Anglers 1 - 0 rafters, in the case of River Tay access

Anglers on the River Tay have been successful in a bid to prevent white water rafting on four stretches of the Tay on prescribed days of the week during the salmon fishing season.

This is the first application to regulate access to any stretch of water and to try to strike a balance between competing “access” interests. While a relatively limited number of cases have now been raised under the right to roam legislation, this action is the first of its kind and may well have wider consequences for other Scottish rivers where angling and white water rafting compete for access to the same stretches of river. Among others, the Spey, Garry and Lochy also play host to anglers and white water rafters and this may be the first of several attempts to balance the interests of both the fishing and rafting fraternities.

In November last year, an application was lodged by anglers with Perth Sheriff Court under the Land Reform (Scotland) Act 2003 for declarator that rafting on the river without restriction was not responsible access in terms of the right to roam legislation and that rafting should only be permitted on Thursday, Friday, Saturday and Sunday of any week during the salmon fishing season. Under the legislation, the court action, which was publicly advertised when it was raised, enables interested parties or those potentially affected by the application to appear at court to make representations before any orders are made. Following publication of notice of the proceedings and press releases on behalf of the anglers, no rafting companies or other interested parties chose to enter appearance in the court proceedings.

On 18th January, Sheriff Fletcher granted orders declaring that Mondays, Tuesdays and Wednesdays of any week during the salmon fishing season on four stretches of the river should be raft free, holding that white water rafting during those times would not be responsible access in terms of the right to roam legislation.

The orders granted by the court effectively implement the recommendations made by Perth and Kinross Outdoor Access Forum in 2009, in terms of which a river sharing agreement between anglers and rafters was proposed, following a long running series of negotiations to try to find an acceptable solution to competing interests in the river.

During the 1990s, anglers, riparian landowners and rafters on the Tay entered into several river sharing agreements in terms of which those with proprietorial interests in the river allowed rafters to take access to the river for white water rafting. These agreements were structured to allow for the co-existence of fishing and rafting and were generally effective for a number of years. Following the introduction of the right to roam legislation, significant numbers of commercial and other rafters started to access the river on a daily basis, notwithstanding the terms of the agreements. Rafting activity increased significantly, to the extent that the numbers fishing on the Tay dropped noticeably, affecting a number of small local businesses catering to the fishing community. The river sharing agreements which had been put in place were all but abandoned and ultimately peaceful sharing of access to the river became impossible.

The purpose of Land Reform Act and Outdoor Access Code is to enable all those with property and access rights to enjoy the countryside without interfering with or disturbing the rights of others. This ruling embodies the spirit of the legislation and seeks to strike a balance, not only between the rights of those entities with fishing and access rights, but also the fishing and rafting communities with vested commercial interests in the river.

• Lynn Richmond, a Senior Solicitor at Turcan Connell, represented the anglers who raised the action.