The surprise closure of a road linking the west and east portions of Lossiemouth harbour may have been illegal under Scottish Law.
That is the view being taken by experts contacted by insideMoray this week as public protests into the action by the Elgin and Lossiemouth Harbour Board continues to grow.
A meeting held on Friday between representatives of the Lossiemouth Harbour Board and community council members broke up with no clear decision being taken, although the Harbour Board representatives agreed to a suggestion that they explore alternatives with the assistance of local councillor John Cowe.
At the meeting it is understood the Harbour Board disputed the road linking the eastern and western portions of the harbour was a road at all – insisting that their understanding was that it could not be regarded as a right of way as a ‘no entry’ sign existed at one end.
The Harbour Board also repeated their assertion that the placing of bollards blocking the route to traffic were sparked by health and safety advice.
Lossiemouth’s community council chairman, Mike Mulholland, said: “The meeting was very amicable with both sides making their points very clearly.
“The Harbour Board stated that the only reason for the closure of the road was from a health and safety perspective, as it has been noted by the Harbour office staff that near misses between vehicles using the road were becoming more and more frequent, and they felt it was only a matter of time before a serious accident occurred.
“Discussion included differences in opinion between the Harbour board and councillors as to the legal status of the road as a right of way, with the Harbour board claiming the road was not a right of way and in fact could not even be classed as a road.
“The councillors claimed that the road should be classed as a right of way as it had been used by the public for over twenty years.
“Community councillors suggested that an expert in road safety and design should be engaged to visit the road and their advice sought on how the road could be altered to accommodate vehicles and pedestrians in a safe manner.
“This was agreed by the Harbour board and will be arranged by Councillor Cowe as soon as possible.”
A solicitor contacted by insideMoray this week supported the view that the road was an established right of way, saying: “The establishment of a right of way over a prescribed 20 year period would apply to any road or pathway that links two public places.
“There are certain categories that would not qualify for a presumption of open access – land owned by railways, airfields or private gardens are examples.
“It would not appear, however, to apply in this case and as such the landowner could not simply presume to close an established right of way in this manner.”
insideMoray also understands that similar legal advice provided to Moray Council’s roads department agreed with that opinion.
Thousands have already signed both an online and offline petition calling on the Harbour Board to remove the barriers, with over 4000 having signed the online petition launched this week by insideMoray while paper petitions circulating in Lossiemouth are estimated to contain many hundreds more.
Explanation of Rights of Way
Rights of Way in Scotland are closely guarded by the Scottish Rights of Way & Access Society (ScotWays), who have existed to safeguard rights of way for over 160 years.
The ScotWays website defines the conditions that must be met in Scotland for any route to be regarded as a right of way:
• It must join two public places (e.g. public roads or other rights of way); and
• It must follow a more or less defined route; and
• It must have been used, openly and peaceably, by the general public, as a matter of right, i.e. not just with the permission of the landowner; and
• It must have been used without substantial interruption for at least 20 years.
Scotways said: “Rights of way form part of the Common Law of Scotland. ScotWays works with local authorities and local communities to determine whether routes meet the above conditions, as interpretation of the law can be contentious.
“Ultimately, if it is not agreed that a route meets the necessary conditions to be a right of way, it is up to the courts to decide whether the criteria are met.”
While there are many rights of way recognised in Scotland there are just 142 for motorised vehicles. the Scotway website explains: “These have an average length of less than a mile and are mostly short stretches of roads that have not been adopted by the local authority.”