Access to land – some lessons from around Scotland

This post is by Malcolm Combe. It was updated on 3 August 2017 to link to a report that the gates mentioned below will now remain open.

The issue of people taking access to land for passage or other activities can be both a practical and an emotive issue.

From the perspective of landowners, land managers or any other occupiers, there might be a fear of irresponsible land access causing damage to their property or wildlife, not to mention the simple fact that access takers could get in the way of a chosen land use. There might also be issues that are more difficult to quantify, such as concerns relating to privacy or safety.

From another (non-owner) perspective, members of the public might grudge being denied access to large swathes of the outdoors for recreation or to learn about wildlife, or they might wish to get from A to B in a simple and non-intrusive way. Depending on the circumstances, they might baulk at being lumped together with anyone not taking access responsibly, especially if they are willing and able to conduct themselves in a way that will not interfere with a landowner’s chosen activity. There may also be historical, cultural or even health-related reasons why people feel access to land that is not owned by them is something that nevertheless matters.

Every so often, stories will emerge online or in the press about access issues that can set these tensions against each other. This might occur when a path is blocked or access is otherwise restricted. Some recent situations in Scotland serve as an opportunity to discuss and reflect on the regulation of access to land.

The settings for these stories are very different, but the underlying legal points are similar. The first story relates to the installation of gates at the southern extension of the Speyside Way in the Scottish Highlands (which opened in 2015). The second relates to Elderslie Golf Club in Renfrewshire.

No particular comment is offered on either situation here. Rather, this blog will set out some points about the law in Scotland, then illustrate how that law might apply with reference to those situations.

Regulating Access to Land

Different legal systems have different rules to regulate access to the outdoors. In Scotland, public rights of way might allow people to travel from one public place to another (often along traditional routes to, for example, a market, kirk or cemetery). Such rights of way continue in the modern era, but the most important law is the Land Reform (Scotland) Act 2003. Part 1 of the 2003 Act liberalised access to Scotland’s outdoors by allowing for recreational, educational and in some cases commercial access to be taken over land, with an additional right to cross land (separate to existing rights of way), without the owner of that land’s prior consent.

That sounds striking, but the 2003 Act does not establish a free for all. These rights are subject to two important qualifications.

The first qualification is that the accessed land must not be excluded from the scope of the law, owing perhaps to the characteristics of the land. The key provision is section 6, listing a variety of situations where access rights are incompatible with the land in question. Land where there is a building or where crops are growing are thus excluded, as is land that has been manicured as a bowling or putting green. (Golf courses as a whole are something of a special case – more on that later.) The scope of the law is clear though: access rights will apply, unless they are excluded. This means they apply across much of Scotland, Highland and Lowland, rural and urban. (The urban dimension might be of particular interest to observers from other jurisdictions.)

The second qualification is that any access taken must be responsible. As detailed in section 2 of the legislation, access is not responsible if it unduly interferes with the rights of others. Understandably, that would include the rights of the landowner, but it also includes other access takers as well. Guidance as to what is responsible can also be taken from the Scottish Outdoor Access Code (PDF). Furthermore, the statute provides that some conduct can never be classed as responsible (such as being on land in a motorised vehicle). Meanwhile, a landowner is under certain reciprocal obligations to use and manage land in a manner which is responsible in relation to access rights. And again, there are certain things that will not be classed as responsible management, including actively placing impediments to access (more on that below).

I could quite happily write about all of this at length. Rather than do that, I will direct eager readers to my other posts about how this law operates, including on this blog – in the context of the augmented reality game Pokémon Go – and on my personal blog – about the possible introduction of a charging regime to access a country park. I will now consider the specific examples.

The Speyside Way*

It has been reported that gates have been installed at Kinrara, where a path runs between Newtonmore and Aviemore (see here, here and here, photos available here). There is no indication that irresponsible access is a problem at Kinrara. There is no particular question of this land being excluded from access rights (and, in fact, there is a strong indication to the contrary). Was the landowner entitled to take these steps?

The Bogach
“The Bogach, Kinrara Estate” © Dorothy Carse and licensed for reuse.

The first thing to consider is section 14 of the 2003 Act. It seeks to stop landowner interference with access rights, and it does so by mandating that no landowner shall act in a manner that directly prevents or deters any person entitled to exercise access rights from doing so. In particular, it notes a landowner shall not put up any sign or notice, position or leave at large any animal or (for present purposes) “put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation”. This provision can be enforced by the relevant access authority: in this case, the Cairngorms National Park. (In terms of the legislation, the bodies charged with upholding access rights will either be the relevant local authority or (if the area is in a national park) the relevant national park.)

