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Property Law - Lecture 5 - Public Access and the Right to Roam
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Lecture notes for property law with case descriptions. Author achieved a first-class grade in the module.
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Lecture 5 – Public Access and the Right to RoamRight to Roam
• Land Reform (Scotland) Act 2003 – primarily gives people access to private land for certain
purposes. Those purposes generally come under the heading “right to rule”. A great deal of
Scotland even in the countryside is owned by private individuals. If those private individuals
could enforce their ownership right to the extent of keeping off all trespassers, then that
would knock out vast tracks of Scotland for being able to use for camping and other activities.
• Access rights to be on, or to cross land
• Gave people the right to go onto private land for generally three specified purposes:
• Recreational – hill walking, mountaineering, activities on water etc. bikes but nothing
with an engine. Powered by human.
• carrying on a relevant educational activity – social or cultural heritage
• carrying on an activity commercially or for profit – effectively to allow mountain
guides, outdoor instructors etc. to earn their living. Taking out a group of walkers up
a mountain or outdoor expedition.
Much stronger rights in England to fence off people from their land.
Excluded Land
Access rights may be exercised above, below and on the surface of land, including bridges, inland
waters, canals and the foreshore.
s6 of 2003 Act lists various categories of land over which access rights may not be exercised.
• Scottish Outdoor Access Code
• sufficient adjacent land
• Gloag v Perth & Kinross Council 2007 SCLR 530
Anne Gloag acquired a castle in Kinross which is just outside of Perth. It is the local council
which is responsible for regulating land ownership in terms of the right to roam and the 2003
Act. Anne Gloag applied to the council to have an area of around 11 acres surrounding Kinross
Castle effectively fenced off. Excluded from land to which the public would have the right to
access. right to access. The question for the sheriff was whether that was excessive or
reasonable. It came down to whether 11 acres could be deemed sufficient adjacent land. Anne
Gloag put forward arguments about privacy and also about safety, being very rich and
relatively famous, she had good reason to keep people at a reasonable distance in order to
keep her privacy and safety. Those arguments were successful, and she was given the ability
to keep the 11 acre area out of public access.
• Snowie v Stirling Council 2008 GWD 13-244
He owned a large estate close to Stirling, made money in waste disposal. He wanted to fence
off his entire estate, 100 acres, this was not allowed. Some of the fences or gates he wanted
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