The ScotWays Guide to the Law of Access to Land in Scotland

As has been adverted to on this here blog already, I have been busy of late putting the finishing touches to a book on public access to land. That book is now out, under the snappy title The ScotWays Guide to the Law of Access to Land in Scotland. You can read about it on the Birlinn website here.

To explain the back story to this text, land law generally has been a research interest of mine for a while, and within that wider sphere public access to land has been a particular interest. In a way, this is because of a quirk of legislation. The Land Reform (Scotland) Act 2003 was the topic I chose for my undergraduate dissertation. In Part 1 of that legislation you will find the right of responsible access, aka the right to roam. The focus of my dissertation, however, was on something else entirely, namely the community rights to buy located in Parts 2 and 3 of that legislation. Part 1 was something I found equally interesting though, but I only had so many words for the dissertation. I stored up my interest for another day.

After that exercise was complete, I found myself drawn a bit more to Part 1 and access more generally, writing case comments here and there, presenting on the topic to interested parties, and providing other coverage in places like Gloag and Henderson and a collection of annotated statutes. Perhaps as a result of this ongoing study (and also a referral from Professor Kenneth Reid – thanks, Ken) I was approached last year by John Elliot on behalf of ScotWays (the Scottish Rights of Way and Access Society) to pen a new law guide for them.

ScotWays’ previous guide, written by my friend and colleague Professor Roddy Paisley, was published in 2006. That was an important resource but it has gradually become out of date as more case law and guidance has emerged relating to Scotland’s right of responsible access. The new book addresses those developments, and also, I hope, shines a new light on the more traditional rights of public access that exist in Scotland. It endeavours to do this in a style that will be useful to both the lay reader and the access professional, providing two levels of text which first addresses the basic groundwork then provides more detailed analysis. So far it has been positively received; admittedly I have only had feedback from contacts in ScotWays, interested colleagues, and friends, so I await less invested feedback with interest.

There are a few people I need to thank for their help in getting me to this stage. Roddy Paisley of course provided a springboard for some of the book, allowing me to build on a very solid foundation. The book has developed something of a life of its own though and a number of people bounced ideas off me as the book completed its journey, with credit due to the core ScotWays team of John Elliot, Eleisha Fahy, Richard Barron, Alison Riddell and George Menzies. (Richard also provided the bonnie photo on the cover.) Thanks also to Muriel Robertson, the Chair of ScotWays, for her foreword. Special mention must go to the indefatigable Judith Lewis, who kept me right with the indexing process and much more, and Mairi Sutherland from Birlinn. Credit also to Douglas Cusine, who read the draft text and offered useful comments on it. I don’t want to make this all awards speechy, but at this point please imagine me bursting into tears as I thank my mum and dad and then tug at your heartstrings as I thank all the people who helped me still be here to finish this task: as a small token of gratitude for the latter, I donated my fee for the book to Friends of ANCHOR. Lastly, cheers to everyone else who has put up with me of late: if you said I was working too hard, I probably was. Thanks for your patience.

Anyway, what next? I hope to continue working with ScotWays in the future, to provide online updates about important cases that happen from time to time. In the more immediate future, Blackwell’s book shop in Old Aberdeen is hosting a book launch event on Friday 30 November at 17:00. Further information about that event is available here. It would be great if you can make it along.

Blackwells

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Research on the effectiveness of community ownership mechanisms in Scotland

A news item was published on the Scottish Land Commission website today, headed “Community ownership should become routine option for communities across Scotland, says new report“. This story introduce a report (PDF) by the Commission to the Scottish Government, entitled Community Ownership and Community Right to Buy. The news story notes explains that this six-page report makes some recommendations to Scottish Ministers for the future of community rights of acquisition; “in particular, that community ownership should become a routine option for communities, so it is planned and proactive rather than reactive.

