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Renyana Stahl Anstalt v. Loch Lomond & The Trossachs National Park Authority [2018] CSIH 22

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Renyana Stahl Anstalt v. Loch Lomond & The Trossachs National Park Authority [2018] CSIH 22


28 March 2018

The First Division has issued an important decision on the Land Reform (Scotland) Act 2003, which provides the general public with access rights to land.  The National Park Authority had served a notice on an estate owner, Renyana Stahl Anstalt, alleging that Renyana had contravened section 14 of the Act by locking certain gates, and by posting a sign relating to wild boar.  Section 14 prohibits owners from doing certain acts “for the purpose or for the main purpose of preventing or deterring” persons from exercising their access rights.  

Although the First Division held that the owners had been entitled to lock one of the three gates, and to post the sign, the main issues were decided in favour of the Authority.  Those issues included the significance of the fact that there had been locked gates before the Act came into force, and what is meant by the “purpose or main purpose”.  On the first point, the First Division confirms that the Act can require pre-existing obstacles to be removed, as part of the landowner’s statutory duty to manage land in a way which is responsible as respects access rights: [59].  To the extent that Aviemore Highland Resort v Cairngorms National Park Authority 2009 SLT (Sh Ct) 57 was arguably authority for a different approach, it has been overruled: [60].

On the “purpose” question, the First Division holds that “purpose” means the landowner’s aim, objectively ascertained from the acts themselves, as opposed to the landowner’s subject intention or motive: [64].  This departs from the guidance previously given in Tuley v. Highland Council 2009 SC 456, and should make the enforcement procedure more straightforward in future. 

http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csih22.pdf?sfvrsn=0

Paul O’Brien acted for the Authority.