1. ACCESS RIGHTS :
LESSONS FROM THE CASE
LAW
Robert Sutherland, Advocate
Terra Firma Chambers

2. ACCESS RIGHTS
Part 1, Land Reform (Scotland) Act 2009
• came into force on 9 February 2005
• Section 1 - everyone has ‘access rights’
• Section 14(1) – prohibition on preventing or
deterring access
• Section 6(1)(b)(iv) – privacy exception
• Section 5(2) – extent of duty of care not affected
by 2003 Act

3. ACCESS RIGHTS
1 Access rights
(1) Everyone has the statutory rights established by this Part of this
Act.
(2) Those rights (in this Part of this Act called “access rights”) are—
(a) the right to be, for any of the purposes set out in subsection (3)
below, on land; and
(b) the right to cross land.
(3) The right set out in subsection (2)(a) above may be exercised only
—
(a) for recreational purposes;
(b) for the purposes of carrying on a relevant educational activity;
or
(c) for the purposes of carrying on, commercially or for profit, an
activity which the person exercising the right could carry on
otherwise than commercially or for profit.

4. ACCESS RIGHTS
2 Access rights to be exercised responsibly
(3) A person has access rights only if they are exercised responsibly.

5. ACCESS RIGHTS
6 Land over which access rights not exercisable
(1) The land in respect of which access rights are not exercisable is
land—
(a) to the extent that there is on it—
(i) a building or other structure or works, plant or fixed machinery;
(ii) a caravan, tent or other place affording a person privacy or shelter;
(b) which—
(iv) comprises, in relation to a house or any of the places mentioned in
paragraph (a)(ii) above, sufficient adjacent land to enable persons
living there to have reasonable measures of privacy in that house
or place and to ensure that their enjoyment of that house or place
is not unreasonably disturbed;

6. ACCESS RIGHTS
14 Prohibition signs, obstructions, dangerous impediments etc.
(1) The owner of land in respect of which access rights are exercisable
shall not, for the purpose or for the main purpose of preventing or
deterring any person entitled to exercise these rights from doing so
—
(a) put up any sign or notice;
(b) put up any fence or wall, or plant, grow or permit to grow any
hedge, tree or other vegetation;
(c) position or leave at large any animal;
(d) carry out any agricultural or other operation on the land; or
(e) take, or fail to take, any other action.

7. ACCESS RIGHTS
Tuley v The Highland Council, 2007 SLT (Sh Ct) 97
•Is what is proposed a responsible exercise of access
rights?
•Is purpose or main purpose to prevent or deter exercise of
access rights?
•If any possibility of a responsible exercise of access rights,
then actions would breach Section 14
•No clear evidence of how much use by horses required to
cause anticipated harm to path
•Landowners had acted prematurely

8. ACCESS RIGHTS
Tuley v The Highland Council, 2009 SLT 616
•There was evidence of some damage having
been done
•Evidence that there was a probability of damage
from horses using the track
•Pursuers acting responsibly
•Different types of recreational users – barriers
allowed different areas to be allocated to different
uses

9. ACCESS RIGHTS
Forbes v Fife Council, 2009 SLT (Sh Ct) 71
• Path behind Pursuers garden
• Main purpose of Pursuers to prevent antisocial
behaviour by users of path
• Not correct that responsible exercise of access
rights could only be prevented ‘in the most
obvious and extreme situation’
• Gates could be locked between 8pm and 8am

10. ACCESS RIGHTS
Aviemore Highland Resort Limited v
Cairngorms National Park Authority,
Sheriff Macfadyen, 15 January 2009
•Shortcut blocked prior to 2003 Act being brought
into force
•Not matter as there were access rights over land,
and these were being blocked now

11. ACCESS RIGHTS
Aviemore Highland Resort Limited v
Cairngorms National Park Authority, 2009 SLT
(Sh Ct) 97
•No access rights in existence when fence erected
and hedge planted
•Erection of fence a completed act
•Section 14(1)(b) not directed towards
maintenance of signs etc and did not apply to acts
done before 2003 Act came into force

12. ACCESS RIGHTS
Gloag v Perth and Kinross Council, 2007 SCLR
530
•Section 6(1)(b)(iv) required consideration of the general
type of person living in the property, not the actual person
living there
•The security needs of that general person were a relevant
consideration
•An earlier fence line acted as a pointer to what was
reasonably required for the enjoyment of the house
•Expectation of a reasonably substantial area of ground for
enjoyment of that property

13. ACCESS RIGHTS
Snowie v Stirling Council, 2008 SLT (Sh Ct) 61
•Ready access to estate by a number of different
means
•Dairy farm meant movement of people and
livestock to and from pasture around the house
•No evidence that security compromised – note
highly critical comments of security ‘expert’
•Ground was excluded from exercise of access
rights; Ross – application refused

14. ACCESS RIGHTS
Forbes v Fife Council, 2009 SLT (Sh Ct) 71
• House in a suburban setting
• Path created when houses built
• Garden separated from path by six foot high
fence
• Garden ground gave house a reasonable
measure of privacy

15. ACCESS RIGHTS
McKaskie v Cameron, Preston County Court, 1
July 2009
• Woman with pet dog crossing field containing 40
cows and their calves
• Attacked by cows and seriously injured – brain
injuries, confined to a wheelchair
• Farmer at fault – Occupiers Liability Act 1957
• Farmer at fault – Animals Act 1971
• Case being appealed

16. ACCESS RIGHTS
• Not all recreational uses have to be
accommodated on exactly the same land.
Where potentially competing recreational uses a
responsible land user can take action to manage
the land to prefer one type of use over the other
(Tuley).
• Where a reasonable basis for believing one type
of use would cause damage, no requirement to
wait for the damage to happen before taking
preventative measures (Tuley).

17. ACCESS RIGHTS
• May be more than one motivation behind
restricting access. Require to consider motives
of all the different owners. Where challenging a
notice served by a local authority care might
also be required in the selection of a pursuer to
bring proceedings under Section 14(4) (Forbes).
• Landowner entitled to take measures to prevent
irresponsible exercise of access rights, provided
not more than reasonable and allows
responsible exercise (Tuley and Forbes).

18. ACCESS RIGHTS
• Section 14(2) notice requires to be directed to
something done (or not done) since the Act
came into force (Aviemore Highland Resort
Limited).
• The more rural, remote and larger the property,
the more privacy you will enjoy (Gloag and
Snowie). Suburban properties unlikely to find
that they are entitled to anything more than their
own gardens (Ross and Forbes).

19. ACCESS RIGHTS
• Still some problematic areas - including whether
the Gloag case really is the last word on Section
6(1)(b)(iv), and the impact of statutory access
rights on an occupiers duty of care.

20. ACCESS RIGHTS :
LESSONS FROM THE CASE
LAW
Robert Sutherland, Advocate
Terra Firma Chambers