Head 24: Public Rights over Water and Land Flashcards
Land Reform (Scotland) Act 2003 Part 1
In the early 2000’s the law surrounding trespass was subject to new legislation to facilitate the ability of the Scottish public to take access through the countryside.
section 1
Provides general public right of access
This includes the right to be on land (s 1(2)(a)) for:
- for recreation [Not defined 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 18??] (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[ The effect of this is that you can charge people money for taking them on a tour of someone else’s land - quite controversial.] (s 1(3)(c)) but excluding the conduct mentioned in s 9 (right to roam may not be exercised by car or motorbike).
There is also a right under s 1(2)(b) to cross land.
NB: The legislation makes it clear that the rights under it are distinct from and do not affect other access rights, for example a servitude or pubic right of way.
What is the difference between crossing land and being on land?
NB that there is a difference between the general right to cross land (s 1(2)(b)) and ‘being on the land’ (s 1(3) for one of the purposes above).[ Possible look this up or watch around 30 mins from 18 March lecture.] One implication is that you can cross a golf course.
What are the excluded activities under the Act?
Excluded activities (s 9)
⁃ Under s 9, there is a list of conduct which is excluded from access rights:
⁃ 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.]
Exercisable over all land, including foreshore and non-tidal waters[ They are also exercisable below land (s 1(6)) - this means you can go caving.], other than the land mentioned in s 6
Section 6 exceptions
⁃ Common gardens (e.g. Queen Street gardens) (s 6(1)(c))
⁃ Land to which public access is restricted, excluded or prohibited by any other enactment (e.g. MOD’s land or airports)
⁃ Sports or playing fields (s 6(1)(e))
⁃ 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))
⁃ Land on which building works etc are taking place (s 6(1)(g))
⁃ Land which is used for the working of minerals (s 6(1)(h))
⁃ 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]
⁃ There are a number of other examples of excluded land in s 6(1) - be sure to know these.***
s 6(1)(b)
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)
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 by reason of the need to keep her privacy. 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.
- LR(S)A s 6(1)(b) was criticised in this case because it does not make the use of the land the test, so large landowners could turn their whole estate into a lawn.
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.
Law Commission and Scottish Law Commission, Report on Level Crossings (Law Com No 339, Scot Law Com No 234, 2013)
Recommends that railways are also expressly excluded.
⁃ They are probably exempt anyway because it would be a criminal offence under s 6(1)(d).
When can ministers and local authorities withdraw land?
Scottish Ministers and local authorities can withdraw (i.e. Exempt) land under certain circumstances (ss 8 and 11). There are detailed rules on how an authority can make an exception order under s 11. In particular, the order must be confirmed by the Scottish Ministers if it is to last for six or more days. Ministers also have the power to exempt land (s 8).
What governs the right to take access?
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 (which is prepared by Scottish Natural Heritage: see s 10). See http://www.outdooraccess-scotland.com/.
What are the rules on responsible conduct and duty of care?
Ownership of land also to be conducted responsibly (s 3) (i.e. by respecting access rights).
There are more provisions set out in s 14: Landowners are prohibited from taking action which has ‘the main purpose of preventing or deterring the exercise of access rights’ (s 14(1)), for example there can be no offputting sign or obstructions put up (e.g. “Trespassers will be shot”). The exercise of these rights is presumed to be responsible if it does not ‘cause unreasonable interference’ to the rights of others (s2(2)).
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 duties of local authorities 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).
What is a public right of way?
A public right of way is the right for any member of the public to use a road or pass or a route for passage.
⁃ This is similar to a servitude of ‘way’ but 1) there is no benefited property (only burdened) and 2) the public can exercise the right rather than the owner of a benefited property 3) anyone can exercise a public right of way.
NB it has the purpose of allowing access from A to B but it cannot permit general wandering. Lord Sands: “The right of way claimed must be by a definite path”. (Rhins District Committee of Wigtownshire County Council v Cunningham 1917)
Are public rights of way real rights?
It is a real right in the sense that it runs with the land - its certainly not a contractual right. Some take the view that real rights are private law rights and since these are public law rights they cannot be real rights.
Who owns roads?
⁃ Roads are often owned by people who own the land on each side of the road.
⁃ Roads can be ‘taken over’ by local authorities for maintenance purposes (so notwithstanding the fact that the road is in private ownership, the local authority will pay for its maintenance).
What happens when roads are ‘taken over’?
For roads which have been taken over, there will be a public right of way over it (even though it may technically be in private ownership)
How are public rights of way created?
1) The most common way to create a public right of way is under s 3(3) of the Prescription and Limitation Act 1973 by prescription in a very similar way to creating a servitude of access by prescription. It requires possession by members of the public for a period of 20 years. No foundation writ or other former of registration is required.
The possession must be
(1) along an entire length of the route
(2) must be continuous and uninterrupted
(3) use must be substantial
(4) possession must be ‘adverse’ and not by tolerance. Creation by deed is rare.
There are a number of requirements:
⁃ 1) Must be a fixed route
⁃ 2) Between two public places[ So there can’t be a public right of way between a private house and a public road because the private house is not a public place, or a market, curious natural object, Airport, etc. but there can be between a public road, beach, town and harbour — public require access to it at all times.]
Rhins District Committee v Cuninghame 1917
3) Must be used by members of the public for 20 (formerly 40) years. Possession must be (1) for whole length of the way (2) uninterrupted and (3) adverse[ I.e. as if you have the right to do it and not by the tolerance of the owner - the more use of the route you can point to, the greater the presumption the use is adverse, not by tolerance. See Marquis of Bute.] (ie not by tolerance). Amount of use required depends on location, eg whether populous, remote etc.
Marquis of Bute v McKirdy & McMillan 1937
Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992
4) Must be access only
Rhins District Committee v Cuninghame 1917
There was a public right of way established along a river which came off the road, looped down along the river and came back onto the road again. [Simply an example of 2 public places (here, different parts of the same road).
Marquis of Bute v McKirdy & McMillan 1937
This case involved whether there was a right of way between the road and the foreshore. It was held that the right had been established on the facts. The Lord President held that: “If a proprietor lies by while regular and unrestricted public use is made of a private road between two public termini for the prescriptive period, the law will assume a public right rather than an easy-going proprietor.”
