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 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.
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.
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.