The Right to Exclude Meets the Right of Responsible Access: Scotland’s Bold Experiment in Public Access Legislation

Volume 26 No. 2

by

John A. Lovett is the De Van Dagett, Jr. Professor of Law at Loyola University New Orleans College of Law.

American property law places a high value on the right to exclude as a core principle of private ownership, but Scotland has taken a completely different approach by enacting a sweeping public recreational access right in its Land Reform (Scotland) Act 2003.

American lawyers and judges often declare that the right to exclude is a core principle of property law and its ability to protect private ownership. On numerous occasions, for instance, the U.S. Supreme Court has declared that the right to exclude is not just another stick in the bundle of rights that we associate with ownership but is instead one of the most essential sticks. Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979); Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). Some well-known property scholars go even further. Give a person the right to exclude the rest of the world from some valuable resource, they say, and you have given that person property. Take away the right to exclude, and the owner no longer has something that can be dignified by the name of property. See, e.g., Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 730 (1998).

In other countries the right to exclude is not granted such a privileged position. Surprisingly, in Great Britain, the source of much of the common law heritage of the United States, the right to exclude has actually been subject to significant statutory reform over the course of the last decade.

With the enactment of the Countryside and Rights of Way Act, 2000, c. 37 (Eng. & Wales) (CRoW Act), the British Parliament at Westminster established a statutory “right to roam”—a narrowly defined right of pedestrian, recreational access—over certain statutorily defined “access lands” in England and Wales that account for about 8% to 12% of the total land in those countries. Although the CRoW Act’s “right to roam” has been noted by a number of American property law commentators over the past decade, few Americans realize that another parliament in the United Kingdom, the recently reopened Scottish Parliament, has enacted an even more sweeping recreational access right in a remarkable piece of legislation known as the Land Reform (Scotland) Act, 2003 (A.S.P. 2) (LRSA). This right of responsible access established in the LRSA imaginatively redefines the right to exclude in Scotland, a nation whose contributions to political economy, law, engineering, and philosophy, to say nothing of golf and malt beverages, is well appreciated by many American lawyers.

Origins of the LRSA

The story of how and why Scotland decided to create a broad statutory right of responsible access is a long and complicated one. It begins centuries ago, before the Act of Union in 1707, when Scotland’s legal system was completely independent of its neighbor to the south, England. At traditional Scots common law, members of the public enjoyed some limited access rights over private land if something known as a “public right of way” had been established. (A public right of way is more or less equivalent to what an American lawyer would call a servitude or easement in gross in favor of the public.) These common law “rights of way” often originated in old cross-country footpaths linking one village with another, “drove-roads” used to bring cattle and sheep to markets, “kirk” roads, and even “coffin” roads. For a number of doctrinal reasons, however, these common law “rights of way” were difficult to establish at Scots common law. Although some access advocates claimed that there were as many as 15,000 kilometers of rights of way in Scotland, the legal status of 80% of such rights of way was uncertain. See John A. Lovett, Progressive Property in Action: The Land Reform (Scotland) Act 2003, 89 Neb. L. Rev. 739, 753–57 (2011) and authorities cited therein.

A second impetus for reform came from a general dissatisfaction with the law of trespass in Scotland. Beginning in the late 19th century, some Scottish lawyers and politicians routinely cast doubt on whether Scotland even had a law of trespass. Today, Scottish legal experts generally reject this historical assertion, but most acknowledge that the law of trespass was a clumsy legal tool in Scotland for several reasons. First and most important, trespass was punishable only in the law of tort and was generally not considered a crime except in some limited circumstances—for instance when the trespasser was caught poaching game. Second, to obtain an injunction to stop a trespass, the landowner had to show not only the identity of the trespasser but also that the trespass was likely to continue occurring and that the trespass was not trivial. In addition, civil liability for damages required proof of actual harm. Finally, liability for trespass was not strict. Thus, innocent trespassers were often immune. See id. at 759–64 and authorities cited therein.

Perhaps because many Scots believed they had a right of access over private land and perhaps because many landowners often had little incentive to use the law of trespass to keep Scots from walking across their land, many Scottish estate owners also impliedly gave permission to persons who sought access to their land for recreational and educational activities. This implied permission was precarious, though, because the permission could always be revoked. As land ownership and use patterns changed in Scotland over time—in particular, with increasing absentee ownership combining with more intensive land exploitation—and as urbanization increased the demand for recreational access to the countryside, dissatisfaction with the status quo grew. Id. at 764–66 and authorities cited therein.

