Interdict question

  1. What is the test for interdict? -Sponsored by Dental office in Calgary

 

  1. A notice was served under the Land Register act 2003 s14 (2) requiring the landowner to remove a section of his fence. Pursuers maintained the fence was put up in 2004 – after the passing of the 2003 act but before it was put into force in 2005. Held, due to a misinterpretation of section 14 by the pursuer the sheriff principle concluded the pursuers were not entitled to serve a notice as there had been no contravention of the 2003 act. [1]

 

  1. The bill was introduced into the Scottish parliament in 2001 and passed in 2003. Part 1 of the Act and the Scottish Outdoor Access Code came into force on February 9, 2005.

 

  1. I find the explanatory notes online using the legislation website. www.legislation.gov.uk. How I done it was by searching any act I require information on. Once I have accessed that page I look at the tab under the title of the act. The explanatory notes tab is always the third option towards the right and also has a blue question mark symbol to make it easy to find. It then opens a table of contents relating to the act.

 

  1. “Everyone has the statutory rights established by this part of the Act”

These are the rights to be on (and to cross land. Land includes all land, plus inland water and intertidal foreshore, plus above or below land. The right may be exercised only: for recreational purposes; for the purposes of carrying on a relevant educational activity, or; 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.  Snowie -v- Stirling Council 2008 SLT (ShCt) 61

  1. Section 3 – Obligations of owners – Duty to use and manage land and to conduct ownership in a way which respects access rights.
  1. This Code has been approved by Ministers and the Scottish Parliament. The detailed guidance in the Code should help to ensure that few problems arise. However, if there is a problem, the Code is expected to be a reference point for determining whether a person has acted responsibly

 

  1. Caledonian Heritable Ltd v East Lothian Council

Haddington Sheriff Court, Court ref: B401/05 . This was the first case to come to court under the 2003 Act East Lothian Council served a Section 14 Notice on CHL (under the Land Reform

(Scotland) Act 2003) requiring them to remove these obstructions, and subsequently also sought an interdict to stop work on erection of a fence. CHL challenged the Notice in the Sheriff Court. Held, the notices were specific enough . Notice must be looked at as a unum quid which would mean that it would stand or fall depending upon whether there exists any deficiency in the Notice or the specification provided in the Notice.

Snowie v Stirling Council 2008 S.L.T. (Sh Ct) 61;

The Land Reform (Scotland) Act 2003 permits responsible pedestrian access to all land except certain categories of land including houses. There is to be excluded “sufficient adjacent 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” Mr and Mrs Snowie, the owners of Boquhan Estate in Stirlingshire, had restricted pedestrian access by means of making vehicular entry gates electronically controlled and locking the adjoining pedestrian access gate. Snowies lost their case although the Sheriff did grant declarator in respect of a considerably smaller area of ground around the house which he considered appropriate to be excluded from public access.

Tuley v Highland Council 2009 S.L.T. 616;

This was a successful appeal , Mr Tuley erected padlocked pole barriers to deter riders at either end on the path through the northern section of the wood, although there were narrow gaps to allow others to pass. Mr Tuley feared that use of this track by riders would cause unreasonable damage on account of parts of the path having a steepish gradient. The ‘main purpose’ of the barrier to horses was the landowners’ genuine concern to prevent damage by horses to the track and

the paths leading off it. The Tuleys were therefore not in breach of section 14(1).

Bibliography

 

Cases

Caledonian Heritable Ltd v East Lothian Council

Haddington Sheriff Court, Court ref: B401/05

Snowie v Stirling Council 2008 S.L.T. (Sh Ct) 61;

Tuley v Highland Council 2009 S.L.T. 616;

 

Legislation

Prescription and Limitation (Scotland) act 1973

Land Registration (scot) act 1979

Tresspass (Scot) act 1985

The Game (scot) act 1832

the Night Poaching act 1982

 

Books

Brand,D., Law Baics Property, Edinburgh, W.Green, 2009,

Walker,D., Prescription and Limitations of Actions, Edinburgh, W.Green, 2002,

Steven,A. Wortley, S., Scots Property, Trusts and Succession Law,Edinburgh, Avizandum publishing, 2012

Gretton,G.Steven,A. Property,Trusts and Succession. West Sussex.Tottel Punlishing.2009

 

Websites

http://www.mylawyer.co.uk/trespassing-a-A76076D34460

http://www.wisegeek.com/what-is-an-interim-order.htm

http://www.scotways.com/index.php?option=com_content&view=article&id=284:aviemore-appeal-decision-scotways-comment&catid=37:court-cases&Itemid=70

 

 

[1] ScotWays.2014.Appeal decision.(online) Available from: http://www.scotways.com/index.php?option=com_content&view=article&id=284:aviemore-appeal-decision-scotways-comment&catid=37:court-cases&Itemid=70 (Accessed 3/11/2014)