This blog has hosted a fair few posts on the right of responsible access, aka the right to roam, that has applied in Scotland since Part 1 of the Land Reform (Scotland) Act 2003 came into force. I won’t revisit how the regime works in this new post in great detail. In summary though, it allows people to access the Scottish outdoors without prior permission or authority in many circumstances, subject to some exceptions based on either the land in question or the means by which access it taken.
A point to remember is that this statutory right of responsible access did not supersede and replace any pre-existing public access to land regime. This allows for the continued existence of, and co-existence with, common law rights relating to coastal access (at the foreshore), the use of navigable rivers, and passage along public rights of way.
It is the co-existence and indeed interrelationship of the right of responsible access with the creation of public rights of way that is the focal point of this blog post. With that in mind, a bit of background about the legal status of public rights of way, and how they come into being, is necessary before launching into that.
Public rights of way operate to link public places by a more or less defined route. Of course, they don’t just spring into existence overnight when someone decides on a new, handy route. In contemporary Scots law, it takes twenty years’ use of a suitable route by members of the public without challenge by the landowner to create a public right of way: a process known as positive prescription that is regulated by the Prescription and Limitation (Scotland) Act 1973.
Naturally, a landowner cannot [successfully] challenge legitimate access under the 2003 Act. It would accordingly be strange, perhaps even counter-intuitive, to allow positive prescription to operate for new rights of way over someone’s land when the right to roam has been deployed by a stravaiging stranger.
The 2003 Act reacted to this through its section 5(5). That provides the following.
The exercise of access rights does not of itself amount to the exercise or possession of any right for the purpose of any enactment or rule of law relating to the circumstances in which a right of way or servitude or right of public navigation may be constituted.
This all seems sensible, but is there a sting in the tail?
How do you make new public rights of way?
Okay, sure, the right to roam might provide access to a place in many circumstances, so you might not need a public right of way, right? Well, yes, but then again the right of responsible access over any particular parcel of land won’t survive that land somehow becoming excluded under section 6 of the 2003 Act, plus the right of responsible access can be suspended by a local authority (or, where relevant, national park authority) in some circumstances. The right to roam is also subject to the “responsible access” framework of the 2003 Act, whereas a public right of way simply allows someone to take passage (subject of course to complying with the wider criminal law and not, for example, interfering with other access takers, plus a requirement to take passage with the minimum disruption that is practically possible). Public rights of way accordingly still matter. Denying the chance for new rights of way to blossom also matters accordingly.
For a little while I’ve been wondering when section 5(5) might rear its head. It didn’t feature in a recent right of way case involving fisherfolk at Cove Harbour (see this earlier blog post, relating to an article in the Juridical Review by Douglas Cusine and me), for example.
We don’t exactly have a new court case on this provision now, but we do have a precedent of sorts. This relates to an access dispute at Ferry Road, Monifieth, not too far from Dundee.
This dispute first appeared on my radar when it was reported in the local newspaper The Courier. I don’t know Monifieth particularly well; I camped there once, in a previous (much fitter) life as a stopover on a cycle from Aberdeen to Edinburgh, but otherwise I can offer no insights or anecdotes about the place. More importantly, I can offer no view at all on the merits of this particular flashpoint, save that a quick check on Google Maps and Street View shows that the flashpoint is quite near a burn and seems to be a shortcut to an area of open greenery. That is to say, it does appear from that cursory online check to be a tantalisingly attractive path, so I can understand why this might have come to a head.
I really don’t want to get into the rights and wrongs of this situation. I narrated the above for context, nothing more. Suffice it to say though, an access dispute relating to this site landed on the desk of someone at the relevant local authority. Local authorities (and national park authorities) have a statutory role to champion access rights and, if necessary, take enforcement action to allow access rights to continue to be exercised. Steps might need to be taken when land that is not excluded from access under section 6 is nevertheless blocked off, or perfectly responsible access is characterised as not responsible for spurious reasons. Section 14(2) of the 2003 Act allows for enforcement action to be taken when someone has acted or indeed omitted to act in a way that is primarily designed to block legitimate access.