In this climate, a determined group of access advocates and public spirited landowners and land managers began to meet and hammer out what were at first limited access arrangements for specific estates. During the 1990s, with the support of respected quasi-autonomous, nongovernmental organizations like Scottish National Heritage, this “Access Forum” group gradually began to reach consensus on the principles of a new regime of recreational access for Scotland. When constitutional devolution finally brought Scotland its own Parliament in the late 1990s (the Scottish Parliament had last sat in 1707 but was reopened by Queen Elizabeth II in 1999), the stage was set for Scotland to enact legislation that many Scots felt would not only right some of the historical wrongs experienced by rural Scots in the Highland Clearances but would also counterbalance the relatively high degree of concentrated land ownership in rural Scotland. Id. at 771–77 and authorities cited therein.

The fruit of all of this activity was the LRSA. Parts II and III of this legislation established important but still largely untested grounds for community groups and crofters (tenant farmers) to purchase land in Scotland. Part I of the act, which is described below, established the sweeping right of responsible, nonmotorized, recreational access to almost all land and inland water in Scotland.

Structure of Part I of the LRSA

Where You Can Go

The first distinctive feature of the LRSA, particularly in contrast to the CRoW Act in England and Wales, is the remarkable geographic reach of access rights granted in Scotland. In England and Wales, the “right to roam” applies only to narrowly defined “access lands”—basically what the statute defines as “mapped open country,” which in turn comprises “mountain, moor, heath or down”—and a few other narrow categories of land previously reserved for public access. CRoW Act § 1(1)-(2). The right to roam also now applies to “coastal lands” in England, but not to inland waterways. Marine and Coastal Access Act, 2009, c. 23
§§ 296, 303 (Eng.).

Under the LRSA, however, the public is entitled to exercise its statutory access rights almost everywhere in Scotland—in highland glens, on islands, on lochs and rivers, on wooded estates, even on the margins of suburban housing estates. Rather than have government ministers label certain areas as “access land” based on narrowly defined physical characteristics of that land, as in England and Wales, Scotland borrowed from Scandinavian countries what some observers have labeled a “universalist,” bottom-up approach to recreational access, under which the basic assumption is that all land and inland water are presumed to be subject to access. LRSA §§ 1(2)(a) & 32; Lovett, supra, at 778, 782.

Where You Cannot Go

The drafters of the LRSA realized, of course, that certain land deserves to be exempt from the public’s right of responsible access. These exempt lands include agricultural fields where crops are growing or have been sown, woodlands where “tree seedlings” have been planted, land where a building is located, the curtilage of nonresidential buildings and other improvements, plants and fixed machinery, certain sporting areas (but remarkably the public can access a golf course as long as access is not taken across a green or while a game is under way), school grounds, mines, quarries, and other dangerous facilities, and castles, historic sites, and amusement parks that normally charge admission. LRSA §§ 6(1), 7.

Not surprisingly, the LRSA also excludes from access a certain amount of space around houses and dwellings. But unlike in England and Wales, where land within 20 meters of a dwelling or a “park or garden” surrounding a home is specifically exempted from the “right to roam,” CRoW Act, sch. 1(3)-(4), Scotland chose a more indeterminate dwelling exemption. LRSA § 6(1)(b)(iv) provides that the public does not have access rights to land that comprises, in relation to a house or any other shelter, “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.” Other than suggesting that this zone of reasonable privacy and enjoyment must be determined in light of “the location and other characteristics of the house or other place,” LRSA § 7(5), the act generally leaves the task of defining the scope of this important exclusion to local authorities, landowners, access takers, and, ultimately, the Scottish courts.

What You Can Do

In England and Wales, persons exercising the right to roam are granted a right of “open-air recreation” that is tightly circumscribed. The only permitted access is ”on foot,” CRoW Act § 2(1), which means that cycling, horseback riding, mountain biking, and cross-country skiing are not allowed. Canoeing, sailing, swimming, and camping also are prohibited. In essence, the right to roam really permits an access taker only to take a walk, have a picnic, and then go home. Lovett, supra, at 785 and authorities cited therein.

In Scotland, the scope of legitimate access activity is much wider. Access takers are permitted to be on land or inland water for most forms of nonmotorized recreational activity, including walking, hiking, running, orienteering, horseback riding, canoeing, sailing, mountain biking, and even “wild camping,” and for carrying on an educational activity—for instance studying the natural or cultural heritage of Scotland. LRSA § 1(3)(a)–(b). In addition, people can be engaged in either one of these two initial purposes (recreation or educational activity) in a commercial or for-profit manner. Id. § 1(3)(c). Thus, a paid nature guide or mountain guide can lead a group on non-exempt land. Finally, the public can access non-exempt land simply to cross from one place to another. Id. § 1(2)(b), (4)(b). The LRSA thus provides a general right of nonmotorized passage, too.

