Lord Lovat’s Land Access Lament

I’ve been interested in access to land for long enough now that my friends, online contacts, students, and even occasional randoms bring access-related signs and placards put in place by land managers or news reports of access disputes to my attention. I suppose I’m flattered; either that or I need to get a new hobby.

Anyway, this happened this week. An access dispute with all the elements of a good story was reported on the BBC: “Scottish aristocrat” + “popular riverside walk” + disgruntled non-aristocrats = story. My phone duly buzzed with notifications about the tale; thanks, access fans.

BBC News Lovat

A screen capture of the online BBC News report

The prize for earliest tip off actually goes to my colleague Scott Styles though, who passed me a copy of an article in the Daily Mail a few months ago.

Daily Mail Lovat News

An extract of the Daily Mail coverage, including a picture of a sign (more on the validity of its two prohibitions below) and a the picnic area.

I’m not clear what has triggered the new attention: perhaps it’s the “parking tickets”, or maybe things are coming to a head in a different way, but no matter.

What should we make of all of this? As far as I’m aware, I have never been to the place in question. I think “Lord Lovat’s Lament” is a cracking pipe tune (partner it with “The Garb of Old Gaul” – you’re welcome), but there my personal insight on all things Lovat ends. Not knowing the details of the site, the personalities involved here, or what has taken place means that I can only offer a distant view on matters. This is hopefully a good thing though, as I appreciate access disputes can be both emotive and contextual and it is best not to wade in with your size tens unless you really do have a full picture, so to speak. I will accordingly restrict this post to a few general observations about the points raised in the story, relating to: a) parking; b) privacy; and c) the possibility of a circular right of way.

Before doing that, I will note that the BBC story makes reference to ScotWays, the access charity that, amongst other things, maintains a database of public rights of way in Scotland. The route in question is not amongst its records, meaning that the route cannot, apparently, be used by the public for passage as a public right of way. That is not the end of the story though, as public access to land may still be possible by another legal means. (And furthermore, even routes not so recorded can still be rights of way, if they have been properly established but not yet declared as such, but that’s another story.)

To quickly explain, there are two main legal methods for the public to take access to land in Scotland. These are a) specific public rights of way that offer passage along a particular and recognised route, and b) the right of responsible access that flows from a law passed by the Scottish Parliament relatively recently. There may be other ways to take access (for example, the more aquatically minded might even be able to use traditional rights of access to navigate on the River Beauly itself). This post will focus on rights of way and the right of responsible access though, starting with the latter regime (which is of more general application, albeit subject to certain important exceptions).

Needless to say, this introduction is but a brief glimpse at this potentially complex area of land law. If anyone is interested in reading up on this more generally, I will politely steer you to the recently published book, The ScotWays Guide to the Law of Access to Land in Scotland.

Parking

The Land Reform (Scotland) Act 2003 gives people a right of responsible access to land for certain purposes (aka the right to roam). It does not confer a right to drive a motor vehicle over someone else’s land (but there is an exception for certain vehicles designed to aid an individual’s mobility when such a vehicle is properly in use). It does not confer a right to park a motor vehicle.

In the BBC story, the point about car parking is described by one commentator as a problematic area. I know exactly what he means, but in a way it is not a problematic area in statutory terms. The statute gives no right, so the position is relatively clear. In an ideal world, access takers will seek permission from the land owner before leaving a car unattended for any length of time. Also in an ideal world, all persons would take the points about parking made in the Scottish Outdoor Access Code on board. The Access Code asks that cars are not parked in a way that obstructs the access of others or in a field with livestock. This is all sensible, but access takers should be clear that simply following these common sense rules does not mean you then automatically have a right to park in line with those rules. That said, a responsible land manager would hopefully take a lenient approach to car parking that kept the Access Code in mind in a way that was not too much of an imposition on land management, which would be broadly in line with the duty of responsible land management found in section 3 of the legislation. Designated parking areas and appropriate signage might be part of this approach. (Private parking schemes are another kettle of fish entirely. I have written about private parking enforcement before and there is the possibility of further legislation in this area. That is enough about parking for now.)

Land excluded from access rights: privacy around a home

I do not know how close this “popular riverside walk” goes to a place of human habitation. If it does go particularly close though, such that it falls within the exception to statutory access rights for domestic gardens (found in section 6(1)(b)(iv)), there will be no statutory right to walk or take part in recreation in that area. (Separately, if it goes into the curtilage of a building or buildings – that is to say not within a building itself but into what might be thought of as the immediate orbit or an open area that is particularly associated with a building or buildings, such as a courtyard, that too would be excluded.)

How do you find out if the land is excluded? Without a court action or some kind of enforcement action, there is no definitive way to do so. You might look to earlier precedents, of course (perhaps the recent Manson case, or older cases like Gloag and Snowie), but if these are not clear then it would take someone becoming a bit bored of toing and froing and eventually applying for a declarator as to whether the land is subject to access rights under section 28 of the 2003 Act, at which point a sheriff would rule on the matter. Failing that, the access authority (i.e. the relevant local authority or national park authority) might in more flagrant cases take enforcement action under section 14, seeking to remove any impediments or disincentives to access. My guess from the news reports I have read is such enforcement action is not imminent in this case.

