Flashcards in Head 24: Public Rights over Water and Land Deck (57):
Land Reform (Scotland) Act 2003 Part 1
In the early 2000's the law surrounding trespass was subject to new legislation to facilitate the ability of the Scottish public to take access through the countryside.
Provides general public right of access
This includes the right to be on land (s 1(2)(a)) for:
- for recreation [Not defined but the Scottish National Access Code is relevant (but non statutory) - it gives a list of things which are recreation which include pastimes (like watching wildlife, sightseeing, painting, photography, enjoying historic sites), family and social activities (such as short walks, dog walking, picnics, playing, sledging, paddling or flying a kite), active pursuits (walking, cycling, horse riding, camping etc etc), participation in events (such as walking or cycling festivals, hill running races etc).
Note that non recreational camping probably would not be recreational - and there are also criminal penalties under the Trespass Act 18??] (s 1(3)(a)) or
- for education (s 1(3)(b)) or
- for carrying on a commercial activity which the person exercising the right could also carry on not for profit[ The effect of this is that you can charge people money for taking them on a tour of someone else's land - quite controversial.] (s 1(3)(c)) but excluding the conduct mentioned in s 9 (right to roam may not be exercised by car or motorbike).
There is also a right under s 1(2)(b) to cross land.
NB: The legislation makes it clear that the rights under it are distinct from and do not affect other access rights, for example a servitude or pubic right of way.
What is the difference between crossing land and being on land?
NB that there is a difference between the general right to cross land (s 1(2)(b)) and 'being on the land' (s 1(3) for one of the purposes above).[ Possible look this up or watch around 30 mins from 18 March lecture.] One implication is that you can cross a golf course.
What are the excluded activities under the Act?
Excluded activities (s 9)
⁃ Under s 9, there is a list of conduct which is excluded from access rights:
⁃ 1) Being in or crossing land in breach of an interdict or other order of a court (s 9(a))
⁃ 2) Being on or crossing land for the purposes of an offence etc (s 9(b))
⁃ 3) Hunting, shooting or fishing (s 9(c))
⁃ 4) Being on or crossing land while responsible for a dog or other animal which is not under proper control (s 9(d))
⁃ 5) Being on or crossing land for the purpose of taking away anything in or on the land for commercial purposes or for profit (s 9(e))
⁃ 6) Being on or crossing land in a motorised vehicle (unless the vehicle is one for a disabled person) (s 9(f))
⁃ 7) Being on a golf course (s 9(g)) [but remember this still doesn't stop you from crossing a golf course.]
Exercisable over all land, including foreshore and non-tidal waters[ They are also exercisable below land (s 1(6)) - this means you can go caving.], other than the land mentioned in s 6
Section 6 exceptions
⁃ Common gardens (e.g. Queen Street gardens) (s 6(1)(c))
⁃ Land to which public access is restricted, excluded or prohibited by any other enactment (e.g. MOD's land or airports)
⁃ Sports or playing fields (s 6(1)(e))
⁃ Land which on an ongoing basis, since before 31st Jan 2001, there have been charges for entry - the example is the Safari park in Stirling [read carefully] (s 6(1)(f))
⁃ Land on which building works etc are taking place (s 6(1)(g))
⁃ Land which is used for the working of minerals (s 6(1)(h))
⁃ Land in which crops have been sown or are growing (s 6(1)(i)) [nb in s 7(10) it states that trees are not crops so you can still walk through woodland]
⁃ There are a number of other examples of excluded land in s 6(1) - be sure to know these.***
One restriction is s 6(1)(b) which concerns land adjacent to a house which allows reasonable privacy (so the test is one of reasonableness). If a declarator is given on this basis then it defeats all statutory rights (e.g. being, walking across etc)
Gloag v Perth & Kinross Council 2007
⁃ Ann Gloag wished to keep people away from her estate (a castle). She sought declarator that 14.5 acres of her estate around her castle were exempt from access rights by reason of the need to keep her privacy. The local authority was the defender in this action (since they have responsibility to uphold access rights).
⁃ The Sheriff held in favour of Mrs Gloag - 14.5 acres was held to be exempt since it was reasonable for a house of that size to have this level of privacy.
