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RECLAIMING MOTION IN THE PETITION OF GARTMORE HOUSE AGAINST LOCH LOMOND & THE TROSSACHS NATIONAL PARK AUTHORITY AND THE SCOTTISH MINISTERS [2022] ScotCS CSIH_56 (20 December 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSIH_56.html
Cite as:
2023 SC 105,
2023 GWD 2-18,
2023 SLT 652,
2023 SCLR 195,
[2022] ScotCS CSIH_56,
[2022] CSIH 56
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 56
P482/21
Lord President
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion
in the petition of
GARTMORE HOUSE
Petitioners and Reclaimers
against
LOCH LOMOND & THE TROSSACHS NATIONAL PARK AUTHORITY
Respondents
and
THE SCOTTISH MINISTERS
Interested Parties
______________
Petitioners and Reclaimers: Burnet KC; Gillespie Macandrew LLP
Respondents: MacColl KC; Anderson Strathern LLP
Interested Parties: N McLean (sol adv); Scottish Government Legal Directorate
20 December 2022
Introduction
[1]
The Land Reform (Scotland) Act 2003 introduced new rights of public access to land.
The new right comprises the right to be on land for recreational, educational and non-
commercial purposes, and the right to cross land (s 1). This is known as the right to roam
2
(see Anstalt v Loch Lomond & Trossachs National Park 2018 SC 406). Access rights are
restricted or prevented on specified parts of land; for example, land upon which a building
is erected (s 6).
[2]
Local and National Park authorities must uphold access rights (s 13). That includes
devising a system of "core paths" to give the public reasonable access throughout their area
(s 17). This is in addition to the general right to roam, which applies to many more paths
and areas.
[3]
This reclaiming motion (appeal) concerns the respondents' decision to amend the
2010 core path plan for the Loch Lomond & The Trossachs National Park. The amendments
include the addition of two core paths, whereby users can go through land surrounding the
petitioners' hotel and accommodation block on the Gartmore Estate. Following a local
inquiry, the Scottish Ministers directed the respondents to adopt the amended plan. The
petitioners challenge the addition of the paths. The Lord Ordinary found that both the
direction and the adoption were lawful. He refused to reduce these decisions.
Statutory provisions and guidance
The Land Reform (Scotland) Act 2003
[4]
The requirement upon local authorities and national park authorities to draw up a
core paths plan is governed by section 17 of the 2003 Act, which is in the following terms:
"17
Core paths plan
(1)
It is the duty of the local authority, not later than 3 years after the coming into
force of this section, to draw up a plan for a system of paths ("core paths") sufficient
for the purpose of giving the public reasonable access throughout their area. "
3
In drawing up the plan, regard is to be had to: the likelihood that persons will exercise rights
of way and access by using core paths; the desirability of encouraging them to do so; and the
need to balance those rights with the interests of the landowner (s 17(3)).
[5]
Section 20 governs amendments to a core paths plan. It provides:
"20
Review and amendment of core paths plan
(1)
A local authority--
(a)
...
(b)
may review ... a plan if they consider it appropriate to do so for the
purpose of ensuring that the core paths plan continues to give the public
reasonable access throughout their area."
If there is an objection to an amendment, section 20A(5) requires the interested parties to
hold a local inquiry into whether the amended plan will "fulfil the purpose mentioned in
section 17(1)".
[6]
In relation to section 17, the interested parties' Guidance (for Local Authorities and
National Park Authorities on Part 1 Land Reform (Scotland) Act 2003 (2005)) states (p 40) that the
core paths system should provide "the basic framework of routes" sufficient for the purpose
of giving the public reasonable access throughout their area. It should link into, and
support, wider networks of other paths. A well marked system of core paths is intended to
encourage more people to enjoy the outdoors and to assist in the management of access. On
section 20, the Guidance recommends (p 60) an "holistic" view whereby the initial plan
would take into account the access requirement in such a way that there should be no need
for frequent additions. However:
"it is also recognised that circumstances will change over time, and the plan should
not be seen as a finite document, but be capable of developing to reflect
requirements".
