Rua Reidh Road: does the council agree with Police Scotland that it commits theft if it follows the law

Response to this request is long overdue. By law, under all circumstances, Highland Council should have responded by now (details). You can complain by requesting an internal review.

Dear Highland Council,

Chief Inspector Iain MacLelland, Area Commander, Police Scotland, Dingwall, recently wrote to me about Police Scotland's views about the road situation at Rua Reidh lighthouse. He has explained inter alia, thatPolice Scotland have advised the council that it would be guilty of theft if it followed its mandated actions to remove obstructions as set out within section 59 of the Roads (Scotland) Act. He also explains that Police Scotland will not take any action under the law on any road which is privately owned unless and until a court declares it is a public road.

He says he has:

" ... discussed the matter with a senior officer from Highland Council Roads Department. They confirmed they received advice from Inspector Ogilvie, Police Scotland in respect of the retention of gates which were removed from the road by them. They confirmed they were satisfied the advice was correct, particularly in respect of the retention of the gate. They agreed the matter of whether it was a road as defined by the Roads (Scotland) Act required to be tested in court prior to enforcement and that it was their opinion it remained a private road.'

I have sincere doubts that that is what was said to Inspector MacLelland because it contradicts what the council has told me in Freedom of Information requests, contradicts the actions already taken by the council and I dont understand how the council could be guilty of theft if it followed the letter of the law as set out in section 59. Nevertheless it raises some serious questions.

From the information you hold could you please let me have answers to the following,

1. Can you confirm that the conversation outlined by Maclelland took place?

2. Has the council taken legal advice, independent of Police Scotland's advice that it would be guilty of theft if it followed section 59, and which allows the council to state that it agrees with Police Scotland that when following section 59's mandate to remove obstructions, it would be guilty of theft by the removal of obstructions as per the law.

3. Does the council now agree with Police Scotland that the road from Melvaig to Rue Reidh lighthouse is not a road under the Roads (Scotland) Act?

4. Does the council agree with Police Scotland that it requires a court decision before a way becomes a road?

5. Does the council now agree that court action is required before it can act under section 59 on a private road, and if so;

6. Has the council now withdrawn the formal requirement to remove obstructions issued to the MacLachlans over a year ago? If not why not? and;

7. Has the council informed Gairloch Community Council and other owners of the road about this apparent change of heart?

8. How would it be possible for an officer of the council to state on the one hand that it requires court action to decide upon the status of this road and on the other that the council considers it to be a private road?

9. Does the council agree with Police Scotland that it can only act under section 59 when a court decides a road is a public road?

10. How is it possible that an officer of the council may say that court action is required before enforcement action can proceed when the council has already taken action under section 59 and authorised a further obstruction across that road prior to any court action.

11. Is the council aware of any current or forthcoming formal court proceedings challenging the status of this road as a private road as defined by the Roads (Scotland) Act or to establish the status of the road?

Yours faithfully,

Guy Kerry

Highland Council

Case Ref: HC0226-3171  
Dear Guy Kerry, 
We acknowledge receipt of your request for information under the
EIR legislation received on 01/03/2018.
Subject: 
Freedom of Information request - Rua Reidh Road: does the council agree
with Police Scotland that it commits theft if it
Request Detail:
"Dear Highland Council,

Chief Inspector Iain MacLelland, Area Commander, Police Scotland,
Dingwall, recently wrote to me about Police Scotland's views about the
road situation at Rua Reidh lighthouse. He has explained inter alia,
thatPolice Scotland have advised the council that it would be guilty of
theft if it followed its mandated actions to remove obstructions as set
out within section 59 of the Roads (Scotland) Act. He also explains that
Police Scotland will not take any action under the law on any road which
is privately owned unless and until a court declares it is a public road.

He says he has:

" ... discussed the matter with a senior officer from Highland Council
Roads Department. They confirmed they received advice from Inspector
Ogilvie, Police Scotland in respect of the retention of gates which were
removed from the road by them. They confirmed they were satisfied the
advice was correct, particularly in respect of the retention of the gate.
They agreed the matter of whether it was a road as defined by the Roads
(Scotland) Act required to be tested in court prior to enforcement and
that it was their opinion it remained a private road.'

I have sincere doubts that that is what was said to Inspector MacLelland
because it contradicts what the council has told me in Freedom of
Information requests, contradicts the actions already taken by the council
and I dont understand how the council could be guilty of theft if it
followed the letter of the law as set out in section 59. Nevertheless it
raises some serious questions.

