Residential property
20 Jun 2018 News

The Right of Responsible Access

The right of responsible access, as embodied in Part 1 of the Land Reform (Scotland) Act 2003, which came into effect in 2005 will be very familiar to most readers.  Here we look at the implications of a recent case where the landowner disputed the right and what it means for land owners and managers.

Under the 2003 Act, Councils or the National Park Authorities in their respective areas are responsible for ensuring that owners and land mangers respect the rights of the public to take access to land.  Certain areas of land are excluded from public access rights, such as garden ground, the curtilage of buildings and suchlike.  Out with these exclusions the right of access generally applies, so as long as those taking access do so responsibly, which means adhering to the Scottish Outdoor Access Code.   

The case of Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority concerned access over land forming part of Drumlean Estate. Historically the public took access through farm land forming part of the Estate to access Ben Venue.  At some point prior to 2005 the owners of the Estate started to farm deer and some 120 acres, including an access route to Ben Venue, was fenced off and substantial locked gates were installed, preventing access.  Later the owners obtained permission to farm wild boar.  An inner enclosure was formed to keep the wild boar, and a warning sign was erected at the locked gate.  A small heard of Highland cattle was also introduced.  Wild boar and Highland cattle were not kept after 2013 but the warning sign remained in place and the gates continued to be locked. 

An objection was made that access could not be taken through the farm due to the locked gates and the National Park Authority served a statutory notice on the owners to unlock the gates and remove the warning sign, as this discouraged walkers from exercising their right of responsible access.  The owners objected, stating that they had legitimate reasons to exclude access and the matter was then litigated before the Sheriff, the Sheriff Appeal Court and ultimately in the Inner House of the Court of Session. 

A previous Sheriff court decision (Aviemore Highland Resort v Cairngorms National Park Authority) had found that access rights under the 2003 Act didn’t apply where a barrier had been in place before the Act came into force, and a decision of the Outer House of the Court of Session (Tuley v Highland Council) found that the owner’s reasons for excluding access could be subjective, provided that subjective view was genuinely held.

The decision of the Inner House in this most recent case casts doubt on those previous decisions, and found that:

  • It's an owner’s duty to actively manage land in a way which respects access rights, and
  • The court must look at the owner’s acts and decide objectively whether they prevented or deterred access. Any “good faith” of the owner in denying access is not relevant.

Many readers will find the decision ironic, coming at a time when reports of sheep worrying are at an all time high, but it does highlight the need to consider access rights and, where necessary, make suitable arrangements to advise the public where they should or shouldn’t go on your land.

For more information please contact Murray Soutar or a member of the land and rural business team.

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