The local authorities are routinely enforcing access rights against residential, commercial and estate owners. It is therefore important for property owners to know their rights and responsibilities when it comes the Access Rights.
The Land Reform (Scotland) Act 2003 creates a unique set of access rights to cross land provided it is for the following:
a) a recreational purpose
b) to carry out a commercial activity
c) or for a relevant educational activity.
The Scottish Outdoor Access Code lays out the manner people should use these access rights and these access rights will exist provided users behave responsibly.
Access rights are not exercisable in certain situations as specified in section 6 of the Act:
- Through someone’s house or the land which forms around their house where they would expect reasonable degree of privacy and lack of disturbance i.e. garden area. What is determined as a reasonable degree of privacy will depend on the nature of property.
- Through land which forms the curtilage of a building
- Through land where crops grow
- Land forming part of a school
- Land where there are building, civil engineering or demolition works.
- Land which is set out for a particular purpose as a sports or playing field; or for a particular recreational purpose
- Places, such as visitor attractions, which charge for entry
In terms of the 2003 Act, property owners have a legal obligation to facilitate these rights.
For example, section 14 of the act prohibits owners from putting up signs or fences to deter people or obstructing them from exercising their access rights. If an owner does not follow the rules set out in the 2003 Act the local authority may issue a notice requiring them to take action. If the owner does not take action requested then the local authority may do so on their behalf i.e. remove a gate or sign.
In Manson v Midlothian Council, there was a path in an urban area that was adjacent to a family home. The owners of that home used anti climb paint and a large fence to block the path due to anti-social behaviour occurring there. The council served a section 14 notice and then raised a court action. The owners argued that the path formed part of their curtilage where they could expect privacy. The court disagreed and held that the actions of the home owners was not to legitimately prevent anti-social behaviour but to deter access rights completely.
It is clearly important for property owners to be aware of Access Rights as it can affect both rural, urban and commercial property. These Access Right can severely restrict the way land can be used or developed and so it is important to check the position before purchasing, leasing or developing land.
For advice on Access Rights in Scotland please contact us through our online contact form.