This is not to say a landowner cannot do anything at all on land in a way that could affect access: legitimate land management activities are allowed. A landowner will only fall foul of section 14 when taking steps that are solely or primarily aimed at the prevention of responsible access. Erecting certain types of barrier might even be allowed: for example, in one case in the Black Isle a barrier erected to prevent equestrian access (in a way that would churn and damage a path) was ruled to be acceptable in court (in the particular circumstances of that case, which included an alternative and nearby route for horses). Whether that is a suitable precedent for Kinrara will be revealed in the coming weeks: from a distance, my initial view is that is does not.

Another factor at play at Kinrara is that land there has already been subject to a “Path Order” in terms of section 22 of the 2003 Act. This is a little-used section of the statute found within a series of provisions about the role of access authorities. This has been the only usage of such an order in Scotland. (The related back story caught the attention of the press at the time.) It specifically allows an access authority to delineate a path where access rights are exercisable. Naturally, this is an ongoing situation and any comment on it must be ventured with caution. I have not visited the site and I am not sure exactly where the gates are, but this does seem to be a strong indication that access rights apply at or around the barriers. What can also be said with confidence is the overall effectiveness of the legislation is being put to the test here and many people (myself included) will be watching developments closely. Lastly, if for whatever reason matters stall, it will be recalled that section 16 of the 2003 Act allows for compulsory acquisition of land by access authorities (with due process) for the enabling or facilitation of the exercise of access rights.

*UPDATE 3 August 2017: The website of the Cairngorms National Park Authority now reports that agreement has been reached to keep the three gates open.

Access to Elderslie Golf Club

The issue of a new fence at Elderslie Golf Club has not had the same coverage as Kinrara. It is fair to say it is not as high profile – no offence to my friends in Renfrewshire, but the Black Cart-side Way has yet to gain the same status as the Speyside Way. Nevertheless, it has prompted some reaction locally, as these photos taken from BBC journalist and UWS Teaching Fellow Annie McGuire’s Twitter account show.

DOWN WITH THIS SORT OF THING
Careful now.

QUICKER THAN TRUMP

Ms Maguire has created a number of YouTube videos (here, here and here), which give some indication of the setting. I understand there is an alternative access but, per the third video, this is not convenient for all residents. It can also be noted that Elderslie Golf Course does feature on the network of core paths in Renfrewshire (see path 8 on Core Paths Plan Map 6 here, PDF here). This is a path that (in this case) Renfrewshire Council has marked out as being part of a system of paths that gives the public sufficient access to its local authority area, so at least some degree of access around Elderslie has already been planned for.

Can access be taken to a golf course? As already noted, putting greens are excluded. The rest of the course is not excluded, although the twist with golf courses is that access is only allowed for the purposes of crossing the land. Recreational and other activities that involve staying on the land are specifically classed as not responsible. This means there is a right to walk across a golf course without the golf club’s prior permission, but if you want to stop for a picnic you had better ask.

What does this mean for a new fence at Elderslie Golf Club? It means section 14 comes into play again. That is to say, fencing that is wholly or mainly aimed at deterring or preventing access can be subject to enforcement action by the access authority.

That prompts an important question: what is the fence for? Sure, stopping for a picnic on a fairway might not be very sensible, and even dashing across a fairway has certain risks. As such, a golf club and its golfers will not want people to put themselves at risk of injury (and in turn put themselves at risk of an occupiers’ liability or other claim for damages). Signage to this effect could be a way to deal with this, rather than completely restricting access. That being said, I understand from Twitter correspondence and the local press that there has been a degree of antisocial behaviour on site, including damage to the course. Outside looking in, I wonder if a complete restriction of access is the only way to deal with this. Could restriction at certain hours of the day be more appropriate? That was the approach adopted in a sheriff court case about an access route in Glenrothes, Fife. (At least one Twitter correspondent has agreed this might be a plausible solution in Elderslie.)

Meanwhile, it can be noted in passing that there might be other issues at play. Ms McGuire has been (metaphorically) digging around and there may have been some historic local access at Elderslie Golf Course for allotments of some kind. It is also possible that there are private rights as between the golf course and the neighbouring land (linked to those allotments or otherwise). Such rights could only be ascertained by looking at the title deeds for the various properties or knowing a bit more about historic usage. Or there might be a public right of way, which can spring into being after twenty years of continuous use by the public (the Twitter account @ElderslieGrapes has asserted that access at Glenpatrick Road “has been there for 40+ years”). All of this is speculation, so it seems appropriate to leave matters there.

