Right to Roam - Striking a Balance between Ramblers and Landowners
Posted: Thursday 25 February 2010
It is almost five years since the “right to roam,” contained within the Land Reform (Scotland) Act 2003, came into force, allowing access to much of the land and inland waters in Scotland for recreational use. Press reporting of the right to roam legislation has focussed on cases where wealthy landowners have tried to persuade the courts that large areas of land adjacent to their country mansions should be excluded from the right to roam. However the case law surrounding the right to roam legislation also contains some important points about responsible exercise of access rights and the occasional need to strike a balance between the rights of access takers and the rights of landowners.
Acting responsibly is a key notion of the right to roam legislation, applying both to access takers such as ramblers and wildlife spotters and to access givers such as landowners. As far as access takers are concerned, the right to roam is only available if it is exercised responsibly. In order to give guidance on what is and what is not “responsible” when exercising access rights, the right to roam legislation provided for creation of The Scottish Outdoor Access Code. The Code is based on three key principals: (1) respecting the interests of other people, (2) care for the environment, and (3) taking responsibility for your own safety and that of others. The Code gives detailed guidance on where access rights can be exercised and what types of activity are excluded from access rights and can be found at www.outdooraccess-scotland.com. While the Code is not actually law, the courts have stated that it is a useful practical guide to the exercising of access rights and that anyone exercising access rights should be familiar with its provisions. Being familiar with and following the guidance in the Code should mean that you are exercising access rights responsibly.
The notion of responsibility also applies to landowners - a landowner is presumed to be acting responsibly in his use or management of the land if he does not cause unreasonable interference with anyone’s access rights. Landowners are obliged to allow access to their land and if a landowner prevents or deters anyone from exercising access rights, the Local Authority can require the landowner to remedy the situation.
It may seem that the right to roam operates effectively where the access taker and landowner both act responsibly. However, two recent cases before the courts demonstrate that matters are not always that simple. The first case concerned access to tracks at Feddonhill Wood near Fortrose. There were two sets of tracks at Feddonhill Wood, one in the southern sector of the Wood and one in the northern sector. The landowner had erected padlocked barriers at the entrances to the tracks in the northern sector of the Wood that allowed access by walkers but prevented access by horse riders. The landowner had erected the barriers as he feared that horse traffic would result in damage to the track. The Local Authority served a notice on the landowner requiring that he remove the barriers. The landowner appealed this notice in court. The court held that the landowner was carrying out a responsible exercise of land management – it was acceptable to limit the access rights of certain access takers to ensure that the paths remained in good condition for other access takers such as walkers and wildlife spotters. This case is encouraging in its common sense approach to access rights. While the right to roam legislation and the Scottish Outdoor Access Code are clear that access is not permitted where it will damage the land, this case demonstrates that it is not a black-and-white matter of access for everyone or no access at all. Rather, landowners can strike a balance by excluding certain categories of access takers to protect the land for the greater benefit of others.
The second case concerned access along a suburban path in Glenrothes. (The right to roam applies equally to rural areas and to open spaces in urban areas). The landowners had erected locked gates at either end of the path and as a result the Local Authority served a notice requiring that the gates be unlocked. The landowners explained that the gates had been erected as the path was frequented by antisocial youths. The court found that while the path was often used irresponsibly, it was also used by responsible access takers. The court looked to strike a balance between the rights of the landowners and the rights of responsible access takers by instructing that the gates must be left unlocked during the day but could be locked at night as that was when most of the antisocial behaviour occurred. Again this case has demonstrated that there is flexibility in the application of the right to roam – enough flexibility to strike a balance between the rights of landowners and the rights of access takers.