4
Authorities should, when they consider it appropriate, review the plan to ensure that it
meets the requirement for core paths "either through removals or diversions or through
additional core paths".
The Equality Act 2010
[7]
Section 149 imposes an equality duty on all public authorities:
"149 Public sector equality duty
(1)
A public authority must, in the exercise of its functions, have due regard to
the need to--
(a)
eliminate discrimination, harassment, victimisation and any other
conduct that is prohibited by or under this Act;
(b)
advance equality of opportunity between persons who share a
relevant protected characteristic and persons who do not share it;
(c)
foster good relations between persons who share a relevant protected
characteristic and persons who do not share it.
..."
The relevant protected characteristics include: age; disability; and religion or belief.
Procedure
[8]
The petitioners are a charity. They own and operate an hotel and an adjacent
accommodation block (the Craigmore Centre) on the Gartmore Estate. The property is used
frequently to accommodate groups of children , including vulnerable ones, and by religious
groups that require privacy. For example, Green Routes, another charity, provides teaching
and support in outdoor activities to persons with learning disabilities.
[9]
A core paths plan was first adopted by the respondents in 2010. In 2018, they began
a formal consultation to amend the plan by adding further core paths as shown in green on
the following plan.
5
[10]
By letters dated 15 February and 28 October 2019, the petitioners objected to the
addition of paths ADD23 and ADD27. The respondents refused to remove them and
submitted the objections to the Ministers, who appointed a reporter to carry out a local
inquiry (2003 Act, s 18(4) and s 20A(5)).
[11]
The petitioners made representations to the reporter. Their principal concern was
that the paths would run through their property, close to the accommodation block and land
used by visiting groups. As part of the risk assessment for the activities carried out on the
land with children and vulnerable groups, the petitioners required to control access. They
would be unable to offer the level of assurance required by local authorities under relevant
child protection guidelines. Over half of their users would be affected.
[12]
Green Routes maintained that the new paths would severely restrict their activities
in the walled garden. The easternmost section of ADD27, which was known as the Ladies'
6
Walk, was severely overgrown through disuse. ADD27 would lead walkers onto the busy,
high speed A81, which had no verges and was n ot appropriate for walkers. ADD23 would
lead walkers onto an unrestricted road with no verge. It would not link settlements or form
a key link. Neither path was suitable for the promotion of public access.
[13]
On 10 December 2020, the reporter submitted his report to the Ministers. He
recommended that ADD23 and ADD27 be included in the new plan. On 23 March 2021, the
Ministers accepted the recommendations and directed the respondents to adopt the
amended plan. On 14 June 2021, the respondents' board resolved to do so.
The inquiry report
[14]
The main issue at the inquiry was whether the proposals would provide a system of
paths sufficient for the purpose of giving the public reasonable access throughout the
respondents' land (s 17(1)). The reporter reasoned that the village of Gartmore was already
provided with core paths, but three of these used public roads and were not ideal for access
to the surrounding area. The additions would provide a significant benefit to the sufficiency
of the network. A proposed alternative route for both paths was unsuitable. Promoting
Ladies' Walk, the turn off to which was not obvious to those unfamiliar with the area, would
assist in diverting members of the public away from Gartmore House and its associated
parkland.
[15]
Both new paths would provide useful links. ADD23 would link Gartmore to the
campsite at Cobleland and on to the Aberfoyle to Drymen cycle route, as well as a loop for
walkers who could return from Cobleland via a minor public road, which was itself a core
path. ADD27 would provide a mainly off-road route from Gartmore to the Trossachs
7
Holiday Park in conjunction with a short section of existing core path, and a loop back to the
village via a minor public road, which was also a core path.
