Wild camping in Edinburgh: some thoughts on the #indycamp

In the days before I had my own blog, I contributed an article about wild camping in a city centre to a Scots legal website called The Firm Online. The Firm is decidedly not online at the moment (its old url takes you elsewhere), so I can’t find the post anywhere. My post related to the appearance of a camp in Glasgow’s George Square to coincide with the Occupy movement. The camp eventually moved to Kelvingrove (but not before very disturbing reports of a rape appeared in the press, the most recent news story I can find on the matter being here). There was also something of an off-shoot in Blythswood Square (more on that below).

As hinted in the BBC story about the camp flitting, there was some enforcement action prior to the flit. Some counter-arguments might have been raised to furnish the campers with a stateable case to remain, at least for a time. In Scots law the bare fact of possession of land gives the right not to be dispossessed without proper [court] process in most circumstances, but an owner of (say) a building would normally be able to get a squatter out pretty quickly in the local Sheriff Court. Where political demonstrations are concerned, there might have been a line that Articles 10 (Freedom of Expression) or 11 (Freedom of Assembly and Association) of the ECHR were engaged, subject of course to criminal law controls relating to public order or terrorism. I will say no more about public assembly and the regulation thereof here. Another potential argument based on statutory rights of access under the Land Reform (Scotland) Act 2003 could perhaps have been made. That statute allows everyone to be on land without the prior consent of a landowner, subject to certain exceptions based on the characteristics of the land in question or the conduct of the person taking access. No-one particularly ran with this at the time, except maybe me.

Why am I speaking about this now? Whilst Occupy Glasgow has gone, there is now a camp in Edinburgh. The “indycamp” has been set up in the shadow of Arthur’s Seat. It will apparently remain “until Scotland wins independence” (£). The Scottish Parliament is taking legal advice about this. Here, I offer some general legal analysis, in the form of pro bono blog, subject to two disclaimers. First, I am doing all of this from a desktop level, so if you have more information on the specific matter at hand do comment below. Second, please don’t take this as specific legal advice. It’s just another verbose guy shouting at the internet about an area of law that I find really interesting.

The Law

Part 1 of the Land Reform (Scotland) Act 2003 begins with the lofty statement that “Everyone has the statutory rights established by this Part of this Act”. It then details what the right of responsible access entails, namely the right to be on land for recreational purposes, relevant educational activities and to carry out an activity that can be undertaken “otherwise than commercially or for profit”. There is also a standalone right to cross land. Some of these activities might be relevant to the indycamp, others less so (the right to cross land being a particular irrelevance to those who are staying put).

Section 2 operates as a check on section 1, providing that access rights must be exercised responsibly. Guidance as to what is responsible is found in section 9, which lists seven conduct-based exceptions. Section 6(1) excludes some land from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are simply incompatible with certain features on or of excluded land (such as a building, a reasonably sized garden next to a dwelling or where crops are growing).

What relevance might this have to the hitherto unknown pursuit of camping at Holyrood? As to how access rights might be exercised responsibly, wild camping (i.e. camping without landowner consent) is not excluded under s 9. Although not legally binding, the Scottish Outdoor Access Code certainly envisages wild camping as a legitimate recreational activity. There is similarly no problem with activities involving a number of people, provided that group is not collectively irresponsible or pays little heed to legitimate land management activities. The benign recreation of [urban] campers is therefore not struck at by s 9 unless another excluded course of conduct is operative (perhaps being on land in breach of an interdict or hunting (urban) foxes). This is all subject to the massive caveat that an activity will not be responsible if it interferes with other people’s rights, including rights they might have as (potential) access takers under the same statute. Everyone is allowed to enjoy land, remember. Stopping someone else using land indefinitely could accordingly be problematic. Plus, leaving a tent on the same spot for ages could leave an outline of etiolated grass on the ground, so a landowner might legitimately ask a camper to not camp in such a manner.

The question readers might be more concerned about relates to where access rights can be exercised. They are not restricted to rural or remote areas of Scotland. The wide scope of access rights was confirmed (if it was ever in doubt) in the case of Forbes v. Fife Council ((2009) S.L.T. 71), a dispute about a thoroughfare in Glenrothes. Unless the land in the shadow of the Scottish Parliament falls within a relevant section 6(1) exclusion, access rights are exercisable on it.

