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Better access to the law

15 October 18

Property briefing: two recent cases have helped clarify the law on public access to private land, and what an owner can, and cannot, do to stop it

by Malcolm Combe

The right of responsible access to land conferred by the Land Reform (Scotland) Act 2003 has generally been welcomed, but its journey has not always been smooth. 2018 has brought two important cases about its application.

The first centred on a landowner’s attempt to deny access to a place not automatically excluded as a forum for responsible access. Significantly, the Inner House clarified the standard by which landowners’ motives are to be judged as objective rather than subjective. The second case provides an inaugural application of that decision, and explains the proper enforcement role of access authorities.

Part 1 of the 2003 Act introduced rights of access to be on or to cross land (s 1(2)), subject to limited exceptions relating to the land itself (ss 1(7) and 6) or the conduct of an access taker (s 2, read alongside ss 9, 12 and 29). Access can be for passage or for recreational, educational and, in some cases, commercial activity on land.

Where access rights are exercisable, the landowner or manager must conduct ownership responsibly. The Scottish Outdoor Access Code (www.outdooraccess-scotland.scot) plays a role determining what is “responsible” (s 3). Some landowner conduct can never be responsible, where it unduly deters responsible access (see s 3(2)(a), read with ss 12, 14 and 23).

Local authorities (or, where relevant, national park authorities) have a duty to uphold access rights (s 13). They can do this in various ways, including serving notice when they consider s 14(1) (on impediments to access) has been breached. Such notices, and the landowners’ responses, brought matters to court via s 14(4) in the two cases discussed.

Subjective or objective?

Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority [2018] CSIH 22 (“Anstalt”) concerned a farm between Loch Ard and Ben Venue. The landowner sought to limit and discourage access to about 120 hectares of open hillside, in-bye (separately fenced) fields and woodland. Three gates to the enclosure were left in a default locked position, and a sign warned of wild boar. (No such animals were present at the given time, but deer were present.)

The scope of legitimate land management (which I deploy as covering use, management or otherwise conducting ownership) was central here. The statute allows management not wholly or mainly aimed at restricting access, so the underlying purpose is crucial. How should it be measured?

This might seem a curious question, but it is important. Gauging it on a subjective basis, depending on what a landowner actually thought, seemed to accord with Tuley v Highland Council 2009 SC 456, where landowners restricted equestrian access to a path to prevent cumulative damage to that path. At first instance in Anstalt, the sheriff ruled that the landowner had been (subjectively) acting for a legitimate land management reason. The authority successfully appealed to the Sheriff Appeal Court. The SAC tried to remove the potential problems that could flow from a subjective approach (and a broad application of Tuley) by stressing that a landowner’s concerns must relate to a particular site rather than access rights in general, but the Inner House has now clarified that the test is objective, based on an assessment of what is on the ground. Lord Carloway (Lords Menzies and Drummond Young concurring) isolated as obiter the passage in Tuley that suggested a subjective approach, and convincingly set out why objectivity is appropriate.

This should allow for a more uniform application of the scheme (taking guidance from the Access Code), with little scope for ostensibly similar situations to be treated differently due to different subjective intentions of landowners (para 63).

In Anstalt, the main purpose of the gate closure was (objectively) to prevent access, and apparent concerns about the interaction of access-taking humans and resident animals did not change this (paras 68-69). Responsible land management could accommodate public access, through paths and signage. As regards any security concerns, the landowner could erect appropriate barriers near any buildings to cater for the protection of property and the privacy and safety of persons living and working there (para 57). Such steps would be permissible; complete exclusion of people would not.

It did not matter that the challenged practices predated the implementation of the 2003 Act. It is now clear that enforcement action can be taken against such historic restrictions, notwithstanding the seemingly contrasting Aviemore Highland Resort v Cairngorms National Park Authority 2009 SLT (Sh Ct) 97.

In the result, the Inner House largely followed the SAC in practical terms, albeit it only required two of the three gates to be accessible. Signage about boar was also allowed to remain (having been required by Stirling Council for an earlier boar herd). Those finer details may be relevant to the landowner and its neighbours, but the legal precedent could affect much of Scotland. The first locale to contend with the effects of this judgment was Penicuik.

Manson v Midlothian Council

Manson [2018] SC EDIN 50 related to a blockage of a path relatively near a house in an area described as suburban and semi-rural. The pursuers appealed against a s 14 notice, and also sought declarator under s 28 of the Act that their land was excluded from access rights, founding on s 6(1)(b)(iv), which allows for a suitable degree of privacy and generally undisturbed enjoyment for those in a dwelling. This provision has prompted much litigation: see Gloag v Perth & Kinross Council 2007 SCLR 530, Snowie v Stirling Council 2008 SLT (Sh Ct) 61, Creelman v Argyll & Bute Council 2009 SLT (Sh Ct) 165, and Forbes v Fife Council 2009 SLT (Sh Ct) 71.