- LR(S)A s 6(1)(b) was criticised in this case because it does not make the use of the land the test, so large landowners could turn their whole estate into a lawn.
Snowie v Stirling Council 2008
Another large estate. Snowie sought declarator that 70 acres around the house was exempt. The sheriff disagreed and held that they were only entitled to 12.6 acres exempt.
Law Commission and Scottish Law Commission, Report on Level Crossings (Law Com No 339, Scot Law Com No 234, 2013)
Recommends that railways are also expressly excluded.
⁃ They are probably exempt anyway because it would be a criminal offence under s 6(1)(d).
When can ministers and local authorities withdraw land?
Scottish Ministers and local authorities can withdraw (i.e. Exempt) land under certain circumstances (ss 8 and 11). There are detailed rules on how an authority can make an exception order under s 11. In particular, the order must be confirmed by the Scottish Ministers if it is to last for six or more days. Ministers also have the power to exempt land (s 8).
What governs the right to take access?
Right to take access over land must be exercised responsibly (s 2(1)). Also see s 2(2). and in accordance with the voluntary Access Code (which is prepared by Scottish Natural Heritage: see s 10). See http://www.outdooraccess-scotland.com/.
What are the rules on responsible conduct and duty of care?
Ownership of land also to be conducted responsibly (s 3) (i.e. by respecting access rights).
There are more provisions set out in s 14: Landowners are prohibited from taking action which has ‘the main purpose of preventing or deterring the exercise of access rights’ (s 14(1)), for example there can be no offputting sign or obstructions put up (e.g. "Trespassers will be shot"). The exercise of these rights is presumed to be responsible if it does not ‘cause unreasonable interference’ to the rights of others (s2(2)).
Tuley v Highland Council 2007
Woodland area near inverness owned by a couple. They were happy to allow the public to come along and go through the woodland. They marked certain routes as not suitable for horses. This was challenged by the Highland Council who won at sheriff level. However this was overturned on appeal. The CoS held that it was reasonable in terms of the management of the land to restrict the exercise of access rights on horseback to certain routes because the prohibited routes were liable to be damaged.
Aviemore Highland Resort Ltd v Cairngorms National Park Authority 2009
Question as to whether a fence/wall which had been in place before the Act came into force could amount to an obstruction under s 14. The court held that it could not since s 14 concerns positive acts contrary to the provision after the Act came into force - so since this obstruction was already in place when the Act came into force it was not contrary to s 14.
What are the duties of local authorities in relation to access rights?
Local authorities must uphold access rights, including by legal proceedings (s 13). They must also draw up and implement a plan for a system of paths sufficient for the purpose of giving reasonable public access throughout their area (ss 17 – 22).
What is a public right of way?
A public right of way is the right for any member of the public to use a road or pass or a route for passage.
⁃ This is similar to a servitude of 'way' but 1) there is no benefited property (only burdened) and 2) the public can exercise the right rather than the owner of a benefited property 3) anyone can exercise a public right of way.
NB it has the purpose of allowing access from A to B but it cannot permit general wandering. Lord Sands: “The right of way claimed must be by a definite path”. (Rhins District Committee of Wigtownshire County Council v Cunningham 1917)
Are public rights of way real rights?
It is a real right in the sense that it runs with the land - its certainly not a contractual right. Some take the view that real rights are private law rights and since these are public law rights they cannot be real rights.
Who owns roads?
⁃ Roads are often owned by people who own the land on each side of the road.
⁃ Roads can be 'taken over' by local authorities for maintenance purposes (so notwithstanding the fact that the road is in private ownership, the local authority will pay for its maintenance).
What happens when roads are 'taken over'?
For roads which have been taken over, there will be a public right of way over it (even though it may technically be in private ownership)
How are public rights of way created?
1) The most common way to create a public right of way is under s 3(3) of the Prescription and Limitation Act 1973 by prescription in a very similar way to creating a servitude of access by prescription. It requires possession by members of the public for a period of 20 years. No foundation writ or other former of registration is required.