Conclusion

Whilst these two examples can be viewed as local interest stories, they do serve to highlight various issues that can arise. It might be that a similar access issue crops up near you in the future. If and when this occurs, a greater understanding of Scotland’s access regime might stave off future access disputes, perhaps by preventing local misunderstandings or over-corrections escalating into full-blown litigation. After all, going to court is not a walk in the park.

Image credit and full details for “The Bogach, Kinrara Estate”: copyright Dorothy Carse and licensed for reuse under this Creative Commons Licence, original here. Image credit for the signage at Elderslie: Annie McGuire.

The Malta Marriage Equality Bill: a further comment

This blog post is by Justin Borg-Barthet.

My earlier comment on the Maltese Marriage Equality Bill has prompted some discussion, including in an article in Sunday’s Times of Malta. In that article, Silvan Agius – a Maltese champion of LGBTIQ rights – responded on behalf of the Government of Malta.

Let me begin by identifying the common ground between that response and my own legal assessment. Mr Agius and I agree that a dynamic reading of fundamental rights law requires the elimination of all forms of discrimination on grounds of sexual orientation. This includes the right to marriage.

Equally, we agree that same-sex relationships should not, at law, be treated as asexual relations any more than should different sex relationships.

Contrary to his reading of my own argument, we also agree that foreign models should not be adopted blindly. Comparative law requires a critical approach to both/all relevant legal systems.

Our disagreement concerns the methods employed to achieve equality. This is a border skirmish between friends (literally and ideologically), not a fundamental dispute concerning the dignity and liberty of individuals.

‘Government could not blindly reproduce [Scots] law’

I have no brief to defend or promote Scots law. Indeed, Maltese law is, in some respects, more progressive. By way of example, civil unions are gender neutral in Malta, whereas civil partnerships are open only to same-sex couples in Scotland.

Mr Agius was setting up a straw man when he stated that Malta could not ‘blindly reproduce’ Scots law’. Nowhere was this suggested. Maltese and Scots law are substantively different and require different solutions. Legal transposition should not, in principle, constitute ‘blind reproduction’.

Furthermore, the stated reasons for rejecting the Scots law model are far from persuasive. Mr Agius’ explanation rests on two limbs, both of which are unsound.

The first limb of his argument is that ‘in Scotland, England and Wales, gay marriage was regulated by distinct laws.’ This is neither here nor there, and indeed is not entirely accurate. The Marriage and Civil Partnership (Scotland) Act 2014 amends the Marriage (Scotland) Act 1977 with a view to opening the earlier Act up to same-sex couples. The appearance of a lack of consolidation is simply a function of different legal traditions.

Furthermore, nowhere do I argue that “non-consummation should not be a ground to annul a same sex marriage”. If I had, I would indeed have been arguing “that same sex marriages are not on par with heterosexual marriages”. Mine was a criticism concerning a lack of definition. Indeed, the position in Scotland – contrary to Mr Agius’ contention – is that the notion of consummation simply is not addressed in its own right for couples of either gender-mix. The problem does not arise in the same manner.

Again, I do not suggest that this should be the position in Malta. I am simply arguing that the Maltese position is unsound. Consummation has a specific meaning which should either be changed for all couples or adapted for same-sex couples.

I was also somewhat surprised to read the Maltese government’s claim that ‘Scots law was consulted extensively’. Extensive consultation should include deep engagement with reports and consultations conducted abroad, not mere skimming of the surface. Had the Maltese government indeed consulted Scots law extensively, they would have been aware that sex was not ignored at all when marriage equality was adopted.

Far from homosexual sex being taboo, the subject was debated in some depth with a view to identifying adequate solutions. It was agreed that superimposing established opposite-sex norms concerning impotency simply could not work. This required careful consideration of sexual interactions, as opposed to sweeping this fundamental dimension of married life under the carpet, as has been done in Malta.

The decision was made to defer discussion concerning impotency for different sex couples, but to adopt a more liberal approach for same-sex couples. This was not because the legislator shied away from the reality of homosexual relationships, but because the legal ramifications had been carefully considered.

Now, Mr Agius is right to note that this has been subject to some criticism in Scotland, but it does not follow that the Maltese solution is adequate. Indeed, by retaining impotence as a ground of nullity unchanged for same-sex couples, Malta is simply choosing discrimination in practice for the sake of political sloganeering.

