I wrote about a legal dispute relating to the application of an aspect of the law relating to public access to land in Scotland earlier this year. The point at issue concerned core paths – a concept created by Part 1 of the Land Reform (Scotland) Act 2003.
The dispute first came to my attention in the context of a Court of Session case. In March 2022, Lord Clark (sitting alone in the Outer House) rebuffed a judicial review petition brought by the owner of a site near the village of Gartmore. The owner had sought to challenge the introduction of some new core paths over its land by the national park authority with a remit in that area. Analysis of that stage of the dispute, plus an overview of the applicable law and the background facts, can be found in this post for the Strathclyde Law Blog. A more detailed account can be found in an article in the Scottish Planning and Environmental Law journal ((2022) 210 SPEL 35-37, open access version available via the University of Strathclyde’s academic repository).
That was not the end of the matter though. The owner appealed, and on 20 December 2022 the Inner House of the Court of Session refused the reclaiming motion (i.e. rejected the appeal). This leaves Lord Clark’s earlier interlocutor and indeed the updated core paths plan – including the new paths the owner objected to – in place. This blog post will consider points of interest which arise from the most recent opinion, which was delivered by the Lord President, Lord Carloway (sitting with Lord Woolman and Lord Pentland), after a quick refresher of the law and the situation in question.
The law and the context
The dispute had the right of responsible access to land at its heart, but in actuality it was more of an administrative law case relating to the adoption of an updated plan under the 2003 Act and a separate issue of whether there was a failure to comply with the public sector equality duty found in section 149 of the Equality Act 2010.
As noted, a more complete overview of Part 1 of the 2003 Act – which affords outdoor access to those crossing land or in some cases using land for an authorised purpose, subject to that access being on a responsible basis and in a place that is not excluded from the scope of the legislation – and the factual circumstances of this case can be found elsewhere. Briefly stated though, local authorities or, where relevant, national park authorities – which can together be termed “access authorities” – have a role in relation to access rights in their respective areas. One such role relates to core paths, which are a feature of the 2003 Act. Core paths, and the related core path plan that shows where they can be found, offer members of the public a degree of certainty that the land is subject to access rights. In terms of section 7(1) of the 2003 Act, the exclusions to access rights found in section 6 do not apply to land that is a core path, save in very particular circumstances (namely when access is prohibited or restricted owing to an outbreak of animal disease, or where access has been suspended for a particular purpose by an access authority in accordance with section 11).
In the case at hand, the proprietor of a rural site near the village of Gartmore had sought to object to the creation of new core paths on that site. These paths were introduced as part of a wider review of the network of core paths in the local area. Core path plans were to be introduced by all access authorities in the early years of the 2003 Act, in terms of section 17 and related provisions. The 2003 Act and related guidance envisaged that these plans may need to be updated, which is provided for in section 20 and related provisions. It was this “review and amendment” process that the access authority tried to deploy here, which involved public consultation, a chance to object to the new plan, and referral of any unresolved objections to a Reporter appointed by the Scottish Ministers to consider the matter. After the plan was ultimately adopted, the land owner tried to argue that the relevant process was not followed correctly, with a separate point to do with a failure to properly consider the interests of vulnerable groups who might be using the site. The land owner was not successful at first instance or indeed on appeal, having failed to establish to the appeal court that the original judge got the law wrong.
What follows here is a selection of eclectic observations which occurred to me as I read through Lord Carloway’s opinion. A more structured analysis of the ruling can be found in this Scottish Legal News item by Mitchell Skilling.
The right usage of “right to roam”
Lord Carloway likes using the term “right to roam” rather than “right of responsible access” to describe what was introduced by the Land Reform (Scotland) Act 2003. Some people are sticklers for the latter, and I have discussed on this blog and elsewhere the reasons why this maybe should be the preferred term (in particular as immediately captures the qualified nature of the right). Be that as it may, the judge at the apex of the Scottish judicial system (UK Supreme Court justices excepted) is clearly absolutely fine with using “right to roam” – he did so in the Renyana Stahl Anstalt case and did so again here.
Maps are good
The Outer House decision did not feature a map of the site. Anyone trying to picture the scene was accordingly forced to do so through words in a judgment, or those who knew where to look and how to rummage could go to the website of the Scottish Government Planning and Environmental Appeals Directorate. The Inner House judgment has a map, as captured below for reference. Maps in judgments are good.
