The good citizens of the Royal Burgh of Auchterarder face being banned from walking across their common land because of the risk that they might choose to stop and gaze across at the Ryder Cup golf competiton taking place on the neighbouring golf course at Gleneagles. Safety and security are being cited as reasons why part of the Auchterader Golf Course (which is part of the common good land of the Burgh) and a public footpath are to be closed for the duration of the competition.

This is a bizarre state of affairs. Let me explain why.

The right of responsible access to land is enshrined in Part 1 of the Land Reform (Scotland) Act 2003. It was always recognised, however, that there were circumstances in which areas of land could and should be exempted from these rights. If land was to be used for an agricultural show, a sporting event or a pop concert where attendees were to be admitted on payment of a fee, then it is perfectly proper that the public’s right of access should be suspended for a defined period of time. Section 11 of the Act provides that local authorities can make orders exempting land and where it is to cover a period of more than six days then Scottish Ministers must approve and the public has a right to submit objections.

The Act also placed a duty on local authorities to define Core Paths – routes along which the public could feel comfortable walking and enjoying their access rights. But Section 11 did not provide any means for exempting Core Paths and so, in 2013, the Scottish Government proposed the Land Reform (Scotland) Act 2003 (Modification) Order 2013 which would amend Section 11 and allow Core Paths to be closed because of animal disease outbreaks or because of an event taking place. Draft Guidance states that such exemptions would be limited to events where paid admission was charged and in the interests of safety and security involving “competition participants and spectators.”

The Draft Guidance noted that “We know that there will be requests for section 11 exemptions for two major events in 2014 – the Commonwealth Games and the Ryder Cup.”

So far, so good.

It is perfectly reasonable for the organisers of the Commonwealth Games to seek to exempt the shooting range at Barry Buddon from the legal right to walk across it and along any core paths for the duration of the Games. It is also reasonable in the context of the Ryder Cup venue at Gleneagles.

But it is one thing to seek to exempt land over which you have control and are managing for the purposes of an event open to the paying public. It is quite another indeed to seek to suspend the public’s right of access over other land – particularly over common land that belongs to the people of Auchterarder.

And that is what is being proposed in Auchterarder.

In a paper prepared for the Auchterarder Common Good Fund Committee on 26 February 2014, a map shows the extent of land over which the organisers of the Ryder Cup wish to apply for an exemption including Core Path AUCH/35/1 (see maps below).

It notes that the north east boundary of the Gleneagles land “abuts Auchterarder Golf Course and people standing on the Auchterarder course side of the boundary might be able to view the Ryder Cup action.”(1) The image below shows the boundary.

 

Oh dear! Folk might get to see some golfers without paying….

The report goes on to say that discussions are underway between Ryder Cup Europe, Police Scotland, Perth & kinross Council and Auchterarder Golf club “about how public order and safety can be maintained at this area during the event, as there is a risk that uncontrolled numbers of people may try to view the event from this location.”

If no restrictions are put in place there is a potential for a build up of people, seeking to use the Core Path/Right of Way in order to view the event, which creates a safety, security and public order risk.”

In order to obtain a Section 11 Order, an application has to be made to Perth & Kinross Council by the organisers. The Ryder Cup is a partnership between the Scottish Government, Ryder Cup Europe and Diageo. Such an application will be for a period of greater that six days and thus needs to be referred to Scottish Ministers. The public have the right make representations and objections and Ministers may hold a public local inquiry if they wish.

On 11 December 2013, the Minister for Environment and Climate Change, Paul Wheelhouse acknowledged such an application during evidence to the Rural Affairs, Climate Change and Environment Committee (Col. 3119).

I can assure the committee that if any proposal comes before me, I will take a balanced view on the need to ensure public access to land under the Land Reform (Scotland) Act 2003 and the strong sentiment across Scotland about ensuring the right to responsible access, while at the same time protecting the public interest and public safety and ensuring the security of the events themselves. It is a balancing act, but we will take all those matters into account.”

Scottish Ministers will thus be the decision-maker in an application for a Section 11 Order to which they (as one of the three organisers) are a party – which is in itself interesting.