The possession must be
(1) along an entire length of the route
(2) must be continuous and uninterrupted
(3) use must be substantial
(4) possession must be ‘adverse’ and not by tolerance. Creation by deed is rare.
There are a number of requirements:
⁃ 1) Must be a fixed route
⁃ 2) Between two public places[ So there can't be a public right of way between a private house and a public road because the private house is not a public place, or a market, curious natural object, Airport, etc. but there can be between a public road, beach, town and harbour — public require access to it at all times.]
Rhins District Committee v Cuninghame 1917
3) Must be used by members of the public for 20 (formerly 40) years. Possession must be (1) for whole length of the way (2) uninterrupted and (3) adverse[ I.e. as if you have the right to do it and not by the tolerance of the owner - the more use of the route you can point to, the greater the presumption the use is adverse, not by tolerance. See Marquis of Bute.] (ie not by tolerance). Amount of use required depends on location, eg whether populous, remote etc.
Marquis of Bute v McKirdy & McMillan 1937
Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992
4) Must be access only
Rhins District Committee v Cuninghame 1917
There was a public right of way established along a river which came off the road, looped down along the river and came back onto the road again. [Simply an example of 2 public places (here, different parts of the same road).
Marquis of Bute v McKirdy & McMillan 1937
This case involved whether there was a right of way between the road and the foreshore. It was held that the right had been established on the facts. The Lord President held that: "If a proprietor lies by while regular and unrestricted public use is made of a private road between two public termini for the prescriptive period, the law will assume a public right rather than an easy-going proprietor."
Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992
Involved an elevated and enclosed heated walkway above and over a main road. The new owners of the walkway decided to lock it at night because of vandalism. However evidence was led of the public using this at all times of the day and night.
⁃ It was held a public right of way had been established and thus it could not be locked.
⁃ [In contrast, in the Marquis of Bute case above, the amount of use was much smaller - it was confined to the summer months, but it was still held that this was sufficient use to achieve the right of way.]
Are express grants of public rights of way possible?
Express grant of public rights of way - may be possible but AS has never seen it.
What does the exercise of public rights of way depend on?
The extent of the right which is prescribed depends on possession (tantrum praescriptum quantum possessum). In other words, if you walk over for 20 years then a pedestrian right of way is created. Whereas if you drive over for 20 years then you receive a vehicular right of way.
Aberdeenshire County Council v Lord Glentanar 1999
The issue was whether use by a bicycle could establish a general right of vehicular use. The court held that it couldn't. The reason was that a bicycle was simply an aid to pedestrianism as opposed to cars which are powered by engines (but does this mean that if you walk for 20 years you gain a right to cycle? Unclear.)
What are the restrictions on obstructions?
The burdened proprietor can erect gates for legitimate purposes (e.g. Keeping cattle in) but the public right of way must still be capable of being exercised (so locked gates are no good).
⁃ There is an important provision s 31 Land Reform (Scotland) Act 2003 - this applies s 14 (about not putting up off-putting signs etc) to public rights of way.
When will public rights of way prescribe?
By long negative prescription -- Public rights of way can be lost by 20 years of non-use under the 1973 Act s 8.
- It will also cease to exist if either or both the places at the ends of the way are no longer public places.
[[NB if there is a question on different types of access rights in an exam then mention: 1) statutory rights, 2) public access rights, 3) servitudes]]
What are the public rights over tidal and non-tidal waters and the foreshore?
At common law the public have certain rights over tidal and non-tidal waters as well as the foreshore. In theory, the rights are held in trust by the Crown for the public (regalia majora).
Who is entitled to enforce regalia majora?
The Crown is entitled to enforce these rights. But so too are members of the public under the action actio popularis. On this, and a number of other matters, the Scottish Law Commission has proposed changes: see Report on Law of the Foreshore and Sea Bed (Scot Law Com No 190, 2003; available on www.scotlawcom.gov.uk).
These rights are (subject to one exception) implied by law. The rights arise automatically (right to navigate non-tidal waters is constituted by 40 years of use). None of the rights require registration for their constitution and they do not appear on the Land Register.
What is the right to the foreshore?
a) Foreshore[ This is the part of the sand which the tide comes in on.].