From the information you hold could you please let me have answers to the
following,

1.            Can you confirm that the conversation outlined by Maclelland
took place?

2.            Has the council taken legal advice, independent of Police
Scotland's advice that it would be guilty of theft if it followed section
59, and which allows the council to state that it agrees with Police
Scotland that when following section 59's mandate to remove obstructions,
it would be guilty of theft by the removal of obstructions as per the law.

3.            Does the council now agree with Police Scotland that the
road from Melvaig to Rue Reidh lighthouse is not a road under the Roads
(Scotland) Act?

4.            Does the council agree with Police Scotland that it requires
a court decision before a way becomes a road?

5.            Does the council now agree that court action is required
before it can act under section 59 on a private road, and if so;

6.            Has the council now withdrawn the formal requirement to
remove obstructions issued to the MacLachlans over a year ago? If not why
not? and;

7.            Has the council informed Gairloch Community Council and
other owners of the road about this apparent change of heart?

8.            How would it be possible for an officer of the council to
state on the one hand that it requires court action to decide upon the
status of this road and on the other that the council considers it to be a
private road?

9.            Does the council agree with Police Scotland that it can only
act under section 59 when a court decides a road is a public road?

10.    How is it possible that an officer of the council may say that
court action is required before enforcement action can proceed when the
council has already taken action under section 59 and authorised a further
obstruction across that road prior to any court action.

11.   Is the council aware of any current or forthcoming formal court
proceedings challenging the status of this road as a private road as
defined by the Roads (Scotland) Act or to establish the status of the
road?

Yours faithfully,

Guy Kerry"

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eil am post-d seo na phàirt de chunnradh sam bith mura h-eil sin air
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Listening * Open * Valuing * Improving * Supporting * Partnering * Delivering
Èisteachd * Fosgailte * Luach * Leasachadh * Taic * Com-pàirteachas *
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Dear Highland Council,

Please review your decision not to reply to my request for information promptly and within no longer than 20 days as set out in law as my right.

Yours faithfully,

Guy Kerry

Dear Highland Council,
Please review your decision not to answer this request.

Yours faithfully,

Guy Kerry

Guy Kerry left an annotation ()

This is with the Information Commissioner.

Freedom of Information, Highland Council

Dear Mr Kerry,
 
I refer to your appeal to the Scottish Information Commissioner (Decision
103/2018) regarding the request below.  I have reviewed the Council’s
handling of this request and have concluded that the Council did not
comply with the Environmental Information (Scotland) Regulations 2004 and
have rectified this by providing the answers to your questions below.
 
I hope that the information provided fulfils your request.  However, if
you remain dissatisfied with the outcome of this review, you have the
right to appeal to the Scottish Information Commissioner. His contact
details are:
 
Scottish Information Commissioner,
Kinburn Castle,
Doubledykes Road,
St Andrews, Fife
KY16 9DS
Telephone: 01334 464610
Fax: 01334 464611
e-mail: [1][email address]
 
Your request should contain details of the aspects of the Council's
response with which you are dissatisfied and should be made within 6
months of receipt of this review response. If you are subsequently
dissatisfied with the outcome of your appeal to the Commissioner you then
have the right of appeal to the Court of Session regarding a point of law.
 
Yours sincerely,
 
Eliane Higa on behalf of Kate Lackie
 
 
Kind Regards
 
Eliane Higa
Customer Services Officer
Chief Executive’s Office
The Highland Council
HQ
Glenurquhart Rd
Inverness
IV3 5NX
 
 
 
 
_____________________________________________
From: Guy Kerry [[2]mailto:[FOI #467641 email]]
Sent: 27 February 2018 07:58
To: Freedom of Information
Subject: HC0226=3171 - Freedom of Information request - Rua Reidh Road:
does the council agree with Police Scotland that it commits theft if it
follows the law
 
Dear Highland Council,
 
Chief Inspector Iain MacLelland, Area Commander, Police Scotland,
Dingwall, recently wrote to me about Police Scotland's views about the
road situation at Rua Reidh lighthouse. He has explained inter alia,
thatPolice Scotland have advised the council that it would be guilty of
theft if it followed its mandated actions to remove obstructions as set
out within section 59 of the Roads (Scotland) Act. He also explains that
Police Scotland will not take any action under the law on any road which
is privately owned unless and until a court declares it is a public road.
 
