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PER: Potchefstroomse Elektroniese Regsblad
versión On-line ISSN 1727-3781
PER vol.15 no.2 Potchefstroom ago. 2012
Public access to private land in Scotland
D L Carey Miller
David L Carey Miller. Emeritus Professor of Property Law, University of Aberdeen, Senior Associate Research Fellow, Institute of Advanced Legal Studies, London, Advocate of the High Court of South Africa, email@example.com. My Aberdeen colleague Malcolm Combe most kindly read and commented in a full and valuable way on a draft, but the errors and failings in this final version are mine alone
This article attempts to understand the radical reform of Scottish land law in its provision for a general right of public access to private land introduced in 2003 as part of land reform legislation, an important aspect of the initial agenda of the Scottish Parliament revived in 1999. The right is to recreational access for a limited period and the right to cross land. Access can be taken only on foot or by horse or bicycle.
As a starting point clarification of the misunderstood pre-reform position is attempted. The essential point is that Scots common law does not give civil damages for a simple act of trespass (as English law does) but only a right to obtain removal of the trespasser. Under the reforms the longstanding Scottish position of landowners allowing walkers access to the hills and mountains becomes a legal right.
A critical aspect of the new right is that it is one of responsible access; provided a landowner co-operates with the spirit and system of the Act access can be denied on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise of the right is not responsible.
Although the right applies to all land a general exception protects the privacy of a domestic dwelling. Early case law suggests that the scope of this limit depends upon particular circumstances although reasonable 'garden ground' is likely to be protected. There are various particular limits such as school land.
Compliance with the protection of property under the European Convention on Human Rights is discussed. The article emphasises the latitude, open to nations, for limitations to the right of ownership in land in the public interest. The extent of the Scottish access inroad illustrates this. This leads to the conclusion that 'land governance' - the subject of the Potchefstroom Conference at which the paper was initially presented - largely remains a matter for domestic law; the lex situs concept is alive and well.
Keywords: Scotland, land law, Scottish common law, public access, walkers, garden ground, trespass
1 Introduction
This paper is concerned with a radical reform of Scottish land law introduced as part of the initial agenda of the Scottish Parliament reconvened in Edinburgh in 1999 after some 300 years. The reform concerned provides for rights of public access to private land.1Access to land is of fundamental significance concerning issues of land governance, the theme of a conference2at which a first version of the paper was given. The tension between private rights and the interests of the public may be seen to have a particular focus in the issue of public access to private land. The primary aim of this account will be to identify the scope of the new Scottish right in an attempt to determine the true nature of the change and, in particular, its significance as a limitation of the right of property.
The essential focus of the paper is on the "access rights" provided for in part 1 of the Land Reform (Scotland) Act 2003, which came into force on 9 February 2005.3The paper will cover the subject under the following headings: the pre-reform position; the essential features of the reform; excluded land; the Scottish Outdoor Access Code; the European Convention on Human Rights; the English law approach; and concluding observations.
My Aberdeen colleague, Professor Roddy Paisley, commissioned by the Scottish Rights of Way and Access Society (Scotways), has written a revised edition of Professor A E Anton's guide to Scottish access rights and rights of way to take account of the 2003 access reforms.4This work is invaluable in putting the far-reaching statutory access reforms into the context of the relevant common law.5
Since I wrote the conference version of this paper, Professor John A Lovett of Loyola, New Orleans, USA has published a very full and most valuable study of Scottish access following a research visit to Edinburgh University as a Neil MacCormack Visiting Scholar in 2009.6That study is referred to a number of times in this revised version of my paper.
2 The pre-reform position
There is no delict of trespass in the Romanist common law of Scotland; the landowner has an enforceable right to require a trespasser to leave but there is no civil claim for the act of trespass per se as there is, on the basis of the "tort of trespass", in English law.7T B Smith (later Professor Sir Thomas), considering the scope of land ownership in his noted textbook,8quoted the first Lord President Clyde's dictum9that the word "trespasser" in Scotland is a popular rather than a legal term. The point here is that the civilian-based law of delict of Scots law does not recognise a right to damages arising from the act of trespass itself; trespass to land is only potentially relevant as a basis for liability where it has resulted in damage,10this being remedied by an action directed to reparation for patrimonial loss derived from the Roman Lex Aquilia.11The point, noted by Professor Kenneth Norrie in a recent authoritative work, is that it is "not damages for the trespass, but damages for the hurt to the property".12
As stated, however, a landowner can exclude one who has no right to be present on land and the remedy of interdict is potentially applicable to repeated incursions.13Even the right to apply self-help to the removal of an unwanted "trespasser" is, according to certain authorities, a circumscribed one.14Relevant legislation,15concerned only with possible criminal purpose, appears to reflect the common law position that the mere fact of presence on the land of another is not, in itself, a wrong in the eyes of the law.16
Accordingly, on this basis, while it is correct to say that in Scotland there is no "delict of trespass",17it is "loose and inaccurate"18to say that there is no "law of trespass". This legal distinction is sometimes misunderstood, or even denied, as in a work urging the opening up of "Britain's countryside" by a "right to roam".19
By tradition Scottish landowners are tolerant of hill walkers (or hikers) and have tended to allow a precarious freedom of access to the hills and mountains. This position is the basis of a preface statement in Professor Paisley's recent edition of the access guide by George Menzies (chairperson of Scotways) that "Scotland has a great heritage of access to the countryside".20The rich history of hill walking and the associated "Munro bagging" would never have come to pass without landowners being tolerant of responsible access by the public.21A mid-nineteenth century obiter dictum of Lord Deas22describes the situation of a technically precarious position that was, in practice, essentially secure.
In regard to going to the top of the hill and down again, it would have been an unreasonable thing to stop people going in the then state of matters. I have been familiar with hills myself, on which I would have thought it a most invidious thing if I had been prevented from going to the top and down again, and I never knew of anybody being so prevented. But that did not give a right, and could not be pretended to have been done in the exercise of a right.
A general right of public access to all land was on the agenda of the Scottish Labour administration when parliament - in devolved form - returned to Edinburgh. Early in the new Parliament a Land Reform Bill was published; its provisions included a right of access package.
A National Access Forum, established by Scottish National Heritage in 1994, had brought together the main national interest groups to consider access issues at a national level. The Forum's work led to advice to the Scottish Government concluding that the prevailing uncertainty was unsatisfactory for both landowner and access seeker,23a position supported by academic advocates of reform.24As John Lovett25observes "no one was particularly happy with the status quo in Scotland".
An accurate view of the pre-reform status quo should not deny that general social practice in Scotland allowed substantial access to the countryside for recreational purposes - if not the definite general right of the reformed law. The reforms have substituted a new unitary controlling responsible right structure for the previous position in which the strict legal position was in favour of the landowner but, in practice, access to hills and mountains was widely available and participated in by large numbers of walkers and climbers.
3 The essential features of the reform
The Act provides, first, a right of access to all land and inland waterways for recreational or educational purposes and for any commercial purposes involving an activity that is not inherently profit driven26(e.g. access by a paid walking tour guide) and, secondly, the "right to cross land".27The scope of the two distinct spheres of the right - respectively, access for recreational, educational or certain commercial purposes, and for crossing (i.e. passage) - are clarified by the provisions of the legislation. The recreational, educational or potentially commercial aspect is stated to refer to "going into, passing over and remaining on it [i.e. the land] for any of those purposes and then leaving it, or any combination of those".28The crossing aspect refers to "going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place".29
Importantly, the right in both its aspects is subject to a general exclusion and a limited category of particular exclusions. The general one of responsible exercise is integral to the definition of the scope of the right in that it applies in every instance of the right's availability. This important limitation of the right and its correlative - the landowner's obligation - will be considered before looking at the (obviously different in kind) specific "context of application" limits. By reason of its generality the responsible conduct limit is the most significant qualification of the right. But certain specific conduct limits are also relevant to the quite complex definition of the right. These will be noted in the following section after comment on the generic responsible conduct qualification. The exclusion of certain categories of land is another aspect of the scope of the right but, being distinct from the limits concerned with conduct, this issue will be dealt with in a separate section.
An important feature of the legislation is a significant local authority function in respect of the facilitation and upholding of access rights. This is provided for in Chapter 5 of the Act.30Certain particular provisions from that part will be mentioned in the context of the present treatment but it is beyond the scope of this paper to consider the local authority function aspect in any comprehensive way.
3.1 The prerequisite condition of responsible exercise
In providingthat "[a] person has access rights only if they are exercised responsibly"31the wording of the Act gives the condition prerequisite status. This is clearly important with regard to the extent to which the legislation is an inroad into the right of ownership because, provided a landowner co-operates with the spirit and system of the Act in terms of the reciprocal obligation, it will be open to him or her to deny access on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise is not responsible. This is apparent in the wording of the Act, that "[i]n determining whether access rights are exercised responsibly" the exercise is presumed to be responsible if it does not "cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person".32
The significance of the "responsible exercise" qualification of the right was recognised in the only Court of Session decision thus far on the statutory right of access.33This decision of an Extra Division of the Inner House (Lords Eassie, Hardie and Mackay of Drumadoon) was an appeal from the Dingwall Sheriff Court.34The focus of the matter was the issue of a landowner's reciprocal obligation to use and manage the land concerned in a responsible manner but, of course, the court needed to clarify the position of the legislative context which defines the right of access itself. The opinion of the Court, delivered by Lord Eassie, sets out the provisions of section 2 providing for responsible exercise, section 3 regarding a landowner's reciprocal obligations and section 14 prohibiting deterrent signs or obstructions as the relevant legislative framework. This important comment follows:
It is evident from these provisions - and appeared to be recognised by counsel on both sides - that the notion of acting "responsibly" plays an important part in the scheme of the legislation. Thus a person takingaccess to land has no right of access if he is not acting "responsibly" (section 2(1)). An attempt to add some precision to the broad concept of "responsible exercise" is to be found in section 2(3). The access-taker is also presumed, subject to certain qualifications, to be exercising access rights responsibly if those rights are exercised so as not to cause unreasonable interference with the rights of any other person (section 2(2)).35
This authoritative interpretation of the core "responsible exercise" criterion is significant in confirming that having access rights "only if they are exercised responsibly" means that the right is denied to a taker not acting responsibly. Presenting the proposition in the negative is an acknowledgement of the inherent position of a circumscribed right.
The issue as to whether or not access rights are disallowed because of unreasonable interference with another's existing rights is potentially controversial but, as indicated, the Act clarifies matters to the extent of the specific exclusion of access rights in a mixed category of situations. In these particular circumstances the issue of responsible exercise does not arise because access is disallowed. Section 9 lists the situations under the heading "[c]onduct excluded from access rights" as: (a) where presence is in breach of an interdict or other judicial order; (b) where presence is for a criminal purpose or a purpose in breach of an interdict or other judicial order; (c) for hunting, shooting or fishing; (d) while responsible for a dog or other animal not under proper control;36(e) where presence is for the removal, for commercial purposes or profit, of anything in or on the land; (f) using a motorised vehicle or vessel other than one for and used by a disabled person; (g) being on a golf course for the recreational, educational or a permitted commercial purpose provided for (but, significantly, without implications for the right to cross a golf course).37
What is the position of a landowner who considers that the access right is not being exercised in a responsible way? In the event of the statutory access right being disallowed through irresponsible exercise38the affected landowner's common law rights apply. In principle, in this situation, the use of reasonable means to obtain the removal of the person or persons concerned should be open to the landowner. This interpretation seems to be supported by a definitional provision that "[t]he exercise of access rights does not of itself constitute trespass".39There being no access right if exercise is not responsible, it follows that access of this sort does constitute trespass open to the remedy of removal.
