the resort ..............

4. REASONS FOR ISSUING THIS NOTICE

It appears to (the defenders) that there has been a contravention of section 14(1) of the Act.

5. WHAT YOU ARE REQUIRED TO DO

1. Remove a section of the fence and hedge to allow a gap of no less than 2 metres width in order to allow the public to exercise their access rights.

2. Timescale for compliance: 4 weeks after this Notice takes effect.

[4] The notice went on to specify that it took effect on 22nd February 2008 unless an appeal was made against it beforehand and that the pursuers were entitled to appeal against it by summary application made to the sheriff under section 14(4) of the Act. In the event the pursuers did appeal and in crave 1 they asked the court, in short, to quash or recall the requirements of the notice.

[5] Section 1 of the Act provides, inter alia, as follows:

1. Access rights

(1) Everyone has the statutory rights established by this Part of this Act.

(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.

(3) The right set out in subsection (2)(a) may be exercised only -

(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.

...................

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

Before the sheriff the pursuers submitted, in short, that the land in question fell within one of the exclusions specified in section 6. But this submission was rejected by the sheriff and was not insisted upon in the course of the appeal to myself.

[6] So far as material, sections 13 and 14 of the Act provide as follows:

13. Duty of local authority to uphold access rights

(1) 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.

(2) A local authority is not required to do anything in pursuance of the duty imposed by subsection (1) above which would be inconsistent with the carrying on of any of the authority's other functions.

(3) The local authority may, for the purposes set out in subsection (1) above, institute and defend legal proceedings and generally take such steps as they think expedient.

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 his 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.

(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.

(3) If the owner fails to comply with such a notice, the local authority may -

(a) remove the sign or notice; or, as the case may be,

(b) take the remedial action specified in the notice served under subsection (2) above,

and, in either case, may recover from the owner such reasonable costs as they have incurred by acting under this subsection.

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

[7] Both parties tabled a variety of preliminary pleas and in due course the matter came before the sheriff for a debate. The outcome of this was that by interlocutor dated 14th January 2009 the sheriff excluded from probation the pursuers' averments in articles 4 and 5 of the condescendence and quoad ultra allowed parties a proof before answer of their respective averments. It is this interlocutor which is the subject of the present appeal. In article 4 the pursuers had, in short, maintained that the defenders had not been entitled to compel them to remove the fence and so-called hedge since these had been put in place in 2004 before Part 1 of the Act had come into force. In article 5 the pursuers had, again in short, maintained that the land in question fell within one of the exemptions specified in section 6 of the Act.

[8] In support of his interlocutor the sheriff wrote a characteristically helpful note. After summarising the parties' respective submissions, he dealt with the issue focused in article 4 of the condescendence at paragraphs [45] to [49] of his note in the following terms:

[45] In my view, on the issue of what was described in this debate as "retrospectivity" the argument of the defender is to be preferred. Strictly, I do not consider that this case involves any question of the retrospective application of an Act of Parliament. Taking the defenders' admitted averments pro veritate it was clear that for many years members of the public had travelled on foot for legitimate purposes from Laurel Bank Lane across where there now was a fence and some vegetation into what was now known as the Aviemore Highland Resort.

[46] On 9 February 2005, when Part 1 of the Act came into force, the act of travelling from Laurel Bank Avenue (sic) into the defenders' (sic) property could be characterised as the exercise of an "access right" in terms of section 1 of the 2003 Act. It did not matter that the fence, which by concession impeded such a journey, had been erected before that date. The fact of the matter was that the making of that journey was the exercise of an access right. Provided that they act responsibly and seek to enter the pursuers' property for one or more of the reasons set out in section 1 of the Act, the general public (described in the Act as "Everyone") has the right to be on the pursuers' property.

[47] The fence was erected in 2004. At that time it impeded an existing route used by members of the public. It continued to impede that route on 9 February 2009. It was still there when the notice was served on 31 January 2008. In my view the situation was, as suggested by senior counsel for the defenders, one of an act commencing before the coming into force of the relevant legislation and continuing thereafter.

[48] In that situation, no question arises as to whether the Act should be read with any retrospective effect. The defenders offered to prove that as at 31 January 2008 an access right was been unlawfully impeded. Further, I would find it difficult to conclude that a route over which members of the public had previously enjoyed access and which was said to have been blocked off between the enactment of the Act and the bringing into force of Part 1 thereof was anything other than an area of land over which an access right in terms of section 1 of the Act existed.

[49] In those circumstances, I have decided that the pursuers' averments to the effect that there are no access rights by reason of the date of the erection of the fence in relation to the date of coming into force of Part 1 of the Act are irrelevant and I have excluded them from probation.

[9] In paragraph 1 of their note of appeal the pursuers indicated that the appeal was directed against the sheriff's decision to allow a proof before answer and to exclude from probation their averments in article 4 of the condescendence. In paragraphs 2, 3 and 4 they went on to state:

2. The pursuers respectfully submit that the sheriff erred in law in excluding from probation the averments of the pursuers contained within article 4 of condescendence and allowing a proof before answer. The sheriff erred in law in determining that access rights under the Land Reform (Scotland) Act 2003 ("the Act") may have been breached by the presence of (i) the fence erected by the pursuers and (ii) the planting of plants by the pursuers to form the alleged hedge (the issue of retrospectivity).

