Everyone in Scotland has rights of access over much of the scenic land for recreational and educational purposes. This is set out in Section 1 of the Land Reform (Scotland) Act 2003 which Act also includes the Scottish Outdoor Access Code. The right is called by some as the “right to roam”.
The Scottish Outdoor Access Code is a common-sense code which demands that Scottish landowners permit safe access to their land whilst also demanding that the public obey the principles of respect for the land, for nature and the countryside in their usage.
Of course as with all rights come responsibilities. The public must in all situations observe three overriding principles of behaviour: they must:
- Take responsibility for their own actions.
- Take care of the environment (i.e. take away litter, protect wildlife, not cause pollution).
- Respect other peoples’ interests, peace of mind and privacy including that of landowners.
In turn, landowners must above all respect the public’s right of access. They also have to take into account the safety of those exercising their rights of access over their land, for example a landowner may consider erecting a sign to warn of potential hazards.
There are of course exceptions to the general “right to roam”.
- Private houses and gardens-landowners can expect a reasonable level of privacy and walkers should keep a sensible distance from houses and gardens.
- Properties used for commercial purposes– if a private house is used for commercial purposes arguably this will also restrict the right to roam over areas that comprise buildings and the curtilage of buildings that are not houses.
The law was introduced with the aim of striking a balance between the individual’s freedom to roam and in the language of human rights a person’s right to “the enjoyment of private life”.
The Scottish Courts have had to determine a number of cases in recent times where competing rights have clashed. In a new case of Stewart and Gemma Manson against Midlothian Council the landowners had blocked a path that went through their private land by erecting a high gate which they then padlocked and as the path was regularly used by walkers for recreational purposes the local authority using powers under the Act told the landowners that the path should be unblocked. The landowners raised an action against the local authority in Edinburgh Sheriff Court. After a great deal of judicial review the Sheriff determined that the path had to be opened up again.
Often in “right to roam” cases emotions can run high, positions become entrenched and there can be a lot of conflict. Our property litigation solicitors are here to help negotiate fraught situations and if possible avoid expensive court battles.