[16]
The petitioners' concern, that the additions would lead to path users encountering
guests or clients of the petitioners or Green Routes, required to be balanced with access
rights. ADD23 was already well-used by walkers and cyclists. It would pass close to
Gartmore House but would avoid its immediate curtilage. There was potential for an
increase in usage and encounters between the public and the petitioners' service users, but it
was not unusual for children and vulnerable groups to undertake activities in areas to which
the public has access. They did so in a managed setting and in line with safeguarding
measures and risk assessments. The respondents had offered to work with the petitioners to
prepare an access management plan. They had suggested the use of temporary signage and
diversions, when activities were taking place, and the provision of staff to manage
interactions.
The decision at first instance
[17]
The Lord Ordinary held that the reporter had not misinterpreted or misapplied the
test in section 17(1). The report should not be subjected to detailed textual analysis (Moray
Council v Scottish Ministers 2006 SC 691 at para [28]). It specifically addressed the statutory
tests. The reporter described his task as determining whether the system of paths was
sufficient. That accorded with section 20A(5). He explained that he had drawn on the other
sections of the 2003 Act, including section 20, and the relevant guidance. He had considered
how the additions would minimise the need for the public to be on open roads. He had not
been able to identify suitable and better alternatives. The fact that the original 2010 plan was
considered sufficient was not conclusive. It did not mean that the plan had to remain as it
8
was. Section 20(1)(b) recognised that a core paths plan may be reviewed. This did not
require a change in circumstances.
[18]
The reporter had balanced the interests of the petitioners against those who would be
exercising access rights. He had specifically taken into account the fact that ADD27 would
divert walkers away from the more sensitive parts of the petitioners' property. Any
difficulties regarding groups undertaking activities in publicly accessible areas could be
mitigated and were not insurmountable. The reporter had given proper, adequate and
intelligible reasons (North Lanarkshire Council v Scottish Ministers 2017 SC 88). The informed
reader could be left in no substantial doubt as to what they had been (South Bucks DC v
Porter (No. 2) [2004] 1 WLR 1953 at paras [35][36]; Moray Council v Scottish Ministers at
paras [28][30]; Wordie Property Co v Secretary of State for Scotland 1984 SLT 345 at 348).
[19]
The Equality Act case also failed. The reporter properly considered that matter, put
it in the balance and gave weight to it. It did not outweigh other relevant factors. Neither
the respondents nor the Ministers had set out in writing that they had had regard to the 2010
Act, but a decision was not erroneous simply because reference had not been made to the
There was no requirement for separate documentation setting out parties' respective
positions on equality. Following an inquiry, the Ministers were in the position of deciding
whether or not to accept the reporter's reasoning and recommendations. The report
addressed the issues in section 149.
9
Submissions
Petitioners
[20]
The Lord Ordinary erred in law in his interpretation and application of, first, the test
under the 2003 Act and, secondly, the duty under the 2010 Act.
[21]
The reporter ought to have been considering the test in sections 17(1) and 20A(5); ie
whether the proposals were sufficient for the purpose of giving the public reasonable access
throughout their area. The review exercise should have been about whether the original
network continued to provide sufficiency; not whether that network could be improved. The
reporter ought to have taken into account the original plan. In that plan, the network had
been deemed to be sufficient without additional paths within the petitioners' property. The
reporter had stated that the area was already well provided for in terms of core paths, but
that the proposals would provide a significant benefit to the sufficiency. Those words did
not mean anything and did not represent the correct test.
[22]
The reporter failed to consider whether the public already had reasonable access to
the area. He had not compared the original plan with the amended plan. Although there
was no need for a change in circumstances, there should be consistency in decision-making.
If a different decision were reached, an explanation had to be given (Ogilvie Homes v Scottish
Ministers 2021 SCLR 99 at paras 3942). In particular, the reporter required to explain why
the position had changed (R (Mid Counties Co-Operative) v Forest of Dean DC [2013] JPL 1551
at para 16).
[23]
With regard to the second ground of appeal, equality duties were important in the
context of anti-discrimination legislation. Recording the steps taken by a decision-maker was
at paras 26(1) and (2)). The decision-maker had to consider the duty rigorously
10
(paras 26(5)(i) and (8)) but here there was no mention of this by the reporter. He and the
Ministers had a duty to have regard to the equality objectives in the 2010 Act (R (Sheakh) v
that his decision would have an adverse effect on persons with protected characteristics, the
reporter ought to have determined whether he needed to do anything differently in relation
to those groups. The Ministers erred in simply adopting all of the recommendations of the
reporter, who had failed even to record that the petitioners had made representations in
relation to the 2010 Act.
