Access

The Land Reform (Scotland) Act 2003 creates a statutory right of responsible access to most land in Scotland. The Act came into effect on 9 February 2005 and is accompanied by the Scottish Outdoor Access Code.

The LINK Access Network (LAN) has taken a leading role in the development of both the code and the legislation and is now working to ensure that the Act is implemented effectively.

The legislative framework provided by the Land Reform (Scotland) Act 2003, along with the Scottish Outdoor Access Code, should provide Scotland with outdoor access arrangements which are better than those in any other European country. This should be recognised as one of the main achievements of the Parliament and Scottish Executive in the years following the establishment of devolved government.

New Website

A website has been set up to provide information on outdoor access and links to relevant organisations once the legislation is in place: http://www.outdooraccess-scotland.com/

The Scottish Outdoor Access Code
The Scottish Outdoor Access Code was approved the Scottish Parliament on Thursday 1 July 2004. The Code provides guidance on responsible behaviour for recreational users and land managers. Scottish Natural Heritage (SNH) has a statutory duty to prepare and promote this Code and there will be extensive publicity about it in the coming months.

Enjoy Scotland's outdoors. Everyone has the right to be on most land and water for recreation, education and for going from place to place providing they act responsibly. These access rights and responsibilities are explained in the Scottish Outdoor Access Code. The key things are:

When you're in the outdoors:

• take personal responsibility for your own actions and act safely
• respect people's privacy and peace of mind
• help land managers and others to work safely and effectively
• care for your environment and take your litter home
• keep your dog under proper control
• take extra care if you're organising an event or running a business

If you're managing the outdoors:

• respect access rights
• act reasonably when asking people to avoid land management operations
• work with your local authority and other bodies to help integrate access and land management
• respect rights of way and customary access
• What does all this mean? Find out more by visiting www.outdooraccess-scotland.com or phoning Scottish Natural Heritage.
  

You can download the full code: http://www.outdooraccess-scotland.com/upload/ApprovedCodeindex06Sept04.pdf

Guidance for Local Authorities

The Scottish Executive has produced guidance for local authorities and national park authorities.

The guidance is available at: http://www.scotland.gov.uk/library5/environment/p1lra.pdf

Amendment to Section 7 (10) of the Land Reform (Scotland) Act 2003

An Order amending the legislation to bring woods and forests clearly within access rights has now ben approved by the Parliament. We generally supported this as it does seem to clarify things - although there seemed little doubt that the legislation did apply to woodland.

The LINK Access Network has not objected to the proposed wording - except that concerns have been expressed that land on which tree seed has been sown should not be excluded - and their response is available. Tree seed can be sown quite widely and it would have been quite inappropriate to exclude such land from the statutory right.

Funding

Funding the implementation of the Act will remain a key issue. The Executive has allocated £8.1 million to local authorities for 2005/06. In 06/07 and 07/08 access funds will not be identifiable in budgets and local authorities are being encouraged to seek funding from sources other than leisure and recreation. This reflects that access can contribute to many agendas - including health, transport and community development.

For more information on outdoor access contact the LINK Access Network convenor:

Ian McCall
Campaign and Policy Coordinator
Ramblers' Association Scotland
Kingfisher House, Auld Mart Business Park, Milnathort, Kinross, KY13 9DA
Tel: 01577 861 222 Fax: 01577 861 333
Mobile: 07720 289122
E-mail: IanM@scotland.ramblers.org.uk

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Land Reform (Scotland) Act 2003: Draft Guidance for Local Authorities and National Park Authorities

Submission to the Justice 1 Committee from the Scottish Environment LINK Access Network (LAN)

December 2004

Several individual LINK member bodies submitted comments to the consultation on the draft guidance in May 2004. We now welcome the opportunity to make further comments on the guidance to members of the committee.

The current document is a great improvement on the initial draft, and a number of our suggestions have been included in the guidance, such as the underlying principle to taking access stated on page 36 ("the outdoors is, however, not risk free and can never be made so").

However, there have been substantial additions to the text that we were unable to make any comments on before the guidance came before the committee. Therefore, we now wish to make a number of comments where we are concerned that the Act and the intention behind the legislation have been wrongly or too narrowly interpreted. We feel that these areas could lead to misunderstandings in the implementation of the Act, and would like to draw these to the attention of the committee so that they may be placed on public record. These points should be considered in the case of any future review of the guidance.

