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Golf and the right to roam

18 November 13

A discussion of rights of access in relation to golf courses, with particular reference to the Trump development where the course lies adjacent to a beach

by Catherine Bury, Douglas Bain

Aberdeenshire’s scenic Balmedie beach and dune system has been a highly popular visiting place for local residents and visitors for many years. The surrounding Menie Estate lies within the Sands of Forvie and the Ythan Estuary site of special scientific interest. The sand dune system has been declared as the fifth largest in Britain and supports a nationally important population of breeding birds. But concerns have arisen in recent years regarding access to this area of outstanding natural beauty.

The Trump International Golf Links development at Menie Estate has since 2007 proven controversial and divisive, generating polarised views, some of the flavour of which was captured in the 2011 documentary film, You’ve Been Trumped, and also in a 2013 BBC Panorama documentary, "The Trouble with Trump". The development has resulted in entrenched positions and a good deal of bad blood. There are many flashpoints, and access is one.

The development extends to extends to 453 hectares (1,119.387 acres), and is bordered by Balmedie Country Park. The Menie estate includes the 14th century Menie House and grounds, Menie Links, and part of the foreshore.

Ramblers Scotland and local residents had expressed concerns about the impact of the proposed two golf course, hotel, holiday apartment and housing development at Menie prior to the decision on the application in 2008. Part of the concern related to environmental impact, but there were also concerns that access to the beach and dunes would be restricted. The application for planning permission was rejected in 2008 by Aberdeenshire Council, and controversially called in by the Scottish Government which then approved the plans. The first golf course has been operational since June 2012 and plans have been submitted for the second. It is unclear whether plans for the hotel and housing are to proceed.

The issue has continued to be aired regularly in the local newspaper, the Press and Journal, and also features in internet websites such as Aberdeen Voice (www.aberdeenvoice.com), and a plethora of Facebook and Twitter pages. Controversy now centres on access across the course and claims made of Trump International not being particularly keen on members of the public and local residents accessing the dunes and beach by way of the golf course.

Accessible land

Part 1 of the Land Reform (Scotland) Act 2003 deals with access rights, the colloquial “right to roam”. The Act was seen as a strengthening of the traditional toleration of access by Scottish landowners and an addition to the alternative access regimes in Scotland, common law rights of way and the statutory regime dealing with long distance paths governed by the Countryside (Scotland) Act 1967. It deals with the public’s right to be on and to cross land for recreational and similar purposes. “Land” is defined by s 32 as including bridges, inland waters, canals and the foreshore (land between the high and low water marks of the sea). At s 1(7) the Act introduces the presumption of a right of access and declares that “The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.”

The specific exemptions from the general right of access include curtilages of buildings, school playgrounds, land used for quarrying and land on which crops are growing. Each of these could merit some discussion, as the Act is perhaps not as clear as it might be; words such as “curtilage” are undefined, and the definition section, s 7(10), which deals with the concept of growing crops, could perhaps be more helpful.

However, there are clear and specific sections in the Act which deal with access to golf courses and exclude greens from the presumption of access, as follows:

“6.–(1) The land in respect of which access rights are not exercisable is land–... (e) which has been developed or set out– (i) as a sports or playing field; or (ii) for a particular recreational purpose”.

“7.–… (7) Section 6(1)(e) above prevents the exercise of access rights over land to which it applies only if–... (b) the land is a golf green, bowling green,... or other similar area on which grass is grown and prepared for a particular recreational purpose”.

But it must be borne in mind that one of the overarching principles in the Act, stated in s 2(1), is that “A person has access rights only if they are exercised responsibly.”

Responsible access

The Scottish Outdoor Access Code was drawn up by Scottish Natural Heritage in terms of s 10 of the Act. The code was intended as guidance for the responsible exercise of access rights, balanced by guidance to landowners using and managing their land in a way that would not restrict that access. Professor R R M Paisley states that the purpose of the code is to “provide guidance on responsibilities... It is not an authoritative statement of the law. Only the courts can provide a definitive interpretation”. (See Access Rights and Rights of Way: A Guide to the Law in Scotland (4th rev ed), Scottish Rights of Way and Access Society, 2006.)

In this respect is has been likened to the Highway Code; when determining whether a person has exercised or managed their land responsibly, the court will – under s 2(2)(b)(i) of the Act – have recourse to whether guidance in the code has been followed.

The Act at s 2(2) defines “responsible access” as being access rights “exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person”. Exercise of those rights under s 2(3) is to be “in a way which is lawful and reasonable and takes proper account of the interests of others and the features of the land in respect of which the rights are exercised”.

The code provides detailed guidance in a wide variety of situations, and access rights applying to golf courses are only one. Practical advice is provided at p 2 on many everyday situations, including “canoeing, cycling, deer stalking, farmyards, fields, fishing, forests and woods… grouse shooting, horse riding, sporting events and wild camping”.

Responsible behaviour by the public is stated by the code to be crossing golf courses, and this brings it within the ambit of s 1(4)(b) of the Act and “going onto it [the land or in this case, the golf course], passing over it and leaving it all for the purpose of getting from one place outside the... [land/golf course] to another such place”. This includes, presumably, a trip to the beach via a golf course. The code does not provide authorisation for the other element of access authorised by the Act, i.e. being on land or “going into, passing over and remaining on it... and then leaving it”, and indeed the act of being on a golf course for such purposes is expressly prohibited by the Act under s 9(g).

