FREE CHAPTER from ‘A Practical Guide to the Right to Roam in Scotland’ by Greg Sanders

CHAPTER THREE – ACCESS RIGHTS

Pre 2003

Pre 2003 there was perhaps an incorrect perception that there was no law of trespass in Scotland. There remains statutory (criminal) and common law trespass (civil) trespass.


Criminal

In relation to statutory trespass section 3(1) of the Trespass (Scotland) Act 1865 provides:

Every person who lodges in any premises, or occupies or encamps on any land, being private property, without the consent and permission of the owner or legal occupier of such premises or land, and every person who encamps or lights a fire on or near any . . . road or enclosed or cultivated land, or in or near any plantation, without the consent and permission of the owner or legal occupier of such road, land, or plantation . . . shall be guilty of an offence punishable as herein-after provided.”

The foregoing sometimes led to acrimony between land owners and “visitors” being asked to leave private property failing which the owner would threaten to involve the police. There are no reported cases of prosecutions under the 1865 Act. This is not surprising given that section 4 of the 1865 Act provides:

A person committing an offence against the provisions of this Act shall be liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.”

After more than 150 years it is even less likely that there will be any imminent test cases under the 1865 Act. Section 3(2) of the 1865 Act was inserted by the 2003 Act and qualified matters:

Subsection (1) above does not extend to anything done by a person in the exercise of the access rights created by the Land Reform (Scotland) Act 2003..”

The 1865 Act accordingly remains in force.


Civil

There remains common law trespass; Walker’s Civil Remedies, at page 957, discusses this. A land owner is entitled to exclusive lawful possession of his property and in certain limited circumstances can sue for recoverable losses caused by a trespasser. In reality, if aggrieved, an owner would simply ask a trespasser to leave.


2003 Act

Since 9th February 2005 section 1 of the 2003 Act ensured that everyone has access rights (a statutory right to roam). This right encompasses access for recreational, educational and for limited commercial purposes. Limited commercial purposes might include someone taking photographs or operating a drone.

The right to roam is a right to go into, over, above, below and remaining on land. It can be a combination of all these (e.g. camping). The statutory right is in addition to common law rights of access such as public rights of way or, discussed elsewhere, core paths.

Section 1 is as follows:

1. Access rights

  1. Everyone has the statutory rights established by this Part of this Act.

  2. Those rights (in this Part of this Act called “access rights”) are—

  1. the right to be, for any of the purposes set out in subsection (3) below, on land; and

  2. the right to cross land.

  1. The right set out in subsection (2)(a) above may be exercised only

  1. for recreational purposes;

  2. for the purposes of carrying on a relevant educational activity; or

  3. for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

  1. The reference—

  1. in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to—

  1. going into, passing over and remaining on it for any of those purposes and then leaving it; or

  2. any combination of those;

  1. in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.

  1. A “relevant educational activity” is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of—

    1. furthering the person’s understanding of natural or cultural heritage; or

    2. enabling or assisting other persons to further their understanding of natural or cultural heritage.

  2. Access rights are exercisable above and below (as well as on) the surface of the land.

  3. The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.


Access Rights to be exercised responsibly

With access rights comes responsibility. Access rights must be exercised responsibly.

Section 2 provides:

2. Access rights to be exercised responsibly

  1. A person has access rights only if they are exercised responsibly.

  2. In determining whether access rights are exercised responsibly a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person, but—

  1. a person purporting to exercise access rights who, at the same time—

  1. engages in any of the conduct within section 9 below or within any byelaw made under section 12(1)(a)(i) below; or

  2. does anything which undoes anything done by Scottish Natural Heritage under section 29 below,

is to be taken as not exercising those rights responsibly; and

  1. regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time—

  1. disregarding the guidance on responsible conduct set out in the Access Code and incumbent on persons exercising access rights; or

  2. disregarding any request included or which might reasonably be implied in anything done by Scottish Natural Heritage under section 29 below.

  1. In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised.

With reference to section 2 (2) (a) (i) “excluded conduct”, as defined by section 9, is:

The conduct which is within this section is—

  1. being on or crossing land in breach of an interdict or other order of a court;

  2. being on or crossing land for the purpose of doing anything which is an offence or a breach of an interdict or other order of a court;

  3. hunting, shooting or fishing;

  4. being on or crossing land while responsible for a dog or other animal which is not under proper control;

  5. being on or crossing land for the purpose of taking away, for commercial purposes or for profit, anything in or on the land;

  6. being on or crossing land in or with a motorised vehicle or vessel (other than a vehicle or vessel which has been constructed or adapted for use by a person who has a disability and which is being used by such a person);

  7. being, for any of the purposes set out in section 1(3) above, on land which is a golf course.

Reciprocal obligations of owners

In terms of section 3 of the 2003 Act owners are under a duty to use and manage land in a way that respects and facilitates the aforementioned rights of access.

Section 3 provides:

(1) It is the duty of every owner of land in respect of which access rights are exercisable—

  1. to use and manage the land; and

  2. otherwise to conduct the ownership of it,

in a way which, as respects those rights, is responsible.

  1. In determining whether the way in which land is used, managed or the ownership of it is conducted is responsible an owner is to be presumed to be using, managing and conducting the ownership of land in a way which is responsible if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them, but—

  1. an owner who contravenes section 14(1) or (3) or 23(2) of this Act or any byelaw made under section 12(1)(a)(ii) below is to be taken as not using, managing or conducting the ownership of the land in a responsible way;

  2. regard is to be had to whether any act or omission occurring in the use, management or conduct of the ownership of the land disregards the guidance on responsible conduct set out in the Access Code and incumbent on the owners of land.

  1. In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights.


Section 6 Non-exercisable rights

Certain land is excluded. Specifically, section 6 of the 2003 Act provides:

6. Land over which access rights not exercisable

  1. The land in respect of which access rights are not exercisable is land—

  1. to the extent that there is on it—

  1. a building or other structure or works, plant or fixed machinery;

  2. a caravan, tent or other place affording a person privacy or shelter;

  1. which—

  1. forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

  2. forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

  3. consists of land contiguous to and used for the purposes of a school; or

  4. comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

  1. to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden;

  2. to which public access is, by or under any enactment other than this Act, prohibited, excluded or restricted;

(e) which has been developed or set out—

  1. as a sports or playing field; or

(ii) for a particular recreational purpose;

(f) to which—

  1. for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

(ii) after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted;

(g) on which—

  1. building, civil engineering or demolition works; or

  2. works being carried out by a statutory undertaker for the purposes of the undertaking,

are being carried out;

(h) which is used for the working of minerals by surface workings (including quarrying);

  1. in which crops have been sown or are growing;

(j) which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.

  1. For the purposes of subsection (1)(a)(i) above, a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure.”

Section 6 of the 2003 Act attempts to strike a balance between the interests of landowners and visitors. Section 6 does so by setting out statutory exclusions as to land that cannot be accessed. It is a contentious section being open, until recently, to creative interpretation by those attempting to exercise or restrict access. This section has given rise to a volume of litigation culminating in Anstalt. Anstalt clarifies many issues arising from the operation of section 6 of the 2003 Act and an authority exercising its section 14 enforcement rights under the 2003 Act.

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