A recent dictum of Sheriff Holligan recognises the significance of the "responsible exercise" qualification in terms of the availability of the access right. Elaborating on the comment that "it is important to note that a person only has such rights if they are 'exercised responsibly'" the learned Sheriff went on to comment:
Accordingly, in my opinion, by prescribing that a person has access rights only if exercised responsibly, it follows that should a person purport to exercise the rights in a way which is irresponsible, such a person is no longer exercising access rights conferred by the 2003 Act and is therefore no longer entitled to such protection as the 2003 Act confers upon someone who does exercise the rights responsibly.40
It is submitted that this dictum is consistent with the Court of Session one in Tuley quoted above.41
A possible example of irresponsible behaviour would be an access taker's refusing to take an alternative route when requested to do so because crop spraying is affecting the safety of using the preferred route.42Proceeding in these circumstances would not be responsible and the right would be disallowed with the consequence that the landowner's common law right to require and, if necessary, enforce removal would be restored.
3.2 A landowner's reciprocal obligation
As indicated, the Act introduced a regime in which the primary right is a prescribed entitlement to responsibly exercised access to another's land. The right necessarily involves a correlative obligation to accede to responsibly exercised access within the prescribed limits, but the Act goes further in a section providing for the "reciprocal obligations of owners".43This section imposes a duty on "every owner of land in respect of which access rights are exercisable - (a) to use and manage the land; and (b) otherwise to conduct the ownership of it, in a way which, as respects those rights, is responsible".44The section's reference to "responsible" is stated to refer to what "is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights".45
A landowner's exercise of inherent rights is deemed to be responsible "if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise" his or her rights under the Act. However, two matters are specified as relevant to recognition of the presumption. Firstly, conduct in contravention of the prohibition of signs, obstructions and dangerous impediments under section 14 is to be taken as not meeting the responsible conduct criterion;46secondly, regard should be had to anything done by the landowner in disregard of the guidance on responsible conduct in the Access Code.47
The Court of Session decisionTuley v Highland Council48already referred to is relevant to the reciprocal obligation of an owner. The issue in this case was not a question of a landowner's privacy but rather one of power and control over decisions concerning the provision of recreational access. Essentially, the issue was whether or not the landowners could 'manage' the situation by erecting a barrier to prevent equestrian use of a path as a protection against erosion which might make it unsuitable for walkers. It was argued that even though damage was likely to occur, horse riders had rights of access which they were entitled to exercise over suitable tracks and, on this basis, it was premature and irresponsible to close routes in anticipation of possible damage. The court rejected this position and found, rather, that the Tuleys had embarked on "a responsible exercise of land management" and that they were seeking to make the different access activities "compatible inter se" in a manner consistent with and "in furtherance of their principal duty in section 3(1) of the Act".49
An important part of the decision in Tuleyis its recognition of a link between a landowner's purpose in doing something in the legitimate use or development of the land and the "scheme of the Act"50factor of responsible exercise. Noting the subjective nature of the notion of "purpose" the Court first observes that
the scheme of the Act, and its reliance on the very protean concepts of acting "responsibly" if anything endorses that subjective approach, which ultimately may focus on the bona fidesof the landowner.51
The opinion goes on to note that
in the context of section 14(1) of the Act, it envisages many agricultural activities which may have the foreseeable result of preventing responsible access but which is done for the wider purpose of the agricultural management of the land. 52
This linking is of obvious importance in its recognition that the landowner's legitimate use of the land concerned will be relevant to the decision whether or not an access taker's conduct is a "responsible exercise".
The crop spraying example given in the previous section53is an illustration of an "agricultural or other operation on the land" providing a legitimate basis for the suspension of access because it would clearly not be an operation carried out "for the purpose or for the main purpose of preventing or deterring" otherwise legitimate access.54
4 Excluded land
The enacted provision excludes land on general and particular bases. The limited scope of general exclusions focuses on protecting working installation interests and domestic home privacy while the specific exclusions are reflected in a listing of particular categories of land in respect of which the provision of access would be inappropriate. The general limits are more important because they go to defining the right's core character and, of course, the extent to which it diminishes the right of ownership. In the structure of the Act, section 6 lists the categories of land excluded by reason of existing use or designation and section 7 supplements and qualifies the list. The end result is complex and only an overview can be given here.
This 'type of land' limitation is distinguishable from a denial of access on the basis of conduct already discussed. Malcolm Combe55noted this important difference in an instructive comment:
... there are two types of case in which a purported access taker may not be entitled to take access: first, with reference to the land in question (a 'where' case), and secondly, with reference to that individual's conduct (a 'how' case)."
This section will focus on the domestic home privacy exclusion which, perhaps unsurprisingly, has been central in some contentious litigation. But, first, the exclusions on various particular bases will be briefly mentioned.
The Act excludes from the right of public access land associated with some form of works installation "to the extent that there is on it...a building, or other structure56or works, plant or fixed machinery"57and the land forms, either, the "curtilage58of a building which is not a house or of a group of buildings none of which is a house"59or "forms a compound or other enclosure containing any such structure, works plant or fixed machinery".60
School land is also excluded by association with a building (obviously, in this case, a school building) insofar as it "consists of land contiguous to and used for the purposes of a school".61
The legislation excludes land used for various purposes seen to be incompatible with a right of public access. The following are excluded:
Sports and playing fields in use (but golf greens, bowling greens, cricket squares and lawn tennis courts are excluded absolutely) and land developed for recreational purposes if access would interfere with the recreational use; fields of sown or growing crops; building, engineering, demolition, mining, quarry and statutory undertaking sites (e.g. Scottish Water); airport and railway land; land in respect of which access is curtailed under any other enactment to the extent of the limitation; shared private residents' gardens (as in Edinburgh New Town) and land in respect of which an entry fee was payable prior to 31 January 2001 and continues to be payable on at least 90 days in the year.62
4.1 Privacy - the flashpoint
A significant issue for the draftsman of a general public right of access to private land was of course the privacy of persons residing on the land. This had necessarily to be a primary consideration concerning the extent of the inroad into the right of ownership. Any general right of access to private land - regardless of qualifications as to purpose - without sufficient specific protection of domestic privacy would have been unacceptable.
The domestic privacy exclusion applicable to land on which there is a house or "a caravan, tent or other place affording a person privacy or shelter"63requires "sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place to ensure that their enjoyment of that house or place is not unreasonably disturbed".64
Some clarification of the intended meaning of this provision is provided in the supplementary provision requiring that "the location and other characteristics of the house or other place" be included "among the factors which go to determine what extent of land is sufficient for the purposes mentioned in s 6(1)(b)(iv)".65
The first decision on the critical issue of the scope of the right of access in terms of a tension with the privacy of a landowner's domestic sphere was in Gloagv Perth & Kinross Counciland the Ramblers' Association.66This matter, decided by Sheriff Michael J Fletcher, was concerned with Kinfauns Castle near Perth, the residence of bus and coach tycoon Ann Gloag. In issue was access to 4.45 hectares of land, the enclosed grounds of a mansion house with a floor area of some 4,800 square metres - almost 0.5 of a hectare.
An important part of Sheriff Fletcher's opinion dealt with the interpretation of the exclusion of access on the basis of privacy. In response to a submission on behalf of the Ramblers Association that the issue was whether exclusion of the public to the limit of the fence was necessary for the enjoyment of the house, the learned Sheriff pointed out that the wording did not support a construction involving "necessity to show that exclusion is required".67Rather, "the landowner is entitled to sufficient land to be excluded to ensure (my emphasis)68that their enjoyment of the house is not unreasonably disturbed".69The legislation in fact says "that house or place" and so envisages possible differentiation depending upon the type of property involved. But nothing other than a variable measure dependent upon the circumstances could be apposite to the determination of the meaning of "reasonable measures of privacy in that house or place" sufficient "to ensure that their enjoyment of that house or place is not unreasonably disturbed".70In the scheme of the Act, land within the zone of the privacy exclusion is land over which access rights are not exercisable. This is made clear in section 1 establishing the right - "land in respect of which access rights are exercisable is all land except that specified in or under section 6 below".71It is submitted that this construction means that a landowner can assert a certain sphere of domestic privacy and deny entry into that sphere to persons seeking access who, in turn, may challenge the position on the basis that it does not meet the relevant privacy criterion. It should also be noted that certain distinguished academic commentators appear not to subscribe to the interpretation of a sphere of privacy depending on the nature and circumstances of the property. John Lovett says that "[t]he LRSA does not grant large landowners an entitlement to greater amounts of privacy and personal autonomy than owners of more modest estates".72
While any introduction of a notion of "genuine access taker" 73not provided for in the legislation seems unworkable,74a compelling point in the discussion part of Sheriff Fletcher's opinion is the observation that the specific exclusion of shared private gardens75seems consistent with legislative policy to exclude "garden areas round private houses".76
Applying an objective "reasonableness" test to determine the area of ground sufficient for the privacy of residents77the court considered it "certain...that a reasonably substantial area of ground standing the nature of the property is excluded from access rights by the terms of section 6".78On this basis it was decided that, while enjoyment of the house depended upon a number of factors, "it could not be ensured by a smaller area [than the circa 4.5 hectares79] of adjacent ground...taking into account the location and characteristics of the house".80
Shortly after the Gloag decision, Snowiev Stirling Council and the Ramblers' Association81wasdecided by Sheriff A M Cubie. This case involved Boquhan House and other dwellings, all part of a 28 hectare property near Stirling. The court rejected a submission that the privacy factor was properly determined by reference to "the standards of the persons affected in the house i.e. that the test was "person specific" and "location specific". 82Agreeing with the approach in Gloag, the court applied an objective test in deciding that while the entire property was not excluded "a reasonably substantial area of ground" needed to be excluded to "ensure that enjoyment of the house was not unreasonably disturbed".83The court made the important point that the purpose of excluding certain ground was "not to secure the enjoyment of the 'policies' for the occupants of the house, but to secure the enjoyment of the house itself".84The end result was an order excluding an area of about 5 hectares around the mansion house. This outcome is broadly consistent with that in Gloagbut the results are distinguishable in that the Snowies were seeking an exclusion extending to their entire 28 hectare estate.
An aspect of Snowiedistinguishing it from Gloagwas the existence of a common law right of way. While statutory access rights are not affected by the existence of a transversing right of way,85arguably Sheriff Cubie was correct in expecting to be informed as to the right of way.86A right of way could have implications for the privacy issue in identifying a prevailing access position, unchallengeable by the landowner. But in principle the existence of a right of way route should not come into the reckoning in a question of whether or not the landowner's right under section 6(1)(b)(iv) defeated a claim to access in fact more intrusive of privacy than that produced by the right of way.
Rossv Stirling Council87was a companion decision to Snowie. Professor and Dr Ross owned and resided in the West Lodge, a detached house with garden ground within the Boquhan Estate. While the two cases were as one in terms of common opposition to access over the estate they were different in their respective claims to section 6(1)(b)(iv). Sheriff Cubie recognised this.
Again, I agree with Sheriff Fletcher in that anyone contemplating the purchase of a house such as Kinfauns Castle or Boquhan House would not consider doing so if the house itself and its grounds (and by that I mean a material area around the house) were not able to be used by them privately. The West Lodge, while in a very scenic location is not in the same category of property, and accordingly will give rise to different considerations about what constitutes sufficient ground.88
