The concept of core paths in Scotland was introduced back in 2003, with all councils and national park authorities being required to identify those for use by the general public. However a recent judicial review has highlighted the fact that the list and routes of core paths are not set in stone, but that there are options for landowners to object to any new proposals or alter existing ones affecting their land.
Core Paths Plans
Under the Land Reform (Scotland) Act 2003, plans were to be drawn up for a network of core paths sufficient for giving the public reasonable access throughout the areas of land for which those councils and national park authorities were responsible. These could be paths, waterways or any other means of crossing land or water, for use by walkers, cyclists, horse riders, rowers and canoeists (motorised transport is not permitted).
In drawing up the core paths plans, those access authorities were to consider the likelihood of the core paths being used, the desire to encourage people to use core paths, and the need to balance the exercise of those rights with the interests of the owners of land through which such core paths would run.
These original core paths plans were subject to public consultation, and any objections made by landowners potentially affected by a core path and not withdrawn would be considered at a public inquiry and determined by the Scottish Ministers.
In 2016, a further Land Reform (Scotland) Act was passed, allowing the access authorities to review and amend their core paths plans in order to ensure that their core paths plans continued to give the public reasonable access throughout their areas. The 2016 Act also set out the procedure to be followed when amending a core paths plan following a review. This included notification and consultation requirements, such as written notice to the owners and occupiers of land which is to be included in a core paths plan for the first time, and explaining the potential effect on their land. In the event of an objection by the owner or occupier of the land (or by any of the other parties to which notification must be given) a local inquiry must be held after which the Scottish Ministers may direct the authority to adopt the amended plan with or without modifications.
The recent judicial review
In 2021 the Authority for the Loch Lomond and Trossachs National Park adopted an amended core paths plan for the park. It included, for the first time, routes located within the grounds of a hotel within the Park, and the hotel owners sought to have the amended core paths plan thrown out on the basis that the Authority (in drafting the amended core paths plan) and the Scottish Ministers (in directing the Authority to adopt it) had failed to apply the correct test for the addition of new paths in core paths plans.
The judge rejected the hotel owners' application, and also made the comment that while a reason for an access authority adding new core paths might be as a result of a change in circumstances, that was not necessary provided the authority considered that the adding of the further paths was now needed in order to achieve sufficient reasonable access.
Landowners v. Members of the public?
While in that judicial review the landowner was unsuccessful in arguing that the paths through its property should not be classed as new core paths, in any future case it would still be a matter of balancing the interests of the landowner (and those using the land) against the interests of those who would be exercising the access rights over the additional core paths. There may well be situations where the interests of the landowner will prevail.