Head 25: 1 Flashcards
(18 cards)
Statutory access rights to land are primarily governed by…
Land Reform (S) Act 2003 part 1
s 1
There is a general public right of access.
What does the right of public access include?
This includes the right to be on land (s 1(2)(a)) for: for recreation (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 (s 1(3)(c)) but excluding the conduct mentioned in s 9.
There is also a right under s 1(2)(b) to cross land.
How is recreation defined in the Act?
Not defined but 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
s 9
This is the list of conduct which is excluded from access rights.
What types of conduct are excluded from access rights?
s 9:
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.]
s 6
Lists types of land excluded from the scope of access rights etc.
What types of land excluded from the scope of access rights etc?
s 6:
1) You cannot go into buildings or tents or caravans (s 6(1)(a)(i)-(ii))
2) Common gardens (e.g. Queen Street gardens) (s 6(1)(c))
3) Land to which public access is restricted, excluded or prohibited by any other enactment (e.g. MOD’s land or airports)
4) Sports or playing fields (s 6(1)(e))
5) 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))
6) Land on which building works etc are taking place (s 6(1)(g))
7) Land which is used for the working of minerals (s 6(1)(h))
8) 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]
9) 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)
s 6(1)(b)
One restriction on the exercise of access right is 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. 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.
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.
Are railways exempt from access rights?
Not expressly but probably under s 6(1)(d) as a criminal offence.
s 2(1)
s 2(2)
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
s 3
Ownership of land also to be conducted responsibly (s 3) (i.e. by respecting access rights).
s 14
For example there can be no offputting sign or obstructions put up (e.g. “Trespassers will be shot”).
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 local authorities responsibilities 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).
