The Fight for Scottish Access Rights

Author: Neil Brannigan (Vice President), Fourth Year

This picture of rather inconspicuous Scottish scenery may be unfamiliar to you, however, the glen in the foreground - Glen Tilt – was the site of a pivotal legal battle. A group of students from the University of Edinburgh and their tutor, John Balfour, were intending to walk from Braemar to Blair Atholl through Glen Tilt. Before reaching Blair Atholl, the group was accosted by the Juke of Athol’s men and their journey onwards was halted. This altercation lead to a legal dispute over land access rights which resulted in the establishment of the Scottish Rights of Way Society. The law has been developed in recent years into a ‘right to roam’, codified in the Land Reform Scotland Act 2003. This allows for free access to the countryside for recreational purposes.

However, the Act contains some exceptions which have sparked litigation. Key among these exceptions is found in section 6(b)(iv), which excludes sufficient adjacent land to a property so residents have reasonable measures of privacy. The case of Gloag v Perth and Kinross Council & The Ramblers Association (2007), dealt with the definition of what would be considered ‘reasonable’ for the purposes of the Act. The court held that as Ann Gloag is a person of reputation and wealth, she required a larger area of land for her privacy. The court added that enough land should be excluded to prevent photographs being taken of her property, and consideration of boundaries and treelines should be taken into consideration.

With respect to Sheriff Fletcher, I would suggest this decision ran contrary to the letter and spirt of the 2003 Act . The Act places the burden upon the, ever illusive, objective reasonable person. The reasonable person cannot expect to prevent individuals from having a direct line of sight to their property. For the vast majority of the population, this is impossible and, therefore, Ann Gloag’s personal fame was the motivation for this issue being considered. In my view this created a subjective test, the parameters of which would be impossible to predict. For example, a passing walker would have to know who lived in a property to safely predict their access rights to the area. This quashes the objective of the law: to allow more people to enjoy the countryside free from the fear of prosecution (Memorandum Land Reform (Scotland) Bill (2001). Some would argue that it is reasonable for wealthier individuals to have higher expectations of privacy due to security considerations, however, I would suggest all people have the same fear of crime against their property. Furthermore, security is not a factor which the 2003 Act mentions.

The subsequent case of Snowie v Stirling Council (2008), in my view, resolved the unpredictability of the Gloag decision. Here a far smaller area of land was excluded from access rights with the proprietor’s reputation being a reduced consideration. The court granted enough land which would be considered a private garden – a more agreeable position to the reasonable person.

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