Access to the Outdoors in Scotland A summary of relevant court decisions Published by: ScotWays (The Scottish Rights of Way and Access Society) 24 Annandale Street Edinburgh EH7 4AN First edition, version 1.1 Date: 14th September 2010 With Update 1, March 2011 © Copyright 2010 Scottish Rights of Way and Access Society (ScotWays) This publication may be downloaded by individuals for their own use. Short extracts from the publication may be reproduced without the prior consent of the copyright holder provided that the source is acknowledged. Scottish Rights of Way and Access Society (ScotWays) 24 Annandale Street Edinburgh EH7 4AN www.scotways.com Registered as a limited company in Scotland. Company number: SC024243 Registered office as above. A Scottish Charity, number: SC015460 2 ACKNOWLEDGEMENTS Many of the case summaries in this publication are derived from Rights of Way: The Authority of Case Law edited by Alistair Lawson. That publication was written with the help of ScotWays Legal Committee members, and published by ScotWays in 1998. This publication has been co-ordinated and edited by Judith Lewis. New material for this publication has been written with the help of members of the ScotWays Legal Committee, in particular: George Menzies John Mackay and John Innes Christopher Hooper, a law student at Edinburgh University, assisted with research for new material. We are also grateful to: John Spencer, who developed the database used as a basis for preparation of the publication; Debbie Ramage for her general assistance with the publication; ScotWays Board member, Richard Barron; Scottish Natural Heritage, which provided grant assistance to ScotWays during the period of development of this publication, and in particular to Rob Garner, Policy and Advisory Officer, SNH, for his support during this time; and ScotWays staff, particularly Catriona Davies. The Scottish Courts Service website: http://www.scotcourts.gov.uk/ is an essential source for recent court decisions and also provides useful information about the Scottish courts system. Scottish Natural Heritage’s publication A Brief Guide to Occupiers’ Legal Liabilities in Scotland was a valuable source of reference when preparing the Part on Liability. 3 Table of Contents Page Introduction 5 Part 1 Cases under the Land Reform (Scotland) Act 2003 11 Part 2 Public Rights of Way and Private Servitude Rights 25 of Way Part 2.1 Relationship of public rights of way with private 25 servitude rights of way and with ‘roads’ under the Roads (Scotland) Act 1984 Part 2.1.1: Relationship of public rights of way with 25 private servitude rights of way Part 2.1.2: Public rights of way and ‘roads’ under the 28 Roads (Scotland) Act 1984 Part 2.2 Creation of public rights of way – need for public place 30 end points. Part 2.3 Creation of public rights of way – use as of right by the 41 public for the prescriptive period Part 2.4 Creation of rights of way – interruption of the 58 prescriptive period Part 2.5 Need for a particular line for public rights of way 59 Part 2.6 Different kinds of use of rights of way 61 Part 2.7 Rights of way – land owned by statutory undertakers or 65 the Crown. Part 2.8 Public and private rights of way – ancillary rights and 72 burdens Part 2.9 Obstruction of rights of way 76 Part 2.10 Procedural issues 89 Part 3 Navigation rights and rights in relation to the 95 foreshore Part 3.1 Navigation rights 95 Part 3.2 Rights in relation to the foreshore 99 Part 4 Liability 103 Part 4.1 Occupiers’ liability: Cases involving ‘hazards’ in the 103 outdoors Part 4.2 Occupiers’ liability: Cases involving children 110 Part 4.3 Occupiers’ liability: Cases involving facilities/indoor 112 premises Part 4.4 Cases involving animals 113 Part 4.5 Liability of recreational users to one another 116 Part 4.6 Cases relating to contributory negligence 117 Part 5 Other cases of interest 118 Table of cases 120 Bibliography and Useful Websites 125 Update 1 – March 2011 125 4 Introduction This new publication is the successor to the ScotWays publication Rights of Way: the authority of case law, which was published in 1998. But all the cases taken from that work (mainly in relation to rights of way) have been reviewed, and many new cases have been added in order to cover access rights under Part 1 of the Land Reform (Scotland) Act 2003, and other relevant areas of law. It is a companion to Access Rights and Rights of Way: A Guide to the Law in Scotland, also published by ScotWays. The publication is intended for all those interested in outdoor access or involved in advising access takers and land managers. It is hoped that the summaries will give readers who are non-lawyers an improved understanding of the issues, and give them more confidence