EXCLUSIVE: Duke of Buccleuch’s park levy may be illegal

Midlothian Council said the move was believed to be lawful under the Land Reform Act (Scotland) 2003, which provides that a landowner can charge if they did so for 90 days per year before the act came into force.

However, it may be that the estate only has authority to charge for access over the Midlothian section of the estate, where there was a subsisting charge, and not the East Lothian section.

Dr Jill Robbie, lecturer in private law at the University of Glasgow, told Scottish Legal News that if gates at one side of the park had always been open to the public without charge then the subsection would not be satisfied – meaning the estate could not lawfully charge people to enter the park from any entrance.

“Under s.6(1)(f) of the Land Reform (Scotland) Act 2003, land excluded from access rights includes land to which members of the public were admitted only on payment for not fewer than 90 days in the year ending on 31st January 2001 and, after that date, to which members of the public were admitted only on payment for not fewer than 90 days in each subsequent year beginning 1st February 2001,” she said.

“If, historically, the gates to one side of the Dalkeith Country Park were left open and members of the public were allowed to enter without incurring a charge, this would suggest that the requirements of s.6(1)(f) have not been met.

“In these circumstances, the park would not be land excluded from access rights for the purposes of the Land Reform (Scotland) Act 2003 under this particular section.”

Adding to the uncertainty of imposing a charge, a source who was present at meetings involving East Lothian Council outdoor access officers and the estate manager told Scottish Legal News that the estate manager admitted a charge in the East Lothian section may not be enforceable and that, if pushed, he would construct a barrier between the East Lothian and Midlothian sections of the estate.

However, a spokesman for Buccleuch set out the reasons for the charge and the justification for levying it by citing exactly the same provision as Dr Robbie.

He said: “There is a long and continuing history of significant vandalism and illegal behaviour within Dalkeith Country Park, and under the terms of the 2003 Land Reform Act the only way we are able to close the gates and ask irresponsible visitors to leave is through continuing to levy a nominal access charge – something the park has done for many years. This will not restrict access to responsible visitors and the charges in place are exactly the same as in previous years.

“Anyone with an annual pass card will continue to be able to enter the park day or night, year round. An annual adult card, for example, costs £10, or less than 3 pence per day. More than 200 cards have been sold already, demonstrating widespread local support.

“It is not the case that the imposition of a charge would be unlawful. The Dalkeith Country Park is a single entity, which lies across Midlothian and East Lothian. It has a number of access points.”

Citing s.6(1)(f) LR(S)A 2003 he added: “The subsection applies to Dalkeith Country Park. Accordingly, it follows that the owners of the land are entitled to impose a charge for access.”