Creelman v Argyll and Bute Council 2009,89decided by Sheriff Derek Livingston,involved a 2.4 hectare property on which two houses stand, the five bedroomed Stronardron House and the smaller Dunans Lodge. About one third of the total property area is precipitous and inaccessible. Mr and Mrs Creelman, who lived in the bigger house and let out the smaller one, demonstrated their commitment to the long-term project of developing the entire accessible property as a garden. The public access issue was initiated by neighbouring landowner, Mr Dickson Spain, who wanted, as part of a commercial venture, to bring visitors to his Dunans Castle via pedestrian access through the Creelmans' land made possible only by the Creelmans' work. The local authority, supporting the idea, took the matter up under section 14 of the Act - allowing a local authority to challenge action by a landowner denying access - when the Creelmans put up a "no access" sign. Taking into account a wide range of particular considerations, the court found that only a total exclusion of access rights would allow "reasonable privacy within what might be said to be their reasonable garden area".90In arriving at this conclusion the court paid attention to section 7(5) pointing to "the location and other characteristics of the house" as factors relevant to "what extent of land is sufficient" for the purposes of a determination on the privacy exclusion under section 6(1)(b)(iv). Relevant in this regard was evidence "that the land here was small for a house the size of Stronardron in that type of locality".91
The decision in Forbesv Fife Council92is distinguishable from the privacy exclusion issue cases of Gloag, Snowieand Creelmanconcerned with the position of large rural houses and the delineation of a sufficient private sphere. The matter, however, does have a certain similarity to Rossin that both involved the issue of possible exclusion of access beyond their boundaries on the basis of the privacy associated with a dwelling house.
In Forbes the issue was not access to garden ground but to an adjacent path, held by the pursuers in common with six neighbouring landowners. The fundamental question was if the use of the path by the public was precluded on the basis of the section 6(1)(b)(iv). Findings of fact that the pursuers' house was situated away from a six-foot fence which separated their reasonably sized garden from the path made it difficult to make a case for a sphere of privacy extending beyond their garden ground. Giving the pursuers' case every consideration the court took the view that "what is happening on the land is a factor to which regard may be had, along with all the other factors, before reaching a decision as to what is sufficient adjacent land".93Accordingly, in the example of a house in the middle of a field, evidence that access is regularly taken by passing very close to the house "may be relevant in helping to set the bounds of what is sufficient adjacent land".94The introduction of this potential variable95does not fit an otherwise objective assessment of circumstances. Those who venture closer than an objectively determined limit do not have an access right and are vulnerable to the landowner's common law rights.
5 Scottish Outdoor Access Code
A part of the access rights package under Part 1 of the Act is the provision in Chapter 3 for a code to be produced by Scottish Natural Heritage. The Act provides, first, that the Code should set out - in relation to access rights - guidance as to the circumstances in which "those exercising these rights are to be regarded as doing so in a way which is or is not responsible".96
Section 10 goes on to provide that the Code should also give guidance, on conduct by third parties - i.e. neither access-takers nor landowners - likely to affect the exercise of access rights; the use, management or other conduct by landowners in a way which is or is not responsible; and the use, management or other conduct by landowners in respect of which rights are not exercisable but are likely to affect the exercise of those rights on contiguous land.97
Published in 2005 the Code contains much useful detail but its "user friendly" composition does not always lend itself to interpretation of the Act. For example, the Act in section 2(1) says that "a person has access rights only if they are exercised responsibly"; the relevant part of the Code starts with the statement "[y]ou must exercise access rights responsibly", which is less strong than the formulation of the Act in that it fails to present the plain position that the right is only one of responsible exercise.
Sheriff Fletcher in the Gloagcase did not find the Code of assistance: "looking at the terms of the Code it is clear that it is prepared as a practical guide...rather than an aid to interpretation". 98Regarding the interpretation of section 6, on the important issue of the privacy of the resident of a dwelling, he took the view that "it cannot be said that the advice and guidance given by the Code is a direct help to the interpretation of section 6".99
But while the Code probably has limited utility as an aid to the interpretation of the statutory provisions, it may be of use in terms of guidance on particular issues. Sheriff Fletcher in the Gloagcase, dealing with the point that access rights "are available only if they are exercised responsibly", observed that a party engaging in conduct specifically excluded by section 9 "would not be exercising access rights responsibly" and went on to note that "[s]imilarly disregarding the guidance on responsible conduct set out in the Access Code incumbent upon persons exercising access rights would not be exercising access rights responsibly".100This reflects the wording of section 2(2)(b) of the Act. The Code therefore has a potentially significant role to play in the comprehensive range of particular matters of "responsible behaviour" by the public and by land managers provided for in Part 5.
6 The European Convention on Human Rights
Both the general protection of the right of property under Protocol 1, Article 1 and the particular protection of a person's rights in respect of private and family life and the home under Article 8 are potentially relevant to the question of whether or not the radical Scottish provision for public access to private land complies with the European Convention on Human Rights(ECHR).
Protocol 1 Art.1 provides:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The obvious latitude, especially in respect of land, for limitations in the public or general interest is confirmed in the relevant jurisprudence.101The recognition of a tension in the terms of the grundnormprovision itself has, of course, led to a jurisprudence emphasising the necessity of a balancing-of-interests approach without obvious challenge to the position of states to control landownership in accordance with national priorities. In terms of the substance of norms controlling the constituent rights which make up land ownership, one might say that the lex situs notion prevails. Consistent with this thinking, and importantly in the present context, the case law has come to recognise that the detail of a controlling requirement of balancing is appropriately dealt with in the statute. The Scottish access legislation does this and, to this extent, is probably proof against constitutional challenge. It is submitted that the comments of Professor André van der Walt relating to the English access provision apply equally to the Scottish legislation.
The 2000 English Act102defines public access to access land fairly widely but imposes strict limits on it. Because the Act explicitly establishes a fair balance between public access rights and the private rights of the landowners it could effectively and successfully deprive landowners, without providing for compensation, of their right to sue in trespass anyone who enters the land without their permission.103
Of course, at the domestic level the implications of the required legislative balancing process must be considered and given effect to in the circumstances of particular cases. On this basis it is apparent that only relatively general precedents can be established in respect of the critical privacy issue under section 6.
The question of compliance with the fairly specific mandate of Article 8 necessarily involves matters more particular than general deprivation which, at the level of interpretation in a specific context, must of course be open to variation according to circumstances. The relevant article provides that:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In the Gloagcase104counsel for the pursuer argued that even though it was accepted that the access provisions of the Act complied with the ECHR, Article 8 remained relevant to the decision in terms of section 6 (1)(b)(iv) of the Act as to the extent of the land around the residence over which access rights should not be exercised. The point here was that Article 8 in effect mandated an interpretation of section 6 which took account of the personal circumstances of residents of the dwelling.105
It is submitted that the role of Article 8 is not denied in Sheriff Fletcher's observations as to the interplay between the grundnormprinciple and the legislative provision:
[O]nce it is accepted that the Act is not incompatible with Convention rights and assuming that the court makes a decision which was correct in relation to sufficiency [of the land excluded around a dwelling] there would be no contravention...on the other hand if the court were wrong about sufficiency that decision can be put right without reference to the Convention because it would be a contravention of the 2003 Act.106
7 The English law approach
This brief overview is for the sole purpose of contrasting the general features of the English reforms, which preceded the Scottish ones by only a few years.
In English common law the act of trespass itself is actionable on the basis of the tort of trespass to land.107The landowner's right to exclude a person present on his or her land without permission is backed up not only by a power to exclude, as in Scotland, but also by the availability of a civil action to recover damages in respect of the act of trespass.
Selective limitation of a landowner's right against recreational access takers has occurred in modern times in response to a not insignificant public call for "a right to roam". The culmination of this trend came in the legislation identified in the leading general text on English land law as "[a] statutory 'right to roam'"108. The reforms provide a general right of pedestrian access to "open country".109Only certain land is subject to the statutory "right to roam".110
Gray and Gray111contrast the more extensive Scottish right:
The Countryside and Rights of Way Act 2000, although revolutionary in its way, still suffers from limitations which are exposed by comparison with the extensive access provision made by the Land Reform (Scotland) Act 2003. Under this enactment...every citizen has a presumptive entitlement, not to defined "access land" but to all land in Scotland subject only to express exclusions. The statutory "access rights" include the right to cross land and to use land for recreational, educational and certain commercial purposes. The range of permissible forms of access is also much less restrictive than in England, including access by foot, horse or cycle, camping, canoeing and air sports. The Scottish legislation may well provide a model for adoption or adaption in the next phase of English access legislation, not least in the light of its emphasis on the educational aspect of recreational access to the outdoors.
8 Remedies
The Act provides for the determination, on summary application to a sheriff court, of the central controlling issues of excluded land, responsible exercise by the access taker, and responsible management by the landowner.112There is also provision for a determination as to the right to the crossing of land by a path, bridleway or other means, and whether on foot, horseback, pedal cycle or any combination of these means.113
As urged above,114the better view is that the landowner's remedy has not changed to the extent that he or she may not apply reasonable means to obtain the removal of a party who has no right under the Act. In principle, resort to interdict also remains competent. Prior to the legislation the landowner could, in principle, always obtain the removal of a party present on a precarious basis. The position has changed to the extent that in a wide range of circumstances the access taker is present on the basis of a right, but if the right is forfeited because it is not exercised responsibly, it must necessarily be that the common law remedies are available to the landowner. The party seeking access can, of course, seek a declaration from the sheriff court that his or her exercise is in accordance with the legislation.
The Act's provision for the judicial determination of issues does not displace the landowner's common law right. As a matter of principle, where the access taker has no right, as in the situation identified in the Tuleycase,115the landowner must necessarily have the right to exclude the party concerned. From a policy point of view certain obvious forms of irresponsible conduct to the potential detriment to the landowner's interests justify this residual right.
9 Concluding observations
Would it be accurate to say that, at any rate in broad terms, a technically precarious but de facto largely secure position has been recast on a structured correlative right/responsibility basis? For hill walkers one could hardly contend that the practical position has changed in any major way. On this basis, while the Scottish access to land reforms are from one perspective radical they may also be seen as simply making the longstanding de facto position of public access to the hills and mountains a de jure situation. But, as will be noted shortly, this is only part of the picture.
An aspect of the shift - perhaps insufficiently recognised - is the proximity between the former de facto position and the reformed regime, because of the critical factor of a right contingent upon responsible exercise. As already stated, the only Court of Session decision relevant to the issue has confirmed that the right is denied if its exercise is not responsible.116Arguably, the movement has been from a precarious position to a right revocable on the basis of irresponsible exercise - significantly, a qualified legal right.117The "responsible exercise" factor leaves the landowner in a position to assert his property interest albeit no longer on an arbitrary basis but only in circumstances in which it is under actual threat. Another relevant difference here is that the access taker's thinking now is that in principle he or she has the right to proceed.
But this characterisation is an oversimplification in a number of ways. Previously not well known in Scotland, "ramblers" have joined the hill walkers; the reforms have added a dimension and opened up potential access to land in general including much more than the extensive - and largely wilderness - hill and mountain areas of Scotland. Of course the "all land" aspect of the reforms multiplies the extent to which there may be a "responsible access" issue, because the likelihood of conflict between the access taker and the landowner is much greater in the context of developed land.
From the comparative law perspective of the conference at which this paper, in its initial form, was given, one can only say that the Scottish reforms reflect the trite point that the lex situs factor remains predominant in land law. Subscription to the ECHR supra-jurisdiction norm has implications for the form of any redistribution of rights - more or less as a matter of fair process - but the substance remains essentially a matter for domestic law.
