Public rights over land and water

Question 1

Gloag v Perth & Kinross Council

Answer 1

1. Concerned a castle owned by Mrs Gloag
2. Mrs Gloag sought a declarator that certain parts of the large estate were excluded from access rights
3. 14 of the 23 acres were excluded

Question 2

Snowie v Stirling Council

Answer 2

1. The estate was 70 acres
2. Mr and Mrs Snowie sought a declarator that 40 acres should be excluded
3. The sheriff held that only 12.6 acres were required to give the sufficient measure of privacy

Question 3

Manson v Midlothian Council

Answer 3

1. Involved a slightly smaller house
2. Part of the land belonging to this house was a path to Penicuik House
3. The public were in habit of using this path to get to Penicuik House
4. Mr Manson sought to have that path excluded from access rights (essentially for reasons of privacy)
5. He put up an eight feet high gate, which he padlocked
6. He argued this was necessary for privacy
7. The sheriff concluded that it was not
8. The sheriff held that the house already had a reasonable degree of privacy due to its own walls and fences
9. The land was still subject to access rights

Question 4

Tuley v Highland Council

Answer 4

1. This case emphasises that it really matters what the purpose of a landowner’s actions is in relation to section 14
2. In this case, the owners of an estate wanted to encourage horse riders to use their woodland
3. There was a particular path that they did not want the horse riders to use (as there was already erosion and they thought that horse riding would cause that path to further erode)
4. Highland Council argued that this was trying to deter horse riders from using their public access rights
5. The court disagreed and held that this was an example of responsible management of land
6. There was a good reason for why this particular path was restricted

Question 5

Aviemore Highland Resort Ltd v Cairngorms National Park Authority

Answer 5

1. This case was viewed as concerning because it conflicts with a lot of the purposes of section 14
2. It involved an obstacle which was in place on land but which predated the 2003 Act
3. The sheriff court held that if a fence has been in place before the Act came into force, its purpose cannot be to deter the use of access rights
4. This case was eventually overturned by Renyana Stahl Anstalt v Loch Lomond and Trossachs National Park Authority

Question 6

Renyana Stahl Anstalt v Loch Lomond and Trossachs National Park Authority

Answer 6

1. Even if you have hedges and fences that were in place before the Act came into force, failing to provide access points like gates or stiles could count as not taking action for the express purpose of deterring access rights from being used

Question 7

Marquis of Bute v McKirdy & McMillan

Answer 7

1. The public claimed a right of way to get to a beach on an island
2. The question was whether there was a public right of way between a public road and the foreshore (the foreshore being a public place)
3. It was suggested that it was attributable to the landowner
4. “If a proprietor lies by while regular and unrestricted public use is made of a private road between two public termini for the prescriptive period, the law will assume a public right rather than an easy-going proprietor” (per Lord President Normand)

Question 8

Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992

Answer 8

1. Cumbernauld had an overpass over a piece of road
2. It is an elevated, enclosed, heated walkway which is linked to parts of the town
3. It went over the main road
4. There was evidence over time that this walkway was being vandalised
5. The owner of the elevated walkway began to lock it at night with the purpose of preventing vandalism
6. It was held that there had been sufficient public use for 20 years that a public right of way had now been constituted
7. The council could not lock it at night because there was a public right to use it

Question 9

Aberdeenshire County Council v Lord Glentanar

Answer 9

1. The question was whether bicycle use could constitute a vehicular right of way or only a pedestrian right of way
2. The court held that bicycle use was only sufficient to establish a pedestrian right of way
3. Bicycles are simply an aid to pedestrianism

Question 10

Wills’ Trs v Cairngorm Canoeing and Sailing School Ltd

Answer 10

1. The landowners owned quite a valuable section of the river Spey
2. They used it mainly for fishing
3. There was a canoeing school which had been using the river for a long time
4. There was evidence that their use of the river was causing damage to the fishing
5. The landowners sought an interdict against the use of the river for canoeing
6. The canoeing school were able to prove that they had used the river for 40 years, and so therefore it had become a navigable river

Question 11

Lord Advocate v Clyde Navigation Trs

Answer 11

1. Navigation does not include the right to deposit rubbish from your boat

Question 12

Crown Estate Commissioners v Fairlie Yacht Slip Ltd

Answer 12

1. Navigation does also not include the right to put down fixed moorings for your boat

Question 13

Scammell v Scottish Sports Council

Answer 13

1. It does allow you to, temporarily and in a limited way, beach your boat on the shore

Question 14

Walford v David

Answer 14

1. Involved an unsuccessful attempt to interdict someone from interfering with public rights
2. There was an area near the seabed which was leased out to somebody who moored salmon fishing rings to the seabed
3. The problem with this was that it interfered with one of the recognised ferry routes to Skye
4. It was held that this was not a material interference because there were slightly different routes which could be taken just as easily to get to Skye

Question 15

Brown v Lee Constructions Ltd

Answer 15

1. Involved a crane which was being used in next-door land
2. The crane had a jib which stuck out the back to keep the crane stable
3. Every time the crane moved a certain way, the jib would move out into the airspace belonging to the next-door neighbour
4. The crane was trespassing

Question 16

Scottish Parliament Corporate Body v Sovereign Indigenous Peoples of Scotland

Answer 16

1. Indycamp was a camp that was set up outside of Holyrood in 2014
2. The argument was that they should not be guilty of trespass as they were exercising their right to freedom of speech and freedom of assembly
3. The court held that you are still trespassing if you are on someone else’s land, regardless of whether you are trying to exercise your rights of freedom of assembly or freedom of speech

Question 17

Inverurie Magistrates v Sorrie

Answer 17

1. The defender asserted that they had the right to race horses over the landowner’s land
2. They had never actually done so, so the interdict was refused

Question 18

Bell v Shand

Answer 18

1. A 15-year-old was caught trespassing
2. The landowner took the trespasser by the scruff of the neck and dragged them some distance and deposited them off of the land
3. This was held to be reasonable force, but it is unlikely it would be found reasonable today
4. Reasonable force would still be permitted if you found someone in your house
5. If it was outside your house, force would probably only be found reasonable if there was some threat of violence against you
6. Force is really a last resort and must be reasonable

Question 19

Harvie v Turner

Answer 19

1. Involved two fields
2. One field had a bull in it, and the other had many cows in it
3. There was a fence between the two fields and they were owned by different farmers
4. The owner of the field with the cows had repeatedly told the owner of the field with the bull that it was not a very sensible place to keep a bull, especially with such a flimsy fence
5. The bull eventually managed to get over the fence and serve the cows
6. Sometime later a number of unsuitable crossbred calves were born, and this was seen as being damaging to the value of the cows and essentially to the farmer’s business
7. The farmer who owned the cows was entitled to damages from the farmer who owned the bull
8. The reason being it was negligent: they could have prevented the bull from trespassing onto the land

Question 20

Winans v Macrae

Answer 20

1. The pursuer sought an interdict from “putting any lamb, lambs, sheep, cattle, or other bestial” on the pursuer’s lands
2. The pursuer was a tenant of 200,000 acres
3. The defender owned one small cottage and had one pet lamb
4. It was held that no interdict would be granted in this case because it was clearly trivial

Question 21

Forest Property Trust v Lindsay

Answer 21

1. The defender owned a large piece of land and had a flock of sheep
2. The pursuer sought and got an interdict against her, ordering her to prevent her sheep from straying onto the neighbouring land
3. The farmer sought a recall of interdict (essentially they appealed the interdict)
4. They argued that there is no obligation at common law to herd your sheep
5. Rather, it is up to the landowners to put up suitable fences to keep sheep off their land