He says he has:
 
" ... discussed the matter with a senior officer from Highland Council
Roads Department. They confirmed they received advice from Inspector
Ogilvie, Police Scotland in respect of the retention of gates which were
removed from the road by them. They confirmed they were satisfied the
advice was correct, particularly in respect of the retention of the gate.
They agreed the matter of whether it was a road as defined by the Roads
(Scotland) Act required to be tested in court prior to enforcement and
that it was their opinion it remained a private road.'
 
I have sincere doubts that that is what was said to Inspector MacLelland
because it contradicts what the council has told me in Freedom of
Information requests, contradicts the actions already taken by the council
and I dont understand how the council could be guilty of theft if it
followed the letter of the law as set out in section 59. Nevertheless it
raises some serious questions.
 
From the information you hold could you please let me have answers to the
following,
 
1.      Can you confirm that the conversation outlined by Maclelland took
place?
 
I can confirm that Iain Moncreiff, Roads Operations Manager Skye, Ross &
Cromarty, did have a discussion regarding the removal of the gates with
Inspector MacLelland.  No record was made of this conversation.
 
2.      Has the council taken legal advice, independent of Police
Scotland's advice that it would be guilty of theft if it followed section
59, and which allows the council to state that it agrees with Police
Scotland that when following section 59's mandate to remove obstructions,
it would be guilty of theft by the removal of obstructions as per the law.
 
The Council’s Legal Services have provided advice in relation to
obstruction of the lighthouse road. Section 59(5) and Sections 56(8) and
(9) require the roads authority to notify the owner of the obstruction
that it has been removed.
 
3.      Does the council now agree with Police Scotland that the road from
Melvaig to Rue Reidh lighthouse is not a road under the Roads (Scotland)
Act?
 
The Council believes that this is a road as defined by the Roads
(Scotland) Act 1984.
 
4.      Does the council agree with Police Scotland that it requires a
court decision before a way becomes a road?
 
The Council has stated previously that only a court decision will confirm
if the Council’s opinion regarding the road is correct.
 
5.      Does the council now agree that court action is required before it
can act under section 59 on a private road, and if so;
 
No
 
6.      Has the council now withdrawn the formal requirement to remove
obstructions issued to the MacLachlans over a year ago? If not why not?
and;
 
No
 
7.      Has the council informed Gairloch Community Council and other
owners of the road about this apparent change of heart?
 
N/a see above
 
8.      How would it be possible for an officer of the council to state on
the one hand that it requires court action to decide upon the status of
this road and on the other that the council considers it to be a private
road?
 
N/a see above
 
9.      Does the council agree with Police Scotland that it can only act
under section 59 when a court decides a road is a public road?
 
No
 
10.    How is it possible that an officer of the council may say that
court action is required before enforcement action can proceed when the
council has already taken action under section 59 and authorised a further
obstruction across that road prior to any court action.
 
N/a see above
 
11.   Is the council aware of any current or forthcoming formal court
proceedings challenging the status of this road as a private road as
defined by the Roads (Scotland) Act or to establish the status of the
road?
 
No
 
Yours faithfully,
 
Guy Kerry
 
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Unless related to the business of The Highland Council, the views or
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Mura h-eil na beachdan a tha air an cur an cèill sa phost-d seo a'
buntainn ri gnothachas Chomhairle na Gàidhealtachd, 's ann leis an neach
fhèin a chuir air falbh e a tha iad, is chan eil iad an-còmhnaidh a'
riochdachadh beachdan na Comhairle, no buidhnean buntainneach, agus chan
eil am post-d seo na phàirt de chunnradh sam bith mura h-eil sin air
innse.

Listening * Open * Valuing * Improving * Supporting * Partnering * Delivering
Èisteachd * Fosgailte * Luach * Leasachadh * Taic * Com-pàirteachas *
Lìbhrigeadh

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Guy Kerry left an annotation ()

Scottish Information Commissioner's decision 103/2018 agreed with me that it was fact that Highland Council did not reply either to my request or demand for a review. They ordered the council to reply by August 23. The council did send a reply. I am not content that they have answered the questions posed but have rather 'politically' answered different questions in the guise of replying to me. I am also not sure what their several 'N/N see above' refer to.
Police Scotland's actions in this matter are under active investigation by the Police Investigations and Review Commissioner. This will all go to her for info. If I ask the SIC for a further decision it will not elicit responses for at least a further period of four months. I will discuss with the commissioner and may return to the council seeking advice and assistance to understand their response, which will better inform PIRC.

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