3. It is a matter of agreement on record between the parties that the fence was erected by the pursuers prior to the entry into force of the Act. The pursuers submit therefore that the notice as framed is incompetent or alternatively should be quashed without the necessity for probation. Alternatively, the requirements of the notice anent the fence should be quashed.

4. The averments of the pursuers are that they planted plants prior to the entry into force of the Act. The defenders do not offer to prove either when said plants/hedge were planted. In said circumstances, the sheriff erred in law in not granting the application of the pursuers or alternatively in failing to restrict any proof before answer to the issue of whether the alleged hedge was a hedge and if so whether it was an interference with access rights under the Act and separately whether if said hedge was an interference with access rights under the Act whether it was a justifiable interference in terms of the Act.

[10] Opening the appeal, senior counsel for the pursuers indicated that the issue in this appeal was whether a notice under section 14 of the Act could competently be served in respect of works, actions or omissions entirely prior to the commencement of the Act on the basis that they had a continuing effect. Counsel suggested that the key concept in section 14(1) and (2) of the Act was that of a contravention of section 14(1). He pointed out that there had been no complaint here by the defenders of a failure on the part of the pursuer to take any action. It had been the erection of the fence and hedge which had constituted the supposed contravention - see section 14(1)(b). It was important, said counsel, to examine the timing of the act in question. He submitted (1) that in order to support the issue of a notice and subsequent court proceedings under section 14 there had to be a contravention of section 14(1), (2) that one could not contravene a statutory provision that was not in force, (3) that it followed that section 14(1) was concerned only with acts or omissions from the date of commencement of the Act, and (4) that in the present case the act or omission in question was the erection of the fence which had admittedly taken place before the commencement of the Act. It was accepted that there could be an act which straddled the commencement of the Act, for example the building of a wall. But that had not happened here. The defenders relied on a continuing state of affairs, namely the continuing effect of the erection of the fence, as constituting the act which was struck at by section 14(1). In this they were mistaken. The language of the section was plain, namely that there had to be a contravention of the section consisting of an act or omission on the part of the owner of the land in respect of which access rights were exercisable at the time of that act or omission. It was this act of the landowner which was struck at and not the continuing effect of it, albeit that this would be relevant to the local authority in asking itself whether to serve a notice under the section. On the plain meaning of section 14(1) the contravention must postdate the commencement of the Act because one could not contravene a non-existent statutory provision. It followed that the sheriff had erred in law in concluding, as he had, that there had been a competent complaint by the defenders of a contravention on the part of the pursuers of section 14(1) which had been constituted by a state of affairs which had commenced before the coming into force of the Act and had continued thereafter.

[11] Turning briefly to the so-called hedge, counsel suggested that it was not clear what remedial action would be called for on the part of the pursuers if the fence were allowed to remain. It was hard to understand what would be the point of ordering them to remove the hedge and not the fence. There was no suggestion that, if the fence remained, the hedge would constitute a separate obstruction. Thus both the fence and the hedge should stand or fall on the fate of the fence. In any event the defenders' position on record was that they did not know and did not admit that the hedge had been planted before 2005. But they had not put in issue the proposition that it had been planted after the Act had come into force. It was for them to aver and prove when the hedge had been planted, and there was no hardship in this since they had to prove the pursuers' purpose in planting it.

[12] In response, senior counsel for the defenders explained that their position had been that they had used their powers under section 14(2) of the Act to address an act and state of affairs subsisting at the time that the written notice had been served on the pursuers, namely 31st January 2008, and that they (the defenders) had been under a duty in terms of section 13 of the Act so to act. Counsel submitted that the question whether an action of a landowner and a state of affairs existed prior to the coming into force of the 2003 Act was not relevant for the purposes of the Act. The relevant questions were (1) whether the action in question had been carried out by the landowner in order to prevent or deter access rights and (2) whether this prevention or deterrence (or state of affairs as the sheriff had put it) had been in place at the time of service of the notice. The defenders were obliged under section 14(2) to consider whether there existed a contravention of section 14(1) which required them to act in order to comply with their duty under section 13. They did not argue that the Act was backward-looking or retrospective or retroactive in the sense that it changed the law prior to the date when section 14 had come into effect. Their position was that the section was not retrospective but required the defenders to consider the actions of the landowner and the state of affairs existing at the time that the defenders were considering whether or not to serve a notice under section 14(2). Counsel submitted that the ordinary and natural meaning of the words in sections 13 and 14 required the defenders to look at the actions of the pursuers and the state of affairs at the time of service of the notice. The interpretation of the Act advanced by the defenders protected the public right of access which was central to the Act and which did not create consequences which were so unfair that Parliament could not have intended them to apply. It followed, said counsel, that the sheriff had been correct in the conclusions which he had expressed in paragraphs [47] to [49] of his note.

