Knowing your rights and responsibilities in the Scottish countryside

9 November 2011

Since the Land Reform (Scotland) Act 2003, the subsequent Scottish Outdoor Access code has helped to clarify public rights when it comes to enjoying the Scottish countryside. The code at first glance appears easy to follow, as do the responsibilities that come along with it. However, a selection of court cases that have followed publication of the code could leave public and landowners alike wondering where they stand in relation to the law.
Generally, the public has right of access over a wide scope of land including mountains and hills, fields, lochs, rivers and forests. This access is conditional on it being exercised responsibly. Equally, landowners have a responsibility to manage the land in a way that does not come into conflict with this.
However, these rights do not automatically apply everywhere in all circumstances. For example, farmland with sown crops may not be crossed (the side of the field should be used if possible) and farmyards are out of bounds. School playing fields are obviously off-limits, and recreational playing fields and golf courses cannot be crossed whilst in use.
Importantly, land that affords a dwelling house a degree of privacy, such as a garden, is not accessible under the code. This is one area where the courts have had to step in. The sizes of houses and gardens can vary radically; those with larger properties may feel they are entitled to expect a larger area of ground around their property should be kept off-limits from the public. Home owners can expect not to feel threatened or concerned by the public being in close proximity to their home. This was highlighted in two cases, both with different outcomes.
In Snowie v Stirling Council, Mr Snowie sought to exclude 70 acres of ground around his house (almost the entire estate, known as Boquhan) from public access on grounds of privacy and, he claimed, security. Access gates that had previously been available both to cars and those on foot were locked   His attempts failed. In the eyes of the court, to prevent access to that amount of land was not needed for the reasonable enjoyment of the property, nor was it needed for security reasons.
In contrast to this, the case of Gloag v Perth and Kinross Council resulted in a different outcome, where security and privacy did succeed as an argument in allowing Ms Gloag to keep high metal fences as a perimeter around her property, Kinfauns Castle. It may appear difficult at first glance to see what differs in the cases – Ms Gloag is undoubtedly higher profile and significantly wealthy. The issue of Human Rights legislation can undoubtedly be a factor,  with Article 8 giving prominence to respect for private and family life. This can perhaps be seen as a trump card to those who would seek to protect their privacy.
In a recent and significant case, Tuley v Highland Council, a couple who owned woodland on the Black Isle had actively encouraged recreational use on their land for walkers, cyclists, and horse riders. They had spent time and money in pursuit of this. However, they had restricted access to a particular path to horse riders as it was causing the access route to deteriorate, meaning it could not be used by walkers, and had locked a gate that would normally have given access. Another bridleway on the land was blocked due to recent storm damage. The Tuleys appealed after a sheriff ordered them to unlock the gate restricting access to horses. However, on appeal, the Court of Session found they had been correct in wishing to minimise damage for the good of the majority of users, and it was not intended as a deliberate interference in bad faith. This was responsible land management.
The issue of agricultural land is less straightforward. The rules on crossing fields that are growing crops and access to farmyards are clear. But what about open grazings and hill farms where livestock are? Farmers and crofters may also have a responsibility to ensure safe and appropriate access for walkers but also have a right to expect their livestock will be free from disturbance. Safety is also a concern in relation to the public coming into contact with certain animals and if any injury arises, the landowner is ultimately responsible. This can add an extra burden on those managing the land. When land management is active, the landowner should post appropriate signage to advise the public of the nature of any potential obstacle.
There is much talk in the code of ‘sharing’ responsibility and not interfering with those who make their living from the land, but as yet, little in the way of concrete guidance as to the parameters of this and it will be interesting to see if the courts have an opportunity to provide clarity in the future.
Public rights of way are not the same as access rights that arise from the statute. A public right of way exists in common law before the advent of the Land Reform (Scotland) Act 2003. A right of way should connect two public places (for example, a public road with a beach) and should be used only for the purpose of crossing from A to B. There are thought to be around 7000 recorded rights of way in Scotland. A public right of way can arise simply by being used, uninterrupted, for 20 years. It is also important to recognise that a public right of way for walkers will not allow cars to use the route, but if a route is established for vehicles, walkers can use it – the greater right includes the lesser, but not vice versa. As with access rights, the burden on the landowner should be minimal.

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