Commercial feature
UNDERSTANDING ACCESS RIGHTS IN SCOTLAND
Linsey Barclay-Smith, a partner at law firm Morton Fraser, examines the legal position around irresponsible access – and what landowners can do to combat it.
SCOTLAND’S much-lauded access rights exist for all to enjoy, with the Land Reform (Scotland) Act 2003 enshrining in law the right of access to most land and inland water throughout Scotland. However, problems can arise when individuals abuse these rights. At a time of reduced staffing on reserves, and with more people spending time in Scotland’s countryside, understanding the legal rights and responsibilities around access is vital for all.
Scotland’s longstanding ‘right to roam’ includes a right to cross land and to be on land for recreational purposes – for instance, sightseeing, walking and wildlife watching – as well as for educational purposes, such as furthering an understanding of an area’s natural or cultural heritage. There are exceptions, however, with land such as school playing fields and farmland on which crops are sown or growing excluded from these rights. Crucially, access rights are granted on
the understanding that people exercise these rights in a responsible manner. An individual is considered to be acting
responsibly where they: • do not interfere unreasonably with the rights of other people; and
• act lawfully and reasonably and take account of the interests of others and of the features of the land.
Respecting people’s privacy and peace of mind, and taking care of the environment, are just some examples of this.
ACTING IRRESPONSIBLY Where a member of the public exercises their access rights irresponsibly, they are no longer entitled to these rights. In other words, they are trespassing. A number of statutes make trespass a criminal offence in particular circumstances, yet trespass on the whole is a civil wrong.
In such cases, the landowner should
first ask the trespassing party to modify their behaviour; failing this, they can ask them to leave. Should the trespasser refuse, confrontation or use of force is to be avoided. The police can be contacted for assistance if difficulties arise. Persistent or serious breaches of access rights may have to be dealt with by the
courts, which can determine whether or not access rights have been exercised responsibly. A court may grant an interdict (or a court order) to prevent trespassers from entering the land. For this, the identity of the trespassers must be known, and the court must be satisfied that there is a reasonable likelihood of trespass in the future. A landowner may also seek redress for damages from the court on the basis that trespassers who cause damage are liable to pay the costs of repairing that damage. Where any court order is obtained and
breached, this may then turn into a criminal matter. Any activity which amounts to an offence, a breach of interdict, or other order of a court is also excluded from access rights. Where a person is acting illegally, the police can pursue criminal charges against them. The Environmental Protection Act 1990, for example, makes the disposal of waste without the necessary permit – or fly tipping – a criminal offence. Charges may also be brought following examples of recurring antisocial behaviour and damage to property. Landowners may wish to approach their local authority for assistance with investigating offenders, and with passing on information to the relevant authorities. Overall, any activities that amount to a
breach of a person’s access rights, or indeed criminal activity, should be reported to the police. If the breach is persistent and/ or property is damaged, advice should be sought as to what redress is possible through the courts.
LINSEY BARCLAY-SMITH PARTNER
0131 247 1340
Linsey.barclay-smith@morton-fraser. com
NOVEMBER 2020 SCOTTISH WILDLIFE 13
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