The Law in Action

Blythswood Square in Glasgow gives a great example of excluded land in action. The “frontagers” (that is to say, the owners of the buildings facing a square) often own gardens like this. This would be excluded in terms of section 6(1)(c). So camping here would not necessarily be allowed in terms of the access legislation.

Occupy

Oh.

Any right to camp on this area would not be in any way tied to the legislation, so the proprietors could seek to recover possession by the usual Scots law channels, or just wait until the campers got bored. Either way, this is what the situation was like the last time I passed.

Occupy lockdown

If you can’t play nice, you can’t play at all, seems to be the approach here. Blythswood Square is excluded land in terms of the statute and the proprietors have taken steps to keep people excluded. Quiet tolerance of non-owners taking access to this area has ended.

The Law in Action at the #indycamp

Returning to Holyrood, the applicability of the section 6(1) exclusions are not immediately apparent to the indycamp. The building itself is a structure (s 6(1)(a)(i)), but its awkwardness as a pitch renders that exclusion irrelevant. The curtilage of a building is also excluded (s.6(1)(b)(i)). “Curtilage” is not defined in the statute. It essentially gives a bit more room around a building than the actual external walls, but it cannot be taken to stretch a great distance. What of section 6(1)(j)? That relates to land “which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.”

Section 11 can be dealt with quickly. Temporary exclusions of up to six days for a particular purpose can be authorised by the local authority, in this case Edinburgh City Council. That particular purpose might be for a music festival, Hogmanay celebrations, or even Remembrance Sunday. (The latter played a role in Glasgow City Council’s desire to recover George Square in time for commemorations to take place in 2011.) No access rights exist for the specified time of suspension. Any longer than six days requires Ministerial involvement.

Section 12 deals with byelaws that can regulate access. Such byelaws exist for Holyrood Park. Although not available on the http://www.legislation.gov.uk website, I understand the Holyrood Park Regulations 1971 (SI 1971/593, as amended) are displayed at the entrances to the Park. Camping is covered, hence why the indycamp moved from the Park itself to nearer the Scottish Parliament building (as detailed in the Herald article (£)).

Assuming there are no such byelaws covering the land where the camp is now, the Scottish Parliament then finds itself in the position of any other landowner. Case law suggests a landowner can engage in a certain amount of sensible management or zoning of activities, as seen in Tuley v Highland Council 2009 SLT 616, but it does not seem any such management has taken place yet. I certainly did not see anything like this on my last visit to Holyrood, exactly a year ago.

What now?

Can the intrepid indycampers fastidiously observe the law of the land and take heed of the Access Code, thus rendering it difficult to argue irresponsible access is being taken? Subject to some very important caveats, they might just be able to. Some caveats are listed above. Another key consideration is the ease in which a section 11 order could be made for a short time, possibly allowing eviction to take place in the window occasioned by the order, but that would have to be balanced with the local authority’s role as an access champion in terms of section 13 of the Land Reform (Scotland) Act 2003.

From a property law perspective, all of this makes for a fascinating dynamic. Sure, a landowner still has a huge say in what happens on land, but other people also have entitlements. Had the indycamp chosen a site that was clearly excluded (like Blythswood Square) the landowner would have a much stronger hand, but the Land Reform (Scotland) Act 2003 makes recovery of possession in non-excluded areas a more delicate exercise and the campers might just be able to lob a few legal arguments around to allow them to continue to camp near the Scottish Parliament.

Mind you, they haven’t chosen a good time of year for it. For their sake, I hope we are not in for a cold and long December.

Further basedrones blogs on access to land are available here and here.

UPDATE: 10 December

It seems steps towards enforcement are being made, as per this Scottish Parliament Letter. That was dated 8 December. The camp was still there on 9 December, when I took these photos.

I understand the camp is still there tonight.

When I took the photos, I was actually struck by how congruous the camp was when looking out from the Parliament: note (if you can) that there are some green tents nicely camouflaged under the copse of trees in the middle of the first photo. Another quick point to note is the 4×4 cannot be there under the Land Reform (Scotland) Act 2003, which has an exclusion for most motorised vehicles.