It appears to me that this whole process is a gross over reaction to what is a real but managable possibility of public order problems. I am no expert in the law on such matters but I would be surprised if there were not already powers available to the police to deal with such an eventuality. In any event, exempting this land from access rights does not in itself prohibit anyone walking over it and thus potential public order issues may still arise. (2)

So here is what I think should happen.

If an application is made, the citizens of Auchterarder should register their objections to Scottish Ministers and the application should be refused.

Auchterarder Community Council should then, in association with the police and the Council, set up a viewing zone open to the public with associated refreshments and public entertainment. Mini-golf can be laid on for children (and adults). Spot the celebrity golfer competitions can be organised. Information can be provided about the history of the commons of Auchterarder. Such an event would be free but ticketed so as to avert any security and public order problems.

Commons are for the people and not for corporate elites.

 

(1) Auchterarder Common is leased to the Auchterarder Golf Club until May 2075.

(2) It is not commonly understood that Part I of the Land Reform (Scotland) Act 2003 confers rights which are there to be exercised and relied upon as people choose. Over areas of land where the rights do not apply (by being exempted from the scope of Act or by temporary suspension via Section 11), the Act does not prohibit or ban the public. In such circumstances they are, in effect, subject to the common law as it applied before the Act came into force.

20 Comments

  1. This is about money—-‘pehsints’ don’t count

  2. Margaret Gardiner

    So what do you propose we do, Andy? Have you a petition ready for us to sign.

    I am sick and tired of our land being claimed one way or another with our sensible lack of ” No Trespassing” laws ignored in such cases as this. I would be happy to help if you, since you are much more knowledgable than me on such matters, would point the way.

    • I propose that residents for Auchterarder take advantage of the powers they have under Section 11. I am not in a position to undertake any action myself – no time. I simply research this stuff and let folk know…!

  3. Once again, we see the greed & paranoia surrounding profits trumping the common rights of the people. I would be interested in learning how to raise an objection as this is a step too far. Calling something a ‘responsible right’ and then taking the right to act responsibly away regardless is a gross violation of the wording itself.

    Public safety – I can understand they may well be worried riots may occur should one person step on anothers’ toes in the rush to see nothing in particular, however peoples’ attention spans are succinctly short and I highly doubt there will be those camping out with a week’s worth of supplies to flaunt the ticketed event. Here, people are supposed to be responsible for their own safety, as with any other week in the year where it is not expected that Police Scotland will prevent public disorder.

    Security of the event itself – once again, what security risk? I really think if the organisers expect members of the non-paying public to gain enjoyment from seeing next to nothing & spending the whole time having to hold up a pair of binoculars, they may need their heads examined. We have had major golf tournaments here before & funnily enough, nobody was really that bothered. Certainly not bothered enough to waste time attempting to discern whether that bluish blob to the right may be the Cup favourite.

    It is a tad hypocritical for the Scottish ministers to be assessing objections as you explained while being part of the body organising the event – we can all guess in which direction the bias will heavily lean, which raises the question of why bother objecting in the first place? Well, they wish to give the impression they actually care what the local population think, whilst being fully aware they can provide some non-descriptive reason as to why any objection has been turned down.

    Simply put, they probably think they’ll prevent thousands (insert sarcasm here) of us plebs from flouting the ticketing system & having a wonderful time viewing the action in glorious, natural full technicolour. They also wish to minimise the chance of there being any ‘undesirables’ near the venue (it’s Gleneagles…can’t have the other half of society bringing the tone down) simply by exercising their common right to use the footpaths around the town, like many of us do on a daily basis! Yet, they have the cheek to claim it’s in our best interests to ensure we’re safe & secure. Pull the other one. I thoroughly agree with Margaret and, as you can probably tell, I’m just truly fed up of once more being told what we cannot do and where we cannot go.

    Well written Andy, thanks for getting the word out there!

  4. Sounds like a common good picnic day out. So long as you don’t have to watch the golf :) Bob

  5. Has anyone asked Auchterarder Golf Club what they think? It’s their land we’re talking about after all.

  6. Did they buy it?

  7. No, the golf club are tenants – they lease the golf course from the Council. Therefore, the Community Council has no right to stage Andy’s proposed viewing zone (with associated mini-golf, entertainments and refreshments) on their (the golf club’s) land without their consent. Imagine if your Community Council cooked up a deal with your landlord to do something similar on your farm without your permission, hector!