when discussing these issues with their legal advisers. Lawyers and law students will also find it a useful starting point for researching this field of law. This publication provides summaries of court decisions in various fields that have a bearing on outdoor access: access rights, public rights of way, private rights of way (servitudes), liability, and navigation and foreshore rights. Cases relating to the new access rights and responsibilities under Part I of the Land Reform (Scotland) Act 2003 will be of particular interest. This Part of the Act is written in open terms and, during its evolution, Parliament recognised that the Courts would have a role in clarifying how it would operate. There have been few decisions so far, but they have been important in providing some early interpretation of this ground-breaking legislation. The longest Part of this guide concerns rights of way. There have been numerous court cases, some dating back to the eighteenth century, and many aroused heated public debate in their time. Private servitude rights of way are included where the principles involved are similar to those in public right of way cases. The Part on liability (the liability of occupiers, and the liability of one access taker to another) has been included because this topic is of increasing interest to land managers and to those taking access. Cases on navigation rights and rights on the foreshore have also been included in order to complete the main areas of law relating to outdoor access. The Scottish Court Service Website has a searchable database of court decisions since 1998 at http://www.scotcourts.gov.uk/search- judgments/about-judgments. Links to the appropriate full decisions on the SCS website are given in this publication, where they are available. Please note that, where links are given to web pages, you may need to copy and paste the links into your web browser, rather than going to them direct from this document. 5 Also reported are some relevant decisions of courts in England and elsewhere. Scottish cases often refer to decisions in other jurisdictions where these are relevant. Finding relevant cases in this guide Cases in this publication have been divided into five main Parts. Longer Parts have been broken down to place cases under sub-headings – see the Table of Contents on page 4. The main Parts are: Part 1: Cases under the Land Reform (Scotland) Act 2003 Cases under this Act have been placed in date order. Part 2: Public rights of way and private servitude rights of way Because the principles in relation to public rights of way overlap with private servitude rights of way, they have been placed together in one Part. As this is the longest Part, they have been placed under headings according to the main principles in each case. See the beginning of that Part (page 25) for further details. Part 3: Navigation rights and rights in relation to the foreshore These issues have been placed together because they both involve access to water. Part 4: Liability This Part has also been sub-divided and includes cases in relation to the liability of landowners and occupiers under the Occupiers Liability Act 1960, and also the liability of access takers to one another. Part 5: Other cases of interest This Part includes other cases that have a bearing on outdoor access. There is an alphabetical list of the names of the cases, with their case report or court reference, on page 120. Most of the cases listed are reported in various official law reports, which contain the full texts of the judges' opinions and summaries of the facts and the legal arguments on each side. The report reference consists of the year of the report followed by identifying letters for the series of reports and a page reference (e.g. 1945 SC 302 for a case reported in Session Cases in 1945). In addition there are summarised reports (such as GWD - Greens Weekly Digest, and CLY - Current Law Yearbook) which only contain brief summaries of cases. In many recent cases, the full texts of judges’ opinions are also available on official court websites and references to these are also given, with the relevant court reference numbers, where available. The case report references enable lawyers to look up the full reports in the appropriate volumes in law libraries, but non-lawyers will probably find it easier to use the online court website references for recent cases. There is often additional information or comment available on the Internet. As this publication is electronic, readers can use the usual ‘find’ tools to search for relevant issues within the publication. 6 The format of this guide, as a downloadable PDF file, means that ScotWays will be able to update it with new court decisions as they arise.