Advertisements

About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
This entry was posted in Land Reform and tagged , , , , . Bookmark the permalink.

7 Responses to Wild camping in Edinburgh: some thoughts on the #indycamp

  1. nick kempe says:

    Malcom, I concur with your analysis of the Land Reform Act and access rights in respect to this site BUT you have made no mention of the Criminal Justice and Public Order Act 1994 Section 61 iof which is in force in Scotland and reads as follows:

    “61 Power to remove trespassers on land.

    (1)If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and—

    (a)that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or

    (b)that those persons have between them six or more vehicles on the land,

    he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.

    Section 61 (4) specifically relates this to Scotland and states that if any of 61 (1) applies, those people lose their access rights.

    So, what this means is that IF the campers, who certainly share a common purpose in staying on this land for a period because of their statements that they intend to stay till Scotland is independent, damaged the land or used threatening or abusive behaviour or brought more than 6 vehicles to the site they could be evicted by a police officer without the need for the landowner to seek an interdict in court.

    The public need to be aware of this power which I believe was aimed at traveller encampments. Many of the problems associated with camping in the Loch Lomond and Trossachs National Park are linked to encampments (people turning up for the summer and leaving their caravans on a piece of land and letting rubbish etc accumulate) and this law could have been used to address these issues. The LLTNP however has chosen to recommend instead to Ministers that all camping be banned and has not told local communities about the powers that have long been available to address “problem” encampments.

    • basedrones says:

      Thanks very much for the detailed comment. In my defence, I did say “subject of course to criminal law controls relating to public order or terrorism.” Whilst I didn’t name the legislation directly, I did try to cover it off! The criminal law in general will always be relevant and will trump the right of responsible access.

  2. nick kempe says:

    Malcom, I wasn’t attacking you so no need to defend yourself! I was just trying to highlight that camping is still explicitly covered by the criminal law still (despite repeal of Trespass Scotland Act 1865) by the Land Reform Act..

    There is of course a huge body of criminal law, which I took it you were referring to, that might lead to the person camping being removed for their behaviour. This law is very important too, eg in relation to issues around Loch Lomond, where the issue is not the camping as such but the behaviour of people camping. So, if people who happen to be camping chop down trees, dump litter, disturb local residents (Breach of Peace) or anything else that is a criminal offence, they can be charged and indeed a condition of bail might be that they do not return to that place which would de facto end the camping. The point about Criminal Justice Act, Clause 61 is it is explicitly addressed at encampments.

    Great coverage in the Herald today and agree totally with what you say about Human Rights etc being other arguments for the camp outside parliament. What a lot of people do not appreciate is that freedom of movement and freedom of expression depend on access to public spaces and while de facto access took place for generations, it has been increasingly under threat. The Land Reform Act and access rights are therefore a really important means of trying to protect these rights and should be seen as having a role in the city as well as the countryside.

    Councils and some other bodies can regulate heavily used land with byelaws and management rules (not just under the Land Reform Act, the National Parks are trying to do this under the Land reform Act). Various Councils, such as Glasgow, have tried to reduce these rights – eg Glasgow a couple of years ago proposed new management rules for parks which were totally counter to the Scottish Outdoor Access Code and partially as a result of this dropped them after considereable protests. The SOAC therefore provides a useful benchmark for access in the city. In my view there needs to be really good reasons for byelaws that restrict access rights and it is beholden on the Scottish parliament to think very carefully before doing anything to try and evict the current camp as long as this is run responsibly.

  3. Debrastorr says:

    It is interesting to compare the tolerance and indeed affection given to the Vigil outside the Royal High with this situation. Without the land reform Act, there were fewer rights …

    Ultimately applying law depends on consent and so long as the camp is small enough not to impinge on others, I’d hope TPTB will think again about eviction.

  4. Pingback: This Is Our Country. Let’s Walk It. | basedrones

  5. Pingback: Access to land and access to justice: the #indycamp at the Court of Session (and still at Holyrood, for now) | basedrones

  6. Pingback: Access to land, freedom of expression, and freedom of assembly: the endgame for the #indycamp | basedrones

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s