Members of the public have been free to exercise certain access rights over land in Scotland for many years.
These rights are set out in legislation, and include the entitlement to use other people’s land for recreational purposes.
This excludes, of course, land that has been built on - so there’s no need to worry about a neighbour having the right to use your sitting room!
Despite these restrictions, it is fair to say not all landowners have necessarily welcomed the situation with open arms. Many have raised understandable concerns about how these access rights are exercised, and whether they interfere with their ability to freely use their own land.
The potential for conflict is not just between landowners and the wider public either.
Although rights of access may appear to be good news for ramblers, hill walkers and others who enjoy the great outdoors, not all of our hobbies are compatible: anglers may wish to use a river untroubled by canoeists and vice versa, for example.
Accordingly we are faced with the not uncommon scenario of legislation that, however well intentioned, has led to controversy and the inevitable court challenges.
I was particularly interested in a recent case involving the Loch Lomond and Trossachs National Park Authority (which polices rights of access in that area), not just because of the legal arguments, but also because of an unusual suggested public risk.
The case involved the owner of an estate near Aberfoyle. The estate put locks on three gates. The reason for this was set out in a rather alarming sign: “Danger, Wild Boar.”
You might think that the risk of wild boar is as historically remote as, say, attacks by wolves, bears or Jacobites, but in fairness our domestic pigs’ cousin is said to be making a comeback.
The problem for the estate was that the park authority did not regard the threat as real, and demanded the sign be removed; the gates unlocked; and the public allowed access. The estate challenged this, and the dispute ended up in the courts.
Perhaps disappointingly for those looking for a more exotic outcome, the court concluded there was no genuine risk to public safety from marauding swine. Instead it determined the warning was a device intended to deter the public from exercising their land access rights.
This does not mean that landowners cannot rely on genuine concerns about safety to limit public access to dangerous areas under their control.
In fact if there are real risks it may be their duty to do so; however, the case highlights that if seeking to bar access, landowners should consider their reasons for doing so, and be aware of the possibility of judicial challenge.
Both landowners and those planning a wander in the wilderness should familiarise themselves with the Scottish Outdoor Access Code, which sets out responsibilities for both landowners (and land managers), as well as those using others’ land.
The local access forum set up by local authorities is also a good source for interpreting rights of access. Finally, if you do find yourself in a dispute over the exercise of access rights on your land it may be best to seek legal advice before erecting any warning signs.
Lawyers get lost? - Do lawyers need to “get lost” for proper collaboration and safety advances to happen in the oil and gas industry? Unsurprisingly, we say no, but there’s work to be done.