Respondents
[24]
The petitioners had been able to put their arguments to the reporter at an inquiry.
These had been considered and rejected. Both grounds of challenge sought to prioritise
form over substance. They failed to give the report a proper reading in the context of the
statutory framework and had drawn out individual sentences and set them acontextually.
The report should be read fairly and as a whole, without excessive legalism (Abbotskerswell
Parish Council v Secretary of State for Housing, Communities and Local Government
[2021] Env LR 28 at para [53]); North Lanarkshire Council v Scottish Ministers at para [27]).
[25]
Sufficiency was not a bare minimum. The reporter had identified that the existing
plan was not ideal. The additions were appropriate to give the public reasonable access
through the area surrounding Gartmore village. The reporter addressed himself to
section 17(1) and considered whether the additional paths would appropriately be included
within the plan so as to provide a system of paths sufficient for the statutory purpose. He
took into account the representations from the petitioners and considered the impact of the
paths on those making use of the petitioner's property, including children and vulnerable
11
groups. He noted that ADD27 would divert walkers away from the more sensitive parts of
the petitioners' property.
[26]
The petitioners were seeking to advance a new and inconsistent ground which did
not feature in the petition; that the reporter did not address whether the original core paths
plan continued to give the public reasonable access. It was not open to the petitioners to
seek to advance a new argument in a reclaiming motion. In any event, the new ground was
without merit. Section 20A(5) of the 2003 Act made it plain that the task for a reporter was
to assess whether an amended plan would fulfil the purposes mentioned in section 17(1).
The reporter addressed himself to that task. He did not require to consider whether there
had been a change in circumstances.
[27]
Section 149 of the 2010 Act imposed an obligation on public authorities to have due
regard to the need to meet the various equality principles. That duty was complied with as
a matter of substance. The reporter addressed himself to the potential impact of the
proposed paths on children and vulnerable groups. From an early stage in the process, the
respondents had considered the potential impact of the proposed plan on the petitioners'
property. Their EIA sought to identify and address barriers to participation in the
consultation process; representations were made to and considered by both the respondents
and the reporter.
The Ministers
[28]
In determining a planning challenge, the court was concerned with the legality of the
decision-making process, not with the merits of a decision. Matters of planning judgement
were within the exclusive province of the planning decision-maker (Tesco Stores v
Environment Secretary [1995] 1 WLR 759 at 780). The interpretation of policy, which was
12
appropriate for judicial analysis, and the application of planning judgement to policy, which
was within the province of the planning decision-maker, were distinct (Hopkins Homes v
[29]
The petitioners were attempting to introduce a new argument that the reporter failed
to consider; whether the original core paths plan continued to provide the public with
sufficient access. The court should not entertain the new argument. In any event, it was
without merit. When the reporter said the area was already well-provided for, he simply
meant that there were already core paths in place. The Scottish Government's Guidance
made it clear that core paths should aim to meet the needs of the whole community. The
Lord Ordinary was correct to hold that the reporter's reference to sufficiency reflected and
addressed the requirements of section 17(1). He correctly identified that section 20(1)(b) of
the 2003 Act recognised that the position may be reviewed, and that that section was not to
be read as requiring a change in circumstances.
[30]
There was no error in the approach of the Lord Ordinary to the 2010 Act. Each case
was fact sensitive. The petitioners' objections had provided limited detail on how the
adoption of the paths would adversely impact on those with protected characteristics. The
complaints were general and lacking in specification. The reporter engaged with the
complaints. He had complied with the duty as a matter of substance (Baker v Communities
and Local Government Secretary [2009] PTSR 809 at para 36). There was no need for the
interested parties to set out their own position on the duty in a separate document. Even if
they had failed to comply with their duty, their decision would not have been substantially
different if they had done so (Bolton MBC v Environment Secretary (1991) 61 P & CR 343 at
352; Bova v Highland Council 2013 SC 510 at para [57]; Carroll v Scottish Borders Council 2016
SC 377 at para [66]).
