Right to Roam?

by Alistair Duncan

I was bitten by the Munro Bug over 20 years ago. I also mountain bike, fish and occasionally shoot. When enjoying the fantastic opportunities that the outdoors in Scotland has to offer, I have never experienced any difficulties in obtaining access. That said, I have always been aware of particular hot spots and have sought the appropriate consent, followed the relevant guidelines and respected an individual’s right to privacy.

The right to roam has been a social and political hot potato for over a century and particularly during the last 50 years as a direct result of most people’s increased leisure time. A general right of access for recreational purposes was created in the form of the Land Reform (Scotland) Act 2003. One of the many exceptions to that general right is land which, in relation to a house, is sufficient adjacent land to enable the residents to have reasonable measures of privacy in that house and to ensure that their enjoyment of that house is not “unreasonably disturbed”. In the recent court decision in favour of Ann Gloag regarding rights of access to certain grounds within her property at Kinfauns, the Sheriff had to take into account factors including the location and other characteristics of the property.

I took particular interest in this legislation from its initial draft status and it instigated a massive response from interested parties in its consultation period. Like many, I took time to consider the draft Bill and made my concerns from both sides of the fence known to the Scottish Parliament.

I did not expect there to be any real problems arising from the expanses of Scotland’s wilder areas where my experience shows that responsible hill walkers generally enjoy access in concord with the stalkers, foresters, shepherds and other valuable workers in those areas. The intention however was to ensure recreational access for the public at large rather than those persons who had always enjoyed relatively unrestricted rights of access and therefore I expected new battle grounds would appear within the urban fringe. Ann Gloag’s case brings this into sharp focus. The rules are not exact and require questions of degree which are always very difficult to make concrete decisions upon. Each legal case stands on its individual merits and what is good for the rural goose may not be good for the urban gander.

The manner in which the legislation was drafted means that there is considerable room for interpretation. I very much expect however that the vast majority of people who enjoy Scotland’s outdoors will continue to do so without conflict with those people who own and work these precious areas.