Access rights

Probably the most well-known aspect of the Land Reform (Scotland) Act 2003, is the so-called "right to roam" which entitles everyone to be on land for recreational purposes; for carrying on a relevant educational activity; or for the purposes of carrying on, commercially or for profit, an activity of a type which could be carried on uncommerically or not for profit. The right includes going into, passing over and remaining on the land for any of the authorised purposes, and then leaving it. The Act also creates a statutory right to cross land, allowing individuals to enter the land, cross over it and leave it, all for the purpose of getting from one place to another.

Although certain conduct or activities are excluded from the access rights, such as hunting, shooting or fishing, or being on land in order to remove things from the land for commercial purposes, or being on a golf course for recreation, the rights granted are extremely wide and implicitly include cycling, riding, picnicking and camping.

Conflicting interests

Understandably, perhaps, developers of land can be somewhat wary of the exercise of such access rights, particularly during the development stage. Building sites are not safe places for the unwary, and indeed for this reason, they are exempted from the access rights.

Landowners likewise may be concerned about the risks of indiscriminate wandering over their property, for reasons of privacy and security. On the other hand, walkers, ramblers and others wishing to exercise the rights to be on, or to cross, land in a responsible way, have a keen interest to ensure that their legitimate rights are not restricted or curtailed without justification.

Local authorities can be caught in the middle of such competing interests. They have the duty to assert, protect and keep open any route, waterway or other means by which access rights can reasonably be exercised, and if a landowner attempts to prevent or deter access users by erecting any signs or notices, or putting up fences, or placing obstructions, then the local authority can require that remedial action be taken, and if necessary, can remove such notices or carry out other remedial action.

Responsible access

There is a requirement to act responsibly on both sides: a person has access rights only if they are exercised responsibly, so as not to cause unreasonable interference with any of the rights of any other person, and owners have a duty to use and manage land and to conduct their ownership in a way which is responsible so far as access rights are concerned.

Guidance is given in the Scottish Outdoor Access Code, produced by Scottish Natural Heritage, and approved by the Scottish Parliament.

This legislation, which delivers on the government commitment to provide greater freedom to the public to enjoy the open countryside, has always been controversial, and it was therefore only going to be a matter of time before a dispute concerning the access provisions in the Act was brought before the courts.

East Lothian Council's Notice

Caledonian Heritable Limited are in the process of developing a luxury hotel, golf course and housing complex at Archerfield Estate in East Lothian, during the course of which they erected fences and notices prohibiting public access. This state of affairs having come to the attention of East Lothian Council, they, in their capacity as the relevant local authority, served formal Notice on CHL, requiring removal of fences which were preventing public access, and notices which they argued were designed to deter or prevent access.

The developer maintained that the Council's formal Notice was flawed, in that it failed to indicate precisely which areas within the estate should be available for access, or the exact locations of notices and other obstructions, and that the Council had failed to acknowledge the risks to the health and safety of the public while construction work was ongoing on the Estate. 

The notices had been placed around the perimeter of the estate, and told members of the public not to enter, in effect denying access rights over the whole estate. The Council's contention was that, given the provisions of the Act and the Code, it was unreasonable for a landowner to put notices on the boundary of the estate simply telling people not to enter, under threat of prosecution. The wording of such signs might be regarded as intimidating or deterring the public from exercising access rights. Rather, notices that provided warnings about the development work, offered guidance and suggested alternative routes would be appropriate, given that, at any given time, the estate would consist of land over which access rights could be exercised, land in respect of which access could never be exercised, such as areas of garden ground attached to dwellinghouses, and land over which access rights were temporarily suspended, like those parts of the estate where building work was taking place.

To deny access to the whole of the estate thus robbed the public of the right to legitimate exercise of those rights that it would be possible to exercise, and the Council considered that in fact the main purpose of the notices was to prevent or deter people from exercising access rights at all.

Out-of-court agreement reached

The Sheriff had allowed the case to go to proof, but before that could go ahead, it was reported that CHL and the Council had reached agreement, which will mean that access will now be allowed through areas of the estate which had originally been intended to form private garden areas, a bridge which the developer had removed will now be rebuilt and a number of the warning signs have been removed. A 6 ft barbed-wire fence which prevented access through the estate to the beaches beyond has been removed, and a gate that had been locked, thus preventing public access, has been opened up.

Follow the Code

Although this case in fact was raised in relation to a legal technicality - that is, whether or not the Council's notice was valid - it points the way forward, for how the underlying issues may be treated. What is it reasonable for a landowner to do, in the context of having to act responsibly in relation to managing land for access? It seems that the prevailing message from this case is that it would be advisable for developers and landowners who may have access right issues to tackle, to acquaint themselves with the provisions of the Scottish Outdoor Access Code and follow its advice: 

  • respect access rights in the way land is managed - and this also extends to management of bodies of water - and not obstructing or hindering access;
  • act reasonably when requiring the public to avoid operations on land, by for example asking them to follow a particular route to avoid hazards;
  • work with the local authority and other organisations so that legitimate land operations and access rights can co-exist harmoniously;
  • take into account how your operations might affect any access rights that exist over land that is adjacent to your land, even if access rights are not exercisable over your land.

The full text of the sheriff's decision is available from the Scottish Courts website at: http://www.scotcourts.gov.uk/opinions/b401_05.html

The Scottish Outdoor Access Code can be downloaded from the website of Scottish Natural Heritage at: http://www.outdooraccess-scotland.com/upload/Full%20Access%20Code.pdf

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