13
Decision
[31]
In reviewing a decision which flows from a reporter's recommendations in the
planning context, the court is seeking only to determine whether that decision is lawful or
not. It will be unlawful only if the decision-maker has: made a material error of law; taken
into account an irrelevant consideration; failed to take account of a material consideration;
made a critical finding in fact without any basis for doing so; or has reached a decision
which no reasonable decision-maker could have reached (Wordie Property Co v Secretary of
State for Scotland 1984 SLT 345, LP (Emslie) at 347-348). In this case, the petitioners'
contentions are primarily based on the first and last considerations. The contention in
relation to the reporter's approach to the Land Reform (Scotland) Act 2003 is adequately
covered by the pleadings.
[32]
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" (s 17(1)). 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). A plan which was put forward for adoption as contributing to the statutory
purpose could hardly have been rejected because it did not create a sufficient or saturation
level of core paths.
[33]
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
14
review (s 20(1)). 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. 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; it would run counter to the statutory policy of conferring on authorities a
wide discretionary power to review, when they consider it appropriate, whether
improvements are desirable in the interests of furthering the objective of promoting
reasonable public access. The review exercise involves a consideration of whether the
amended plan continues to provide reasonable access, not whether the existing plan was of
itself sufficient. The latter might be an argument which a land owner might advance, and it
is no doubt a factor to be considered, but that is all.
[34]
The reporter explained the deficiencies in the existing plan, notably that some of the
paths were along public roads. They did not give access to the areas surrounding the
village, as distinct from the village itself. The new paths would improve access in a number
of specific ways, including loops and links. There is no difficulty in understanding the
reporter's reasoning to the effect that the new paths enhanced the existing network. The
informed reader is left in no real and substantial doubt about the reporter's reasons or the
material considerations which were taken into account (Wordie Property Co v Secretary of State
for Scotland, LP (Emslie) at 348). This challenge accordingly fails.
15
[35]
Prior to the inquiry, an Equality Impact Assessment had been carried out by the
respondents in order to ascertain whether there were any barriers which prevented those
with protected characteristics from participating in the process and presenting their
arguments to the reporter. This had resulted in a consideration of the adequacy of the
consultation process. The steps taken were duly recorded in the EIA.
[36]
It is no doubt correct to state, at a high-level generality, that whatever might have
been submitted to the reporter he remained under a duty to have due regard to the various
factors specified in section 149 of the Equality Act 2010. The court agrees with Baker v
Communities and Local Government Secretary [2009] PTSR 809 (Dyson LJ at para 36). However,
the context in which the reporter was operating was a local inquiry for which measures had
been taken to ensure equality in participation. The reporter heard submissions about those
with a protected characteristic. It was then his function to reach a recommendation based on
the submissions made to him by the respondents and the objectors, including the
petitioners, rather than engaging in any inquisitorial frolic (Taylor v Scottish Ministers (No. 2)
2019 SLT 681, LP (Carloway), delivering the opinion of the court, at paras [34] and [35]).
[37]
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. Th e 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 exercise was one of balancing the different
weights to be attached to the matters raised and reaching a planning judgement on where
the scales came to rest. The reporter reached a view on the relative weights; a matter which
is not susceptible to review. There was no need for the reporter to make a specific reference
16
to the Equality Act 2010 when he had done what was important; addressed the specific
problems raised by the petitioners and Green Routes in relation to those with protected
characteristics (Baker v Communities and Local Government Secretary, Dyson LJ at para 37).
Once more, there is no difficulty in understanding the reporter's reasoning and the material
considerations which were taken into account. The challenge on this basis also fails.
[38]
The court will refuse the reclaiming motion and adhere to the interlocutor of the
Lord Ordinary dated 4 March 2022 refusing the prayer of the petition as set out in
statement 4.