In turn, that short report builds on a longer commissioned piece of work, namely the Review of the effectiveness of current community ownership mechanisms and of options for supporting the expansion of community ownership in Scotland produced by a team led by Dr Rob Mc Morran from Scotland’s Rural College. I was lucky to be part of that team: I’m the name tagged on at the end of the full citation, to reflect the fact I was hanging on to various coattails when others did a load of work. It is available here (PDF).

I will let that Report I was involved in speak for itself. This post is just to flag the resource to people. I hope it is useful: it certainly seems the Commission has used it as a springboard for further development.

Commissioned Report title page

The report should be cited as: Mc Morran, R., Lawrence, A., Glass, J., Hollingdale, J., McKee, A., Campbell, D. and Combe, M. 2018. Review of the effectiveness of current community ownership mechanisms and of options for supporting the expansion of community ownership in Scotland. Scottish Land Commission, Commissioned Report

Since I’m here, I will remind you that this is the second bit of work for the Commission I have been involved in. That is digested here.

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Better access to the law: property briefing for the Journal of the Law Society of Scotland

A quick blog (sign)post.

I have a briefing note in the October 2018 edition of the Journal of the Law Society of Scotland, which is available here. This note couples brief analysis of the Drumlean access case (Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority [2018] CSIH 22, which I commented on here) with the more recent case involving the obstruction of a path at Penicuik (Manson v Midlothian Council [2018] SC EDIN 50, which I blogged about here).

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The Birds & the AirBnBs – some thoughts on pet birds, title conditions and short-term lets (a guest post by Andrew Todd)

This is a guest blog post by Andrew Todd, who can be found on Twitter: @AndyRTodd. It serves as a primer for a Case and Comment note he and Hannah Leslie recently contributed to the Juridical Review (the law journal of the Scottish universities).

A few years ago I worked with a property factor who told me about ‘The Greatest Letter In The World’.

I thought that was a bold claim but he showed me, and it was indeed The Greatest Letter In The World.

Here’s what happened.

A resident had phoned his factor to complain that a neighbour kept racing pigeons in his back garden. And, every time those birds returned home from a race, they would leave a ‘little message’ on the customer’s roof.

Can you tell him to get rid of them?” he asked the factor. “I hate those birds!

So, the factor wrote to the neighbour, he pointed out that birds were not allowed as pets under the title deeds and that he should remove them as they were causing a nuisance.

The neighbour wrote back.

The neighbour wrote The Greatest Letter In The World because all it said was:

The title deeds say I shouldn’t keep birds. I don’t keep birds! The title deeds don’t apply to me because they’re not birds, they’re ATHLETES!

That was him telt.

That’s why it was The Greatest Letter In The World. It didn’t matter what the law was, or what the title deeds said, there’s nothing you can say to a man who doesn’t keep pigeons, but winged Usain Bolts.

I’d forgotten this story until earlier this year when I was offered the opportunity to write for Juridical Review and to respond to an article by Malcolm on potential property law responses to short-term lets.

As general counsel for a housebuilder I’m interested in how the law responds to changing consumer demands. And one of the big challenges for housebuilders is how to deal with customers who don’t want to live in communities that become hotel rooms at weekends. At the same we also need to recognise that many customers want the opportunity to buy investment properties. Could we/should we do anything to respond to the rise of short-term lets? Do we do nothing because some customers want to buy properties to let out? Or should we do something because a sizeable number want to live in a community not a tourist location? And, even if we want to do something, was there anything we could actually do? As Malcolm had identified in an earlier article in Juridical Review, there are many challenges in trying to enforce a property law response, not least the difficulty of enforcing title conditions.

It was then a second quote came to mind. This time from Professors Gretton & Reid. They said in relation to a discussion about common areas: “Does it matter if a title is found not to include the common areas? In the real world – the world in which clients actually live – the answer may often be: not very much. After all, the common areas are still there… they can be used even if, strictly speaking, there is no right to do so.” (Kenneth G. C. Reid and George L. Gretton, Conveyancing 2013 (2014, Avizandum Publishing) p113.)