The South African Constitution sets out a controlling agenda for land reform with major implications for the protection of property in terms of the position of the common law. As part of that development the landowner's power to evict has been redefined but without recognition of any general notion of public access to private property. However, as Professor André van der Walt has shown, post-apartheid case law does reflect certain moves to restrict a landowner's general right to exclude.118But a limit on the power to exclude persons, on the basis of their behaviour, from private premises open to the public119is different in kind from a general right of public access for recreational and educational purposes.
Combe MM "No Place Like Home: Access Rights over 'Gardens'" 2008 Edin L R 463-468 [ Links ]
Combe MM "Access to Land and to Landownership" 2010 Edin L R106-113 [ Links ]
Gray K and Gray SF Elements of Land Law 4thed (Oxford University Press Oxford 2005) [ Links ]
Guthrie T "Access Rights" in Rennie R (ed) The Promised Land: Property Law Reform(Thomson/Green Edinburgh 2008) [ Links ]
Halsbury HSGet al Halsbury's Laws of England- Vol 45(2)4thed (Butterworths London 1993) [ Links ]
LovettJA "Progressive Property in Action: The Land Reform (Scotland) Act 2003"2010 NebL Rev739-818 [ Links ]
Norrie K "The Intentional Delicts" in Reid KGC and Zimmermann R (eds) A History of Private Law in Scotland- Volume II:Obligations(Oxford University Press Oxford 2000) [ Links ]
Paisley RRM Access Rights and Rights of Way: A Guide to the Law in Scotland(Scottish Rights of Way and Access Society Edinburgh 2006) [ Links ]
Reid KGC The Law of Property in Scotland(Law Society of Scotland/Butterworths Edinburgh 1996) [ Links ]
Reid KGC and Gretton GL Conveyancing 2007 (Avizandium Edinburgh 2008) [ Links ]
Rowan-Robertson J and Ross A "The Freedom to Roam and Implied Permission" 1998 Edin L R225-233 [ Links ]
Scottish National HeritageAccess to the Countryside for Open-air Recreation: Scottish Natural Heritage's Advice to Government(Scottish National HeritageRedgorton 1998) [ Links ]
Sellar DH "Scotland: The Great Land Debate and the Land Reform Act" 2006 Norwegian Journal of Geography 100-109 [ Links ]
Shoard M A Right to Roam(Oxford University Press Oxford 1999) [ Links ]
Smith TB British Justice: The Scottish Contribution(Stevens & Sons London 1961) [ Links ]
Smith TB A Short Commentary on the Law of Scotland(Green Edinburgh 1962) [ Links ]
Van der Walt AProperty in the Margins(Hart Oxford 2009) [ Links ]
Register of case law
Creelman v Argyll and Bute Council 2009 SLT (Sh Ct) 165
Dumbreckv Addie1928 SC 547
ForbesvThe Fife Council2009 SLT (Sh Ct) 71
Gloagv Perth & Kinross Counciland the Ramblers' Association 2007 SCLR 530
Graham and Margo Tuleyv Highland Council 2009 SLT 616
Highland Council v Graham and Margo Tuley2007 SLT (Sh Ct) 77
James v UK 1986 8 EHRR 116
Jenkinsv Murray1866 4M 1046
Lindsay and Barbara Ross v Stirling Council 2008 SLT (Sh Ct) 61
Snowiev Stirling Counciland the Ramblers' Association2008 SLT (Sh Ct) 61
Victoria & Albert Waterfront (Pty) Ltd v Police Commissioner, Western Cape2004 4 SA 444 (C)
Woodv North British Railway1899 2F 1
Register of legislation
Commons Registration Act1965
Countryside and Rights of Way Act2000
Criminal Justice and Public Order Act1994
Education (Scotland) Act1980
Land Reform (Scotland) Act2003
Trespass (Scotland) Act1865
Wildlife and Natural Environment (Scotland) Act2011
Register of internet sources
Anon [Date unknown] www.snh.gov.uk [ Links ]
Anon [Date unknown] Scottish Outdoor Access Code www.snh.gov.uk/docs/A309336.pdf [date of use 15 June 2012] [ Links ]
Cairngorm Club [Date unknown] www.cairngormclub.org.uk [ Links ]
Cairngorm Club [Date unknown] The Cairngorm Club www.cairngormclub.org.uk [date of use 15 June 2012] [ Links ]
Carey Miller and Combe 2006 www.ejcl.org [ Links ]
Carey Miller DL and Combe MM 2006 "The Boundaries of Property Rights in Scots Law" 2006 Electronic Journal of Comparative Law www.ejcl.org/103/art103-4.pdf [date of use 15 June 2012] [ Links ]
National Access Forum [Date unknown] www.outdooraccess-scotland.com [ Links ]
National Access Forum [Date unknown] Scottish Outdoor Access Code www.outdooraccess-scotland.com/access-forum/history-and-achievements/[date of use 15 June 2012] [ Links ]
List of abbreviations
1 The Land Reform (Scotland) Act 2003, Part 1, brought into force on 9 February 2005 (SSI 2005 No 17).
2 "Good Governance in Land Tenure" supported by the Konrad Adeneauer Stuftung; organised by Professor Gerrit Pienaar and held at the Potchefstroom Campus of the University of North-West, South Africa, 22/23 April 2010.
3 For an important general comment on the reforms in context, see Sellar 2006 Norwegian Journal of Geography.
4 See Paisley Access Rights.
5 Another valuable study is that of Tom Guthrie of the Law School of the University of Glasgow; see Guthrie "Access Rights" 125.
6 Lovett 2010 Neb L Rev.
7 See below n 19.
8 Smith Short Commentary 526.
9 Dumbreck v Addie 1928 SC 547, 554
10 See Reid Law of Property para 185. See also Lovett 2010 Neb L Rev 762: "trespass in Scotland is primarily viewed as constituting a tort...assuming there is damage".
11 Smith British Justice 158.
12 Norrie "Intentional Delicts" 508.
13 Reid Law of Property para 183.
14 Reid Law of Property para 184: "A bare trespass on land...does not always justify the use of force".
15 Wildlife and Natural Environment (Scotland) Act 2011 (which will supersede the Night Poaching Acts 1828 and 1844, Trespass (Scotland) Act 1865 and Criminal Justice and Public Order Act 1944)
16 The predominant feature of the pre-existing position is a "lack of clarity": see Guthrie "Access Rights" 127.
17 Or "tort of trespass" in the terminology of English law.
18 Paisley Access Rights 40 quoting Lord Trayner in Wood v North British Railway 1899 2F 1, 2.
19 Shoard Right to Roam 13: "There is a mysteriously widespread belief that Scotland has no law of trespass or that Scottish trespass law is in some way fundamentally different from English law. It is not". On the following page (14) the author says that "[d]amages for trespass where no actual loss has been incurred are not however available even in theory in Scotland". This later statement reflects the very point which represents a significant legal difference.
20 Paisley Access Rights 5. See also relevant comments in Carey Miller and Combe 2006 www.ejcl.org 22.
21 One need only peruse the annals of the Cairngorm Club, established in Aberdeen in 1887, to appreciate the longstanding popularity of Scottish hillwalking and mountaineering; see the Cairngorm Club Journal first published 1896, most recently 2007 (vol 21, no 108); see, generally Cairngorm Club [Date unknown] www.cairngormclub.org.uk.
22 Jenkins v Murray 1866 4M 1046, 1054.
23 Scottish National Heritage Access to the Countryside; on the history of the development, see National Access Forum [Date unknown] www.outdooraccess-scotland.com.
24 See Rowan-Robertson and Ross 1998 Edin L R 225.
25 Lovett 2010 Neb L Rev 766.
26 Sections 1(2)(a) and 1(3)(a), (b) and (c) Land Reform (Scotland) Act 2003.
27 Section 1(2)(b) Land Reform (Scotland) Act 2003.
28 Section 1(4)(a)(i) and (ii) Land Reform (Scotland) Act 2003.
29 Section 1(4)(b) Land Reform (Scotland) Act 2003.
30 Sections 13-27 Land Reform (Scotland) Act 2003.
31 Section 2(1) Land Reform (Scotland) Act 2003.
32 Section 2(2) Land Reform (Scotland) Act 2003.
33 Graham and Margo Tuley v Highland Council 2009 SLT 616. For an analysis of the decision see Combe 2010 Edin L R 106, 107-109.
34 Highland Council v Graham and Margo Tuley 2007 SLT (Sh Ct) 77.
35 Graham and Margo Tuley v Highland Council 2009 SLT 616 para 17.
36 On this see Reid and Gretton Conveyancing 138-139.
37 Reading ss 6(1)(e), 7(b) and 9(g) together, it would appear that the access right over a golf course is limited to crossing, provided this does not involve traversing a green. The Code para 2.2 of the Access Code (see below section 5) refers to golf as open to access "but only for crossing them and providing that you do not take access across greens or interfere with any games of golf". Rather surprisingly the Code (in the Part 5 Practical Guide) envisages the possibility of cyclists and horse riders on golf courses but they "need to keep to paths at all times and not go on to any other part of the course".
38 Section 2(1) Land Reform (Scotland) Act 2003.
39 Section 5(1) Land Reform (Scotland) Act 2003.
40 Forbes v The Fife Council 2009 SLT (Sh Ct) 71 para 23.
41 Graham and Margo Tuley v Highland Council 2009 SLT 616 para 17.
42 See Access Code 5.1, discussed below in section 5: "Fields where crops are being sprayed or fertilised".
43 Section 3 Land Reform (Scotland) Act 2003.
44 Section 3(1) Land Reform (Scotland) Act 2003.
45 Section 3(3) Land Reform (Scotland) Act 2003.
46 Section 3(2)(a) Land Reform (Scotland) Act 2003.
47 Section 3(2)(b) Land Reform (Scotland) Act 2003. Part 5 of the Access Code provides "a practical guide to access rights and responsibilities" listing 48 situations or activities concerning responsible behaviour by the public and land managers. The Code (5.1) states that the coverage is not complete "but it should help to indicate what is or is not responsible behaviour". The legal status of the code is discussed below.
48 Graham and Margo Tuley v Highland Council 2009 SLT 616.
49 Graham and Margo Tuley v Highland Council 2009 SLT 616 para 35.
50 Graham and Margo Tuley v Highland Council 2009 SLT 616 para 41.
51 Graham and Margo Tuley v Highland Council 2009 SLT 616 para 41.
52 Graham and Margo Tuley v Highland Council 2009 SLT 616 para 41.
53 See above n 42:
54 Section 14(1)(d) Land Reform (Scotland) Act 2003.
55 Combe 2008 Edin L R 463, 464.
56 Section 6(2) Land Reform (Scotland) Act 2003 provides that for the purposes of this provision "a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure".
57 Section 6(1)(a)(i) Land Reform (Scotland) Act 2003.
58 I.e. the particular associated area.
59 Section 6(1)(b)(i) Land Reform (Scotland) Act 2003.
60 Section 6(1)(b)(ii) Land Reform (Scotland) Act 2003.
61 Section 6(1)(b)(iii) Land Reform (Scotland) Act 2003. A school is defined in s 7(4) as not only one within the meaning of s 135(1) of the Education (Scotland) Act 1980 but also "any other institution which provides education for children below school age within the meaning of that provision".
62 For details of the particular exclusions see the provisions of ss 6 and 7 Land Reform (Scotland) Act 2003.
63 Section 6(1)(a)(ii) Land Reform (Scotland) Act 2003.
64 Section 6(1)(b)(iv) Land Reform (Scotland) Act 2003.
65 Section 7(5) Land Reform (Scotland) Act 2003.
66 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530.
67 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 42.
68 i.e. Sheriff's emphasis.
69 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 42.
70 Section 6(1)(b)(iv) Land Reform (Scotland) Act 2003.
71 Section 1(7) Land Reform (Scotland) Act 2003.
72 Lovett 2010 Neb L Rev 796. See also Reid and Gretton Conveyancing 131-132, where the learned authors comment on the issue of "large gardens for large houses in Gloag".
73 Arising from the expert evidence of an access officer in Gloag (para 18) but not taken forward in the Sheriff's decision.
74 See Combe 2008 Edin L R 467; Lovett 2010 Neb L Rev 794.
75 Section 6(1)(c) Land Reform (Scotland) Act 2003.
76 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 49.
77 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 52.
78 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 59.
79 Author's note.
80 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 60.
81 Snowie v Stirling Council and the Ramblers' Association 2008 SLT (Sh Ct) 61.
82 Snowie v Stirling Council and the Ramblers' Association 2008 SLT (Sh Ct) 61 para 51.
83 Snowie v Stirling Council and the Ramblers' Association 2008 SLT (Sh Ct) 61 para 56.It may be noted that Sheriff Cubie in para 48 adopts "verbatim the analysis of the law contained in Sheriff Fletcher's judgement in Gloag" [paras 24-31].
84 Snowie v Stirling Council and the Ramblers' Association 2008 SLT (Sh Ct) 61 para 56.
85 Combe 2008 Edin L R 466-467.
86 Snowie v Stirling Council and the Ramblers' Association 2008 SLT (Sh Ct) 61 para 36.
87 Lindsay and Barbara Ross v Stirling Council 2008 SLT (Sh Ct) 61.
88 Lindsay and Barbara Ross v Stirling Council 2008 SLT (Sh Ct) 61 para 56.
89 Creelman v Argyll and Bute Council 2009 SLT (Sh Ct) 165.
90 Creelman v Argyll and Bute Council 2009 SLT (Sh Ct) 165 para 66.
91 Creelman v Argyll and Bute Council 2009 SLT (Sh Ct) 165 para 67.
92 Forbes v The Fife Council 2009 SLT (Sh Ct) 71.
93 Forbes v The Fife Council 2009 SLT (Sh Ct) 71 para 28.
94 Forbes v The Fife Council 2009 SLT (Sh Ct) 804 para 28.
95 Lovett 2010 Neb L Rev 71.
96 Section 10(1)(a) Land Reform (Scotland) Act 2003.
97 Section 10(1)(b), (c) and (d) Land Reform (Scotland) Act 2003.
98 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 35.
99 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 36.
100 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 25; this dictum is part of Sheriff Fletcher's opinion adopted by Sheriff Cubie in Snowie v Stirling Council and the Ramblers' Association 2008 SLT (Sh Ct) 61 para 48 (see above n 83).
101 See, for example, James v UK 1986 8 EHRR 116.
102 Referring to the Countryside and Rights of Way Act 2000; see below, part 7.
103 Van der Walt Property in the Margins 194-195.
104 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530.
105 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 61.
106 Gloag v Perth & Kinross Council and the Ramblers' Association 2007 SCLR 530 para 65.
107 See Halsbury et al Halsbury's Law of England Vol 45(2) para 505: "Every unlawful entry by one person on land in the possession of another is a trespass for which a claim may be brought, even though no actual damage is done".
108 Gray and Gray Elements of Land Law PARA 5.46.
109 Countryside and Rights of Way Act 2000 s 1(2).
110 Amounting to some 10% of the total land area of England and Wales made up of: i/ all land over 600m above sea level (the highest mountain in England being Scafell Pike at 978m and in Wales Snowdon at 1085m) together with definitively mapped areas of "open country"; ii/ all registered common land - an extension of the "village green" idea provided for by the Commons Registration Act 1965 (c.3% England, 9% Wales of total land); iii/ land irrevocably dedicated by the owner for public access; see Gray and Gray Elements of Land Law paras 5.40 and 5.47.
111 Gray and Gray Elements of Land Law para 5.50.
112 Section 28(1) Land Reform (Scotland) Act 2003.
113 Section 28(2) Land Reform (Scotland) Act 2003.
114 See 3.1 prerequisite condition of responsible exercise.
115 Graham and Margo Tuley v Highland Council 2009 SLT 616. For an analysis of the decision see Combe 2010 Edin L R 106, 107-109.
116 Graham and Margo Tuley v Highland Council 2009 SLT 616.
117 See Lovett 2010 Neb L Rev 742 contrasting the "right to exclude" regime with a position favouring responsible access under the Act: "the [Act] actually replaces the traditionally robust, modular, ex ante presumption in favor of the right to exclude with a surprisingly simple, but also robust, ex ante presumption in favor of responsible access..."
118 Van der Walt Property in the Margins 195.
119 Victoria & Albert Waterfront (Pty) Ltd v Police Commissioner, Western Cape 2004 4 SA 444 (C).


