Renyana Stahl Anstalt v Loch Lomond and The Trossachs National Park Authority

The owners of a Scottish estate who were seeking to challenge a decision to the effect that they had breached “the right to roam” by locking three gated entrances to the land and by erecting a sign warning of wild boar have had their appeal dismissed. An appellate division of the Court of Session has refused an appeal by Renyana Stahl Anstalt, the Liechtenstein-based owners of the Drumlean Estate in the Trossachs, against a decision of the Sheriff Appeal Court (SAC), which upheld a complaint by Loch Lomond and The Trossachs National Park Authority over the extent to which the landowners required to afford access to members of the public over the estate in terms of the Land Reform (Scotland) Act 2003. The following is a summary of the opinion of the court.

By notice dated 31 October 2013, the National Park Authority (the defenders) alleged that Renyana Stahl Anstalt (the pursuers) had contravened sub-sections 14(1)(a) and (e) of the 2003 Act by erecting the wild boar sign and locking the three gates. The pursuers were required to remove the sign and unlock the gates.  

The pursuers appealed and the sheriff allowed the appeal on the basis that the gates had been in place and locked, and the sign erected, before the coming into force of the 2003 Act and that the purpose of locking the gates and putting the sign up was to manage the land responsibly and not to deter access being taken.  

The Sheriff Appeal Court held that the pursuers’ purpose in locking the gates and in having the wild boar sign, was to deter persons exercising their access rights, contrary to the 2003 Act.

The pursuers appealed to the Court of Session.  

The pursuers’ argument, which the sheriff had accepted, was that, if an area of land, which would otherwise be covered by the 2003 Act, was already enclosed before the Act came into force, there was no obligation on the landowner to facilitate access to that land by, for example, unlocking locked gates or providing stiles.

However, the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, rejected this argument. 

Delivering the opinion of the court, the Lord President said: “If a particular action prevents the exercise of the general right, the landowner may be required to take remedial steps to undo any action, including the locking of a gate, or to remove a sign or unlock a gate which he has ‘failed’ to remove or unlock as part of his duty of responsible management of his land.” 

The court considered that a landowner’s purpose was to be ascertained objectively. Contrary to the view of the sheriff and Sheriff Appeal Court, the owner’s intention or motive was not relevant.

When the case was reconsidered in light of this approach, the inevitable conclusion was that the main purpose of locking the gates was to deter persons from exercising their rights of access and transit under the 2003 Act.  Whatever motive, intention or reasons may have been proffered…for doing so, and whether they were genuinely held, the gates were and are locked for the purpose of preventing or deterring access to the farm by the public; that being land on which they have a right to be or to cross.  

Lord Carloway added: “The failure to unlock the Altskeith and Kennels Gates amounted to a breach of the 2003 Act. To that extent, the substance of the appeal from the SAC failed. However, once access were to be available through the Kennels Gate, the public would have access into and through the farm and onto the hillside and beyond. In these circumstances, keeping the Main Gate locked would not breach the section, since it would not then prevent or deter access.”  

The court held that the SAC erred in finding that the erection of the wild boar sign breached the 2003 Act, since this was something which had been requested by the local authority. 

The full Opinion of the Court is available on the Scottish Courts and Tribunals Service website

Notes to editors 

This summary is provided to assist in understanding the court’s judgment. It does not form part of the reasons for the decision. The full opinion is the only authoritative document. 

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