ACCESS RIGHTS : LESSONS FROM THE CASE

LAW

Robert Sutherland, Advocate

Terra Firma Chambers

ACCESS RIGHTS

Part 1, Land Reform (Scotland) Act 2009• came into force on 9 February 2005• Section 1 - everyone has ‘access rights’• Section 14(1) – prohibition on preventing or

deterring access• Section 6(1)(b)(iv) – privacy exception• Section 5(2) – extent of duty of care not affected

by 2003 Act

ACCESS RIGHTS

1 Access rights

(1) Everyone has the statutory rights established by this Part of this Act.

(2) Those rights (in this Part of this Act called “access rights”) are—

(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and

(b) the right to cross land.

(3) The right set out in subsection (2)(a) above may be exercised only—

(a) for recreational purposes;

(b) for the purposes of carrying on a relevant educational activity; or

(c) for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

ACCESS RIGHTS

2 Access rights to be exercised responsibly

(1)A person has access rights only if they are exercised responsibly.

ACCESS RIGHTS

6 Land over which access rights not exercisable

(1) The land in respect of which access rights are not exercisable is land—

(a) to the extent that there is on it—

(i) a building or other structure or works, plant or fixed machinery;

(ii) a caravan, tent or other place affording a person privacy or shelter;

(b) which—

(iv) comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

ACCESS RIGHTS

14 Prohibition signs, obstructions, dangerous impediments etc.

(1) 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 any 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.

ACCESS RIGHTS

Tuley v The Highland Council, 2007 SLT (Sh Ct) 97•Is what is proposed a responsible exercise of access rights?•Is purpose or main purpose to prevent or deter exercise of access rights?•If any possibility of a responsible exercise of access rights, then actions would breach Section 14•No clear evidence of how much use by horses required to cause anticipated harm to path•Landowners had acted prematurely

ACCESS RIGHTS

Tuley v The Highland Council, 2009 SLT 616•There was evidence of some damage having been done•Evidence that there was a probability of damage from horses using the track•Pursuers acting responsibly•Different types of recreational users – barriers allowed different areas to be allocated to different uses

ACCESS RIGHTS

Forbes v Fife Council, 2009 SLT (Sh Ct) 71• Path behind Pursuers garden• Main purpose of Pursuers to prevent antisocial

behaviour by users of path• Not correct that responsible exercise of access

rights could only be prevented ‘in the most obvious and extreme situation’

• Gates could be locked between 8pm and 8am

ACCESS RIGHTS

Aviemore Highland Resort Limited v Cairngorms National Park Authority,

Sheriff Macfadyen, 15 January 2009•Shortcut blocked prior to 2003 Act being brought into force•Not matter as there were access rights over land, and these were being blocked now

ACCESS RIGHTS

Aviemore Highland Resort Limited v Cairngorms National Park Authority, 2009 SLT (Sh Ct) 97•No access rights in existence when fence erected and hedge planted•Erection of fence a completed act•Section 14(1)(b) not directed towards maintenance of signs etc and did not apply to acts done before 2003 Act came into force

ACCESS RIGHTS

Gloag v Perth and Kinross Council, 2007 SCLR 530•Section 6(1)(b)(iv) required consideration of the general type of person living in the property, not the actual person living there•The security needs of that general person were a relevant consideration•An earlier fence line acted as a pointer to what was reasonably required for the enjoyment of the house•Expectation of a reasonably substantial area of ground for enjoyment of that property

ACCESS RIGHTS

Snowie v Stirling Council, 2008 SLT (Sh Ct) 61•Ready access to estate by a number of different means•Dairy farm meant movement of people and livestock to and from pasture around the house•No evidence that security compromised – note highly critical comments of security ‘expert’•Ground was excluded from exercise of access rights; Ross – application refused

ACCESS RIGHTS

Forbes v Fife Council, 2009 SLT (Sh Ct) 71• House in a suburban setting• Path created when houses built• Garden separated from path by six foot high

fence• Garden ground gave house a reasonable

measure of privacy

ACCESS RIGHTS

McKaskie v Cameron, Preston County Court, 1 July 2009

• Woman with pet dog crossing field containing 40 cows and their calves

• Attacked by cows and seriously injured – brain injuries, confined to a wheelchair

• Farmer at fault – Occupiers Liability Act 1957• Farmer at fault – Animals Act 1971• Case being appealed

ACCESS RIGHTS

• Not all recreational uses have to be accommodated on exactly the same land. Where potentially competing recreational uses a responsible land user can take action to manage the land to prefer one type of use over the other (Tuley).

• Where a reasonable basis for believing one type of use would cause damage, no requirement to wait for the damage to happen before taking preventative measures (Tuley).

ACCESS RIGHTS

• May be more than one motivation behind restricting access. Require to consider motives of all the different owners. Where challenging a notice served by a local authority care might also be required in the selection of a pursuer to bring proceedings under Section 14(4) (Forbes).

• Landowner entitled to take measures to prevent irresponsible exercise of access rights, provided not more than reasonable and allows responsible exercise (Tuley and Forbes).

ACCESS RIGHTS

• Section 14(2) notice requires to be directed to something done (or not done) since the Act came into force (Aviemore Highland Resort Limited).

• The more rural, remote and larger the property, the more privacy you will enjoy (Gloag and Snowie). Suburban properties unlikely to find that they are entitled to anything more than their own gardens (Ross and Forbes).

ACCESS RIGHTS

• Still some problematic areas - including whether the Gloag case really is the last word on Section 6(1)(b)(iv), and the impact of statutory access rights on an occupiers duty of care.

ACCESS RIGHTS : LESSONS FROM THE CASE

LAW

Robert Sutherland, Advocate

Terra Firma Chambers