⁃ There is a right of:
⁃ 1) Navigation
⁃ 2) 'White' fishing (ie for fish other than not salmon, mussels and oysters[ Because these are legal separate tenements.]) and
⁃ 3) Recreation (does not include selling refreshments)
Marquess of Ailsa v Monteforte 1937
⁃ Monteforte was an ice cream seller. It was held that he was not allowed to sell his ice cream on the foreshore since.
⁃ [So the public right of recreation does not include the right to sell refreshments.]
What are the public right's to tidal waters?
⁃ Crown ownership (at least the bed is).
⁃ There is a right of:
⁃ 1) Navigation (travelling by boat on water - not canoe or wading) and
⁃ 2) 'White' fishing (right to take all swimming fish other than salmon, mussels and oysters)
What are the rights to non-tidal waters?
⁃ Normally in private ownership and therefore there are no implied rights (for the public). So if you own a river/water then you have the rights to fish in them but others don't.
⁃ But there can be right of navigation (only) which can be acquired by 40 (NB) years' user[ So this is quite like a prescriptive right but its not in the 1973 Act.].
Wills' Trs v Cairngorm Canoeing and Sailing School Ltd 1976
⁃ The pursuers owned a valuable stretch of the River Spey including the salmon fishings. They sought to interdict the canoeing school from canoeing along this stretch of the river. It was established that canoeing caused a certain amount of damage to the salmon fishings. But there was evidence that this canoeing had been going on for 40 years. The HL held that the effect of the 40 years use is that the river is deemed navigable.
⁃ NB this was very important but now not so much since you can do this under s 6 exemptions of the Land Reform Act 2003.
What is navigation?
Moving boat through the water, and acts reasonably ancillary thereto.
Lord Advocate v Clyde Navigation Trs (1891)
The defenders were interdicted by the Crown from depositing dredgings from the River Clyde into a loch.
⁃ In other words, navigation does not include depositing rubbish.
*Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1979
The defenders were interdicted from laying down fixed moorings.
⁃ So navigation does not include putting down fixed moorings (you can't put your anchor down).
Scammell v Scottish Sports Council 1983
⁃ Limited beaching of your boat is acceptable (i.e. occasionally bumping the bottom) but you can't wade along the river bed and propel your boat by hand.
⁃ [However, under the Land Reform Act 2003 this may be possible.]
How are these rights enforced?
⁃ Any member of the public can enforce the right, either against the owner or against a third party causing interference. The Crown can also enforce these public rights.
Walford v David 1989
⁃ The defender had a lease form the Crown Estate Commissioners to moor fish cages on the sea bed. It was alleged this interfered with one of the recognised routes from Scalpay to Skye and interdict was sought.
⁃ It was held that for a successful action there had to be material interference with the right of way not just inconvenience and since in this case there was only inconvenience it was not enforceable.
What is trespass?
Passage through another's land without consent is known as trespass. It is a delict. It is the transient interference with someone’s right of possession of his or her land exclusively.
Similar to encroachment, if the trespass is trivial this does not excuse the trespass, but it may affect the remedies.
Who can carry out trespass?
Trespass can be carried out by persons, by animals or (if temporary) by things. [Cf encroachment which is always by things and interference is more than transient].
Brown v Lee Constructions Ltd 1977
This involved a crane jib swinging over the petitioner's land. This was going to be happening for several months. The petitioner was awarded an interdict since it constituted trespass.
What are the four defences to trespass?
⁃ Express or implied consent for the person, animal or thing to come onto your land is a defence.
⁃ We probably give implied consent for people to come up our path for legitimate purposes (e.g. postman).
2) Exercise of a right (intrusion permitted by law)
⁃ Public right of way
⁃ Access right under Part 1 of the Land Reform (S) Act 2003 (see s 5(1))
⁃ The Civil Aviation Act 1982 s 76 permits the flight of aircraft over your land at a height which is reasonable having regard to certain factors like weather etc.
3) Judicial warrant
⁃ The Police or Sheriff Officers (e.g. carrying out diligence).
⁃ e.g. Escaping from a fire, chasing a thief.
What are the three remedies?
2) Self help
When does the remedy of interdict apply?