For the purposes of this post, let us now assume the land is access land. What could be done on the land? A nice walk would be possible. So too would recreation, including a picnic. As such, the sign that says “NO PICNICS” might be a bit too bold, if it is seeking to exclude responsible recreation from areas that should be access land.

As noted above, this will all be very contextual, so nothing further can be ventured from this distance. That brings us to another point, about the separate access regime that might apply for passage (and passage only): is this a public right of way?

A circular public right of way?

First things first, it is worth remembering a public right of way can exist over land that is not access land in terms of the 2003 Act. So the discussion above about excluded land is not relevant here: a right of way could go through a farm steading or through someone’s domestic garden, for example.

Returning to this scenario, the BBC report has a quote from a Highland Council spokesperson, and this person either knows the score in this legal area pretty well or was well-briefed. For the purposes of this post, here is the relevant quote.

The River Beauly – Lovat Circuit is not on the Catalogue of Rights of Way maintained by Scotways, no-one has provided the council with evidence that any of it is a public right of way and, as a circuit, it is unlikely to meet the requirements of a public right of way.

There are a number of criteria that must be met before you can have a public right of way. For example, it must follow a more or less defined route, and the usage of that route must have been established by the public rather than by essentially private (i.e. neighbourly) purposes.

Public rights of way also go places. They go to places the public have resort to and access to. They start at a public place and they finish at a public place, and once so established anyone using the right of way can use it for passage along its whole length, or alternatively just use part of the route (by joining it somewhere along the way).

So can a right of way go back to its starting point, or are circuits not likely to meet the requirements? Whilst I accept that a circuit might be less likely to meet the requirements than a linear route that clearly goes from one public place to another, and with due respect to the Highland Council spokesperson as this is not an easy point, I am not sure a circuit can be completely ruled out.

As noted at page 104 of the ScotWays Guide, it has been suggested that a circular route can constitute a public right of way. This, I confess, is not original Combe wording. It existed in the 2006 version of the equivalent ScotWays Guide (at page 27). (If I am sticking my neck out a bit here, I am happy to be in the company of Roddy Paisley. We can be embarrassed together if it ever comes to court and goes the other way.) I did make some changes to the text though, which might inch towards a circular right of way.

The innovations in the new edition are: a) an extra reference to note Lord Reed’s important view that a cul-de-sac might even be a right of way; and b) a subtle change of the definition that occurs at various points in the text such that it no longer says one public place to another public place.

There are counter-arguments. Of course, I fully accept that rights of way are fundamentally about going places, and the right is for passage and pretty much nothing else (so stopping for a quick snack when on a right of way can just about be allowed and still be thought of as passage, but a game of rounders or pitching a tent on a right of way might be pushing it, and you would be back to relying on responsible access (which you could only do if the land was access land), and you would separately need to not get in the way of others using the right of way).

Returning to the key point about passage, does passage imply the route must go somewhere else as compared to where it started? Lord Reed’s observations in the case of Hamilton v Dumfries and Galloway Council (No. 2) [2009] CSIH 13 about a cul-de-sac might suggest an “out and back” journey is fine, so in a way you are not making any progress, and the same might apply to a circuit.

As I say, this is not easy. Some might even argue that a right of way circuit, so to speak, would in fact still need two public places (say at two ends of a loch, and separate routes between the two on both banks, making a circuit to all intents and purposes). This blog post is already pretty lengthy so I will curtail my meandering at that. Suffice it to say though, I would be very interested if a question like this ever made it to court.

Back to parking

One final point about public rights of way, which links back to the original discussion about parking and might be relevant if a right of way was ever established here. The recent case of Kolhe v Robertson [2018] SC ABE 43 (which I blogged about here) confirms that the parking of vehicles on a right of way is not permitted, but acknowledges the possibility of parking at a terminus in some circumstances. The particular circumstances in that case involved a terminus that was a pier. Now, I don’t want to make too much of that sheriff court decision, both in terms of judicial hierarchy and the circumstances of that case, but if there ever was to be the establishment of a right of way in this case (which I offer no comment on here), I can imagine flying this particular kite about car parking would be a possible line of argument.

In other news about access to land scholarship

That is enough about this particular scenario. I now ask that you please forgive a bit of a personal dalliance, albeit it is still on topic.

I’m delighted to note that the new issue of the Edinburgh Law Review has a book review of the ScotWays Guide, by Professor George Gretton. Fortunately, it’s a positive review. For those not completely au fait with all things Scots property law, George is something of a legend, so it goes without saying I am absolutely delighted to have received his seal of approval. As an analogy, it’s a bit like Ginger Wildheart dropping me a line to say he likes my new album. (I don’t have a new album, but if I did I would like Ginger to like it. In other news, I absolutely love his new album, but I digress.) George’s review can be found here (£), and for those without access to the full review (sorry) here is a photo of a short extract to prove that it does exist.

EdinLR Book Review

An extract of George Gretton’s book review.

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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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2 Responses to Lord Lovat’s Land Access Lament

  1. Ewan Kennedy says:

    Thanks, Malcolm, interesting and correct as usual. A few years ago I ran a case, Melfort Pier v Melfort Club. In the Appeal Court the judges discussed circular rights of way, although their decision was based on other grounds. I recall there was support for the idea that you didn’t need separate termini. I recall one judge, Marnoch I think, musing about going for a walk to see the rhododendrons, which he felt would be just fine.

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