Caledonian Heritable

In what is generally accepted as the first “access” case in 2006, Sheriff Stephen dealt with this distinction in Caledonian Heritable Ltd v East Lothian Council (www.scotcourts.gov.uk/opinions/B401_05.html). The right in respect of golf courses is a right to cross the non-playing parts of the course, but the sheriff in Caledonian Heritable pointed out that the rough and the wooded parts of a golf course are part of the hazards of the game and can therefore be regarded as non-crossable. However she accepted she had not been requested to make a judgment on the extent of access rights under the Act and only with the legitimacy of barriers erected to prevent access. The sheriff accepted that the Act does not allow the public to go onto a golf course and stay there unless, of course, they have paid their golf club dues and are playing the course.

When passing through the golf course, the code states that a person must keep off the smooth, kept grass of the greens at all times. This leaves the rest of a golf course free for taking access across in accordance with the presumption of access, e.g. fairways, rough and in the case of Menie and other coastal courses, the dunes and the beach. Access takers are encouraged to be aware of the potential hazard of golfers about to take a shot, and not cause an interference or distraction to games. Paths are to be followed where they exist, to avoid causing damage to playing surfaces; any advised diversions to normal routes are to be followed where, for example, fertilisers or pesticides are being used to keep or improve the course, and the golf course manager advises of temporary path alterations.

The guidance in the code is divided into two parts: responsible behaviour by the public, and responsible behaviour by land managers. The Act’s prohibition on unreasonable interference with the rights of others and the requirement to take account of their interests applies to landowners as much as access takers under s 3(1):

“It is the duty of every owner of land in respect of which access rights are exercisable– (a) to use and manage the land; and (b) otherwise to conduct the ownership of it, in a way which, as respects those rights, is responsible.”

The code appears to assume that access will be taken by the public across golf courses, and as long as that access is responsible, the landowner must try and work with the public to accept it under s 14(1) of the 2003 Act:

“The owner of land in respect of which access rights are exercisable shall not for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so– (a) put up a sign or notice; (b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation; (c) position or leave at large any animal; (d) carry out any agricultural or other operation on the land; or (e) take, or fail to take, any other action.”

Not only would the overt presence of a locked gate across a path be unlawful, but a landowner attempting to dissuade access by locating fences that require to be squeezed around, or by leaving an aggressive bull in a field, could be caught by the provisions in the Act. The relevant local authority has a duty to uphold access rights under s 13, and has powers to serve a notice on the landowner requiring him or her to take remedial action where it feels that a landowner has acted or failed to act in contravention of s 14 (1).

In the Caledonian Heritable case, the pursuers were owners of land currently being developed in a similar situation to Menie, consisting of a large 500 acre estate with two golf courses, a hotel and housing. Development of one course was completed, work had begun on the second, and the council had served the developers with s 14 notices when objection was taken to barbed wire fences, locked gates and signs stating “DO NOT ENTER” at various points on the boundary of the estate. Although the sheriff accepted that construction was ongoing, proof was allowed inter alia that the notices erected by Caledonian were unreasonable in that they did not offer guidance as to alternative routes which would have avoided that construction but simply advised that access would not be tolerated.

Other decisions

A landowner does have the right to manage his/her land in a reasonable fashion so as to militate against damage to that land or otherwise manage it. In Tuley v Highland Council 2009 SC 456, the Inner House accepted that Mr Tuley could lock gates at either end of a path through his woodland to stop horse riders, whilst allowing the track to be used for pedestrians. The sheriff court had initially stated that Mr Tuley would have to prove that damage had actually been occasioned, but on appeal this was rejected. A landowner could take “preventative steps” where a mode of access was likely to cause damage to a path; the locked barriers were not an “unreasonable interference with the exercise of responsible access”. Indeed damage by the horses could affect the path maintained and encouraged to be a pedestrian path.

In the code, it is indicated at p 96 that golf course managers “are encouraged to accept access when it is carried out responsibly”, as it is important to local communities; paths are to be provided across golf courses; and also to be provided is guidance to the public advising which are the safest routes to avoid injury.

In Phee v Gordon [2011] CSOH 181; [2013] CSIH 18, Mr Phee sought damages from a fellow player and the golf club when he was struck by a golf ball whilst playing golf. He was walking on a path between two tees when he was struck by a golf ball driven from the fairway attached to a third tee. Although the case did not specifically relate to access, it dealt with safety issues on a course. The defender’s expert witness referred to the course as being “tight”, and identified a number of conflicts between holes. He also mentioned precautionary measures that might have been taken including “fencing, netting and/or foliage as a barrier”, and warning signs conveying information about possible hazards to players.

Co-operative solution?

It is interesting that the issue of access rights across golf courses has not required to be considered by the courts more often since 2003. With a presumption of access to all land, and golf courses only excluded as far as access to greens, many people in Scotland are daily exercising their right to cross golf courses in a responsible way whilst taking account of the rights of golfers to play largely undisturbed. With some planning, landowners can recognise that access will be taken and provide for safe routes through the course.

Of course the 2003 right to roam is only part of the picture, and golf courses are likely to be affected by servitude rights of access and rights of way exercised by locals and neighbouring properties. These types of access are under a different regime than the 2003 Act and specifically unaffected by it under s 5. Indeed, looking at the land certificate for the Menie Estate, it is hard not to come to the conclusion that there must be many people exercising many different types of access rights across different parts of the estate, and to and from the beach.

If the landowner and the local authority achieve some form of concordat in respect of designated and signposted paths in terms of the Act, then it would seem anyone purporting to exercise their access rights by other routes might not be considered to be doing so reasonably. There are many ways to cross land to access a beach. It may well be fated that however things turn out, people will be unhappy, but co-operation now might save some problems further down the line. There are public rights in the foreshore, and the Trump development is next to the Balmedie Country Park, so access would not only be a right but would be an expectation, resulting in more possible flashpoints.

Catherine Bury is an associate at Ledingham Chalmers LLP, and Douglas Bain a Teaching Fellow at the School of Law, University of Aberdeen