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

Waiting for an internal review by Highland Council of their handling of this request.

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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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 ()

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