Access rights: can a landowner charge for a walk in the park?

This blog is an initial reaction to a story in The Herald, The Scotsman and the BBC about the Duke of Buccleuch’s plans to regulate access to Dalkeith Country Park.

The BBC story says nothing about Scotland’s modern access laws, whereas The Herald offers some analysis and quotes representatives of Midlothian Council and Ramblers Scotland giving their take on the legal position. Also quoted is the Estate Manager, who offers no view on the law. The law also gets a mention in The Scotsman. Here is my tuppence worth.

The Land Reform (Scotland) Act 2003 liberalised access to Scotland’s outdoors by allowing for recreational, educational and in some cases commercial access to be taken over land without the owner of that land’s prior consent, subject to two important qualifications. First, the land must not be excluded from the scope of the law, owing perhaps to the characteristics of the land. Second, the access taken must be responsible, and some conduct can never be classed as responsible (such as being on land in a motorised vehicle). The second point is something I have written about before, but the issue at hand here is about the first point. It seems a charge is to be levied against walkers and joggers who are not otherwise acting irresponsibly, so everything will turn on whether an exclusion applies to Dalkeith Country Park.

Is the land excluded?

The key provision is section 6, listing a variety of situations where access rights are incompatible with the land in question. That land might have a building on it, or it might be a sports field that is in use, or it might be a garden. (How big a “garden” is allowed was a point of dispute in the case of Gloag v Perth and Kinross Council (see my Edinburgh Law Review note from 2008 (£, at 463)).

The operative subsection here is section 6(f). Essentially, it allows for historic charging to continue notwithstanding the passage of the legislation in 2003. This would allow, for example, Blair Drummond Safari Park to continue its commercial operations and charge for access to it.

There are two strands to the subsection, as follows. Land is excluded if it is land to which:

(i) for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

(ii) after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted.

Note the conjunctive “and” (my emphasis above). Both are needed.

Note also “each year” (my emphasis above).

In terms of strand 1, a landowner must have been charging for not fewer than 90 days in the year ending on 31st January 2001, i.e. historic fees in a benchmark year.

In terms of strand 2, my reading is there must have been a charge in each following year. The Explanatory Notes for the legislation do not offer anything more than to say a charge must continue to be levied for the same period [of 90 days] after that date. There has been no litigation on this subsection, so I cannot refer to an authoritative judicial pronouncement.

So does the exclusion apply? It will, if charging has been in place in both the benchmark year and thereafter, and if that is so that is the end of the matter.  One tweet disputes this. If this was to go to court, it would be a matter to be proved (on the balance of probabilities, which would need more than a tweet). I suspect the local authority might have little appetite for litigation and it seems (from The Herald report) that the council has accepted that historic charging during the summer has taken place.

As for me, I am writing this blog post at a desk in Aberdeen. I have no idea if charging was in place in the twelve months up to 31 January 2001 and has been in place through the years thereafter (but I did find this report from 2015). There are policy arguments to be made for and against charging for access (which I will offer no comment on here), but I will comment on the need for the current law to be applied properly. That law is a clear step towards liberalising access and that overall policy goal means exclusions should be carefully considered, to the extent that the rights of owners are not trampled and indeed rambled over.

In terms of what this means for Dalkeith Country Park, if anyone can fill in the blanks about the charging regime feel free to comment below.

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.
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11 Responses to Access rights: can a landowner charge for a walk in the park?

  1. Helen Todd says:

    Thanks Malcolm for your thoughts on this rather complicated situation at Dalkeith. It’s difficult to get any definite answers to your points above – it depends who you ask!

    My own understanding of the situation is as follows:
    For many years there has been an entry charge made during the summer. Until a couple of years ago it was £4.50 for entry to the park at the main entrance which included use of the adventure playground. This seemed to be in line with the Land Reform Act, as you say. However, the complication is that also until recently, locals could always find other ways into the park for free by various open gateways. Over the last year or two these gateways have mostly been closed off, the adventure playground demolished and entry last summer was restricted to the main gateway with a £1 charge – or £20 for a season ticket for regular dog walkers. The park sits within both Midlothian and East Lothian, and I understand that while Midlothian Council accepted the estate’s closure of entry points into the park, East Lothian Council refused to let them close the gate on their side which remains open at all times.

    From talking to the estate last year, they don’t particularly want to charge for access to raise money but believe that it’s important to retain an entry charge as this gives them the power to eject anyone from the park – even if these people haven’t committed any crime but the estate thinks they might. I found this rather hard to accept. If there’s a problem, why not just call the police like everyone else does? Dalkeith is hardly remote. The estate is also building a new café/retail centre plus adventure playground which is due to open shortly. Clearly any daily entry charge would discourage the people they want to attract from coming in, hence, I suspect, this nightly charge is being seen as a way of meeting the second test from the Act. But it rather begs the question of how this all works when anyone can walk in from the East Lothian side?

