Amending a ‘Core Paths Plan’: Court of Session dismisses judicial review

Introduction

The Court of Session has refused a petition to Judicially Review a decision of Loch Lomond and the Trossachs National Park Authority to adopt an amended Core Paths Plan (the “Plan”).

Gartmore House, the petitioner, sought reduction of the Plan, published in 2021 for the Loch Lomond and Trossachs National Park (the “National Park”), which the respondents had been directed to adopt by the Scottish Ministers (the Interested Party in the case).

Reduction was sought on the basis that the adoption was unlawful because the respondent and the Scottish Ministers failed to apply the correct test for the addition of new paths under the 2003 Act (ground 1) and, separately, also failed to comply with their duties under the Equality Act 2010 (ground 2).

Background

Gartmore House, the petitioner, own and operate a hotel with adjacent accommodation within the National Park. Their property is used frequently to accommodate groups of children as well as groups from a religious background. There are various activities undertaken on the property which involve using the grounds for recreation and outdoor events.

The original Core Paths Plan for the Loch Lomond area was adopted in 2010. Subsequently, in 2018 to 2019, a public consultation was carried out centred around various changes that were to be made to this. As a result, the respondent adopted a Plan in 2021 which included two additional core paths running through the petitioner’s property.

Following the petitioner’s objection, a public inquiry was held and the Reporter ultimately recommended that the additional paths should be added to the Plan, resulting in the Scottish Ministers directing the respondent to adopt it.

The petitioner sought reduction on the basis that the adoption of the Plan was unlawful. They argued that:

• Both the respondents and Interested Party had failed to apply the correct test for the addition of new paths under the Land Reform (Scotland) Act 2003 (the “2003 Act”) under Ground 1; and
• Failed to comply with their duties under the Equality Act 2010 under Ground 2.

The respondent denied these contentions, and separately argued that in any event, their decision to adopt the Plan was not amenable to judicial review given that they were bound by statute to follow the direction given to them by the Scottish Ministers.

Submissions

Ground 1

Ground 1 centred around the misinterpretation and misapplication of the statutory test under the 2003 Act. The petitioner argued that the Reporter failed to apply the correct test in terms of section 17(1) of the 2003 Act which considers whether the public already had reasonable access to the area. The petitioner argued that the Reporter did not concentrate as he should have done on the question of sufficiency of the existing network, rather on whether they would make a desirable improvement, therefore erring in law. The petitioner also argued that the Reporter failed to give proper, adequate and intelligible reasons for the adoption of the Plan and did not balance the interests of the landowner against the interests of those using the two additional paths.

Ground 2

Ground 2 was premised on the argument that the respondent had failed to properly consider and apply its obligations under the Equality Act 2010, specifically under section 149. The petitioner argued that the Reporter did not consider the protected characteristics of the vulnerable children who use the property and therefore failed in their duties under this legislation.

Submissions from Respondent

The respondent, in response to the above grounds, submitted that the petition should be refused given that they had no discretion or scope to deviate away from the direction given to them from the Scottish Ministers. As such, this meant that the decision was not susceptible to judicial review. Furthermore, the respondent argued that the Reporter had directed himself to the provisions of section 17(1) of the 2003 Act sufficiently and was therefore entitled to reach the conclusions he did in his report, which also explained his reasoning. Finally, it was argued that the requirements of section 149 of the Equality Act 2010 were met in full.

Submissions from Interested Party

The Scottish Ministers argued in their submissions that previous guidance recognised that a Core Paths Plan will naturally change over time and require additional paths, and highlighted the wide discretion given to the respondent when reviewing and deciding upon this. The Scottish Ministers further argued that the position of the Petitioner was not supported by a relevant averment as they did not clearly show how the two additional paths would negatively impact those with protected characteristics under the Equality Act 2010.

The Decision

Ground 1

The Court ultimately held that the first challenge submitted by the petitioner was not well-founded. This was based on various factors, including that:

• The respondent had correctly focused on the sufficiency of the paths within the National Park, and emphasised the need for them to avoid the public having to use public roads when walking between various locations;
• Despite the Guidance referencing the possibility of a change in circumstances as a basis for adding further paths, it is not the case that a change in circumstances is required;
• The reasons given by the Reporter regarding the adoption of the plan were proper, adequate and intelligible.

Ground 2

Furthermore, it was held that there had been no breach under the Equality Act 2010, for the following reasons:

• The real requirement in relation to section 149 of the Equality Act was whether due regard was had to the policy objectives within it, and if these were properly considered. The must be put in balance, and it is then up to the decision maker to decide what weight to give to them;
• Even though no express reference was made in the report to the public sector equality duty under the Equality Act 2010, the Reporter considered this matter in his conclusions, which was sufficient.

Article co-authored by Amy Hammond, Trainee Solicitor at CMS.