The unlawful application of the camping byelaws to campervans

The Park has now admitted its attempts to charge campervans at Loch Earn North were unlawful. Earlier in the year (see here), the Park was insisting that campervans required a permit to stay the night when caravans could stay free
The email sent to campervanners stating that their permit fees would be refunded

Following its new release last week (see here) announcing that it was no longer going to apply the camping byelaws to campervans and caravans in laybys, the  Loch Lomond and Trossachs National Park Authority has accepted it acted unlawfully by  trying to charge campervans for staying overnight on the road network by offering refunds to those who bought permits (see left).

 

Its not a direct admission – the “Due to operational changes” at the start of the email had a lawyer friend choking over their porridge – but that its an admission is clear from the liability section in the Terms and Conditions which the Park issues with every permit:

In the event that the Park Authority has any liability to you in contract, delict (including negligence) or otherwise in relation to your use of a permit or pitch or otherwise, it is limited to the amount of the booking paid to the Park Authority only
.
To the fullest extent permissible in law, the Park Authority does not accept and shall not have any liability or responsibility of whatever nature for any damage, loss, injury, claim, expense, cost or liability of whatever nature and howsoever arising, whether to person or property, which you may suffer or incur within or as a consequence of the use of the permit area or pitch.

 

This liability clause was developed after parkswatch suggested that campers who purchased permits and then found the camping permit areas uncampable should claim compensation.   It was an attempt by the LLTNPA to avoid and limit liability.   The converse of this is that the re-imbursement of permit fees is a clear admission of liability, the LLTNPA has acted outwith their powers or as Dave Morris put it in a fine letter to the Herald this week “acting unlawfully by extracting payment for camping permits in some laybys or falsely claiming it would be a criminal offence to stop off in other laybys”.

 

You will note NO apology has been issued to the people who have been wrongly charged.  The only time I have know this Park Authority to apologise was when it was forced to do so by the Information Commissioner for failing to declare all the information it held about 10 of the 13 secret Board Meetings which developed the byelaws Compliance with Decision Notice 209-2016 Response letter.   My advice to any campervanner who has been wrongly charged is to submit a complaint about this and take this to the Scottish Public Services Ombudsman if necessary.

 

The wider impact of the unlawful application of the byelaws

The LLTNPA has only admitted responsibility in cases where it wrongly charged campervanners for permits.  It has said nothing to all the campervanners who may have heard about the byelaws and been deterred from visiting the Park (the camping strategy only created 20 permit places for campervans in the whole of the National Park and while this was increased slightly it was way below what was needed).   It has said nothing to all the campervanners who stopped off in laybys anyway but whose stay was marred by the fear of potential criminal prosecution.

 

The LLTNPA has also tried to hide the truth from Local Communities and stakeholders in the “Your Park Update” its Director of Conservation, Simon Jones, issued on 30th June June Community Council Update.   Its worth reading the extract for another lesson in our the Park Authority is trying to use parkspin and parkspeak to conceal the truth:

Contrast this with the Park’s news release on 26/1/16 announcing that the byelaws “will also prevent inappropriate use of public laybys as encampments by caravans and campervans”.   The LLTNPA had used this claim to win local support for the byelaws (which many local communities in fairness were sceptical about) and then used the claim of high levels of local support to persuade politicians that the camping byelaws were needed and justified.  That whole edifice has now collapsed.

 

The third bullet says it all, camping byelaws are not needed to deal with encampment or anti-social behaviour, both are matters for the police.

 

“As our communities know…..” – how patronising is that?  The St Fillans Community were, for over ten years, asking for action to be taken over encampments in laybys and nothing happened.  Indeed the LLTNPA had even failed to record encampments so these could be reported to the police (I know because I asked under FOI and the Park said it collected no information on encampments).  Nothing appears to have changed: its still not offering to monitor laybys for encampments although its Rangers pass these laybys every day on patrol and are in a much better position than either local communities and the police to collect and record this information as a basis for police action.    This LLTNPA had its eyes and ears closed and appears incapable of working in partnership with other organisations.

 

The campervan byelaw debacle is a serious case of public maladministration.   The LLTNPA have a duty to hold the Park’s Chief Executive, Gordon Watson, to account and a full public apology is required.

 

The legal questions that remain

 

The LLTNPA has not re-imbursed all campervanners for the permits they purchased.   People who bought permits to stay at Firkin Point, Inveruglas and Forest Drive are not being re-imbursed and the Park is still trying to charge people for permits in these areas.  I think they need to explain publicly the legal basis for this decision.

This sign, at the start of the road to Firkin Point, claimed there was no right of passage between 7pm and 7am. It has now been removed following questions I asked about the Park’s right to remove a public right of passage: another example of the Park acting ultra vires.