text:
PLEASE NOTE that the Tennessee State Library and Archives does not hold copies of all of the items listed in this bibliography. Please check the Tennessee State Library and Archives Online Catalog or visit the Ask Us a Question! web page to contact the Library and Archives and verify we have an item in our collection. We will respond to e-mail requests promptly; response time may vary, depending on the amount of research required to answer your question and the unique nature of your request. If you need immediate assistance you may call the reference desk at (615) 741-2764 or visit us in person.
Meigs County in General
Allen, Valentine C. Rhea & Meigs counties, TN in the Confederate war. N.p., 1908. 126 pp.
Biographical directory, TN General Assembly, 1796-1969 (Meigs County, Preliminary #9). Nashville, TSLA, 1969. 37 pp.
Colonel Return Jonathan Meigs day book #2. Compiled by James L. Douthat, transcribed by Bettye J. Broyles. Signal Mountain, Institute of Historic Research, 1993. 95 pp.
Decatur-Meigs County Tomorrow. Economic development agenda. Decatur, Decatur-Meigs County Tomorrow, 1988. 18 pp.
Flood insurance study: Meigs County, TN, unincorporated areas. Washington, D.C., FEMA, 1990. 14 pp.
Fox, John S. TVA land policies: the case of Meigs County, TN. UT thesis, 1977. 114 pp.
Goodspeed's history of east TN (Meigs County, pp. 815-817, 1032-1046). Goodspeed, 1887.
Lillard, Stewart. Meigs County, TN: a documented account of its European settlement & growth. Sewanee, U. of the South, 1975. 202 pp. (2d ed., 1982, Southern Hist. Press, 222 pp.)
Long, Grady M. "Folk medicine in McMinn, Polk, Bradley & Meigs counties, TN, 1910-1927." TN Folklore Soc. Bull. 28 (1962), pp. 1-8.
Meigs County, 1980-1987: an economic analysis. Nashville, TN Dept. Emp. Sec., 1988. 12 pp.
Polhemus, James H. Archaeological survey of proposed 10 acre rockfish rearing pond area on Sugar Creek, Meigs County, TN. Knoxville, n.p., 1974. 5 pp.
Rogers, E.G. "Switching for water." TN Folklore Soc. Bull. 21 (1955), pp. 108- 111.
Soil survey, Meigs County, TN. Washington, D.C., US GPO, 1921, 1974.
Swingle, George D. Mineral resources summary of the Ten Mile quadrangle, TN. Nashville, TN Div. Geol., 1969. 6 pp.
TN Dept. Transportation [county maps] issued periodically.
TN Valley Authority. Ind. Div. Agricultural-industrial survey of Meigs County, TN. Knoxville, TVA, 1934. var. pp.
TN Valley Authority. Reservoir Property Management Dept. Summary of community readjustment studies, Meigs County. Knoxville, TVA, 1940. 35 pp.
US Geol. Survey [topographic maps] issued periodically. Quadrangles: Spring City, Ten Mile, Pattie Gap, Evensville, Decatur, Tranquility, Graysville, Big Spring, Goodfield, Soddy Island, Birchwood, Charleston.