Or, in other words, does it matter what’s written in title deeds – in the real world, people will carry on regardless of what a title deed says or whether it is enforceable. And one aspect of that is that many residents will follow their title deeds regardless of whether they are enforceable. The average resident is unaware of enforceability or legal cases such as Barker v Lewis. If they see something in their title, if they receive a warning from a factor about the need to comply with something that is written in their title deeds, they’ll comply with the title conditions regardless of the legal standing of the warning.

And it was this idea which then led me to think – if some title conditions are unenforceable is there anything else we can use if we want to control short-term lets? And that made me consider the development management scheme and whether it could offer an alternative property law solution to controlling short-term lets. Because under the DMS a factor (appointed as manager in the scheme rules) does not require interest to enforce a DMS rule unlike with a title condition that must follow section 8 of the Title Conditions (Scotland) Act 2003.

(For those who want to know the law: section 8 states that “A real burden is enforceable by any person who has both title and interest to enforce it.” While section 72 of the Title Conditions (Scotland) Act 2003 confirms the relevant sections of the Act which apply to rules of the development management scheme. Section 7, 8 and 9 are not included within section 72 and do not apply to rules of the development management scheme.)

So, we had two ideas: one, the fact title conditions are an abstract concept for many people, and, two, the potential of the development management scheme to create rules which are enforceable. And while a development management scheme is not the answer for older developments as it would require to be registered against every property. It can provide a possible solution for new developments and for developers grappling with how to create title conditions that are enforceable and can deal with short-term lets – and perhaps even create title conditions that can help to control some athletic pigeons!

If you’d like to know more, including some examples of possible DMS rules, then you can read the article by Hannah Leslie and me in the latest issue of Juridical Review.

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Inelegantly wasted

On 21 September, the Scottish Environment Protection Agency and the Scottish Land Commission launched an “innovative partnership and taskforce” to try to get Scotland’s vacant and derelict land into more productive, and more socially and environmentally healthy, use.

Details of the joint initiative can be found here.

Channelling the Sex Pistols, this campaign is hashtagged #notsoprettyvacant. (I suppose INXS’s “Elegantly Wasted” would not have fitted the ethos.)

I was interviewed about this on BBC Radio Scotland’s Newsdrive programme on 21 September (available online until 21 October). I managed to restrain the urge to make any inappropriate references to punk music in that interview: who says punk is dead?

Anyway, I will let that interview, and the SEPA and ScotLandCom resources, speak for themselves, and watch how this all develops – quite literally – in the future.

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Dancin’ with Manson: what an owner can(not) do to regulate public access to land

The right of responsible access to land conferred by the Land Reform (Scotland) Act 2003 has emerged as one of the most important legal routes for public access to private land in Scotland. It is vaunted by many: in January this year, 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 reception, organised by Ramblers Scotland, was suitably positive about Scotland’s modern access regime, which is only to be expected given the group’s ethos and outlook. But it would also be fair to say that the modern access regime has not always had a warm reception in all quarters. In this regard, 2018 brought two further important cases about its application.

The first case I have written about already (for example, on the ScotWays website). That case was a dispute about land access at Drumlean near Loch Ard in the Trossachs, which involved a landowner attempting to deny access to a place that was not automatically excluded as a forum for responsible access by the legislation. (In terms of section 6 of the 2003 Act, some land can never be suitable for access, such as a school or land where crops are growing.) Where land is not excluded from the right to roam, the legislation does allow for some land management decisions that restrict access, but only where the purpose of those decisions is not purely or primarily about restricting access. Significantly, in the Drumlean case the Inner House of the Court of Session clarified that the standard by which landowners are to be judged when it comes to assessing their motivations is objective rather than a subjective. The second case – which is the subject of this blog post – provides an interpretation of the Drumlean case, and explains the proper role of access authorities (i.e. the local authority or, where relevant, the national park authority) in the enforcement process when access has been blocked. It also serves as a useful reminder of the extent of land around a dwelling that can be excluded from responsible access.