1) This is the classic remedy against trespass but it has practical difficulties since you need to know the name and address of the trespasser so it is really only useful against persistent trespassers (e.g. your neighbour taking a short cut). You are expected to have warned the trespasser off before seeking an interdict. It will not be awarded if the trespass is trivial. If you cause damage you are liable but only if there is culpa.
2) Interdict is a discretionary remedy
⁃ The court is unlikely to grant it if there is no reasonable likelihood of future trespass. In practice the best evidence of future trespass if past trespass:
3) Also since it is a discretionary remedy the court will look to you having pursued other avenues before having rushed to court such as warning off the trespasser.
Inverurie Magistrates v Sorrie 1956
⁃ The defender merely asserted that he had the right to exercise racehorses over the petitioner's land - he never actually did it.
⁃ On this basis interdict was refused.
What are some self-help remedies?
⁃ But if you are too enthusiastic with your self-help then this may lead to a civil or criminal wrong.
⁃ So self help could involve high walls but not man-traps or mines (and you are subject to the rules in the Occupiers Liability Act and for guard dogs the Guard Dogs Act 1975 (e.g. notices that there is a guard dog)
⁃ On dealing with a trespasser you can use reasonable force for trespass into a house or in cases of trespass on land where the trespass is violent. But if it is a peaceful trespasser on open land you must be more cautious - you can e.g. escort them off the land.
You can take steps to stop trespass happening in the first place such as locking gates and erecting high walls. Premises may also be protected by guard dogs but the dog must be under control of the owner and there must be notices at the entrances warning of the animal’s presence.
Bell v Shand 1870
15 year old boy who appeared to be poaching was dragged for some distance by the scruff of the neck. It was held that this was reasonable force. But this was decided in 1870 so probably outdated.
What are the requirements to claim damages for trespass?
Trespass is a delict so damage resulting from the delict is recoverable.
Liability is not strict - there must be fault (so the trespass must be intentional or negligent.)
Harvie v Turner 1915
⁃ Two neighbouring fields owned by two different individuals. One field was full of cows, the other had a bull in it. The owner of the cows repeatedly said to the owner of the bull that he didn't think it was wise that the bull be kept in that field.
⁃ The bull got over the fence and 'served the cows' creating unsuitable crossbreeds. The owner of the cows sued for damages and succeeded because the loss was foreseeable.
What remedy will the court grant in relation to straying animals?
The court will not grant interdict in respect of straying animals except for those which are easily confined (e.g. domestic fowl) and the view of the four tis that it is for the complainer to fence his or her land rather than interdict. In the case of cattle and sheep the onus is more likely to be placed on the owner of the land which is being trespassed upon to enclose it by fencing rather than upon the owner of the animal to prevent the intrusion.
There are further rules in the Animals (S) Act 1987 s 1,3&4. [Don't worry too much about these!!!]
Winans v Macrae 1885
⁃ The pursuer sought to interdict the defender from "putting any lamb, lambs, sheep, cattle, or other bestial" on the pursuer's lands. The pursuer was a tenant of 200,000 acres of unfenced rough grazing. The defender was a shoemaker who inhabited a cottage adjacent to the pursuer's land. The only animal that the defender had was a pet lamb.
⁃ Interdict was refused - the case also makes the point that interdict will not be granted for something trivial.
Forest Property Trust v Lindsay 1998
⁃ An interim interdict had been awarded against the defender ordering her to prevent her sheep straying onto her neighbours land.
⁃ The defender sought recall of the interim interdict on a number of grounds. She argued that there was no obligation at common law to heard sheep and it was up to her neighbour to erect fences. She argued that normal farming practice was that sheep policed their own boundary. And she submitted she followed normal farming practice with regard to straying - she tried to retrieve the animals, and that employing a shepherd was not economically feasible.
⁃ The court accepted these arguments and recalled the interim interdict.
Why may it be difficult to secure a remedy for trespass?
Although it is a civil wrong, it may be difficult to receive a remedy for trespass.
⁃ Damages - there may be no damage
⁃ Interdict - may be unsuitable (different people, trivial)
⁃ Self help - may be impractical (if you own lots of land)