Rights of access vs right to privacy

How does the law determine public rights of access on and over land?

13 February 2019

The public rights of access on and over land, enshrined in the Land Reform (Scotland) Act 2003, have now been around for almost 14 years. They allow all members of the public a responsible right of access on and across land and inland water throughout the country, often informally referred to as the right to roam.

Certain parts of land may be excluded from the rights of access under the Act: restrictions may be allowed, for example, due to planned forestry operations. Further, some areas, such as schools, or land where crops are growing, are never suitable for access.

Where access rights are exercisable, they may be taken for recreational, educational, or sometimes certain commercial purposes. Landowners and managers are obliged to act responsibly but cannot unduly deter the public from accessing their land. Local authorities must uphold access rights if they are being obstructed. The Scottish Outdoor Access Code serves as a guide for responsible ownership, and access taking.

Given the wide-ranging nature of these rights, and the attitude of some landowners, access rights have regularly been subject to litigation over the years, particularly in regard to which areas may, or may not, be excluded. Two cases decided last year have provided further clarification on the law surrounding impeding of access, and the tests applied to assess the reasonableness of doing so.

Locked gates and warning signs

In the case of Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority, the landowner had deliberately restricted access to a specific area of land that was not excluded under the Act. Three gates had been locked, and the landowner had erected a sign to warn of wild boar, previously requested by the Council when there was a boar herd within the now disused boar enclosure. The Park Authority considered the locked gates and sign to be a breach of the Act and served a notice on the landowner to remove the obstructions.

The landowners maintained they were justified in their actions due to concerns regarding the interaction of the public with the animals on the land. The Act does allow limited restrictions to access based on legitimate land management decisions, so they contested the notice.

Nevertheless, the Court took the view that these issues could have been addressed by creating paths or using signs to help accommodate public access in such circumstances: rather than cutting off access altogether, barriers could be erected near buildings if there were security or privacy concerns. Nor was the size of the area over which access was sought, relative to the extent of the total estate owned by the pursuers, deemed relevant. The warning sign was allowed to remain as it had been erected following an earlier request by the Council. The Court highlighted that impediments to access that  pre-date the legislation may still have to be removed if they can no longer be justified. The landowners were required to unlock two of the gates so that access rights could be exercised.

Actions of landowners are to be assessed objectively by the courts so that they can evaluate the situation on the ground. Landowners must therefore be able to justify any decisions taken by them to restrict access.

Privacy vs public rights

In contrast, it was concerns over privacy that were at issue in the case of Manson v Midlothian Council. The Mansons' house is near a path, part of which they own, that leads to the Penicuik Estate.  The owners of the Estate have a servitude right of access over the path, and it is also well used by members of the public who use the Estate for recreational purposes.

To preserve their privacy, the Mansons had installed a high fence with anti-climb paint, warning signs, CCTV, and a padlocked gate in an effort to restrict access via this path. Local residents who held the servitude right of access over the path could gain access with the use of a key provided to them, but ordinary members of the public were not able to access the Estate from this path.

The parties were unable to resolve the issue among themselves, and the Council therefore exercised its duty to uphold public access rights by serving a notice requiring that the barrier to access be removed. The Mansons appealed, seeking a declarator that the path was exempt ground under the provisions of the Act, which exempt ground adjacent to a property from access rights so as to provide a reasonable degree of privacy and undisturbed enjoyment. The Mansons were particularly concerned due to their son’s autism and his inability to sleep due to noises at night.

Again, the Court determined that an objective test should be applied in assessing whether land should be excluded from access rights. The path was 20 metres away from the house, and so could not be said to be ‘adjacent’ to it. A reasonable person would not think the path should be excluded. Minor cases of irresponsible access such as littering could not justify completely blocking the path.

Human rights

The Mansons also argued that the Council's notice interfered with their private and family life under Article 8 of the First Protocol to the European Convention on Human Rights, and their property rights under Article 1. The Court recognised that privacy was a particular concern for the family but considered that the Council had engaged with their human rights: the property could not easily be seen from the path and was therefore not compromised by the public’s access.

A balanced and objective approach

It is important to remember how wide ranging access legislation can be, as reinforced by the cases we have considered here. When landowners are making decisions affecting access to or over their land, these decisions will be looked at objectively, i.e. whether a reasonable person would have restricted access.

Although the Mansons have appealed this decision, their case highlights the need for a balance between the rights and privacy of landowners, and the interests of the public wishing to make the most of access legislation.