Anglers win Court of Session fight as lawyer ordered to demolish decking

ANGLERS have won their court battle to force a lawyer to remove decking from his garden on the banks of one of Scotland’s leading salmon rivers because it interferes with their casting.

Branislav Sudjic paid £3,000 to erect the decking at his home on the banks of the Tummel at Moulinearn, near Pitlochry, Perthshire.

However, anglers claimed that it prevented fly fishing in part of the heavily laden Moulinearn Pool, although they were still able to land salmon by spinning. A senior sheriff ruled that Mr Sudjic, a solicitor-advocate, should have to dismantle the decking, and that decision was confirmed yesterday by three appeal judges in the Court of Session in Edinburgh.

The judges said that the owners of the fishings, Tummel Valley Leisure Ltd, a Linlithgow syndicate of anglers, had the right to use the bank of the river for all forms of lawful fishing, including by fly. “Since the erection of the decking has prevented such use, it follows that it is in breach of their rights,” said Lord Reed.

The dispute arose in 2003 when Mr Sudjic had the decking installed over his land on the bank of the river adjacent to his house. It extended from his lawn and was supported over the sloping river bank by a steel girder resting on cast iron poles.

The angling group considered the decking to be an obstruction which prevented them from enjoying the full extent of their right to fish for salmon.

No amicable agreement could be reached, and Tummel Valley Leisure raised the court action, seeking an order requiring Mr Sudjic to remove the decking.

Perth Sheriff Court heard that the group’s stretch of the river included seven pools, which were the most productive areas of the river for fishing. One of those, the Moulinearn Pool, was opposite Mr Sudjic’s home, and, because of the decking, the most productive part for salmon fishing could no longer be fished by fly, only by spinning.

Initially, a sheriff held that the right to fish meant the right to catch fish, not that the angler had to be able to fly fish.

As it remained possible to catch fish by spinning, he decided, the decking did not materially interfere with the right to fish, and he refused to order the removal of the decking. Next, however, the case went to Tayside’s sheriff-principal, Alastair Dunlop, QC, and he reversed the decision.

Mr Sudjic then took an appeal to the Court of Session.

Legal textbooks on the rights of fishing made clear, said Lord Reed, that “a grant of salmon fishing entitles the grantee to exercise the right in any manner prescribed by law…”

He added: “Fly fishing and spinning with a lure or bait are both familiar methods of salmon fishing… The argument that the exercise of one of these methods can be prevented without there being any interference with the right of fishing is inconsistent with the nature of the right.”