Access rights v planning
The issue of access rights has again come to the fore in a Scottish Executive decision in July 2007. An appeal by residents in Clarkston, East Renfrewshire, against an order by East Renfrewshire Council was successfully upheld.
The Council had sought the removal of an unauthorised fence and gate between properties at 105 and 107 Randolph Drive, Clarkston. The properties formed part of a housing estate, which was laid out to a particular pattern including a network of off-street lanes. The lane between the properties in question led to the rear of the houses, but was also part of a network of off-street pedestrian service routes.
A fence and a padlocked gate were erected by the residents to block this lane. The local authority issued an enforcement notice requiring removal of the fence and gate. The residents took no action to remove the fence and gate within the specified time period of 28 days.
The Council contended that not only had planning permission not been granted, but also that the gate and fence fell foul of the access legislation under the Land Reform (Scotland) Act 2003. The Council (along with other local authorities) argued that it was under a duty to identify a core path network of strategic walking, cycling and horse-riding routes to be safeguarded, improved and promoted.
The residents questioned whether making an urban lane a core path was what the 2003 Act intended; also that no survey or community consultation had been undertaken to progress the designation. In particular the appellants relied on the fact that the 2003 Act only grants access rights to those exercising the right responsibly, arguing that the majority of users of the path concerned engaged in criminal acts and anti-social behaviour and that, in fact, the Council had the power to exempt land from access for reasons of proximity or public safety.
The local authority, on the other hand, contended that amenity was for the comfort, convenience and facility of not only the residents but for the whole community. The lanes in the housing estate linked public streets for the benefit of residents and were used as short cuts to avoid circuitous routes to shops and schools.
The Council noted that the lane fitted the criteria for designation as a core path and, if blocked and not used in the meantime, its condition would deteriorate. The lane offered access to open space and to an area designated as a site of interest to nature conservation, protected by a tree preservation order.
Even setting conditions (such as the times at which the land could be used) would, the Council argued, contravene the 2003 Act since the Act confers general access rights and obligations and places a duty on the Council to keep routes open at all times.
The inquiry reporter doubted the significance of the obligation to create a core path network in relation to this appeal. While implementation work had commenced, the exercise was far from complete and no timetable had been set for completion. There was no evidence that the Council had surveyed the path network or assessed the need for a core path. Also other options existed, so losing a short section of path would not destroy the potential of a core path network in the housing estate. While the lane would appear to meet the criteria for a core path, designation would not automatically follow.
The reporter could not, therefore, justify keeping the lane open on the off chance that it might at some stage become part of a designated core path network, especially given potentially strong community opposition.
The reporter went on to note that access rights are no more than one of several factors to be taken into account in considering a planning application. Local authorities have powers under the 2003 Act to ensure that the general right of access is not blocked, but these do not supersede normal planning powers, nor do they prevent the granting of planning permission, if that is otherwise appropriate and justifiable.
According to the reporter the evidence also showed that there were other routes available; the lane was not the only, or necessarily even the best, option for the core path network and the general duty of the Council to identify a core path network would not be frustrated to any major extent by closure of the lane.
The reporter, accordingly, ruled in favour of the residents, quashing the enforcement notice and granting planning permission. The residents are now entitled to retain the gates provided they are kept free and unlocked for use between 8am and 8pm, seven days a week, all year round. This condition was imposed to protect the residential amenity of the neighbouring properties and of the wider community, while also preserving general access over the lane.
Horse riders v walkers
Since writing our e-ezine at the end of July 2007, we have learned that Mr and Mrs Tuley have appealed the decision of the Sheriff at Dingwall on which we reported then.
For further guidance on access rights and other matters arising from the Land Reform (Scotland) Act 2003 please refer to your usual contacts at Anderson Strathern, or to any partner in our Land Resources Department.
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