Under the byelaws, its not an offence to sleep overnight in a vehicle (which legally includes a  caravan, campervan or car) if this is on a road.   A road is defined as having the same meaning as in the Roads (Scotland) Act 1984.  This means that under the byelaws, as approved, people can sleep overnight in vehicles  all public roads and private roads over which there is a right of passage and on the associated verges and laybys (as the legal definition of a road includes its verge).    This is the reason why the Park has had to backtrack on trying to charge people for staying on the public road network.

The campervan permit area at Inveruglas is at the edge of what appears to be a road through the site. Why then do people not have a right to stay here overnight for free?
The new signs at Firkin, Forest Drive and Inveruglas.

What is the difference though between Tarbert Isle, where the Park is reimbursing campervanners for purchasing permits, and nearby Inveruglas or Firkin Point, where they are still trying to extract payments from campervanners?

The permit area at Tarbert Isle was at the end of a private road, just like Firkin Point (see above).   Moreover,  the LLTNPA has now replaced the signs at Firkin, Inveruglas and Forest Drive saying there was no right of passage for vehicles there between 7am and 7pm with the sign on the left.  The Park therefore has retreated from its claim there was no right of vehicular passage in these places but is still trying to charge people when, if there is a vehicular right of passage, people can stay for free.

 

The problem for the LLTNPA is unless its hiding the information it appears it does not know where vehicular rights of passage exist and where they don’t   EIR 2017-029 Response and EIR 2017-030 Review Response private roads.  (I say “unless its hiding the information” because the review failed to answer my question:  “to confirm whether the LLTNPA holds any information relating to whether or not there is a public right of passage on any private road within the National Park boundary and if so to provide this to me.” – I will appeal).   Unless it can show there is no vehicular right of passage it would still appear to be acting unlawfully in trying to force campervans to apply for permits at Firkin Point, Inveruglas and Forest Drive.

 

What needs to be done to sort out this mess?

 

Instead of trying to charge people in vehicles for staying overnight on its land – which in effect is what its trying to do at Inveruglas and Firkin Point and is part of a much wider attempt to charge anyone stopping off in its car parks – the LLTNPA should only charge where it provides proper facilities.  It would be fine for example for it to charge campervans to stay at the Loch Chon campsite – though at present the Park is still trying to ban campervans from staying there, a completely senseless decision – because there are toilets, places to wash and bins.    The problem is its trying to charge Campervans (and campers) for staying at Inveruglas where there are no facilities outside shop opening hours and at Firkin Point where these is a toilet but nothing else and that toilet was closed for the month of March.

 

What the LLTNPA needs to do is open up the toilets at both Firkin and Inveruglas 365 days a year, 24 hours a day, make drinking water available and preferably add chemical disposal points.    There would then be a clear justification for charging campervans in these places.  The same would apply once proper facilities are provided at Forest Drive or anywhere else.     The problem is the LLTNPA appears to have no plans to do this – there was nothing about improving infrastructure for campervans in the National Park Partnership Plan consultation which closed on Monday (see here).

 

Exactly the same arguments apply to charging campers.   If there are no facilities, there should be no charges.  The Park’s statement in its update to local communities that “camping permit areas for tents adjacent to some loch shore laybys are unaffected” is morally indefensible.

 

I am confident that the whole byelaw edifice will collapse in due course.  There was never any justification for them and Gordon Watson’s claim they were needed to control numbers of visitors has been exposed as false now that the LLTNPA is no longer trying to control campervan numbers.  The LLTNPA Board will, if it has any sense, apologise for the mess created under the “leadership” of former convener Linda McKay and instruct its staff to change direction now.

3 Comments on “The unlawful application of the camping byelaws to campervans

  1. Regardless of the current debacle presumably it’s still OK to freely park and sleep in a motorhome by the road, layby or on “common land” from October to April?

    1. The byelaws run from 1st March to 30th September and after that period, whatever the outcome of the current debacle, the law is the same as in the rest of Scotland. While there is no general right to drive vehicles onto other people’s land, if you don’t do damage you can drive any vehicle for a distance of up to 15 yards off a public road to park it (eg to go for a walk) and there is nothing unlawful about sleeping in a vehicle parked in this way (although the Loch Lomond and Trossachs National Park of course wanted to make this an offence). There are some places where parking overnight may be banned through a Traffic Regulation Order or other legislation, for example some car parks but apart from that you can freely park and sleep.

  2. What about areas of national parks that are managed by the Forestry Commission. I’m thinking of Glen Doll in the Cairngorms National Park as an example. There is a very large car park connected to a public road that is part of the Ranger Station – no overnight stays allowed for motorhomes. This is a shame as it’s a great walking location and there’s clearly plenty of space. Can the FC legally do this?

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