Manson v Midlothian Council

The case of Manson v Midlothian Council [2018] SC EDIN 50 related to a blockage of a path in Penicuik that was relatively proximate to a house in an area described in the case as suburban and semi-rural. As with many court cases about access rights, a section 14 notice from the relevant access authority was involved. The pursuers in this case – a married couple who lived in the house in question with their two sons – appealed against that notice, and also sought a declarator in terms of section 28 that their land was excluded from access rights. The exclusion that was argued for was section 6(1)(b)(iv), which excludes certain land around a dwelling to allow for a suitable degree of privacy and a certain amount of undisturbed enjoyment for those in that dwelling. This provision has prompted much litigation already, having been considered in cases such as Gloag v Perth and Kinross Council 2007 SCLR 530 and Creelman v Argyll and Bute Council 2009 SLT (Sh Ct) 165. Before Sheriff Fiona Lennox Reith, QC, the pursuers were unsuccessful in this argument, and the access authority’s notice was allowed to stand. The notice did however face a novel challenge on human rights grounds, which will need to be borne in mind by access authorities seeking to clear obstructions in the future.

The judgment weighs in at 125 pages. This makes blogging about the case an exercise in selectivity. Here goes.

Background

The Mansons’ house – a modest, single-storey, family home – was set in roughly 0.21 hectares. A well-defined path ran relatively near this building, and the extent of the land co-owned by the pursuers took in part of this path. This path tapered off from a road, along which access to the house was taken by the co-owners (and others) for domestic purposes. Whilst (as we shall see) privacy was thought to be a particular issue in this case, it was not particularly easy to see into the pursuers’ house from the path or the road. The path then continued to Penicuik Estate, and the proprietors of that area had a servitude of access over the pursuers’ land to allow access.

The pursuers took steps to restrict access across their land, installing a fence with a padlocked gate across the path in way that would still allow access to be taken by the holder of the servitude right (albeit with the need for the use of a key), whereas those without a key would find themselves faced with a barrier taller than most humans (eight feet high) painted with anti-climb paint and accompanied with an array of signs and a placebo CCTV camera. Prior to the pursuers’ modifications, there was a both kissing gate and a metal five-bar gate.

These steps had the effect of making a previously usable route somewhat more tricky to negotiate. Were the landowners entitled to take these steps?

Issue 1: was the land subject to access rights?

If the land had been excluded from access in terms of the 2003 Act then, at least for the purposes of that legislation, those steps would have been fine. The sheriff however held the land was not within the prescribed section 6(1)(b)(iv) exclusion. This exempts domestic ground next to a dwelling to allow sufficient adjacent land for persons residing there to have reasonable measures of privacy. Every case like this will turn on its own facts, but the situation here does seem somewhat reminiscent of the earlier Forbes v Fife Council case (2009 SLT (Sh Ct) 71). That related to a path near some houses in Glenrothes which was on the far side of a fence as compared to the dwellings. In this new case, the sheriff noted it was difficult to classify a path that was about 20 metres to the west of the house as “adjacent”. Further, it was difficult to see how a reasonable person could regard the path as being excluded. Whilst there were some idiosyncratic issues at play here, not least the autism of one of the pursuers’ sons and related sensitivities of that, this did not inform the operation of this particular exclusion.

Issue 2: in erecting the barrier, what was the purpose of the owners?

As the land was not excluded, the erection of the barrier then fell to be assessed in line with section 14. There is detailed analysis of this point in the case and also much discussion as to whether antisocial issue behaviour was an issue, raising another analogy with the earlier Forbes case, where Sheriff Holligan did allow for the overnight closure of a path. In Manson, however, the pursuers sought a “stark”, “all or nothing” approach: i.e. this was not about regulating access at particular times of day. The sheriff held that the purpose on main purpose of the barrier was indeed to prevent access, and as such fell foul of section 14. On the issue of the behaviour of access takers (with, for example, littering and dog fouling being raised as problems), low-level irresponsible access could not be a reason for stopping all access. All things considered, and even in light of the pursuers’ potential garden expansion and apparent issues with their son struggling to sleep as a result of hearing nocturnal access, the land was accessible. This meant the access authority was entitled to take action under section 14(2).

