Rights Of Access vs Right To Privacy

The public rights of access on and over land, enshrined in the Land Reform (Scotland) Act 2003, have now been around for almost 14 years. They allow all members of the public a responsible right of access on and across land and inland water throughout the country, often informally referred to as the right to roam.

Certain parts of land may be excluded from the rights of access under the Act: restrictions may be allowed, for example, due to planned forestry operations. Further, some areas, such as schools, or land where crops are growing, are never suitable for access.

Where access rights are exercisable, they may be taken for recreational, educational, or sometimes certain commercial purposes. Landowners and managers are obliged to act responsibly but cannot unduly deter the public from accessing their land. Local authorities must uphold access rights if they are being obstructed. The Scottish Outdoor Access Code serves as a guide for responsible ownership, and access taking.

Given the wide-ranging nature of these rights, and the attitude of some landowners, access rights have regularly been subject to litigation over the years, particularly in regard to which areas may, or may not, be excluded. Two cases decided last year have provided further clarification on the law surrounding impeding of access, and the tests applied to assess the reasonableness of doing so.

Locked gates and warning signs

In the case of Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority, the landowner had deliberately restricted access to a specific area of land that was not excluded under the Act. Three gates had been locked, and the landowner had erected a sign to warn of wild boar, previously requested by the Council when there was a boar herd within the now disused boar enclosure. The Park Authority considered the locked gates and sign to be a breach of the Act and served a notice on the landowner to remove the obstructions.

The landowners maintained they were justified in their actions due to concerns regarding the interaction of the public with the animals on the land. The Act does allow limited restrictions to access based on legitimate land management decisions, so they contested the notice.

Nevertheless, the Court took the view that these issues could have been addressed by creating paths or using signs to help accommodate public access in such circumstances: rather than cutting off access altogether, barriers could be erected near...

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