Our Knowledge

03.May.2018

The Right to Roam and Public Access Rights: Case briefing

The Land Reform (Scotland) Act 2003 provided the public with a legislative basis for their general access rights over Scottish land. For more detail see our briefing note. The recent decision in the appeal by Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority has provided further clarification on the nature of public rights to access land in Scotland.

Locked gates and warning signs
Anstalt, the owner of an Estate in the Trossachs, unsuccessfully sought to challenge the previous decision of the Sheriff Appeal Court that they had infringed upon public access rights, by locking three gated entrances to their property, and erecting a sign warning of wild boar within that restricted area. 

They claimed that the decision was wrong, since the steps taken by them were made prior to commencement of the Act and consequently, the estate did not have to facilitate access rights created by the Act; in taking these steps, the estate intended “to use, manage and conduct its ownership responsibly” and not to prevent or deter the public from exercising their right of access.

Objective assessment of landowner's actings
These arguments did not persuade the appeal court: the land in question was land over which access rights were exercisable under the Act. It was therefore reasonable that the estate should have permitted some form of access to the land, even if this meant removing fences built before the Act became law. Unlocking only two of the gates would provide suitable access. The warning sign had been a requirement of the local Council, and so could remain.

The purpose of a landowner’s actions are to be objectively assessed from the actions themselves. The actual intent of the landowner is irrelevant. 

What does this mean for landowners?
The case provides further valuable insight into interpretation of the Act, and the consequences of obstructing the right to access. Contrary to what has been suggested by previous authority (Tuley v Highland Council 2009 SC 456) the judgement demonstrates that the intent of landowners’ actions will be determined objectively. 

The decision highlights the importance of landowners’ having a clear awareness and understanding of their rights and responsibilities over their land. Landowners should ensure they are using and managing their land in a way that is compatible with the public’s access rights. It may be that the enforcement of public access rights will be more straightforward in future if the courts apply an objective assessment of landlord’s behaviour.

Further information
Landowners should also keep in mind the duty of care owed to all those who access their land under the Occupier’s Liability (Scotland) Act 1960, and ensure compliance with current legislation to minimise any potential liability. Please see our recent article for further information, with a particular focus on farms. 

If you have any queries or wish to discuss any of the issues raised by this article, then do not hesitate to contact our Rural team. Where any uncertainty arises over public access rights, or occupier liability issues, it is best to seek professional legal advice.

 

Article contributor: Emma de Sailly, solicitor