The case of Kolhe v Robertson highlights the continuing importance of public rights of way and the implications that those rights may have for landowners.
As readers will be aware, the Land Reform (Scotland) Act 2003 (“the 2003 Act”) introduced the “right to roam”, a general right to take access over most land and inland water in Scotland, provided that the right is exercised responsibly. The right allows the general public access for recreational purposes and is supplemented by the Scottish Outdoor Access Code produced by Scottish Natural Heritage. In terms of the 2003 Act, Local Authorities are obliged to draw up a plan for a system of paths (known as core paths) to enable the public to have reasonable rights of access within their area.
This core path network sits alongside the public rights of way network. A public right of way must be between two public locations and be used for the purposes of transit only. There is no definitive list of Public Rights of Way in Scotland, but a list is maintained by Local Authorities and also by Scotways, the Scottish Rights of Way and Access Society, a registered Scottish Charity.
The case of Kolhe v Robertson
The case concerned the existence of a public right of way over a road leading to a harbour and pier in Aberdeenshire, and whether the harbour and pier could be a public place at which the public could park.
The pier and most of the land around the harbour was owned by Mr Kolhe. The public were parking on the pier and the access road to it, in order to take access to the water at the harbour and use the pier. Mr Kolhe sought to block access by placing giant boulders around the pier and placing warning notices on cars.
Whilst the 2003 Act established a general right to roam for pedestrians, it excludes vehicular access. Public rights of way, however, while largely also for pedestrian use only can also be established for use by vehicle.
The test for establishing a right of way (pedestrian or vehicular) requires that the access be taken between two public places for a specific journey/purpose over a definite route for a continuous period of 20 years.
The case considered what constitutes a “public place”. The public were driving down a private road owned by Mr Kolhe. That road led from a public road to the pier. The public were then parking at the pier in order to use it and the harbour, and engage in recreational activities including sightseeing, fishing from the pier and walking.
The public road was clearly a public place; and the Sheriff determined that the pier was also a public place. It was a place to which the public “had resort for some definite and intelligible purpose” which included sightseeing, walking, fishing, kayaking and scuba diving.
Right to Park
The Sheriff also held that the public had the right to park at the public place at the end of the right of way, in order to access the recreational activities. While there is no right to park on a right of way itself, the Sheriff was of the view that “if parking a vehicle is an otherwise lawful activity, there is no reason why members of the public should not park vehicles in one of the public places which form the termini of the right of way“.
Know your rights (of way)
Landowners (and potential purchasers of land) should be aware that private roads through their properties could be (or become) vehicular rights of way and that there could, in addition, be rights to park on the land at the end of the right of way. The landowner may not block the public’s access, though they are entitled to seek to prevent parking on the right of way itself.
Vehicular access other than over a formal right of way is not generally permitted under the 2003 Act, though there are exceptions for disabled people using motorised wheelchairs and buggies.
On December 3, 2019