Country house hotel owners lose appeal against decision to add new public access paths in national park land near estate

About this case:

• Citation:
  [2022] CSIH 56
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

The petitioners, a charity which owned Gartmore House and the surrounding Gartmore Estate, argued that paths proposed by the Lord Lomond & Trossachs National Park Authority would infringe on the privacy of their guests and clients.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Woolman and Lord Pentland. Burnet KC appeared for the petitioners, MacColl KC for the respondents, and N McLean, solicitor advocate, for the Scottish Ministers as an interested party.

Reasonable access

The petitioners operated a hotel and an adjacent accommodation block on the Gartmore Estate. They frequently used the property to accommodate groups of children, including vulnerable children, and religious groups that required privacy. In 2018, the respondents began a formal consultation to amend the core paths plan for the national park by adding further core paths which would run close to the accommodation block and land used by visiting groups.

By letters dated February and October 2019, the petitioners objected to the addition of the new paths. After the respondents refused to remove them, they made representations to the reporter for the Scottish Ministers expressing their concern that if the paths were to be added they would be unable to offer the level of assurance required by local authorities under relevant child protection guidelines.

It was concluded by the reporter that the additional paths would provide a significant benefit to the sufficiency of the network and a proposed alternative route for both paths was unsuitable. The petitioners’ concern that the additions would lead to path users encountering guests required to be balanced with access rights. The Lord Ordinary upheld the decision of the reporter at first instance, concluding that the reporter had adequately balanced the interests of the petitioners with access rights users and that the proposed paths would still divert walkers from the more sensitive parts of the property.

Counsel for the petitioners submitted that the Lord Ordinary had erred in his interpretation of the relevant statutory test under the Land Reform (Scotland) Act 2003. The review exercise should have been about whether the original network continued to provide sufficiency, not whether it could be improved. He had failed to consider whether the public already had reasonable access to the area and had made no mention to the public sector equality duty owed by the Ministers under the Equality Act 2010.

Narrow and artificial exercise

Delivering the opinion of the court, Lord Carloway began: “The 2003 Act imposed an obligation on the respondents to draw up a plan for core paths ‘sufficient for the purpose of giving the public reasonable access throughout their area’. The respondents did this. The adoption of the plan did not carry with it an assumption, or a presumption, that there was thereby a sufficient core paths network in the area; merely that the identified core paths contributed to the statutory purpose of giving reasonable access and balanced the factors, including the interests of land owners, required by section 17(3).”

Addressing the relevance of the original network plan, he said: “In due course, an adopted plan might be improved; whether by the addition of other paths or the substitution of different routes, provided that the plan, as amended, also contributes to the sufficiency of the network. That is the objective of the provision for review. The use of the phrase ‘continues to give… reasonable access’ does not carry with it an implication that any previously adopted plan demonstrates the existence of a sufficiency which can never be improved. It would make no practical sense for a core paths plan to be set in aspic.”

He continued: “The reporter asked the correct question of whether, under section 17(1), the new plan with the additional paths created a system which again contributed positively to the overall purpose of giving the public reasonable access; balancing in that equation the land owner’s interest. It was not necessary for the reporter to carry out a comparison of the existing network with the proposed new one or to examine whether the network in place was already sufficient. That would be an unduly narrow and artificial exercise.”

Lord Carloway concluded: “The reporter addressed the matters which were raised before him in relation to the public sector equality duty. These concerned the interruption, or disruption, of the activities of children, vulnerable persons and religious groups. The reporter reasoned that the limited scope of any interference, and the ability to temper the effects of such interference by taking temporary measures, was not such as justified a refusal to incorporate new paths which would enhance the access rights of all.”

The reclaiming motion was therefore refused.