[13] Turning briefly to the hedge, counsel submitted that this was relevant in its own right. While the fence was the principal barrier to access, the hedge also restricted access rights. It was for the pursuers to lead evidence to demonstrate when the hedge had actually been planted and not for the defenders to prove this. Accordingly, even if the court were against the defenders on the question of the fence, there should be a proof before answer in relation to the question of the hedge.

[14] In my opinion the submissions for the pursuers are to be preferred. It is I think important to notice that the access rights referred to in section 14 of the Act are no more and no less than the access rights established by Part 1 of the Act - see section 1(1) and (2). It is not in dispute that Part 1 only came into force on 9th February 2005, so these access rights could not have existed before that date. Section 14(2) allows the local authority to serve a written notice on the landowner where they consider that anything has been done in contravention of section 14(1). So the question arises whether the pursuers had done anything in contravention of this subsection before the notice dated 31st January 2008 was served on them. It should be noted here that, in serving the notice as they did on the pursuers, the defenders did not assert that the pursuers had, for example, permitted any hedge to grow or had taken, or failed to take, any other action - see subparagraphs (b) and (e) of section 14(1). Rather, as appears from article 3 of their notice, their complaint was that the fence and hedge had been erected and planted by the pursuers on their ground at the west end of Laurel Bank Lane. There is no dispute that the fence was erected in 2004 before Part 1 of the Act came into force, in other words at a time when the access rights under the Act did not exist. So, when they erected the fence, the pursuers were not the owners of land in respect of which access rights were exercisable, and in any event they could not have erected the fence for the purpose or for the main purpose of preventing or deterring any person entitled to exercise those access rights from doing so since the rights did not then exist. Nor in my view is it correct to characterise the erection of the fence as a continuing state of affairs. It was an act which was completed before Part 1 of the Act, and with it the access rights in question, came into force, and it is nothing to the point that the continuing presence of the fence has the effect now of preventing or deterring any person entitled to exercise access rights under Part 1 from doing so. It might have been a different matter if the words "or maintain" had appeared in subparagraph (b) of section 14(1) after the words "put up" and if the defenders had stated in the notice that the pursuers were maintaining the fence for the purpose or for the main purpose of preventing or deterring any person entitled to exercise access rights from doing so. But the subparagraph does not include these additional words and there is (and could be) no such assertion in the notice. It follows in my opinion that the defenders were not entitled to serve the notice on the pursuers under section 14(2) so far as it related to the erection of the fence as there had not been a contravention by the pursuers of section 14(1).

[15] So much for the fence. As for the so-called hedge, the pursuers' position on record is that it was also planted in 2004. If this is correct, then the defenders were no more entitled to serve the notice in the terms in which they did in respect of the hedge then they were in respect of the fence. But the defenders say that they do not know and do not admit when the hedge was planted. In my opinion this will not do. They were the ones who, in serving the notice on the pursuers, maintained that they had acted in contravention of section 14(1), and accordingly the maxim ei qui affirmat, non ei qui negat, incumbit probatio applies in my view. Thus, if they wished to rely on the planting of the hedge as constituting a contravention of section 14(1), it was for the defenders to aver and prove that this happened after Part 1 of the Act came into force. They have not done so and it follows in my opinion that they cannot hope to prove that there was a contravention by the pursuers of section 14(1) in respect of the planting of the hedge. In any event, I agree with counsel for the pursuers that it would be a pointless exercise to allow a proof on the question whether or not the hedge (or plants as the pursuers prefer to call them) should be allowed to remain if the fence itself remains in situ.

[16] For the sake of completeness I should record that both counsel advanced submissions upon the hypothesis (which I did not understand either counsel to accept) that there was an ambiguity or uncertainty in the proper construction of section 14 in its application to the circumstances of this case. In the course of this part of the discussion I was referred to Chebaro -v- Chebaro 1987 2 WLR 1090, L'Office Cherifien des Phosphates -v- Yamashita-Shinnihon Steamship Co Ltd 1994 1 AC 486, Wilson -v- First County Trust Ltd (No 2) 2004 1 AC 816, Maris -v- Banchory Squash Racquets Club Ltd 2007 SC 501, In re McKerr 2004 1 WLR 807, West -v- Gwynne 1911 2 Ch 1, Scottish Parliament Justice 2 Committee Official Report, 25th September 2002 (Cols 1838/9) and Bennion on Statutory Interpretation (5th Edn) at pages 315/9. Since in my opinion the meaning of section 14 is perfectly clear in its application to the circumstances of this case, I have not thought it necessary to express any opinion on these particular submissions. (I should add here that, after I had taken this matter to avizandum, I received from the pursuers' solicitors a copy of the decision of the Extra Division in Tuley -v- The Highland Council 2009 CSIH 31A. The fact that this case was itself at avizandum when I heard the appeal was mentioned by counsel for the pursuers. For the avoidance of doubt, I should say that the judgment of the Division in that case has played no part in my own decision).

[17] It will be seen that I have reserved all questions of expenses and fixed a further hearing to consider these. If parties can agree how these should be dealt with and lodge a joint motion accordingly, I anticipate that I should be content to give effect to this in the absence of parties and to discharge the hearing.