subset: commoncrawl


text:
Warm weather makes Florida a popular retirement destination – but a lack of taxes on retirement benefits and estates makes it a smart destination too.
"As more and more baby boomers are reaching retirement age, they'll have many factors to consider in choosing where to live in retirement," said CCH, an international accounting company, in a report last week.
"Taxes are one of the things they should consider when determining the costs of different areas they are looking at."
According to CCH, how much retirees pay in taxes can vary wildly depending on which state they chose to retire in. They found that five particular types of taxes can add up the most…
1. State taxes on retirement benefits
Seven states don't tax individual income at all and therefore don't tax retirement income either…
- Alaska
- Florida
- Nevada
- South Dakota
- Texas
- Washington
- Wyoming
Two states only tax income from dividends and interest: New Hampshire and Tennessee. So while retirees in these states won't have to pay taxes on Social Security or pension benefits, they will still owe some taxes to the state if they own dividend-paying stocks or bonds, for example.
In the other 41 states and in Washington, D.C., taxes on Social Security and pension benefits vary. Some states exempt pension benefits or Social Security benefits while other states tax both. For details, check out CCH's state-by-state breakdown of taxes on pension and Social Security benefits.
2. State income taxes
There are 41 states that tax income, and if you live or plan to retire in one of them, how much of your retirement benefits you could owe depends on that state's tax rate.
Some states have a relatively low income tax rate across all brackets. The rate for even the highest tax bracket in Arizona, New Mexico, and North Dakota, for example, is less than 5 percent. Some states – for example, Indiana (3.4 percent) and Pennsylvania (3.07 percent) – have a relatively low flat tax rate.
But in other states, income tax is a double whammy: Not only is the tax rate for the highest bracket relatively high, the bar to qualify for the highest bracket is low.
In Arkansas, for example, any filer earning $33,200/year pays the highest bracket's rate of 7 percent. In Maine, couples earning $40,700 and single filers earning $20,350 pay the highest bracket's rate of 8.5 percent.
For more details on your state or the one you'd like to retire in, check out the state-by-state income tax breakdowns from CCH and the Federation of Tax Administrators.
3. Sales tax
Five states don't have a sales tax, according to the FTA: Alaska, Delaware, Montana, New Hampshire, and Oregon.
In the other 45 states, the rate varies from 2.9 percent (Colorado) to 7.25 percent (California) – and that's after California lowered its rate from 8.25 last year.
What types of goods sales tax applies to also varies from state to state. In Hawaii and New Mexico, for example, doctor services are taxed. In South Dakota, accountant and attorney services are taxed.
Other goods and services taxed in some states but not others include barber services, landscaping, prescriptions, clothing, and food.
For details, check out the FTA's state-by-state breakdown of sales tax rates, which also lists which states exempt food, prescriptions, and over-the-counter meds.
4. State and local property taxes
Because property taxes can be significant, CCH suggests learning not only an area's current property tax rate, but also the history of how it has changed over time.
To learn more about a state or county, try this search engine formula: [state/county] + state/county property tax. That should lead you to the applicable revenue department's website. Here's Florida, for example.
While reading up on a state's property tax rates, don't forget to check for tax breaks too. Some states and local jurisdictions offer some form of property tax exemption, credit, abatement, deferral, refund, or other benefit to senior homeowners or renters.
5. State estate tax
Wealthier retirees must also consider the estate tax of the state they'd like to retire in. If that state does tax estates, find out both the tax rate and what size estate the tax applies to.
To learn more about a state, try this search engine formula: [state] + state estate tax. Again, that should lead you to the state revenue department's website. Here's Florida again – where the estate tax was eliminated in 2004.
If you're preparing for retirement, you may also want to check out Is It Too Late for a Happy Retirement?and Can a Photograph Boost Your Retirement Plan?
This post originally appeared on Money Talks News.


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The Duchess
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If you're looking for top-class entertainment, then get tickets to The Lion King. But if you want your drag live, filthy and with a cocktail umbrella, then look no further than The Duchess, who not only does a turn at the George & Dragon, but also owns the gaff (so only heckle if you've got a big bar bill). With a brand new show (if you've never seen her before) and the winner of no Boyz Awards ever, The Duchess is one formidable mother hen.