What You Cannot Do

There are, of course, a number of restrictions on permissible access taking under the LRSA. The first and most fundamental restriction is the requirement that all access taking be responsibly exercised. LRSA § 2(1). This may sound hopelessly vague to an American ear, but it is vital to the LRSA in three respects. First, in the long process of consensus building that preceded enactment of the LRSA, the promise that broad access rights would be contingent on their responsible exercise assured private landowners and appealed to a Scottish public that has always prided itself on its genteel manners. Lovett, supra, at 776–77. Second, a vision of responsible access also was fleshed out through the drafting and eventual promulgation of the widely circulated Scottish Outdoor Access Code, a soft law document that describes responsible and irresponsible access in numerous detailed contexts. Scottish Natural Heritage, Scottish Outdoor Access Code, available at www.outdoorac
cess-scotland.com (last updated Oct. 4, 2011). Although this code does not have official status as law, it is an important guideline that allows landowners and access takers to find solutions to many everyday conflicts. Finally, the duty of access takers to act responsibly has been paired with a duty on the part of land managers to manage their land responsibly for access takers’ interests. LRSA § 3(1)-(2). In essence, the LRSA imposes reciprocal duties of mutual, other-regarding behavior on access takers and landowners.

Other restrictions on access are more specific. Access takers cannot enter or cross land in breach of some specific injunction or commit any “offence.” If they are accompanied by a dog or other animal, it must be leashed. Access takers cannot use motorized vehicles other than motorized wheelchairs. Finally, they cannot hunt, shoot, or fish. LRSA §§ 2(2)(a)(1), 9. The fishing and hunting ban preserves a land manager’s ability to charge fees or grant licenses for activities like deer stalking and grouse hunting, which are important sources of revenue that can be used to keep large estates sustainable.

Land Managers’ Temporary Exclusion Rights and Exemption Orders

Both legislative regimes in the UK recognize that there will be occasions when land managers have legitimate reasons to temporarily prevent access on land that would otherwise be open to access. In England and Wales, the CRoW Act grants land managers a broad right to exempt access land unilaterally, for any reason, for up to 28 days in any calendar year, and allows them to exempt land for additional periods by requesting permission from local authorities. CRoW Act §§ 22, 24(1).

In Scotland, landowners are simply called on to conduct their ownership in a way that is responsible and are presumed to be acting responsibly if they do not interfere unreasonably with the exercise of access rights. LRSA § 3(2). Thus, many small conflicts are handled informally by land managers who can, for instance, simply post signs requesting that access takers detour for a few days to avoid disrupting activities such as spraying crops with pesticides, moving animals from one pasture to another, or felling trees. Lovett, supra, at 789. Beyond this, a land manager can request—and local authorities grant automatically—temporary exemption orders for up to five days at a time for activities like agricultural shows and motor car or motorcycle rallies. Exemption orders that last longer require confirmation by government ministers after a more formal notice and comment process. LRSA § 11(1)–(3).

Judicial Interpretations of the LRSA

After the LRSA came into force in early 2005, a number of landowners brought lawsuits challenging the actions of local authorities that sought to implement the LRSA. These suits required Scottish courts to begin interpreting some of the open-textured standards employed in the act. These cases fall into three general categories.

The Sufficient Adjacent Land Cases

The most common type of case under the LRSA so far has concerned the question of just how much land surrounding a house or dwelling a landowner can claim is “sufficient” to ensure a reasonable amount of privacy and undisturbed enjoyment under section 6(i)(b)(iv) of the act. In Gloag v. Perth and Kinross Council, (2007) S.C. L.R. 530 (Scot. Sheriff Ct.), a successful business woman, Ann Gloag, known in Scotland as the “Stagecoach Tycoon,” succeeded in establishing a 14.5 acre zone of privacy around Kinfauns Castle, the scenic, 23-acre Perthshire estate where she resided. The sheriff court allowed her to fence in this land after it held that the amount of land sufficient to assure reasonable privacy and personal enjoyment depends, not on the property owner’s individual characteristics and needs, but on “what a reasonable person living in a property of the type under consideration would require.” Id. at 544. The court went on to articulate a number of factors that are relevant to making this objective, but nevertheless property-specific, determination. Those factors include (1) the quality, prominence, and size of the dwelling, (2) the reasonable security concerns of the owner, (3) the location of prior boundaries and fences surrounding the dwelling, and (4) the use to which the adjacent land has been put. Id. at 546-48.

In subsequent cases, other Scottish courts adopted the same basic approach to resolving this question. In Snowie v. Stirling Council, (2008) S.L.T. 61 (Scot. Sheriff Ct.), a case involving another large estate surrounding an impressive castle, the landowner failed to convince the sheriff court that he should be entitled to exempt most of his estate but was still allowed to exempt 12.6 acres. In a companion case the owners of a more modest lodge house, situated next to the gates of the same estate, also failed to convince the sheriff court that they should be entitled to close the gates to the estate because, as the court found, the modest private gardens surrounding the lodge house provided them with sufficient adjacent land to meet the requirements of section 6(i)(b)(iv). Ross v. Stirling Council (Scot. Sheriff Ct. Apr. 23, 2008), www.scotcourts.gov.uk/opinions/ross.html.

