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CAIRNGORMS LOCAL OUTDOOR ACCESS FORUM 
Paper 6- Summary of court cases 11 November 2008 

CAIRNGORMS LOCAL OUTDOOR ACCESS FORUM 


Title: Summary of Scottish access and liability court cases 

Prepared by: Fran Pothecary, Outdoor Access Officer 

Purpose: 
This paper aims to summarise the three main court cases to 
date which have concluded under the Land Reform Act 
(Scotland) 2003. The cases are: 

• Tuley v. Highland Council; 
• Gloag v. Perth and Kinross Council and 
• Snowie v. Stirling Council and the Ramblers Association 
and the linked case of Ross v. Stirling Council. 

Another early case that was settled out of court has been 
included as have two recent liability cases. 

Advice Sought 
None – for information and comment only 


ACCESS CASES 

1. Tuley v Highland Council 

1.1 The case involved the obstruction of a track (the “red path”) by a 
barrier in Feddonhill Wood in Ross-shire. The barrier effectively 
prevented access to horse-riders who had historically been able to 
access it. 

1.2 Highland Council served a notice under Section 14, requiring the Tuleys 
to remove the padlocks from the barriers or widen the existing gap 
to1.5 metres and permit the passage of horse riders. 

1.3 The case looked at four matters: 

a) The purpose or main purpose of the obstruction; 
b) The entitlement to exercise access right; 
c) The responsible or irresponsible use of the path; and 
d) The amount of use. 

1.4 The Sherriff found in favour of Highland Council. Scotways offer the 
conclusion that if any regular responsible access is possible and the 
land owner in the course of keeping out the irresponsible restricts the 
rights of access of a person behaving responsibly, he is in breach of 
Section 14. Mr Tuley has now lodged an appeal against that decision. 
The Sherriff decided that Mr Tuley should only pay two thirds of the 
Council’s costs, rather than the full amount. 


2. Gloag v. Perth and Kinross Council 

2.1 This was an action by Mrs Ann Gloag under Section 28 of the 2003 Act 
for a ruling by the Sheriff that Kinfauns Castle and that part of its 
grounds lying within a security fence was land excluded from access 
rights on privacy grounds (about 14 acres). She also claimed that 
public access into this area would breach her human rights. Perth & 
Kinross Council defended the action and proposed an alternative 
boundary line for exclusion of a smaller area of land from access rights 
(about 10.2 acres). The Ramblers’ Association joined in the defence of 
the action. 

2.2 The Sheriff found in favour of Mrs Gloag and the following points 
emerged: 

a) The court was required to consider the characteristics of the house 
and its location in considering the extent of the area of land which 
the Act excludes from access rights. As there is little guidance in the 
Act, judicial knowledge may well have a part to play. 

b) The Scottish Outdoor Access Code does not determine what land is 
included in access rights although the topography of the land will 
have to be considered. 

c) Since the Act requires the Court to establish what is sufficient land to 
enjoy privacy and enjoyment there is no need to refer to the 
Convention of Human Rights. 

d) It is for the Court to determine the extent of land to be excluded. 

e) The Sheriff considered that there were circumstances in which 
irresponsible access-taking might verge on being a breach of the 
peace. 


3. Snowie v Stirling Council and the Ramblers’ Association 
Ross v. Stirling Council 

3.1 The action arose as a result of an appeal to the Sheriff Court against a 
Section 14 Notice served on the Snowies by Stirling Council. The notice 
required them to open at least one pedestrian gate for access to the 
Boquhan Estate. The Snowies also applied for a declarator under 
Section 28 of the Act that specified land was excluded from the 
exercise of access rights on privacy grounds. The Ramblers Association 
joined the action as an interested party, as second defenders. 

3.2 In April 2008 the Sherriff upheld the notice served by Stirling Council 
which required a driveway gate to be unlocked, and determined that 
the Snowies were entitled to a privacy zone around their house 
amounting to 12.6 Acres. The Snowies are appealing against the 
decision. 