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Brazil's Mackenzie Presbyterian University and Its Marxist Professor
By Julio Severo
It is an indisputable fact that secular universities are filled with Marxist professors. The evident result is that journalists and economists come out from these universities regurgitating Karl Marx.
|Osvaldo Coggiola
Just supposedly, because actually MPU has Professor Osvaldo Coggiola, who teaches journalism and economy there. He is the author of an article titled "In Defense of Marxism." This is the smallest of his works.
His specialty is Marxist advocacy, and he does it frequently in his many published books, including:
· O trotskismo na América Latina (Trotskyism in Latin America)
· Marxismo Hoje (Marxism Today)
· Marx e Engels na História (Marx and Engels in History)
· História e Revolução (History and Revolution)
· Engels: o Segundo Violino (Engels: the Second Violin)
· Ontem e Hoje: Manifesto Comunista (Yesterday and Today: Communist Manifesto)
· Revolução Cubana (Cuban Revolution)
· Escritos Sobre a Comuna de Paris (Writings on a Paris Commune)
· América Latina: Encruzilhada da História Contemporânea (Latin America: Crossroad of Contemporary History)
· Governo Lula: da Esperança à Realidade (Lula Administration: from Hope to Reality)
· Neoliberalismo ou Crise do Capital? (Neo-Liberalism or Crisis of the Capital?)
· Governos Militares na América Latina (Military Governments in Latin America)
· 25 de Outubro de 1917: a Revolução Russa (October 25, 1917: Russian Revolution)
Besides the Marxist professor, MPU has also a professor known for advocating abortion.
If the MPU owner (Presbyterian Church of Brazil) is actually evangelical, why has it allowed this to happen? Lack of vision?
Lack of vision, to those who do not believe in vision, is normal. MPU had been headed for many years by Rev. Augustus Nicodemus, who had authority in the hiring of professors opposed to Marxism and abortion, but he preferred to occupy himself with his cessationist theology, which denies that the Holy Spirit grants today gifts as vision and prophecy. Nicodemus is the greatest cessationist theologian in Brazil.
While he was busy attacking evangelicals who believe in the supernatural gifts of God today, the devil — the father of abortion, Marxism and cessationism — was choosing professors for MPU.
Perhaps if Nicodemus and his Presbyterian university had those gifts, they could see spiritually and avoid the temptation of hiring pro-abortion and Marxist professors.
Yet, are supernatural gifts necessary for them to see the obvious fact that an evangelical university should never have pro-abortion and Marxist professors?
Portuguese version of this article: Universidade Presbiteriana Mackenzie e seu professor marxista
Source: Last Days Watchman
Recommended Reading:


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Install a Hoodscoop
Fix your look and improve performance at the same time when we show you..
Racing pioneer, inventor, and world-class horn dog Smokey Yunick (read his autobiography "Best Damn Garage in Town" if you don't believe the horn dog part) proved that every 10-degree reduction in inlet-air temperature has the potential of increasing engine output by 1 percent. While this may not seem like much, let's crunch the numbers and take a second look.
It all starts with realizing that even though the ambient air temperature--the air you breathe in the driver seat--may be a comfortable 80 degrees F, the engine-compartment air temperature beneath an unvented hood is well in excess of 180 degrees F thanks to the heat radiated by the engine, exhaust headers, manifolds, and cooling system. That's a 100-degree difference in the air temperature above and below the skin of the hood.
What if you broke through the hood and took advantage of that cooler outside ambient air temperature? By Smokey's account, you'd reduce inlet-air temperature by 100 degrees and see a 10 percent increase in horsepower. So, in theory if you're making 400 hp breathing underhood air, you'd get 440 with outside air thanks to its greater density. Is it free horsepower? Yes and no. Yes, in that we don't have to lay a finger on the engine to see gains. No in that there is always an aerodynamic penalty (increased drag) any time appendages sprout from the vehicle surface. Regardless, the scoop's aerodynamic drag is less than the power increase, so it's a worthwhile trade-off.
As with everything we do to our cars, there's a form and function balance that must be respected. There are few things tackier than seedy off-kilter hoodscoops and butchered sheetmetal that look like the work of a pre-Sharon Ozzy wielding a rotary axe. In this how-to, we'll explore some tricks to help you cut the hood and mount the scoop so it looks professional.
`SOURCESKramer Automotive Specialties; Butler, PA; 724/285-5566Unlimited
Products; Hesperia, CA; 877/735-7772; up22.com


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The world's largest trade show for the kosher food industry showcased their newest and best kosher products at the Meadowlands Expo center in New Jersey this week. Of course, Gourmet Kosher Cooking was there to see and taste it all. Many booths and products were what we expect at a kosher food show – meat, kugel, cheese, pizza bagels – but a few companies stepped out with new and innovative creations that you should look for in the coming weeks at your local stores.
Here are a few things that caught our eye…
Luck Chen Asian Noodles. Just heat and serve in 3 minutes and you
have a delicious noodle dish that is low in sodium and contains no MSG.
Smart Cookie. Tasty and moist cookies made with vegetable purees.
Their sister company Petite Select also impressed us with the first
glatt kosher, organic baby cuisine.
The Organic Batter Blaster. Think pancake batter from a whipped cream
container. Kitschy yes, but so simple, easy, and mess free.
Mimicreme. A new pareve cream alternative that is made from cashews
and almonds. Healthier than other non-dairy creamers and soy free.
Watch our great products section and featured giveaways for more from Kosherfest 2009.


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Here are the Canadian women singing, crying, hugging, celebrating their way through "O Canada." Congratulations to them. But this video is really for Americans. Click play. Force yourself to watch all the way through.
This is about revenge. It's about tomorrow. It's about finding the inspiration to make sure that the right flag is raised in the Bolshoy Ice Dome on Sunday, that the right anthem is played, that the medals go around the right necks. Watch it again, and hurt, and seethe, and cleanse yourself in the pain and hatred. Tomorrow is another day, and another game, and it can be yours.


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The Southam Melody Makers Ladies choir meet for practice on Wednesday evenings at 7.30pm during term time at Southam Primary School in St James Road, Southam. New singers are always welcome.
Upcoming Events
- This event has passed.
Southam Melody Makers Choir Practice
Wednesday 17 July 2019 @ 19:30 - 21:00
|Recurring Event (See all)
An event every week on the same day that lasts 0 day(s) and 0 hour(s) with no end date


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Following on from centuries of tradition, we endlessly hone our skills and refine our art to deliver products of inestimable quality. We cherrypick our materials and use them to give life to shoes with a timelessly elegant design.
Our cordwainers accompany the shoe along every step of the manufacturing process, handling the natural leather with the utmost care. The end result is always impeccable and no shoe will ever come out the same as another.
Barrett has a collection of over 80 shoe lasts and more than 3,500 models (between the historical versions and the new collections) lovingly crafted using traditional Norwegian, Blake-Rapid, Goodyear, Tubular or Bologna Sacchetto methods.
The Bologna Sacchetto method is a particular point of pride for us because very few companies have that kind of know-how nowadays. It is an extremely complicated construction method but it provides unbeatable flexibility and unrivalled comfort.
So far, in the history of high-end classic shoemaking, no other construction technique has been able to match it in terms of quality and sophistication.
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There is no other way to exceed our customers' expectations. Those tiny finishing touches are all important.


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|1000 days performance
|This contest contains sums the points of the most recent 1000 days from the current and previous Classic contests.
|Month winner
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|Supporters contest
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|Country contest
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|3/1 contest
|The 3/1 contest uses the following scoring system: 3 points for for a spot-on prediction, 1 point for predicting the correct outcome.


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- Legal issues are covered by the American Bar Association's Women and Minority Speakers bureau is a national U.S. clearinghouse for continuing legal education speakers;
- For women in business, the Women's Leadership Exchange focuses on women speakers who can address business and entrepreneurial issues;
- Trainers, coaches and consultant speakers can be found at the Professional Woman Speakers Bureau and Outstanding Women Speakers both offer female coaches, trainers and consultants--the Professional bureau has a global team, while the Outstanding bureau focuses on U.S. and Canadian speakers;
- Looking for a celebrity speaker? Leading Authorities, a speaker agency, fielded a high-level team of women speakers for its Women on the World program in 2008, and the Nationwide Speakers Bureau offers a team of Women Making Headlines;
- For students, Campus Progress, a project of the Center for American Progress that helps young people make their voices heard, offers a women's rights speakers bureau;
- In health, the Spirit of Women, a hospital network devoted to advancing women's health, offers a speakers bureau to support network members in their community outreach events, and accepts applications for new speakers, and the Society for Women's Health Research offers this team of women speakers on health issues;
- Statewide speakers bureaus also are a great resource. On women's issues, the Massachusetts Commission on the Status of Women offers a team of speakers, and if estate planning, financial or investment advice for women is your topic, check out the Colorado Women's Estate Planning Council speakers bureau;.
Remember: If you don't know where to find women speakers for your next conference or event, that doesn't mean they don't exist. Start your search with these resources and ask for more recommendations.


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Theologian = Writer.
That is often how we understand vocational theology. We equate theologians with academic writing. The fruit of theology is a book.
And certainly, those of us doing theology and biblical studies within academic domains are required to write.
Everyone in every job has to demonstrate some evidence of "output." What do theologians have to show for their hard work? Books and journal articles. Academic theologians are assessed and measured by their writing output. In this model, the better theologian is the one writing the most articles and books at the highest quality.
Pastor-Theologians as Writers…?
But how well does this model work for theologians whose vocational domain is not the academy, but the local church? Are the best pastor-theologians those writing the most essays and books at the highest quality?
The hyphen in "pastor-theologian" creates quite a bit of vocational tension. To fulfill the "pastor" bit, there will be inevitably be less writing of books and articles. As Jason Byassee has commented in an interview on this blog, congregations should be allowed to beckon their pastor out of the quiet study to the hospital bed, graveside, or pulpit.
Does the "theologian" side of "pastor-theologian" therefore suffer because the "pastor" dimension limits the amount of theological writing?
The answer depends on how we define "theology."
Congregations as Published Theology
I think we can agree that Paul could be classified as a "pastor-theologian." As such, he did not publish theological tomes. One of the greatest Christian theologians of the early church, he did not leave us with sustained systematic reflections on the Incarnation of Christ or the Doctrine of the Church.
He left us letters. The media product of Paul the Theologian is a collection of his correspondences with localized churches.
But Paul seems to exalt another media product higher than his letters. The primary media product of a pastor-theologian may actually be a faithful congregation:
"You yourselves are our letter of recommendation, written on our hearts, to be known and read by all." 2 Cor 3:2
The strongest attestation of Paul's work as a pastor-theologian was not a published monograph or collection of essays but a publicly visible community of Christians. He seems content to construct his vocational reputation not on his academic feats but on his pastoral work in forming congregations.
More could be said. And of course, the media product of a pastor-theologian need not be either theological writing or faithful congregations. It could well be both. And the disciplines of theology and pastoral ministry inform and enrich the other. As a writer, I am in no way interested in diminishing the task of writing in the pastoral office.
But as it turns out, today is my day in the chaplain's office, and pastoral appointments await….


