Dear Bellman,
PUBLIC RIGHT OF WAY – DUNNOTTAR PARK
I have been contacted by people who have previously used the ‘public right of way’ part of which passes through what is now the incomplete Dunnottar Park residential development. The justifiable complaint is that the right of way has been blocked-off and a ‘Stewart Milne’ Notice was erected to say, among other things, “. . . the foot path will reopen in the early part of the new year . . . ” – that is to say 2024.
In the current circumstances of the ‘discontinued incomplete’ development, in my view it is relevant to understand that, “A Public right of way is a public right and not a private right. . .”
As I understand matters, it is long established that, (a) “the landowner whose property is affected by a public right of way is entitled to exercise his rights of ownership in any way not prejudicial to the public’s right use of the right of way”; (b) “it is clear that the landowner may not on his own initiative divert the course of an established public right of way”; and (c) “Statutory provision . . . has been made for the diversion of public paths where the owner, tenant or occupier of the land . . . satisfies the planning authority that for securing the efficient use of the land traversed . . . the line of the path should be diverted . . .” [and importantly] “As a public right, a public right of way does not form part of the assets or estate of any person. In this regard it differs from a servitude. A public right of way cannot be conveyed from one person to another. It cannot be subjected to derivative real rights such as leases or securities. It does not form part of the estate of an individual on death or insolvency.” It is also my understanding that, “The owner of the land traversed by a public right of way has been held to owe a duty of care to the users thereof.” [Johnstone v Sweeney,1985 S.L.T. (Sh.Ct) 2.] – that is to say a negative or passive duty to allow passage, or to take such care as is reasonable in the circumstances’, which includes use of the public right of way by the persons to access their own properties.
In addition, given that the right of way appears to be in close proximity or part of a new residential property, one of the unanswered questions is whether or not it was/is intended or appropriate that the right of way be simply reopened in its existing location or diverted in part.
Having regard to the statutory provisions in the ‘Planning’ and the ‘Countryside’ Acts material to the issues, and having regard also to relevant court decisions, and the length of time lawful access through the public right of way has been denied, the public are due an explanation of the circumstances and due also to have resumed access to the right of way, diverted temporarily or other, failing which an explanation as to why the lawful right to use the public right of way continues to be denied to them for circa twelve months.
Wendy Agnew
Scottish Conservative Councillor representing Stonehaven & Lower Deeside
Note from the editor, Jane Cruickshank
On 8 January 2024 Adele Macleod, Gavin Park and Matt Smith of Teneo were appointed as administrators of Stewart Milne Group Ltd and Stewart Milne Homes North West England Ltd.
Having received Cllr Agnew’s letter last week, I emailed Teneo’s Edinburgh office to ask if they could shed any light on the situation – to date no reply has been received.