Aviemore Wall left standing; Land Reform Act 2003 not retrospective?
Holiday-time perusal of the Strathspey and Badenoch Herald (otherwise known as the "Strathy") by Scots Law News revealed another non-success for the Land Reform (Scotland) Act 2003 in striking down barriers to access to land; this time in the popular Highland resort of Aviemore.
On 26 June 2009 Sheriff Principal Sir Stephen Young, sitting at Inverness, overturned an order by Sheriff A L MacFadyen requiring Aviemore Highland Resort Ltd (AHRL) to remove a fence and hedge blocking public movement between the centre of Aviemore (in particular the village's celebrated Tesco store) and the area between the village and the A9 road known as the Aviemore Highland Resort. This area contains a number of hotels and retail and recreational facilities (although it is now some time since the latter included a go-kart facility much appreciated by your reporter's sons and other young males obsessed by the combustion engine, noise and the sensation if not the actuality of speed).
Access between the two areas was once upon a time achieved by way of a road known as Laurel Bank Lane; but in 2004 the owners of the AHR erected a fence and "hedge" blocking the route (and also closed down the go-kart track). According to the Strathy this is known locally as the "Berlin Wall".
Early in 2008 the Cairngorms National Park Authority (CNPA) (within whose jurisdiction Aviemore sits) served AHRL with a notice under the 2003 Act requiring the removal of the blockage. The Authority was successful before Sheriff MacFadyen but the Sheriff Principal held that the access rights granted by the Act did not exist before it came into force on 9 February 2005 and accordingly that its rights of access were not contravened when the Laurel Bank Lane barriers were erected in 2004. Further, on the wording of the Act, it did not cover the continuing effect of the fence and hedge as a barrier to access.
The Strathy for 1 July 2009 reports a director of AHRL as saying:
"Prior to Friday's decision and as part of the phase two planning consent negotiations, we agreed with the CNPA to do … allow .. access at all times to the point under dispute at Laurel Bank Lane. Furthermore we are currently preparing a detailed proposal for the new access which will be properly levelled off and will include suitable lighting. Work will commence on this shortly. We have, however, reserved the right to review the access position should it be deemed by ourselves and CNPA that there is unreasonable disturbance to our guests on the resort as a result of this access. This has been agreed by the CNPA. We will stand by this agreement despite the favourable decision from the Sheriff Principal."
Scots Law News' paparazzi can confirm with the evidence attached that as at the end of July 2009 the fence and "hedge" remained in place, leaving Laurel Bank Lane a somewhat forlorn looking place despite the intense activity just a few feet away in the Tesco car park. The former go-kart track and stadium is but a grassy hollow beside the Macdonald's Hotel; and presumably any resurrection of that once-popular facility is precluded by the need to avoid disturbing the repose of AHRL's (paying) guests.
Scots Law News will continue to monitor the situation, although it is thought that developments most likely depend on two factors, viz the solvency of AHRL and the success of Tesco's current application to move to another site in Aviemore on which (to your reporter's considerable relief) the parking of one's motorised transport (other, perhaps, than go-karts) will be a rather less tortured and torturing business than at present. There seems to be no move to restore the go-karting facility; perhaps that is not really consistent with the idea of a national park.