The Loch Lomond and Trossachs National Park Authority (“LLTNPA”) recently won an appeal regarding the exercise of public access over part of Drumlean Estate, which lies between Ben Venue and Loch Ard. The case is a reminder that land managers must act responsibly in using and managing land so as to respect the right of access and not unreasonably interfere with it.
The Land Reform (Scotland) Act 2003 (“the 2003 Act”) confers a right of responsible non-motorised access to certain categories of land and water for passage, recreational purposes and for some educational and commercial purposes (“the right of access”). Categories of land excluded from the right of access include buildings, private gardens and land on which crops are growing. Activities excluded from the right of access include hunting, shooting and fishing and anything which is an offence, such as nuisance and allowing a dog to worry livestock.
Section 14 of the 2003 Act prohibits landowners from taking or failing to take any action which is for the purpose, or main purpose of, preventing or deterring the exercise of the right of access. This includes putting up signs and fences and, positioning or leaving at large any animal on the land. Local authorities can serve written notice requiring remedial action to be taken if there is considered to be a breach of section 14.
Three gates were locked from time to time on the perimeter of part of Drumlean Estate; at one of the gates a sign read “Danger Wild Boar”. The gates provided access to a large enclosure within which was a farm and woodlands holding deer, cattle and wild boar. The enclosure made up about 10% of the 1500 acre estate. After failing to reach agreement with the landowner on the extent to which the enclosure was subject to the right of access, the LLTNPA served an enforcement notice requiring the gates to be unlocked and the sign removed.
One of the key questions was whether the landowner’s purpose or main purpose in locking the gates and putting up the sign was to prevent or deter the exercise of the access right. The ‘purpose or main purpose’ test is a subjective one which ultimately may focus on the good faith of the landowner. There has been a distinction drawn between a situation where the impact on access was incidental to something else, such as felling timber, and a situation where a landowner had identified something which was part and parcel of access rights which he did not like and which he wanted to prevent.
The estate put forward evidence that the measures were not taken to prevent the exercise of responsible access, but for reasons of responsible estate ownership against a background of irresponsible access having been taken; the purpose was to protect people, machinery and animals. The Appeal Court rejected this and agreed with the LLTNPA’s argument that there was not an identifiable legitimate purpose specific to the land in question, but rather there was a broad purpose which could apply to virtually any estate in Scotland.
The Scottish Outdoor Access Code provides practical guidance on managing land and water for access. It states that the main responsibilities are to:
- respect access rights in managing land and water - e.g. by not hindering or deterring people, and taking access into account when planning management tasks.
- act reasonably when asking people to avoid land management operations - e.g. by keeping any precautions to the minimum area and duration required for people's safety.
- work with the local authority and other bodies to help integrate access and land management - e.g. show that people are welcome, work with the access officer to help manage access positively.