Issue 3: did the access authority consider the human rights of the owners?

Where Manson becomes more of a trailblazing case is in relation to a human rights issue. Part 1 of the 2003 Act has faced – and survived – earlier human rights tests, notably in Gloag v Perth and Kinross Council and more recently in the Drumlean case. This new case was not a broadside against the scheme of the 2003 Act though. Rather, it was to do with the access authority’s approach to its role under the legislation, which (as a public authority) is subject to human rights constraints. The pursuers claimed that the actions of the access authority in issuing the section 14 notice had been such that it had unduly interfered with their private and family life and their property rights (in terms of Article 8 of and Article 1 of the First Protocol to the European Convention on Human Rights), but the sheriff did not agree. She felt that the access authority had engaged in more than a purely “tick-box” exercise and as such had engaged with human rights concerns. Accordingly, the section 14 notice stands, with the practical implications for the site in question being that the blockage cannot be left to stand in its present form.

Conclusion

Judgment was only handed down on 6 September, so there may be further twists and turns to come for this path in Penicuik. For the moment though, the judgment serves as a useful reminder and application of how the legislation works, and also reminds access authorities to follow the legislation in a way that does not pitch them and access takers against the wider right of responsible access in a manner that is not cognisant of the rights of individuals affected.

Ramblers Scotland began 2018 celebrating the modern access regime, and they are also suitably positive about the “excellent result” in the Manson case . The Scottish Rights of Way and Access Society (generally known as ScotWays) also welcomed the result, Interestingly, the chairman of the Midlothian Access Forum and a member of ScotWays gave evidence in the case (which the sheriff recounted, noting it had been described as “the most aggressive occasion Dr Pope had ever encountered”).

What should we make of this? Whilst access rights can be applauded and individual victories for access takers might be celebrated, there is a balance that needs to be struck. More extreme reactions from landowners, such as those that might have been evident in recent cases, may not be the norm, but landowners and land 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 from all parties as possible. The newly entrenched objective test for land management should help with that objective, as should the Manson case’s clear analysis and application of it in a sensitive situation.

Anyway, now seems as good a time as any to publicise my involvement with a new text, The ScotWays Guide to the Law of Access to Land in Scotland, which will be published later this year. I was only able to give cursory coverage of the Manson case late in the proofing process, but fortunately the case did not go against anything I had said in the text. This blog post offers a bit more detail than I was able to provide in the book.

Penicuik barrier from Ramblers Scotland

Photo credit: Ramblers Scotland

Post scriptum: the title of this blog post? Yes, it is a Therapy? reference.

 

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A land reform explainer for a primary school project on the Highland Clearances

A friend recently got in touch to ask me if I would be willing to assist with her daughter’s primary 7 project. For readers outside Scotland, primary 7 is the last year of primary school before entering secondary education.

The topic for this project was “The Highland Clearances”. By way of disclaimer, I did not choose this topic, and I do not know why it was chosen. It is pretty interesting though, and – in my humble opinion – I am happy that primary school kids are looking at this kind of subject. I know I did not study this particular topic in depth when I was at primary school (furth of the Highlands and Islands). For information, the school that this project was written for was also outwith the Gàidhealtachd.

Another disclaimer: clearly, I am not a historian to trade. My role was to answer questions about the future. The questions I was asked were not chosen by me and I did not seek to change them. Those questions and my answers are set out below.

