The Right to Roam in the Inner House
Author: Jonathan Mitchell QC | Posted: May 11, 2009
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THE RIGHT TO ROAM IN THE INNER HOUSE
Scottish local authorities which seek to enforce access rights under Part 1 of the Land Reform (Scotland) Act 2003 [1] normally do so by serving a notice under section 14 of the Act. Following the decision of the Inner House in the first case in which it considered this legislation, Tuley v Highland Council [2], 2009 CSIH 31A1 [3], this may change; effective challenges to such notices will be easier. Tuley, in which I acted for the successful appellant, is an important decision which should substantially alter perception of how the Act works in practice.
'Purpose or main purpose'
It is a precondition of an effective notice under section 14 that the action complained of was done by the landowner 'for the purpose or for the main purpose of preventing or deterring any person entitled to exercise [access rights] from doing so'. It is not enough that the action has that effect. If a landowner puts cattle in a field, or blocks up a gate, as an ordinary act of farm management, section 14 does not bite. This is deliberate drafting; when the Bill was being considered in the Scottish Parliament (Justice 2 Committee, 25 September 2002: Col.1827 to 1844 [4]), an amendment which sought to substitute for the words in section 14(1) 'for the purpose or for the main purpose' the words 'if it is likely to have the effect (whether or not intentional)' was rejected after an intelligent and full debate. The difficulty is in ascertaining the landowner's purpose. The approach of the sheriff in Tuley had been simple, if not simplistic: the pursuers had erected barriers to keep out horses: that was accordingly their purpose: it was not relevant to consider why they wished to keep out horses. The Inner House rejected this: paragraphs 36 to 43. In a passage from my argument accepted by the Court, I said this: 'the act in question was the act of … putting up a barrier which prevents the entrance of horses. But the act was not its own purpose. The purpose, and particularly the main purpose, was something different, namely what the landowner wished to achieve.'
It will not however always be easy to answer that question. What if the landowner simply wishes solitude?
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