You might have missed the press-release, but today I subtly changed my Twitter bio. If you are not so bio-curious (credit to the apparently retired @GarethAveyard for that one) to have caught it, my bio now declares that I am interested in access to a) land and b) justice.
I’ve blogged on access to justice a few times (more in a civil rather than criminal context). Access to land I have blogged about just once. In this context, I should perhaps clarify that I mean access to land in the sense of some kind of recreation or passage taken on, above or beneath land, as opposed to access to landownership or land use. That latter sense is something I have blogged on separately in relation to urban and rural land. Those two accesses to land might be related in a broad sense (i.e. who can set the agenda in relation to Scotland’s land). Indeed, I mashed them together in an article called “Access to Land and to Landownership” in an Edinburgh Law Review piece, following on from the style of the Land Reform (Scotland) Act 2003, but it is the more conventional right to roam, or rather right of responsible access, that I am concerned with here.
What triggered this blog? This story about fishermen v. rafters. One thing increased, or at least better publicised, rights of access will almost unavoidably lead to is competition between access takers. How should you deal with that? This is not quite the same as, for example, the Tuley dispute in the Black Isle. There, landowners set an agenda for certain zones of their land, which zoning was eventually approved at the Court of Session. What do you do when there is not a landowner setting an agenda? Apparently you make your own agenda. This all seems rather pragmatic and innovative, but it does rather beg the question of what might happen when such agreement is not forthcoming between access takers. Sure, everyone must be responsible in terms of the legislation and the guidance in the access code, but absent a court case how might you ascertain what is responsible? I suspect this will not be the last word in such disputes.
What else might be worth considering in terms of access? In the not particularly well known case of Tummel Valley Leisure Limited v Sudjic, a landowner was forced to take down some decking that interfered with the traditional rights of anglers to fish in a certain way from a riverbank. Let us consider that again. The landowner had to remove a structure on his land to defer to access takers (albeit those rights were outwith the terms of the Land Reform (Scotland) Act 2003). Might there be other disputes out there? Or have cosy agreements been reached to avoid any stand-offs? I would be very interested to know. This is a fascinating area of law, where private v. private, private v. public and public v. public rights all have the chance to collide, with European Convention of Human Rights issues to consider to boot. There is surely more to be written on the subject.
Some final quick points.
Access to land is not excluded from the remit of the Land Reform Review Group.
Yes, the title of this blog was a nod to The Waterboys’ song of the same name.
And for the avoidance of doubt, there was no press-release about my bio change.