April 2018 – The “right to roam” clarified

Author: Mitchells Roberton
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  • The Land Reform (Scotland) Act 2003 (“the 2003 Act”) provides that everyone has the right to be on land, for recreational or educational purposes, and to cross land.
  • These rights are generally known as the “right to roam” and apply to most land and inland water and include walking, cycling and other non-motorised activities.
  • The right to roam must be exercised responsibly and there are some places where the rights don’t apply – like private homes and gardens, and land on which crops are growing.

Appeal Court case clarifying the nature of the right to roam

  • Last month Scotland’s most senior judge delivered the opinion of the Court in the case of Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority which provides important clarification on certain aspects of the “right to roam”.

Locked gates and warning signs

  • The owner of Drumlean estate in the Trossachs argued that even though three gated entrances to their property were locked, and there were signs warning of wild boar within an area of the estate, this did not infringe the “right to roam”.
  • The argument was, essentially, that these steps (1) were taken by them before the 2003 Act came into force, and (2) were taken with the intention of using, managing and conducting its ownership of the land responsibly: there was no intention on their part to prevent or deter the public from exercising the “right to roam”.

The court’s assessment   

  • The court was not impressed by these arguments. First, it said:

“Unless the land is excepted under section 6 [which excludes, in practical terms, the right to roam in relation to a person’s residence and such adjoining land as is sufficient to give a reasonable measure of privacy] it is land to which the [right to roam attaches]… In this case, where there is a right to cross and to be on the farm area, the only responsible action is to permit the rights to be exercised by allowing access to the area. This must

involve unlocking any gate or gates and removing any signs which prevent or deter such access.” 

  • Secondly, the fact that the landowner may not have intended to deter or prevent the right to roam is not relevant. What matters is making an objective assessment of what the landowner has actually done. A particular landlord’s intention or motive is not relevant.
  • The court said:

“… were it otherwise, identical fact situations  could result in different, and inconsistent applications of the Act according to the mental processes, maybe flawed, of the individual, perhaps eccentric landowner. Rather the court has to decide, looking objectively at all the circumstances, what the purpose or main purpose of locking the gates and putting up the notice is.”

The moral of the story

  • Landowners should ensure they are using and managing their land in a way that is compatible with the right to roam.
  • It’s likely that the enforcement of the right to roam will be more straightforward in future if the courts apply an objective assessment of the landlord’s behaviour rather than trying to weigh up whether that particular landlord was in “good faith” in relation to his own efforts in complying with the 2003 Act.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: Paul@mitchells-roberton.co.uk

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