Before doing that, I will address the relatively well-known challenge for academics, which is to explain things for those outside their discipline in simple terms. I confess, I sometimes stuggle with this. How did I get on with this particular task then, trying to explain things for a youngster? Judge for yourself. I did find it difficult not to caveat or footnote everything I said, or elaborate to the nth degree, but I tried. The fact that I tried made me think it might be worth sharing this as a blog post as well, so here goes.

That’s enough background. The questions and my responses are below. The final words are those of the report writer.

And yes, I did ask my friend for permission before publishing this as a blog post!

And yes, I know in other circumstances it would be appropriate to say [citation needed] for some of the statements I make in this post, but forgive me – it was a primary 7 project! 🙂

Highland Clearances – have things changed?

I have interviewed a man called Malcolm Combe who works at the University of Aberdeen as a Senior Lecturer in Law and I have asked him some questions about his opinion about the Highland Clearances and how we can be sure this will never happen again.

1. Why do you have an interest in land law?

I enjoyed studying it when I was at university. The rules made sense to me and I found that I was quite good at it. I then continued to research it after I was a student and it has now become a specialist area. Also, I have quite an interest in history, particularly the history of Gaelic Scotland (my mother comes from the Isle of Lewis) and the “land question” has been an issue in the Highlands and Islands for many years. It has also been an issue in the rest of Scotland too though, and I recently discovered that Mary Barbour – who was involved in the Glasgow Rent Strike that took place around the time of the First World War in protest at greedy landlords raising the rents quickly – was born in the same village as I grew up (Kilbarchan).

2. Do you think it was fair the way people were made to leave their homes during the Highland Clearances?

Many owners of the land were quite – how can I put this – enthusiastic in trying to introduce what they though was the best and most profitable use of land. This often took little account of the people who had traditionally occupied the land. A traditional way of life was scattered to the winds, and people were forced to either emigrate, move to the cities or move to worse areas of land with scarcely any preparation for that. And the market for the sheep that replaced the people crashed a few years later, so in hindsight it seems like it was all quite short-sighted.

3. After the Highland Clearances were there any changes in the law to try and protect people?

Yes. The first big change was the Crofters Holdings (Scotland) Act 1886, which ensured that those people who were still on land were protected from drastic rent increases, were given money for any improvements to the land they had made, and were not evicted from (made to leave) land if they were behaving themselves and doing all they were supposed to. Around the time of the First World War there was some resettlement of land that had previously been cleared, and there have been some other changes as well (see below).

4. Could something like the Highland Clearances happen again today or are there laws to prevent it from happening?

Not in the same way, no. Tenants (so people who occupy land with the agreement of the owner) of agricultural land are protected from being forced to leave just because a landowner wants to do something else in many circumstances. And also there are increasing numbers of community owners, who are less likely to evict people in a way that the disconnected owners who evicted people in the Highland Clearances did.

5. Has anything been done to encourage people to move back to the Highlands?

In the 20th century there was the Highlands and Islands Development Board, who brought employment and electricity to the area by doing things like hydroelectric schemes. There were also grants available to help people to build houses in rural areas. Now, there are some rules to allow communities to obtain ownership of land.

6. I have read that by the 1990s 80% of Scotland’s land was owned by just 0.08% of the population with half of the land being owned by just 500 people. I don’t think that is very fair. Have the Scottish Government done anything to try and make this fairer and do you think they will do more in the future?

Laws were passed in 2003, 2015 and 2016 to encourage community ownership of land. The Scottish Government has committed to getting 1 million acres of Scotland (about 1/20th of Scotland’s land area) into community ownership in the next few years and they are just over halfway there. There are also rules to try to encourage people into rural farming opportunities and some land uses are being looked at closely with the potential for future regulation (for example, grouse moors and deer forests). There is also a new Scottish Land Commission that is studying land issues in Scotland and that are considering what other countries do with their land to see what Scotland can learn.

It was very interesting to hear what Malcolm had to say and that the government are taking steps to try and prevent something like this ever happening again and to make land ownership fairer.

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