Core path plans are not set in aspic
To be successful on appeal, the petitioner [i.e. the land owner] had the not insignificant task of trying to convince the Inner House that Lord Clark had interpreted the law incorrectly. As part of this, it was argued that the core path plan review exercise “should have been about whether the original network [from the original core paths plan] continued to provide sufficiency; not whether that network could be improved.” The key to this argument was that section 17 conferred a duty on access authorities to draw up a “system of paths… sufficient for the purpose of giving the public reasonable access throughout their area.” If that had been the end of the matter, this argument would have been more attractive. Section 20, however, allows for review to ensure “that the core paths plan continues to give the public reasonable access throughout their area”. Relevant guidance, published by the Scottish Government in 2005, also envisaged that a plan should not be a “finite document”.
Lord Carloway did not buy the petitioner’s argument. At this point, it might be useful to set out paragraphs 32-33 of the opinion.
The 2003 Act imposed an obligation on the respondents [the national park authority] to draw up a plan for core paths “sufficient for the purpose of giving the public reasonable access throughout their area” (s 17(1)). The respondents did this. The adoption of the plan did not carry with it an assumption, or a presumption, that there was thereby a sufficient core paths network in the area; merely that the identified core paths contributed to the statutory purpose of giving reasonable access and balanced the factors, including the interests of land owners, required by section 17(3). A plan which was put forward for adoption as contributing to the statutory purpose could hardly have been rejected because it did not create a sufficient or saturation level of core paths.
In due course, an adopted plan might be improved; whether by the addition of other paths or the substitution of different routes, provided that the plan, as amended, also contributes to the sufficiency of the network. That is the objective of the provision for review (s 20(1)). The use of the phrase “continues to give… reasonable access” does not carry with it an implication that any previously adopted plan demonstrates the existence of a sufficiency which can never be improved. It would make no practical sense for a core paths plan to be set in aspic. The reporter asked the correct question of whether, under section 17(1), the new plan with the additional paths created a system which again contributed positively to the overall purpose of giving the public reasonable access; balancing in that equation the land owner’s interest. It was not necessary for the reporter to carry out a comparison of the existing network with the proposed new one or to examine whether the network in place was already sufficient. That would be an unduly narrow and artificial exercise; it would run counter to the statutory policy of conferring on authorities a wide discretionary power to review, when they consider it appropriate, whether improvements are desirable in the interests of furthering the objective of promoting reasonable public access. The review exercise involves a consideration of whether the amended plan continues to provide reasonable access, not whether the existing plan was of itself sufficient. The latter might be an argument which a land owner might advance, and it is no doubt a factor to be considered, but that is all.
Also, a confession – I had to look up “aspic”. I salute Lord Carloway for his deployment of it.
Equality Act considerations matter, but not so much that someone under the public sector equality duty needs to make a song and dance about them
Lord Carloway was happy the Reporter had acted in an appropriate way, in a process that allowed relevant issues (including those pertaining to protected characteristics) to be aired, and with a result that had indeed considered the matters that had been raised and how best to deal with them (in this case, that there would be limited interference anyway, and what interference there was could be mitigated by taking temporary measures around the new core paths). Lord Carloway also noted that the Reporter’s failure to make a specific reference to the Equality Act 2010 after doing the substance of what you were supposed to do did not undermine anything. I profess no particular expertise in this area so I offer this without any deep analysis, save to say this sounds intuitively correct to me.
Conclusion
When I heard there was to be an appeal in this case, I felt it was likely to be a long-shot, or at least a series of long-shots. For once, I have the receipts to prove that I thought this (at least in relation to my home territory of access rights); I wrote that Lord Clark was “surely correct” in my earlier analyses of this case, in terms of the test to be applied for the updating of a core paths plan. The other long-shots of the land owner did not go in either: I am not sure if they sought guidance from a Del Amitri World Cup song prior to launching this appeal, but if they did that was unwise. Anyway, I will try to write this up more professionally and without a Del Amitri reference in the coming weeks. For now though, I leave you with my promised screen capture of the map in the judgment.
basedrones 
Pingback: My 2022 in review | basedrones
Pingback: Scotland has a right to roam not a "right of responsible access" - parkswatchscotland