People in Scotland enjoy what is colloquially known as the "right to roam" but this is a misnomer.
It is set out in Section 1 of the Land Reform (Scotland) Act 2003 that in Scotland everyone has the right to be on land for recreational purposes and to cross land for such purposes. However, as with any ‘right’, there are limitations and restrictions.
The so called “right to roam” must be exercised reasonably and helpfully, very good guidance is provided in the expertly drafted Scottish Outdoor Access Code. This Code highlights that the right needs to be exercised responsibly. The law also sets boundaries on the extent of the right so that the benefits of private ownership are still respected. Thus, for example, the “right to roam” will not extend to include land that is adjacent to dwelling houses, farm buildings, compounds, schools, and the like.
This law was drafted with the desire to strike a balance between the individual’s freedom to roam and respect for private property, or, if using the language of human rights, a person’s right to “the enjoyment of private life”.
Since the coming into force of this law the Scottish Courts have had to determine a number of situations where these respective rights and responsibilities have come up against each other. The recent decision of Manson [2018] can now be added to the growing body of case law that has unfolded since the prominent case of Gloag was decided in 2007.
In the Manson case, the landowner blocked a path that went through their private land by erecting a high gate which was padlocked. As the path was in regular use by recreational walkers, the local authority, acting on powers it had under the Act, notified the landowner that the path had to be unblocked. The landowner challenged that decision in the Edinburgh Sheriff Court.
There tends to be a pattern in these cases. Inevitably, the court begins by explaining that all cases turn on their particular facts. Inevitably, there then follows a lengthy written decision where the facts are set out and the law is reviewed.
In Manson, after 125 pages of judicial analysis, the sheriff concluded that on the objective test set down in the Act, this path, which ran through the property but some 20 metres from the house itself, could not in the particular circumstances of the case be regarded as "adjacent" to the house (the statutory test). It followed that by erecting the locked gate the landowner was not managing the land reasonably. The outcome being that the path had to be unblocked so that recreational walkers could continue to roam, albeit through the landowner’s ‘private’ property. This case is another reminder of how the legislation works.
In “right to roam” cases the courts are quick to emphasise a need for a careful balance to be struck between landowners and land users. In practice we find that this can result in a contest where passions might run high, positions become entrenched and conflicts can easily escalate.
Our property disputes lawyers are experienced in helping people negotiate what can be fraught situations which, if not managed carefully, can soon spiral into expensive court battles.
Published 7 November 2018.
