by Nilah Ulhaq, Trainee Solicitor

The Land Reform (Scotland) Act 2003 gives everyone a right of access over land and inland water throughout Scotland as long as this is exercised responsibly. 

This “right to roam”, as it is often called, is not absolute. Among other restrictions, the right cannot be exercised on the land surrounding a home which is necessary for residents’ reasonable privacy without disturbance to the enjoyment of their homes. However how much space do residents need for reasonable privacy? This issue has come to light in a recent case between a local authority trying to preserve this right to roam and a home-owner trying to avoid disturbance from strangers. 

Manson v Midlothian Council [2018] SC EDIN 50 concerned a path in Penicuik which tapered off from a road. The path led to the Mansons’ home and a suburban estate. Where access rights are exercisable, it is illegal to put up any signs or fences which might prevent or deter the public from doing so. Despite this, the Mansons decided to restrict access down the path by installing a fence with a padlocked gate. This padlock was accompanied with an eight-foot high barrier painted with anti-climb paint, various signs and a fake CCTV camera. Shortly after, the Mansons were served with a notice from the Local Authority stating that these obstructions were prohibited under the 2003 Act. 

Judgement was handed down from the Sheriff Court in September. The Sheriff sided with the Local Authority, holding that there is a public right to roam over the path which cannot be blocked.  Ultimately, the Mansons failed to provide enough evidence of disturbance to the enjoyment of their home and the court were unconvinced that access over the path should be restricted. 

Although the Mansons did not get their desired outcome, they did raise an interesting consideration for the court. The Mansons attempted to challenge the right to roam based on Article 8 of and Article 1 of the First Protocol (A1P1) to the European Convention of Human Rights. Article 8 grants everyone the right to respect for his private and family life, his home and his correspondence whilst A1P1 grants the right to the peaceful enjoyment of his possession. Unfortunately for the Mansons, the Sheriff held that the Local Authority had considered the Mansons’ human rights and correctly balanced these with the public right to roam.

This case might be a blow to home-owners living in semi-rural areas but ultimately it shows how the law balances the right to privacy with the right to roam. Neither right is absolute. 

If you would like any advice relating to access rights, please contact a member of our Land and Property team on 0131 228 8111 or at enquiries@turcanconnell.com.