With due acknowledgement of the commendable publicity of all of this, anyone wishing to read more about this can go online. Paperwork pertaining to the issue can be found on Angus Council’s website, with the papers from the Land Reform Sub-committee of 15 February 2022 being particularly relevant.
This is where it gets interesting for my purposes.
There is a Report available on Angus’s website. A passage from this Report of the Vibrant Communities and Sustainable Growth (great name) provides as follows (starting at paragraph 10.2).
An initial assessment of the evidence suggests that a public right of way was unlikely to have existed prior to 1990. The evidence suggests that the volume and nature of public use since 1990 was likely to be consistent with the criteria necessary for establishment of a public right of way. However, exercise of access rights under the Land Reform (Scotland) Act 2003, which came into effect in 2005, do not in themselves count as possession for the purpose of establishing a public right of way. The availability of access rights may therefore have interrupted the necessary prescriptive period and prevented establishment of a public right of way
As access rights are considered to exist, it is not appropriate to investigate the possible public right of way further at this time.
Sensibly they parked the issue of whether there is indeed a public right of way here. As to the legal principle though, I think that is a fair interpretation of section 5(5). And if it is correct, it means a nascent public right of way that began its prescriptive journey in 1986 will never grow into a legally enforceable right of passage, with all the consequences narrated above.* [Edit – see note below.]
This is not an original point by me, I hasten to add. I know Professor Roddy Paisley made this point in a ScotWays guide published in 2006. No doubt others have made the point too. It’s just interesting to see it writ large in this instance.
Does this mean new public rights of way cannot now be created at all? Not quite. It’s only access that flows from the 2003 Act that is not counted in the prescriptive process. Repeated motorised access cannot be attributable to the 2003 Act (owing to this being excepted from access rights under section 9 in most circumstances), so twenty years of intermittent quad-biking might positively prescribe a public right of way. Alternatively, repeated access over excluded land (say cutting across a school site) might also allow for a new right of way. It’s fair to say these would be rare situations though.
A quick aside from a slightly different perspective. My view is using an existing public right of way – i.e. one that was fully established in 2005 – in a manner that seems to overlap with the right of responsible access does not mean that the existing public rights of way will negatively prescribe owing to non-use after twenty years. This is because section 5(5) specifically relates to the constitution of new public rights of way (and indeed servitudes, i.e. a right of use for a neighbour), rather than the extinction of rights by non-use.
So that’s the legal point. For those who have had their interest piqued about what happened next in this particular dispute, you can read about it in a later issue of The Courier (subscription needed), or you can view the relevant meeting on Angus Council’s YouTube channel.
By way of conclusion, okay, I will offer one quick view on what happened in this case. There was some argument about safety at this site, a recurring feature in access disputes (this is being argued over in relation to an access dispute in Ardnamurchan (as reported in The Guardian), and was a point of contention at times in the Drumlean litigation), and there was some discussion about antisocial behaviour. There is no doubt that these can be important factors that weigh against responsible access in some situations. Be that as it may, the council here took what I think was a pragmatic approach, ordering the removal of obstructions to access, but acknowledging that the owner could bring an action under section 28 of the 2003 Act to seek to establish that the land is not subject to access rights after all or that certain access takers are not responsible. I guess we now wait to see what happens next.
Before I go though, here is a final, final thought. I do wonder if there is a certain danger for a landowner arguing that responsible access is not possible for safety reasons, because that would mean such access could not be ascribed to the 2003 Act. As such, could a public right of way then be constituted by that apparently unsafe, not responsible access? That would, I imagine, be difficult to argue in terms of the quality of the prescriptive possession under the 1973 Act, but it might be a prickly wee esto submission.
*Update 4 March – After publication, I was contacted on Twitter by someone who pondered whether post-2005 instances of access chaining on to earlier non-statutory access might not be “in themselves” 2003 Act access, but rather to be considered alongside earlier use. This is an arguable point and one I thought worth capturing for posterity in the blog post. Also, I tweaked this paragraph slightly after publication, to note the Council’s interpretation was fair (mitigating down the earlier draft which might have been seen as complete support for that interpretation).