    There’s been a lot of community disgruntlement about this whole issue for many years and I’ve had a lot of phone calls about it over the years, but the only way to get to the bottom of this would be to research into the previous charging regimes, establish how and when they have worked and therefore confirm whether or not the estate is indeed meeting the tests of the law. Currently we don’t have the capacity to do this – but this issue is not going to go away!

  2. neilking says:

    Interesting. Something I puzzled over when the bill that became the 2003 Act was going through was whether it prevents future Blair Drummonds being built on green field sites? (or, to frame the question more accurately, whether the owners of a future BD could prevent the public from stravaiging around in it without paying at the gate?)

    I doubt a BD could be regarded as the “curtilage” of the shop and cafe excluded from statutory access under s.6(1)(b)(i) but is a BD excluded under s.6(b)(ii) as a “compound” on the basis that it would likely contain “structures” such as animal pens etc.?

    Would a future BD be purely “recreational” (considering its likely focus on conservation) so as to qualify under s6(1)(e)(ii)?

    Alternatively, you could argue that stravaiging around in a wildlife park is not “responsible” but the contra-argument to that is that releasing potentially dangerous wild animals into an area over which the public had hitherto enjoyed statutory access rights is a breach of the landowner’s duty to act responsibility under s3. (What, incidentally, is the sanction for breaching s3?)

    What do you reckon or have I missed some aspect of the Act that provides the answer to this conundrum?

    • basedrones says:

      Cheers for the comment, Neil. The issue of a future Blair Drummond, or indeed a future re-wilding/Highland safari scheme as has been mooted in Alladale, is not perfectly catered for in the legislation. Temporary exclusion for a Highland games, a car rally or music festival would work, but for permanent you need to contort yourself into section 6 somehow. (I touch on the re-wilding scheme thing in an Edinburgh Law Review note.) In terms of sanctions for breach of section 3, a local authority might make an order in certain circumstances when the landowner has irresponsibly caused an access impediment, or someone could apply to the sheriff for a declarator under section 28 that the landowner is not being responsible (and then, eh, wait for the negative PR?).

  3. neilking says:

    PS, I note from this link that the Greens say that the estate’s plan “runs in direct contradiction to Scotland’s Right to Roam”. They obviously know things the rest of us don’t. I wonder if they’d care to share them?

  4. John Fyall says:

    We used to regularly pay a few pounds when i was small to get into Dalkeith. I would imagine there would be a fair maintenance & liability cover cost in an adventure playground. If free access prevails then Buccleugh would level the lot, and the community can grumble all they want. The act is actually curtailling enjoyment of the outdoors in some cases: say for example I invested in a ride around my farm, maintained it, put in parking areas for horseriders, watering points, a few jumps and a safe dog area. I think if i asked for a pound a time to cover costs, and to a certain extent know who was using the track to avoid anti-social behaviour, I would be adding a sought after asset to Aberdeenshires outdoor community. But i cant do that, and wont when I look at how even pre 2001 facilities are being abused. The areas shall remain locked and used for livestock. The act is grey and limits genuine attempts to improve outdoor facilities. Shouldnt have any relevance how big a landowner is.

  5. neilking says:

    I wonder if the answer is to amend the LR Act 03 to allow planning authorities, when granting a planning permission, to suspend (or restrict as necessary) access rights for the duration of the permission? That doesn’t help smaller developments that don’t need pp such as John’s ride but might be the answer for bigger developments that do need pp.

  6. Helen Todd says:

    I just wanted to come back on the comments above regarding developing new attractions and how this conflicts/doesn’t conflict with access rights. My understanding of the 2003 Act is that it’s pretty flexible, with a range of tools which can be used where appropriate. and in turn developers need to find a model that suits the legislation. For example, if you build a house on a greenfield site the access rights on that field will no longer exist, but the public will have been consulted through the planning system and in effect the democratic process has decided to agree a change of use for that field. If you’re trying to provide, eg, mountain bike trails, mountain biking is obviously an activity done under access rights so most of these trail facilities seem to allow use of the trails for free but bikers pay for parking, for uplift, for the cafe, etc, which brings income to the landowner. In another case, an Artland project was developed in Dumfries & Galloway and here the local authority decided that the best way to tackle this issue was to use a s.12 byelaw to remove access rights from the 55 acres – land owned by the Duke of Buccleuch, as it happens – and a charge for entry is made.

    In the past at Dalkeith the entry payment was linked to use of the adventure playground, which was demolished some years ago, while regular dog walkers didn’t have to pay. I’m more concerned that the estate believes that they have the right to remove people from the estate if they haven’t paid the charge. As I said above, I don’t accept this – as long as these people are behaving in a responsible manner, I don’t believe anyone can be forced to leave, and any dispute over non-payment of the entry fee is a civil matter (and maybe they just wandered in through the East Lothian side which doesn’t charge for entry).

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