by Jamie McNish, Trainee Solicitor.
Public rights of access are something which all landowners in Scotland should bear in mind when managing their property, especially where that property contains areas to which the general public may wish to have recourse. A recent case looks at circumstances in which there can be a public right to vehicular access over – as well as a right to park vehicles on – private land.
Although the ‘right to roam’ is often the first phrase which springs to mind when considering access rights, this was only introduced by the Land Reform (Scotland) Act 2003 (see our Briefing Note for more information). The public had, however, historically been entitled to take access over specified, and more limited, public rights of way. These required to be between two public locations, and for the purpose of transit only – this contrasts with the broader range of activities, including recreation, allowed under the 2003 Act. With their more limited scope, public rights of way have seen their importance somewhat diminished in the right-to-roam era.
The case of Kolhe v Robertson 2018 GWD 25-324 has, however, highlighted the continued importance of public rights of way, and shown why landowners must continue to pay specific attention to them over and above the public’s general right of access under the right to roam.
Kolhe v Robertson
This case concerned a harbour and pier in Cove, south of Aberdeen, over which access rights were exercised.
The judgment can be broken down into two main strands. The first element – the dispute around which the case arose, and which attracted the majority of the press attention – concerned the storage of small boats and other equipment by creel fishers on ground owned by the pursuer, Mr Kolhe, and a demand that these boats and other equipment be removed. The considerations in this part of the judgment are slightly different to the question of general public rights of way and vehicular access, and shall not be discussed in detail here. It is worth noting, however, that the landowner was successful and the boats and equipment, notwithstanding that they had been stored at that location since time immemorial, were ordered to be removed.
The second element which was considered was the general public’s access to the pier and harbor; whether a public right of way existed and, if so, the form that this took. In terms of pedestrian access, reliance on a public right of way is, as mentioned above, of lesser importance after the coming into force of the 2003 Act. The public would be entitled to take access whether or not there was an existing right of way. However, it is in considering the question of vehicular access that the Kolhe case shows the continuing importance of public rights of way.
Vehicular rights of way
While the 2003 Act allows pedestrian access for a wide range of purposes, vehicular access across land is specifically excluded from the right to roam (other than for persons requiring assistance due to a disability). This is not so for public rights of way, where vehicular access can be established in the same manner as pedestrian access. Where the required tests (including public termini, a continuous journey from end to end, a definite route, and continuous use) are met, and where there has been use by vehicles for the prescriptive period of 20 years, a public right of way for vehicles can be established.
The use and route criteria will be determined through evidence. In Kolhe, one element which was however discussed in greater detail was what constituted a “public place”. The private road in Kolhe led from the public road to the pier. While it is obvious that the public road is a public place, it is less evident that this is the case for the pier. However, the sheriff considered the pier a place to which the public had ‘resort for some definite and intelligible purpose’ – including sightseeing, walking, fishing, kayaking, and scuba diving. As such, it was a public place and could constitute a terminus for a right of way.
It can be taken from this that a range of areas which are in private ownership could nonetheless be considered public places – including beaches and other areas of recreation – and that access taken to them could qualify as a public right of way, if the other necessary criteria are met.
In addition to finding that a right of vehicular access to the pier existed, the judgment in Kolhe indicated that this could include a right to park on the pier to facilitate this. So people taking canoes, fishing equipment etc, to the pier were entitled to park their cars on the pier when they did so. While the public could not park along the route of the right of way, they could do so at the public place (the pier) which constituted the terminus. It is possible to envisage that a similar scenario could arise in bringing recreational equipment, or just travelling by car for a walk, to a private beach or other recreational area, with a resulting right to park a vehicle at that location.
While the Kolhe case does not necessarily establish new rights, it is an important reminder of the position of vehicular rights of way, and a statement of their extent. Landowners may not necessarily expect that the public could be entitled to drive over their land, and much less park there; this is something which must be borne in mind when managing land, and particular roads and tracks over which the public has made use.
Public rights of way
If a public right of way exists across a property, having been established for the requisite time period, the landowner is not entitled to block this access, or take steps to discourage its use. It is therefore important to be aware of potential rights of way affecting your property so that the appropriate action is taken.
While there is no definitive record of all public rights of way, ScotWays (the Scottish Rights of Way and Access Society) does maintain a searchable list, as do local authorities.
In many cases, however, it will be a case of local knowledge and historical practice which are required in order to establish the existence of these routes, and ultimately in managing their exercise.