We all have access rights over much of Scotland's scenic land resource for recreation and education. In 2003, a statutory public right of access was introduced (called by some "the right to roam") and provided a statutory footing for a public right of access over land, including categories of private land. This right must be exercised responsibly and members of the public should be reminding themselves of the Scottish Outdoor Access Code.
This note will principally cover the exclusion of dual purpose properties that are used as both a private dwelling and for a commercial purpose. Before turning to that, if the public are exercising access rights over your land, what can you expect from them?
Responsible access
Landowners can expect that the public should be courteous, considerate and aware of any agricultural or commercial activities on their land. So long as the public adhere to their responsibilities in this regard, they can expect to enjoy their rights without unreasonable interference from landowners.
Those exercising rights of access are expected to act safely and look out for the safety of those for whom they are responsible. They should be alert to hazards and keep well clear of agricultural or land management activity. Landowners can ask people to avoid areas with growing crops or grazing animals. Animals, however unassuming, can react unexpectedly to a visitor.
Environmental protection and respect is also important; visitors to the countryside should remember to leave land as they find it and dispose of all litter appropriately.
Landowners also need to be aware of their own responsibilities. They have a duty to respect the exercise of access rights and to take account of the safety of those exercising their rights over their land. If there is a need to ask someone to avoid particular areas, it should be explained that this step is being taken to protect estate or farm operations and to look out for public safety.
Landowners should be thinking about their operations _ has a risk assessment been carried out recently? Are there plans to spray a field or to fell trees? Are fences, dry stone dykes, gates and stiles in good order of repair? Should consideration be given to erecting signs to warn of potential hazards? Are there plans to move any animals and, if so, will this disrupt an established path? If this is the case, can an alternative route be put in place?
Does the right to roam cover all land?
There are some exceptions to the general right to roam and this note will touch on two of these that might be of interest _ (a) the exclusion of private dwellings and gardens and (b) the exclusion of commercial properties. Often, with rural properties, this line may be blurred when a house is a private dwelling and also serves a commercial purpose _ either as a countryside retreat or an events venue. Many properties may therefore straddle both of these exceptions.
Private houses and gardens
Landowners can have a reasonable expectation of privacy. Walkers and all others exercising their rights of access are asked to keep a sensible distance from houses and gardens and avoid any ground that overlooks a house. To maintain a degree of privacy, the law provides that access rights do not extend to houses and gardens. This is a difficult line to draw and is often a question of fact and degree.
The law prohibits access over, in relation to a house, 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. For example, private gardens or landscaped policies.
Features that may support an area being categorised as "sufficient adjacent ground" or a private garden include a lawn or short mown grass; flowerbeds; tended shrubs; landscaped policies; paving and water features; walled gardens; sheds and summerhouses, etc.
Bigger properties often come with larger areas of land around the property. If these are intensively managed for the enjoyment of the property, it is arguable that access rights may not extend to these areas.
Wider, less intensely-managed areas, such as grassland and woodland, are unlikely to be classed as garden ground and the public might reasonably expect to take responsible access over such areas.
Properties used for commercial purposes
If a private house is used for commercial purposes, an argument could be made that this will also restrict the exercise of the right to roam over areas that comprise buildings and the curtilage of buildings that are not houses. This will include commercial properties. If a private house is used as an events venue, for example, the owner of the property should expect that the public's right to roam should not extend to the property and its surrounding grounds.
Given the hybrid nature of some rural properties, we recommend taking advice if you have any queries regarding the extent of the public's right to roam and what you can expect when these rights are exercised.
