Core Path Plan Amendment under the Land Reform (Scotland) Act 2003 – Gartmore House v LLTNPA (Case Comment)
By Malcolm Combe - Posted on 25 April 2022
The right of responsible access that was introduced by Part 1 of the Land Reform (Scotland) Act 2003 is now suitably ensconced in Scots law. Since it came into force, outdoor access has been secured for those crossing land or seeking recreational, educational and even some commercial opportunities, subject to such activity being undertaken on a responsible basis and in a place that is not excluded from the scope of the legislation. Where land is subject to access rights, owners and other occupiers of land must in turn manage that land in a manner that is responsible; that is to say, sympathetic to the possibility of access. The Scottish Outdoor Access Code – a freely available document that has been approved by the Scottish Parliament – provides guidance about responsible land use and land management.
Local authorities or, where relevant, national park authorities – which can together be termed “access authorities” – have certain duties and powers in relation to access rights in their respective areas. These include promoting access rights, and serving enforcement notices on land managers who act in a way that stymies public access.
Another duty that was imposed on access authorities in the immediate aftermath of the 2003 Act was to provide a network of core paths. Core paths allow people to enjoy access in and around their local area.
Issues relating to pressure of access when Covid-19 restrictions applied (and international travel complications kept people in the UK) have been discussed on this blog before. Court cases relating to the right of responsible access have also arisen, notably in the context of whether land is excluded from access (under section 6) and in relation to what is acceptable in land management terms at particular sites. The recent case of Gartmore House v Loch Lomond and the Trossachs National Park Authority  CSOH 24 also concerns the right of responsible access, albeit from a slightly different direction to earlier case law.
The Gartmore House v LLTNPA litigation concerned an attempt by a land owner to negate the adoption of a new core paths plan by an access authority. The judicial review brought by the owner of a site near the village of Gartmore in rural Stirlingshire was founded on the relevant statutory test for adoption of a core paths plan, and also a separate ground that there had been a failure to comply with the public sector equality duty found in section 149 of the Equality Act 2010. The case came before Lord Clark in the Outer House of the Court of Session. As will be discussed below, he did not agree with the land owner’s submissions that challenged the process that was adopted, thus smoothing the path for that new plan.
This blog post will explain the statutory provisions around core paths and their implications for owners and occupiers of land. It will then consider the application of those provisions to a particular site, and circumstances which – somewhat unfortunately – saw the charitable organisation that owns that site pitched against one of Scotland’s two national park authorities (as reported in The Times on 5 March 2022). A fuller account can be found in an article in the Scottish Planning and Environmental Law journal ((2022) 210 SPEL 35-37).
As alluded to above, amongst their many other statutory roles, access authorities also had a role in relation to the new concept of core paths that were introduced by the 2003 Act. They had to devise a network of accessible routes “sufficient for the purpose of giving the public reasonable access throughout their area” (as per section 17(1)). Such a “core paths plan” was then to be implemented, with accompanying local notification and consultation of interested parties. Absent any relevant objections, the plan was to be adopted by the access authority.
In the event of any objections to a proposed core path plan, the Scottish Ministers were drawn into the process such that they would cause a local inquiry to be held. Following the publication of the report by the person appointed to hold the inquiry, Ministers were empowered to direct the access authority to adopt the plan (with or without amendments).
That one-off duty on access authorities was to be acted upon within three years. That was not the end of the matter though. An access authority also has a continuing role, in that it may or must (if asked by the Scottish Ministers) review its core paths plan and then, if appropriate, amend the plan. A similar process to the original scheme applies for such a wholesale review, although there is also a simplified route for a single amendment within a core paths plan.
There are practical and legal implications of land being designated as a core path.
In practical terms, a core path will be publicised by the relevant access authority, with the associated potential of increased footfall.
In legal terms, the existence of a core path means that anyone taking access there can be surefooted about the entitlement to do so. This is because section 6 exclusions to access rights explicitly do not apply to land that is a core path, save in very particular circumstances (for example, when access is prohibited or restricted owing to an outbreak of animal disease, such as a foot and mouth outbreak).
A further legal consequence is that an access authority may do anything which they consider appropriate for the purposes of: maintaining a core path; keeping a core path free from obstruction or encroachment; and providing the public certain information about a core path.
It is understandable that many land owners would wish to ensure that such implications only arise when the proper process has been followed. This was stress-tested in the case of Gartmore House v LLTNPA. For clarity, Gartmore House is the name of the land owning charitable company that raised this court action, and is also the name of a building on the site.
The dispute and the legal framework
The background to this dispute is explained in paragraphs 4-6 of Lord Clark’s Opinion. Those wanting a full picture can access the case online. A brief synopsis is offered here.
The access authority adopted its first core paths plan in 2010. The core paths in this plan did not cross the land owned by the company that brought the case (aka “the petitioner”, in judicial review terminology).
In November 2018 the access authority, at its own initiative, began a consultation about changes to its core paths plan. Two new core paths would traverse the land in question, which I will call “the Gartmore Paths”. The Gartmore Paths passed close to an accommodation block and land used by visiting groups to the site. Objections were raised about the Gartmore Paths, but the access authority made no amendments to the proposed plan. In line with the statutory scheme, the Scottish Ministers were mobilised and the unresolved objection was passed to them. A Reporter was appointed, and representations were made to him on the petitioner’s behalf. A site visit took place in July 2020. His Report followed on 10 December 2020.