Abdication of Parliamentary responsibility: “The law courts will have to take into account the new realities and adapt the law to them”

The Maltese Government claims that the decision not to distinguish between the organic interactions of same-sex and different sex couples stems from a desire to preserve the unity of marriage. Yet the government response to my earlier comment contradicts this claim.

Mr Agius states that the courts will determine the meaning of impotence and consummation, in the same manner as they have done for different sex couples. If the intention is for marriage to be the same, then how will the courts reconcile the meaning of established terms with different organic realities of different sex couples? This is either a backdoor change to established definitions for different sex couples – which does not appear to be the intention of Parliament – or, it is an admission that different and same-sex couples simply cannot be regulated in the same manner.

Secondly, Mr Agius’ argument is a quite extraordinary admission that Parliament intends to leave a lacuna in the law which it expects the courts to address. To put it mildly, this is a somewhat idiosyncratic approach to the separation of powers. It is for Parliament, not the courts, to deal with the finer detail of family law policy.

But Mr Agius’ suggestion also misses a fundamental point about judicial legal development.   To the extent that courts did in fact elaborate the meaning of impotence and consummation for opposite sex couples, they had a wealth of comparable international experience on which to rely. Marriage law in Malta is, after all, derived from ecclesiastical sources. In contrast, same-sex relationships will not benefit from much international experience.

Furthermore, where there is international precedent, this is not necessarily relevant because regulation of same-sex relationships, novel as it is, differs from one jurisdiction to another. Indeed, Malta’s major parent legal systems, namely English common law, French civil law and Italian law, now regulate marriage quite differently to the contemporary Maltese approach. International precedent is simply unavailable, and Maltese same-sex couples will therefore have to rely on courts which lack the critical mass to develop solutions as predictably as one might expect.

Concluding remarks

Effectively, then my earlier suggestion that same-sex couples will be subjected to a lack of legal certainty, and in some cases to costly (both financially and emotionally) litigation remains sound. Indeed, it is implicitly confirmed by the Maltese Government that this transfer of the burden of regulation is intended by the legislator.

I remain of the view, therefore, that the Maltese legislator should engage more carefully with ongoing legal developments and consult in a greater spirit of openness. This will enable the better fulfilment of the declared aims of the legislation. It may also enable the legislator to address other unintended consequences, such as the discriminatory treatment of conversion of civil unions and marriages (while civil unions may become marriages, existing marriages cannot be converted to civil unions – a somewhat regressive approach – but more on that later…).

Malta Sunday Times

Crofting Law Group Conference 2017 – Reflections of an Aberdeen law student delegate

This blog post is by Simon Boendermaker, a recent LLB (Hons) graduate of the University of Aberdeen. Comments from Brian Inkster, Hon. Secretary of the Crofting Law Group, and Malcolm Combe follow.

Recently I had the opportunity to attend the Crofting Law Group Annual Conference, this year held in Stornoway on the Isle of Lewis, thanks to the generosity of the Group providing free student tickets and subsidised travel and accommodation.

As my Honours courses at the School of Law included both the Rural Law and Law of Leases courses (co-ordinated by Malcolm Combe and Douglas Bain respectively), I did not want to miss the opportunity to take part in an event which appealed to my interests. Alongside this, the programme for the conference featured an afternoon of events dedicated to common grazings, which had been the subject of considerable controversy in crofting communities in the previous twelve months. The opportunity to see vigorous debate between the newly elected crofting commissioners and representatives of the Upper Coll and Mangersta grazings committees, who had been sorely affected by the actions of their predecessors, made for a captivating agenda.

The conference took place in the picturesque surroundings of Lews Castle, the ideal setting to soak in my first visit to the Hebrides. However, there was little time to admire the scenery as a packed schedule of events began with a warm welcome from Iain Maciver of the Stornoway Trust (the community landowner of property in and around Stornoway), followed by a brief introduction to the day’s events from Duncan MacPhee, vice chairman of the Crofting Law Group.

As the programme of the conference would focus on crofting law reform, Fergus Ewing, the Cabinet Secretary for the Rural Economy and Connectivity, gave a brief video outline of the stance of the Scottish Government on current legislation. Ewing highlighted that the Scottish Government agreed with the views of crofters that the law was in need of reform, expressing sympathy with the view that legislation had become overly complex for the average crofter. He also revealed that the Government was engaging with crofters over the direction that reform would take, with one approach being to consolidate legislation into a simpler Act or alternatively to adopt a clean sheet approach and developing a completely new legislative framework. However, his comments were tempered by his acknowledgement that the government currently has several “legislative priorities” which meant that crofting would be balanced alongside several competing interests.

