Two cases on the continuing place for public rights of way in Scots law

In the new edition of the Juridical Review, there is a “Case and Comment” piece by Douglas Cusine and me. This considers two sheriff court cases from last year which related to claims that public rights of way existed at the sites in question.

Public rights of way are Scots law devices which afford access by suitable means to members of the public along a course between two public termini. They have a long pedigree in Scots law, although in recent years they have often been playing second fiddle to the statutory right of responsible access that allows passage and access for recreational, educational and even some commercial activities across much of Scotland’s land and inland waters. Important as the so-called right to roam is, the fact these cases were so hotly contested nicely demonstrates the continued importance of public rights of way notwithstanding the access rights conferred by Part 1 of the Land Reform (Scotland) Act 2003.

The first case involved a route in Angus, with limited further details available from Sheriff Murray’s ruling (PDF) owing to the fact the whole dispute was anonymised for public consumption. In short, a core path (a creature of the Land Reform (Scotland) Act 2003, which basically guarantees such a path is susceptible to access rights) was realigned by the relevant access authority. Some people who liked having the route to access a property nearby argued that the now obsolete core path was in fact still a public right of way. This argument was unsuccessful: in fact, in all their evidence there was nothing legally sufficient to establish a public right, as they did not lead any acceptable evidence of use by anyone other than themselves, their visitors and employees (who are not “the public”).

The second case involved a more high profile matter, or at least a dispute that is relatively well-known up in the north east, namely the dispute between fishermen and a landowner at Cove (just south of Aberdeen).

In this case, at the same time as making a ruling (PDF) about whether boats could be stored on the pusuer’s land (answer: they could not) Sheriff Miller recognised rights of way from Balmoral Brae down to the coast (three of these were pedestrian, to slightly different end points, and one of these was vehicular).

In terms of what this all means for the site at Cove, the first point to note is it is now beyond doubt that the pursuer must respect properly taken access by members of the public, including any fishermen. The sheriff also noted parking at the terminus of the vehicular access route was ok (albeit it can be noted that the pier is pretty tight, and actually blocking someone else’s right of passage could be problematic if anyone does this). As for ongoing management of the route, it can be seen from the photos that the landowner has started fringing the route somewhat (with rocks, to prevent any more land than the route itself being used); again, this activity is alright subject to the route not being obstructed. As regards the boats and equipment, a point separate to the access issue (which we consider in a bit more detail in the note), apparently the remaining boats on the beach were initially squeezed onto a parcel of land not owned by the pursuer at the westmost section of the beach (which you can see in one of my photos). As such, whilst the pursuer successfully deployed property law in relation to storage of items on his land, the goings-on on neighbouring land are beyond his control. More recently though, a fire broke out at the site where the boats and gear had been gathered. (One can only speculate as to whether the newfound proximity of the boats aided the spread of the fire.) As reported in the P&J, the various defenders then received a bill for the legal expenses of the pursuer. If this is the end of the line for the fishermen involved in the case, it seems fair to surmise that they will not be happy with the net result.

What should we make of these cases from an access to land perspective? Granted, these cases are not hugely innovative in terms of the law, but they both show that public rights of way remain important in the modern era and where they can and cannot come into play. These cases also highlight that public rights of way can only go so far (in a figurative sense), and whether arguments about their existence are a good proxy for any essentially private disputes might be debated.

Two cases on the continuing place for public rights of way

Extract from the Juridical Review

(I will get an open access version of the article online when I am able to do so.)

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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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1 Response to Two cases on the continuing place for public rights of way in Scots law

  1. Pingback: Lord Lovat’s Land Access Lament | basedrones

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