The Report is available on the website of the Planning and Environmental Appeals Division. It covered three other fresh core paths within the national park area (all of which were recommended for inclusion in the new core paths plan), and provides some context that was not included in the ultimate court ruling.
To distil the key terms from the Report (which were extracted in Lord Clark’s opinion), observations were made that the Gartmore Paths “provide a significant benefit to the sufficiency of the network by giving the public a better opportunity to access the area off-road” (it having been noted that other nearby core paths utilised public roads and thus were “not ideal”). The Reporter also highlighted the importance of safeguarding the safety and wellbeing of any visitors to the site, particularly children and vulnerable people, although he noted that it would not be unusual to have such groups on-site in a way that could be twinned with suitable public access.
After acknowledging the possibility of the access authority helping to alleviate any concerns, the Reporter concluded that the difficulties raised in the objections did not appear “insurmountable”. In March 2021, the Scottish Ministers accepted the Reporter’s views and directed the updated core paths plan including the Gartmore Paths be adopted, with a resolution to do so following on 14 June 2021.
In his judgment, Lord Clark set out the statutory provisions for the adoption and updating of core path plans, and highlighted relevant Scottish Government guidance that was issued to access authorities. In relation to the Equality Act 2010, he highlighted that which a public authority must have due regard to in the exercise of its functions, namely the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics are: age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
The rejected petition
Aspects of this decision engage with law that is not often encountered in an access context, such as case authority about how to read a document produced as part of the statutory process, and the relevant legal principles to be applied when considering whether the statutory duty under the Equality Act 2010 had been breached. Glossing over that and moving to the operative provisions of the 2003 Act, much was made by the petitioner that the Gartmore Paths and the subsequent Report went beyond the statutory test (in terms of section 17(1) as applied by section 20A(5)). As noted above, the test is about having a “system of paths… sufficient for the purpose of giving the public reasonable access throughout their area.” The petitioner tried to establish that a different test, based on improving local access, had in fact been applied. Another argument was that there was a failure to give proper, adequate and intelligible reasons for the adoption of the new core paths plan. This submission homed in on the Reporter’s observation that the difficulties for the land owner would not be “insurmountable” rather than properly balancing the respective interests (per section 17(3), as applied by section 20(7)).
In short, Lord Clark felt the Reporter stuck to the statute, the Report reflected and addressed the statutory test, and the petitioner’s suggestions that the Reporter had gone beyond the terms of the statute did not find favour. Lord Clark also explained that the fact there was a previous core paths plan did not mean that plan was set in stone even without a change in circumstances arising, there being nothing in the wording of the statute or the related guidance for access authorities to that effect. This is surely correct.
The final point considered by Lord Clark under his heading of “Misinterpretation and misapplication of the statutory test under the 2003 Act” was in relation to the alleged failure to give proper reasons for the adoption of the new core paths plan, an assertion he saw “no real force in” (paragraph 34). This was fortified by reference to case law, after which Lord Clark stated, “The fact that he expressed the decision reasonably succinctly is of no moment”. Brevity is bliss.
As to the alleged breach of the public sector equality duty, this turned out to be a closer run thing, although the petitioner again failed. After clarifying there was no need to specifically refer to the statutory language or statutory test (which was fortunate for the respondent and the interested party, as the Reporter did not do so), matters then turned to whether there had been due regard to the policy objectives in section 149 of the Equality Act 2010. If they had been properly considered, the appropriate weighting was for the decision-maker.
Lord Clark was of the view that the Reporter had indeed considered the issue (relating to the potential impact of the Gartmore Paths on children and vulnerable groups), allowing him to move on to consider whether the access authority and the Scottish Ministers had fallen short in their (non-delegable) duty to comply with the duty. Notwithstanding a lack of documentation saying expressly that they had had due regard to section 149 of the 2010 Act, the fact that the Scottish Ministers issued a letter stating they had considered the Report and that the access authority had a board meeting subsequent to that when matters were considered provided insulation to them, on the basis that the relevant issues were indeed addressed in the Report. The Reporter’s coverage of the potential issues with children and other vulnerable groups was accordingly crucial, and without that the narrow Equality Impact Assessment conducted by the access authority (which was only about barriers to making representations) would not have been enough to meet the duty.
Gartmore House v Loch Lomond and the Trossachs National Park Authority is an important case, both in the general context of being a core paths plan dispute that made it to court, and also in terms of the local context, paving the way for the establishment of new core paths that are sufficient for local access in a given locality. Access authorities and indeed the Scottish Ministers would do well to keep it in mind for any future core path amendments, whilst land owners should reflect on it carefully before launching any judicial reviews in reaction to any such amending.
Malcolm M Combe, Author of The Scotways Guide to the Law of Public Access to Land in Scotland
Following on from the submission of this article in SPEL, the author heard that Gartmore House plans to appeal the decision. Relevant updates will be provided if and when this is possible.
A statement from the access authority reacting to the court ruling can be found on its website.
Further information about the SPEL journal can be found at its publisher’s website. Thanks to John Watchman (editor of the SPEL journal) for encouraging the original article and this related blog post, and to Eve Lucas of Strathclyde Law School for her comments on this post.