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COURT SUMMARY BY STEPHEN SCANDRETT
Options Hearing - 3rd April 2024
Party litigants - Howe and Appleby.
Apology from Appleby regarding their conduct at the last hearing on 7th Februar 2025.
Ms Soldani appearing for the Defenders.
Various matters calling today;
Three motions submitted by Ms Howe;
1/ summary decree
2/ recusal of Sheriff
3/ interim interdict
The Defender is neutral in respect of the recusal motion which was pursued by M Howe on various grounds but ultimately declined by Sheriff Wilson. Ms Soldani onfirmed that the Defenders own the level crossing.
Ms Howe confirmed that the current matters relate to the Title registered with egisters of Scotland, which include the Solum ownership of an extended area of and, including the former station platform, the land in which the defenders hav built the path, and includes the private level crossing. The alleged criminal harges took place at the level crossing Ms Howe confirmed.
The interim interdict requested by Ms Howe was intended to allow more time to c nsider matters. Ms Soldani had no objections to that motion being continued.
Sheriff Wilson then addressed the two remaining matters;
1/ Whether the defenders have satisfactorily carried out the survey which they ad wished to carry out.
2/ A Summary Decree submitted by Ms Howe.
The Summary Decree motion was lodged prematurely, and Ms Howe requested time to be allowed to conduct a survey into Mr Appleby’s Solum Ownership and to produce a plan, which would constitute ‘expert evidence’. Also a surveyor would be requ red to conduct a survey of the boundaries of the 1996 Notice of Title which the defendants are relying upon.
Extension of the adjustment period of eight weeks was therefore requested by Ms Howe.
Matters could then proceed to Proof.
Ms Howe then withdrew her Summary Decree motion upon advice from Sheriff Wilson
Ms Soldani was asked regarding the eight week extension, and she confirmed that she had no difficulty with a continuation, however she remained concerned as to what happens in the meantime. She said that the pursuers were acting as if deci ions in their favour had been decided when in fact they had not been.
ScotRail intend to resume services from the station from this weekend. To do th s pedestrians require access to and from the station. The new path was construc ed to try and defuse the current situation. The track on the other hand, is sub ect to a public right of way.
The Court’s position is thus - pedestrians have a choice of going straight on a ter the cattle grid or to turn right and use the new path. The new path is owne wholly by the defender, Ms Soldani added. There is a vehicular right of way, b t for the moment it would be for pedestrians only.
Ms Howe considered that the land in dispute has already been decided by the def nders. She also considered further wrong-doing by the defender last weekend. Wo ks were undertaken on the former station platform and ScotRail has also access he platform by climbing over the chain.
The Court should decide true ownership but the defender has behaved in a manner which assumes that the defender owns the land in question added Ms Soldani.
The side gate is owned by Mr Appleby stated Ms Howe and that is the route pedes rians ned to use. She confirmed that the couple dispute the location of the pub ic right of way.
Sheriff Wilson continued to address pedestrian access, public access on foot. H asked Ms Howe what that foot access would look like. Sheriff Wilson said that e did not wish to impose something but rather get an agreement.
Mr Appleby stated that while he agrees that there is a footpath somewhere here, its exact position is uncertain. New ‘expert evidence’ would possible help to a dress that issue.
Sheriff Wilson confirmed that a public right of way can go over private land al over Scotland. He added that he was trying to avoid unnecessary confrontation.
Ms Howe stated that whilst she agrees that a public path and right of way does xist the position is not known and a survey is required to establish this.
Mr Appleby confirmed that the side gate is unlocked. Ms Howe stated that the ne footpath was constructed upon disputed land. She added that it would be approp iate to delay the opening of the station until the end of the procedures.
Mr Appleby confirmed that the couple would prefer access by pedestrians was to se the traditional right of way. Ms Howe added that there was never any need to build a new path.
Sheriff Wilson asked the couple for an undertaking that they would not stop ped strian access by a member of the public over the established right of way to th railway platform.
Mr Appleby stated that the couple had always done this and that they welcome ev ryone at the station and to come in for a cup of tea!
Ms Soldani had two concerns - the couple have consistently refused access to th defender and ScotRail. The Sheriff said that these issues will be decided in c urt but the immediate problem has been addressed, for people getting on or off he train.
Ms Howe stated that a public right of way did not include commercial use.
Currently members of the public can access the couple’s driveway to access the latform.
Ms Soldani confirmed that the Network Rail Survey has been carried out, but the pursuers did try to restrict the defenders access, but the surveyor was able to get enough data to complete the survey.
The issue of expenses were raised by Ms Soldani however Sheriff Wilson stated t at these matters would only be addressed upon the conclusion of the case.
Continued for eight weeks for Adjustments - 29th May 2025 at 2.15pm and the Hea ing concluded.