The clean sheet approach which was mentioned by Fergus Ewing was rejected by Patrick Krause and Russell Smith, chief executive and chair of the Scottish Crofting Federation. Both noted that legislative reform was low on the list of priorities of the average crofter and that they were generally concerned with areas of practical concern, such as decrofting (that being the term used for taking land out of crofting regulation) and assignation (transfer). Smith noted that a clean sheet approach would risk “throwing the baby out with the bathwater.”

Much discussion followed the next item on the agenda, when Duncan MacPhee revealed he had successfully arranged a standard security (the Scots law term for a mortgage) over an entire croft without the need to decroft the house and restrict the scope of the security to the decrofted land alone.

Bill Barron of the Crofting Commission discussed “a year like no other” for the Commission, stating that the previous board of the Commission had witnessed deep personal splits, which had led to it failing to act as a corporate body. Barron said he was keen to learn from the mistakes of the previous year, where members of the Commission had made individual regulatory decisions which had resulted in the breakdown of trust between individual crofters and the Commission. With regard to crofting law reform, Barron insisted that the Commission would work with the Government to ensure that any new legislation would support opportunity for new entrants, an area which urgently required examination to secure the future of the sector. Finally, he expressed a hope that, with time, the Commission would be trusted to work for crofters once again.

After lunch, where I was able to speak further with Barron about his plans for the future of the Commission after the previous twelve months, Brian Inkster gave a presentation on the controversy surrounding the Commission. A complete chronology of that could take up several blog posts: Inkster’s Crofting Law Blog provides exactly that, so those interested in further reading on that topic are directed there.

The final portion of the day gave crofters a chance to discuss the current situation surrounding common grazings. Calum Maclean from Upper Coll gave a passionate account of the previous twelve months from the perspective of the grazings committee on Upper Coll. He could not understand how Barron and the new Crofting Commission could be expected to win back the trust of ordinary crofters when they had done little to actively address the effects of the decisions of the previous Commissioners in 2016. However, he was able to finish by stating that ordinary crofters did not want to abandon the current framework but that serious work would be required to secure the future of the sector.

Crofting Law Group Discussion
A discussion during the conference.

The lively debate provoked by the afternoon’s discussions continued well into the evening, when I spoke to several crofters who had attended the conference over dinner and gained some invaluable insights from these conversations. A desire for reform was evident and it is clear that stakeholders will need to undertake serious engagement to secure the bright new future that crofting is desperately in need of.

After writing my dissertation on agricultural holdings, I was able to draw a number of parallels throughout the day between the situation of crofters and issues faced in the agricultural holdings sector, where secure tenants also benefit from a parcel of rights (some which are particularly strong, perhaps even stronger than the rights of the landowner). All of this has ongoing implications for the wider rural sector. For my part, the conference and indeed the discussions over dinner brought to life some of the issues that had been discussed in my law degree. Thanks again to the Crofting Law Group for providing me with the opportunity to attend this year’s conference. I would not hesitate to recommend future conferences to other interested students.

Comment from Brian Inkster

We have been running the assisted places scheme to our conferences for law students at the Universities of Aberdeen, Dundee, Edinburgh, Glasgow and Strathclyde for a few years now. It has been very well received by the Universities. It gives their students an opportunity to find out more about crofting law, a subject seldom touched upon at university. It is hoped that this exposure to crofting law may encourage those students to become tomorrow’s crofting lawyers. The Crofting Law Group will continue the assisted places scheme for next year’s conference which will be held in Edinburgh.

Comment from Malcolm Combe

The University of Aberdeen is very grateful to the Crofting Law Group for the support it gives to students from across Scotland. Whilst some courses at the Scottish universities touch on crofting matters, even with the best will in the world there is no way we could replicate a programme of events akin to the Crofting Law Group Conference for students to benefit from. We look forward to working with the Crofting Law Group in future, and if any other conferencing organisations would be interested in offering a similar student support scheme  we at the School of Law would be delighted to hear from you.

Crofting Students
From left to right: Brian Inkster (Secretary CLG), George MacDonald (Committee member CLG), Maureen Duffy (University of Strathclyde), Duncan MacPhee (Vice Chair CLG), Andrew Agnew (Dundee University), Fraser McDonald (Edinburgh University), Simon Boendermaker (University of Aberdeen), Gemma Thomson (University of Glasgow), Iain Maciver (Committee member CLG).