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.