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Right to roam vs right to privacy

Published: 15 October 2020
Time to read: 4 mins

It’s often said that a person’s home is their castle. This has been particularly true during the recent Covid-19 lockdown, when the drawbridges were lifted and moats filled, of literal and metaphorical castles all across Scotland. With people urged to stay at home, the right to privacy saw a revived importance in our new way of life.

At the same time, the one piece of local daily exercise recommended by the Scottish Government became in many cases the highlight of the day. Often this exercise took advantage of the rights enshrined by the Land Reform Scotland Act 2003 (the 2003 Act), which gives us a right of responsible access to all of Scotland’s land.

With Covid restrictions still being in place, notwithstanding the dramatic rise of ‘staycations’, people are acquainting themselves with Scotland’s land like never before. On this backdrop, it is worth recapping on the Right of Responsible Access, how this relates to privacy of the home and what responsible access means for access takers.

Right to roam

There is a common misconception that the 2003 Act enshrined a ‘right to roam’ in Scotland. This is not quite correct. The 2003 Act confers a Right of Responsible Access. This access allows people to be on, or to cross land in Scotland for recreational purposes, educational activities or for a commercial activity that could be carried out as a recreational activity.

The access is not just pedestrian, but includes bikes, horseback, non-powered boats on inland lakes and any other non-motorised forms of transport. This must be exercised responsibly and within the Scottish Outdoor Access Code.

There are a number of areas that are excluded. These include a sports field, a field where crops have been sown or are growing and an area of land where a building, or other structure has been constructed.

For access takers, Scotland has one of the most liberal access regimes in the world. Unlike our southern neighbours, access takers in Scotland are not constrained to designated areas or paths. However this does not mean access takers have a carte blanche right to all land.  It is important to consider the privacy of dwellings when taking access. While this will be tricky on occasion as public rights of way occasionally pass close to residential dwellings, a general rule is to stay off land which is maintained differently to the rest of the holding. For example, ground close to a dwelling that appears to be kept for decorative and not agricultural, forestry, sporting or other industrial activities, will tend to be treated as private garden ground.

The home and the right to privacy

While the Act enables the public to access private land, the home itself is excluded from this. Access is not exercisable over land where there is a building, or on land adjacent to a dwelling which allows the owners to have privacy and enjoyment of their home. And it is not merely traditional dwellings that are afforded the right to privacy, caravans and tents are also excluded areas. Furthermore there has been some confusion regarding the extent to which a garden can be excluded from public access which have resulted in a number of high-profile cases.

There is no ‘one size fits all’ approach to privacy. It appears however, that the courts have been erring on the side of caution when determining what amounts to sufficient land for privacy. The court will look at the property itself and why a purchaser would be attracted to this type of property. The result being that the category of property will be considered, along with what constitutes a reasonable amount of ground for a property of that type.

The important point is that while the 2003 Act advances a very liberal access regime, privacy is at the forefront of the legislation and the courts have been upholding the interests of landowners. Even after the 2003 Act, in Scotland a person’s home remains their castle and is protected by law

So whether you’re a landowner or a roamer, there are extensive rights for both parties that are enjoyed under the 2003 Act. These should be exercised responsibly and within the spirit of the Act.

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