  8. i lived in auchterarder for 20 years, and had no idea there was common land. good to know.

  9. Thank you Andy for all the information. I have walked this path daily for over 32 years and nobody is going to stop me doing so during the Ryder Cup. I am fed up of being told what to do by people who have absolutely no interest in Auchterarder. During the G8 Summit we were allowed free access on Auchterarder Golf Course and I would have thought that was a lot more important.

  10. Have just noticed an Exemption Notice on PKC website which seems to state that having considered objections and representations made to them they are going ahead with all the closures. The notice hasn’t even got a proper date of signing just the year. I have phoned the council but as usual nobody available to speak with me about this notice. Supposed to get back to me but they never do.

  11. As a resident of Auchterarder, I feel this article lacks context in that Gleneagles offers significant and sustainable local, regional and national benefits. The Ryder Cup is a global showcase delivered by experienced professionals. The event has a track record of delivering significant economic benefits and the organisers are working closley with local clubs and agencies to ensure it is deivered to the high standards set by other events. There is a close working relationship and substantial legacy benefits are on offer. The boundary issues have been well discussed and all parties are in agreement.

    • How can “all parties” be in agreement when no application to suspend access rights has even been made never mind determined by Scottish Ministers?

  12. Because people speak and agree solutions . . .

  13. There is nothing inherently unlikely in all parties being agreed about an issue prior to an application formally to sanction it being made.

    Mark, as a resident of Auchterarder, do you happen to know the attitude of Auchterarder Golf Club? As the tenant of the land involved, they are one of the parties most intimately involved – certainly as regards Andy’s proposed viewing zone event.

  14. agree Neil. I’m not a member of Auchterarder Golf Club, but as usual the general perception amongst the vast majority of Auchterarder people is that G’eagles and associated events is great for the town and region . . . one of the largest employers (direct) in Perthshire, not to mention considerable supply chain, perception and legacy benefits . . .

  15. Hello Mark I have absolutely no problem with the Ryder Cup being played at Gleneagles and wish it every success. I am sure there will be enormous benefits to the area but with people being bussed in and out and not allowed to visit the town of Auchterarder doubt if shops and businesses will benefit. Perhaps they will get some business from the workpeople involved but again they will probably be bussed to and fro. I have walked my dogs on the Auchterarder Golf course for over 30 years and I am sure you will remember me. Why should I be denied access to what was the old railway line during the competition when only a tiny part of it is anywhere near the PGA? The golf members at Auchterarder Golf club are also being penalised with fencing and security guards so not very pleasant for them. I have been advised by local councillor to object and I will but nothing and nobody is going to stop me having my daily walk on Common Good Land.

  16. Neil,
    The railway ran through the Common Muir as it was then called and I presume paid a rent to the Common Good. In other words the Common Good land was there long before the railway.

    • Sandra, I agree the common good (CG) was there before the railway. And if the railway company company rented the line from the Burgh Council and that lease ended when the railway closed, then the line would revert to CG. However, I’ve never heard of a railway company renting lines and they almost invariably purchased them outright. Upon the line having passed into the ownership of the railway company, then it ceased to be CG. The question then becomes what happened when the Council reacquired the line after the railway closed. It would not automatically revert to CG. It might be that the Council explicitly decided to reacquire it on account of the CG Fund but not necessarily so and it may have been acquired on account of something else like the Council’s statutory parks and leisure functions. These facts would have to be looked into.

      But fascinating though all this is, it’s largely beside the point because the fact that land is CG does *not* (contrary to popular belief) give the public a right of access to it. You have the right to walk your dogs along the old railway line because it is a public right of way which is a different thing. As regards the rest of the Common Muir, prior to 2003 you had (strictly speaking) no legal right to walk over it and did so because the Council as its owner (and/or Golf Club as its tenant) did not in practice raise any objection. Since 2003, you have had a statutory right of access although that is subject to some conditions and limitations (which if you’re not aware of them it’s because you’re already complying with them as a matter of ordinary courtesy and common sense!)