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

  1. Pingback: Better access to the law: property briefing for the Journal of the Law Society of Scotland | basedrones

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