3.3 The Sheriff awarded expenses (costs) against both the Snowies and the 
Rosses in favour of Stirling Council. He also awarded expenses against 
the Snowies in favour of the Ramblers Association. 

3.4 The following points are of note: 

a) The detailed analysis of the legislation in Gloag was adopted. The 
only factors to be taken into consideration in making that 
determination include the location and other characteristics of the 
house. No mention was made of the Code as being a consideration 
to be taken into account. 

b) The test of sufficient land for privacy and enjoyment was such as 
was reasonably required, not by the actual resident but the kind of 
person who would normally live there. 

c) A reasonably substantial area was required for Kinfauns (Gloag 
case) and Boquhan for the enjoyment of the house itself, and not 
just the enjoyment of the grounds. This was not a situation like 
Kinfauns where the Sheriff decided on an area which was already 
clearly defined so this may be a pointer for the future. 


4. Caledonian Heritable Limited v. East Lothian Council 

4.1 This was the first case to come to court under the new access 
legislation and was eventually settled out of court. The case 
concerned a luxury development on the East Lothian coast where the 
developers blocked access to the public, and East Lothian Council 
served a Notice on them requiring them to remove obstructions. The 
developers appealed to the court against the Notice and claimed 
that the 2003 Act did not apply to the area under development for 
various reasons including protecting privacy and the fact that 
construction work was under way. The case also raised the issue of the 
extent of access rights over golf courses. There were two days of legal 
debate, mainly on the issue of the validity of the Notice served by the 
Council on the developers, following which the Sheriff decided that the 
case should go to a full hearing. The case was eventually settled as the 
developers removed the obstructions, so it never reached a full 
hearing of the evidence. 


LIABILITY CASES 

5. Welsh v Brady 

5.1 This concerns a dog-owner’s potential liability for injury caused by his 
dog. In this case a woman was walking her dog in open fields when she was 
injured in a collision with a Labrador. She sued the dog owner for 
damages for injuries to her knee. The case was considered both under 
the general principles of negligence and in relation to liability under 
the Animals (Scotland) Act 1987. Under the 1987 Act there is strict 
liability for injury caused by animals if they have physical attributes or 
habits which are likely to cause injury to people unless the animals are 
controlled or restrained. The Judge rejected liability on this basis – he 
said that there would be ‘incredulity’ among the public if it was 
suggested that Labradors were likely to be dangerous unless restrained. 
In relation to the claim of negligence, he said that what occurred was 
an unfortunate and unforeseen collision. In the circumstances of the 
case the dog-owner had not been negligent. However, he said that it 
might be different in other circumstances. For example, in a public 
place where there were children present it might be necessary to put 
the dog on a lead. 

6. Poppleton v Peter Ashley Activities Centre 

6.1 This was an English Appeal Court decision which was an appeal 
against an award of damages to a man who was injured in a fall from a climbing wall. He 
claimed that the Activities Centre had not given him any training or 
warned of the potential dangers. At first instance he was awarded 
damages on the basis that the Activities Centre was 25% at fault. 
However, this was overturned on appeal. The Appeal Judges said that 
it was quite obvious that a serious injury could result from a fall, and 
that no amount of matting could remove all risk. They rejected his 
claim that the Centre should not have allowed him to climb without 
assessing him first, indicating that otherwise it would have wide-ranging 
implications for dry ski slopes, mountain bike tracks, swimming in pools 
or the sea, and gymnasiums. The case confirms that where people 
engage in activities that involve a degree of unavoidable risk, they 
may have no recourse if they are injured, even if they are paying for 
the use of facilities and/or equipment. 

7. Discussion 

7.1 The two main cases of Snowie and Gloag both concerned issues to do 
with privacy ad curtilage around large private homes – the CNPA are 
not currently dealing with such issues. The Tuley case was of interest in 
respect of multi-use and to what extent a land manager could prohibit 
access on the basis of anticipated use and subsequent damage – and 
this is of relevance to several access cases we are dealing with. 
Comments and observations from the Forum members are invited 

Fran Pothecary 
Outdoor Access Officer 

franpothecary@cairngorms.co.uk