Sheriff Reith rejected the pursuers’ case, and allowed the authority’s notice to stand, albeit the notice faced a novel human rights challenge that will need to be borne in mind by access authorities seeking to clear obstructions in future. Given that her judgment runs to 125 pages, the analysis here has to be suitably targeted.

The Mansons’ house, a single-storey, family home, was set in roughly 0.21 hectares. A well-defined path ran relatively close by; land they co-owned encompassed part of this path. The path tapered off from an access road to the house. While privacy was thought to be a particular issue for this family, it was not easy to see into the house from the path or road. The path continued to Penicuik Estate, whose proprietors had a servitude of access over the pursuers’ land.

The pursuers took steps to restrict access, installing a fence with a padlocked gate across the path. Those without a key would face an eight-feet high barrier, painted with anti-climb paint and accompanied with an array of signs and a placebo CCTV camera. The fence and gate had replaced a kissing gate and a metal five-bar gate. The sheriff preferred evidence that this kissing gate was not normally locked.

Subject to access rights?

If the land had been excluded from responsible access then, at least for the 2003 Act, access restriction would have been fine. The sheriff, however, held the land was not within the s 6(1)(b)(iv) exclusion. Every case will turn on its own facts, but the situation is reminiscent of Forbes, which related to a path in Glenrothes on the far side of a fence from the dwellings. Manson analysed the issue in detail (paras 121-138), noting it was difficult to classify a path about 20m from the house as “adjacent”, and also that it had been treated by the parties as more adjacent to a woodland area than to the pursuers’ home. Further, adopting an objective test it was difficult to see how a reasonable person could regard the path as excluded.

Objective tests are clearly de rigueur for this statutory scheme, and as regards this exclusion, previous cases have assessed matters objectively while teasing what they can from the characteristics of a dwelling, in line with s 7(5) of the Act. While Manson saw some idiosyncratic issues at play, not least the autism of one of the pursuers’ sons and related sensitivities, this did not inform the operation of the exclusion.

Purpose of the owners

As the land was not excluded, the erection of the barrier fell to be assessed in line with s 14, which follows on from a landowner’s s 3 duties to manage land responsibly. Again, there is detailed analysis of this point and much discussion regarding antisocial behaviour, raising another analogy with Forbes, where Sheriff Holligan allowed the overnight closure of a path. In Manson, the sheriff held that the main purpose of the barrier was indeed to prevent access, highlighting that the pursuers had been either ignorant of, or took a dim view of, the right of responsible access (para 175). Low-level irresponsible access such as littering and dog fouling could not be a reason for stopping all access. This was so even considering the pursuers’ potential garden expansion and their son apparently struggling to sleep due to nocturnal noises.

Human rights of the owners?

Where Manson becomes more of a trailblazing case is in relation to human rights, owing to a challenge based on article 8 of and article 1 of the First Protocol (A1P1) to the European Convention. Part 1 of the 2003 Act has faced earlier human rights tests, notably in Gloag (also about s 6(1)(b)(iv), but with less focus on the issuing of a s 14 notice), and more recently in Anstalt (requirement to manage land in a way that respects access is not a breach of A1P1; a separate challenge based on article 6 (fair hearing, also considered in Forbes) also failed).

Manson concerned the access authority’s approach to its role, which as a public authority is subject to human rights constraints (as is application of the Act itself). The sheriff agreed with Gloag, to the effect that the Act’s “careful wording” set out “a balanced framework of rights, duties and obligations on all parties involved in the exercise of access rights [that] is itself designed to be Convention-compliant” (para 214). While the pursuers could have “victim status”, she did not agree that the authority had engaged in a purely “tick-box” exercise with no real engagement with human rights. Accordingly, the s 14 notice stands, and the barrier in its present form cannot.

Essential balance

Judgment was only handed down on 6 September, so there may be further twists and turns to come for this path. For the moment, the judgment is a useful reminder and application of how the legislation works, and also reminds access authorities to follow the Act in a way that remains cognisant of the rights of individuals affected.

In January, an event was held at the Scottish Parliament to “celebrate the 15th anniversary of the passing of the nation’s world-class access legislation”. This event, organised by Ramblers Scotland, was suitably positive about the access regime. According to its website, Ramblers Scotland is also positive about the “excellent result” in Manson. The Scottish Rights of Way & Access Society (generally known as ScotWays) also welcomed the result.

What should we make of this? While access rights can be applauded and individual victories for access takers might be celebrated, a balance must be struck. More extreme reactions from landowners, such as reported in these cases, may not be the norm, but landowners and managers are also part of society and must have their interests properly considered if Scotland’s “world-class” access regime is to have as much buy-in as possible. The newly entrenched objective test for land management should help, as should Manson’s clear analysis and application of it in a sensitive situation.

Malcolm Combe, lecturer in law, University of Aberdeen
Malcolm Combe is the author of The ScotWays Guide to the Law of Access to Land in Scotland, to be published by John Donald (an imprint of Birlinn) later this year.

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