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News Story
Maryland Industrial Partnerships Program Approves 18 Technology Development Projects
The Maryland Industrial Partnerships (MIPS) program, an initiative of the Maryland Technology Enterprise Institute (Mtech) in the A. James Clark School of Engineering at the University of Maryland, has approved research projects worth $4.7 million to 18 teams combining Maryland companies with state university researchers to bring technology products closer to market, program officials announce today.
A technology acceleration program, MIPS grants money—matched with company funds—to faculty engaged in each project.
For this round of funding, companies are contributing $2.4 million and MIPS $2.3 million to the jointly funded projects. The Maryland Department of Natural Resources and the Environmental Protection Agency provided additional funding.
Five projects, worth $1.9 million, are investigating various processes for converting poultry manure to energy, including anaerobic digestion, gasification, combustion and washing, while keeping the nitrogen and phosphorous in poultry litter from polluting the Chesapeake Bay. Each would potentially produce electricity and heat, while some create additional salable byproducts, such as fertilizer, soil amendments or algae feedstock.
The additional 13 projects cover a broad swath of technologies, including: medical devices for brain scanning and pressure sensing; therapeutics for cancer, pain management and lung scarring; software for healthcare management, quality assurance for radiation therapy machines, and complex business documents; mobile-ready chemical sensors; high-quality prototype manufacturing; solid oxide fuel cells; and a natural, high-protein sports recovery milk.
This round of funding connects faculty with 16 startups and two small companies. Five projects involve companies based in the Baltimore area, while four are from Montgomery County and three are from Howard County; two are from Annapolis, two are from Maryland's Eastern Shore and one each are from College Park and Keedysville.
Winning projects, segmented by institution, include:
University of Maryland, Baltimore
University of Maryland, Baltimore County
University of Maryland Center for Environmental Science
University of Maryland, College Park
University of Maryland Eastern Shore
Projects are subject to final contract negotiations.
This is the 54th round of MIPS grants. The program has supported research projects with more than 500 different Maryland companies since 1987.
Commercial products benefiting from MIPS have generated more than $28.1 billion in revenue, added more than 5,000 jobs to the state, and contributed to successful products such as Martek Biosciences' nutritional oils, Hughes Communications' HughesNet™, MedImmune's Synagis®, and Black & Decker's Bullet® Speed Tip Masonry Drill Bit, WellDoc's mobile diabetes management platform, and CSA Medical's diseased-tissue ablation platform.
For information about the historical economic impact of the MIPS program, an independent study titled "An Analysis of the Impacts of MIPS Program Spending and the Commercialization of MIPS Funded Projects on the State of Maryland," by Richard Clinch, from the Jacob France Institute at the University of Baltimore, is available online.
For select project photos, visit: http://www.mtech.umd.edu/news/press_releases/mips_r54_release.html
September 9, 2014
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On Saturday April 18, 2015, the Brant County Branch of OGS will hold a SPRING WORKSHOP from 9:30 am to 4 pm at the site at 14-118 Powerline Road in Brantford, Ontario. There is a map on the homepage at http://www.ogs.on.ca/brant/index.html
The morning Guest Speaker will be Geoffrey Moyer, a librarian and local historian who has long held a passionate interest in the World Wars and their impact on his hometown. His topic will be the First World War World.
The afternoon speaker will be Terri Hunter, who is an expert on how the Facebook works , and she can tell you how to use it for personal and genealogy research.
The cost to hear these two speakers is $30.00 with lunch, or $35.00 at the door plus $5.00 for lunch.
Please pre-register for the workshop by April 11, 2015.
For your convenience you can pay through Paypal.


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By Bonham, Brill, Davison, Rankine, Rogers, Yambar, Costanza, Kazaleh, Matsumoto, Ortiz
Springfield is ready to celebrate the holiday season, but the weather just isn't cooperating, and it's up to Lisa to find out what's keeping winter away. Then, all the girls at Springfield Elementary try to capture Bart beneath the mistletoe and steal a Christmas kiss. Will they succeed or will Bart remain cootie-free? And when Homer once again ruins Ned Flanders annual holiday party, Ned is pushed past his breaking point. Can Homer make amends or is this the end of their relationship? Finally, during a snowball fight gone awry Bart, Milhouse, and Martin find themselves caught in a trap set by Jimbo and his cronies. Can Bart and his friends turn the tables on their tormentors? Plus: 3 more helpings of the questionably accurate "Grampa's Christmas Origins" and a toasty Itchy & Scratchy treat.


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We are all familiar with the chef-as-rock-star designation but what about the lesser-known people that get the liquor all right at our favorite restaurants and establishments? Sommeliers and beverage directors are really the heartbeats of everyone feeling copasetic, right? They are there to help lubricate your meal just so, and are very often wildly funny with academic brains and big personalities to match their chef counterparts.
In this three-part series, meet a few good men doing great work across the country, including Josh Nadel, beverage director at NYC hot spot The Dutch, David Lynch, wine director at Quince and Cotogna in San Fran, and Chris McFall, sommelier at Austin's Paggi House.
When and how did you pursue the sommelier calling? Or did this line of work choose you?
I was saving money to go back to Grad school for Printmaking in Glasgow, Scotland, waiting tables to make the dough. Just about when I had saved enough cash for one year of tuition (and was ready to take the plunge), I got really interested in wine. Believe it or not, the first winery I ever visited was Peachy Canyon, producer of many a fine Red Zinfandel (wines we Somms all hate on). Just goes to show, don't be a hater. I also like to drink and read, and have no qualms about doing these two things in unison, alone.
Being a sommelier seems like one of the most fun jobs in the world, but there is a decidedly academic dimension to this line of work. What is the most fun part of the job for you? What do you find most challenging?
The fun part? Mentoring, turning entry-level green-ear types into Jedi masters. An ancillary benefit of this business is the stories we have about work and play. One of the biggest rubs of the business [is] constantly relying on those who, by definition, possess less of a long-term commitment to the craft or business at hand. I am not judging or faulting, but it's a fact. Having a bottomless well of motivation and inspiration can get exhausting. Additionally, I cannot, under any circumstances, take my dog to work. I explain this to her every day, yet she still tilts her intelligent black Labrador head (sideways), expressing her thorough disapproval each time I leave the house.
Tell us a little bit about how you see your interaction with a chef. What's your favorite dance with the godhead who cooks?
I spend a good amount of time in our kitchens. I used to work in kitchens as a kid, and I feel comfortable there, jumping in to help expo, run food, and coordinate firing times. That being said, I like it when I have a good run of a few weeks when there is no threat of "face-melting" from an irate chef about some front-of-house shenanigan. In general, I seem to get along with chefs, I imagine because I bring them tasty drinks. It's a cheap and dirty road to success, but I'll take it every time.
Tell us something that would surprise our viewers and readers.
Fire Island kicks ass. Keep thinking it's "all gay" though. More beach for me.
Wine and spirits related, you ask? I believe anyone can do this. It's like fine arts. Human beings have a natural inclination to describe and relate to the world around them. Some draw, some write, some sing, some destroy…. I believe being a wine and spirit enthusiast is the same--you simply have to find the right approach. Putting up with the restaurant biz? That's another story.
Can you give us a recommendation of a wine or spirit you are in love with for this holiday season?
I am a strong advocate of white wines which pair well with seasonal meats and such, Alsatian whites in particular. Unless it's red meat, there is no reason not to consider an Alsatian wine if the selections have the necessary depth. Bottles of Donson & Lepage Blanc de Noirs drunk straight to dome also make for a happy, happy bear.
What booze do you think is a fail-safe, inexpensive buy every time?
Rum! It's so cheap for how delicious it is. El Dorado 15 (Guyana), Santa Theresa 1796 (Venezuela), Mount Gay XO (Barbados)… the value is just silly, and aged Rum makes amazing fall/winter/holiday cocktails.
What's the best advice for your restaurant patrons vis-à-vis interacting with a sommelier?
Be as straight forward as possible. Be nice. We want to make the absolute perfect decision every time, for every single diner, and we put a tremendous amount of pressure on ourselves to do so! Please don't be intimidated--every single one of us knew jack shit at one point.
If I weren't a sommelier, I would be a __________.
printmaker, a dog trainer, a third or fourth line winger for the Rangers, a politician, or the next food critic for the New York Times (Seriously, I kind of want to do this and think I would be great at it…)!
What is your favorite late-night bite?
New York Noodletown! Keep it classic San Diego.
What is your favorite food and drink pairing?
Oh man, so many… Lately it's been Kabinett Riesling with Sausage/Pancake German breakfast.
What is your favorite thing between two buns?
Coming soon to Madison Square Garden… Sausage Boss changes the game.
Sitting Down With the Sommelier: Meet Josh Nadel of The Dutch
We are all familiar with the chef-as-rock-star designation but what about the lesser-known people that get the liquor all right at our favorite restaurants and establishments? Sommeliers and beverage directors are really the heartbeats of everyone feeling copasetic, right? They are there to help lubricate your meal just so, and are very often wildly funny with academic brains and big personalities to match their chef counterparts.