In yet another decision, a sheriff court in Fife held that during the day the owners of a modest suburban home could not block public access through a path that was jointly owned by the plaintiffs and several other neighbors and that lay just beyond their fenced-in garden, but that they could lock the gates to the path at night. Forbes v. Fife Council, (2009) S.L.T. 71 (Scot. Sheriff Ct.). Finally, in the most recent “sufficient adjacent land” case, a sheriff court in Argyll ruled that owners of a six-acre property featuring a 17th century house and meticulously restored gardens, which had originally been associated with a castle on an adjacent estate, could exempt the entirety of their property. Creelman v. Argyll and Bute Council, (2009) S.L.T. 165 (Scot. Sheriff Ct.). The court justified its holding by pointing to the unusually thin, narrow shape of the estate, the proximity of the driveway (the only place where access was physically possible) to the house, and the court’s suspicion that the local council’s demand for access was motivated by the neighboring castle owner, who wanted to lead commercial tours through the beautifully restored gardens on the plaintiffs’ land.

In the last two years, no further “sufficient adjacent land” cases have been filed. One explanation is that the existing decisions have begun to provide sufficient guidance to permit landowners and local authorities to settle disputes without litigation. Another explanation is simply that local councils have become wary of litigating these types of disputes because of a lack of resources and the general fear of being assessed attorney’s fees and litigation costs.

Barriers to Access and Retroactivity

Another early decision interpreting the LRSA concerned the important issue of whether barriers to access—for example, fences and hedges—that had been erected before the effective date of the act would have to come down. In a case involving the famous Aviemore Highland Resort in the Cairngorm Mountains of Scotland, a sheriff court held that the resort would not be required to remove a fence erected in 2004, after Royal Assent was given to the act but before it went into force, that clearly impeded access to a path that had long been used by members of the public. Aviemore Highland Resort Ltd. v. Cairngorms National Park Authority, (2009) S.L.T. 97 (Scot. Sheriff Ct.).

Tuley and the Problem of Internal Zoning

In the only case to reach Scotland’s highest court, Tuley v. Highland Council, (2009) S.L.T. 616 (Scot.), the primary issue was the ability of landowners to designate certain portions of their land for different kinds of access activities. The landowners, a highly respected retired forester and his wife, actually welcomed pedestrian access on almost all of their wooded estate near Inverness, had labored to improve a number of pedestrian paths, and had adorned them with flora and benches for walkers. They also welcomed equestrian access takers on approximately half of their property and had created a bridle path specifically for this purpose. But the owners refused to allow horseback riding on the other half of their property and sought to bar horses from one path in particular that they reasonably feared would be harmed by heavy equestrian use. The local authorities, however, insisted that the landowners allow equestrian access everywhere, or at least until they could show that irresponsible horseback riding had led to real damage.

Happily for the landowners, the Court of Session in Edinburgh reversed a sheriff court ruling in favor of the local authorities and held that the landowners were acting responsibly in denying equestrian access to the vulnerable pedestrian path at issue. In essence, the court ruled that the landowners had restricted access for a genuine, good faith reason and not for the main purpose of deterring or preventing persons from exercising their access rights. The Court of Session’s decision in Tuley was important because it avoided what might have been a very demoralizing outcome for landowners who generally support responsible access taking.

Conclusion

Now that the LRSA has been in force for more than half a decade, the Scots have begun to take stock of what this bold experiment in access legislation has achieved. According to a recent study sponsored by the Scottish Parliament, there seems to be broad consensus that the LRSA has given the Scottish public greater confidence in its ability to enjoy all kinds of recreational access. Calum Macleod et al., Post-Legislative Scrutiny of the Land Reform (Scotland) Act 2003, at 37 (Sept. 2010). A recent visit to Scotland by this author and conversations with Scottish hill walkers and other outdoor enthusiasts confirm this view. The LRSA has also, it seems, encouraged more regular dialogue between access takers and land managers about what responsible access and responsible land management entail and thus has assisted in the resolution of local access disputes. Id. at 43.

At the same time, many in Scotland agree that there is room for improvement in the legislation. Concerns about the vagueness of some of the key standards and concerns among land managers about some particular forms of irresponsible access taking—agglomerations of “wild campers” and dog walkers who do not keep their dogs properly leashed, for example—should be addressed through fine-tuning of some portions of the act or through more public education.

In the end, though, it is hard to imagine Scotland returning to the access regime that existed before Part I of the LRSA came into force. The right of responsible access is here to stay in Scotland. Americans who are looking for alternative visions of how to reconcile the interests of private property owners with the interests of outdoor recreation enthusiasts should take note or, better yet, visit Scotland and take a long walk.

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