1 Introduction p3, omission of the right of access to land and water for educational and certain commercial purposes, or for passage.
The introduction refers to the rights being "for the purpose of open air recreation" and ignores the other purposes stated in the Act. This is also stated on p28 of the guidance. This wording did not appear in the consultative draft. The phrase 'open air recreation' (apparently borrowed from the CRoW Act S2) is narrower than the statutory rights established by the Act. This may be seen as misleading a local authority as to the wider extent of the statutory rights (which also cover education, passage and some commercial activities). This is more than a theoretical point, as the customary rights and freedoms of access to land in Scotland have always been for general purposes and not just recreational ones.

2 S6(1)(a) and S6(1)(b)(iv). p10, reinterpretation of the Act
In both these cases there has been a reinterpretation of the Act, firstly by saying access rights are excluded from the land on which there is a building, rather than just the building itself. The effect of this reinterpretation appears to be that the exclusion from access rights in this subsection refers to the whole of the land, not just to the bit of land immediately associated with the building. In S6(1)(b)(iv), there is also a reinterpretation in that it suggests that there is protection of the privacy and enjoyment of the person's property as a whole, not of the house alone as is made clear in the Act.

3 S13 Duty of local authority to uphold access rights, p28, not strongly stated enough
The guidance says "The emphasis of the legislation on the local management of access means that dialogue and consensus building is vital." In fact, there should be an emphasis on enforcement of the law by removal of obstructions and this should be stressed in the guidance. Dialogue and consensus building have their place but there is an expectation on the part of the public that access problems will be resolved as a result of the introduction of this legislation. The interpretation of the rights is too narrow in this section - as mentioned above.

4 S15 Consent of owner
The guidance gives too much emphasis on the need to consult landowners. It is still unclear, from reading this section of the guidance, when a local authority has to seek consent. For example, it is our understanding that they do not need to in the case of core paths (see S19).

5 S17 Core paths plan, pp40-43, a number of issues
(i) There is an over-emphasis on the access rights being exercised through the core path network, i.e., "The core paths system should provide the basic framework of routes for the exercise of access rights throughout each local authority area."(S17) The guidance as it is currently drafted may lead to local authorities ignoring the wider path network and the promoting access rights more widely - not only on paths.

(ii) There should be a presumption that long distance paths should be incorporated into the core path network. There are already maintenance programmes in place for such routes, so there is no extra cost to local authorities, and these routes are a good way of ensuring that different local authority path networks link up. The guidance says: "Again, there is no requirement that all major existing paths should become core paths. As with all paths, routes such as designated Long Distance Routes or National Cycle Network routes should be assessed through a consultation process to allow area-based assessment of their appropriateness for inclusion in that authority's core paths network." S17(2)(b).

(iii) There is a misinterpretation of the Act in the stated assumption that core paths will be multi-user. "There should be a general presumption that most core paths will be available for all types of users", S17(2)(d). The network as a whole should be multi-user, but not each path, as this is not practical or desirable.

6 S19 Power to maintain core paths, lack of funding
The guidance does not allow local authorities to take an aspirational approach and designate core paths with a view to securing funding, but rather gives a maximum time period for paths to be in place. The guidance states that other public bodies should fund paths on their properties, but does not mention CAP reform as a source of funding, a crucial omission if paths are to be created through agricultural areas in Scotland.

7 S25 Local access forums, lack of detailed guidance
There should be more detailed guidance for local authorities in standardising the membership and role of local access forums across Scotland. Currently, local authorities seem to be taking a variety of approaches.

The guidance states that the function of the access forum is to provide advice where requested by the local authority. The Act says that any other person or body, not just the local authority, can consult them.

8 Agricultural support
The guidance makes no mention of the role CAP reform and the resulting agricultural support regime. This has the potential to significantly contribute to improving access opportunities in agricultural areas in Scotland. Local authorities should be encouraged to interact with the development of land management contracts and to give advice to land managers where they are developing access measures.

We thank the committee for their consideration of these points. We would be very pleased to provide further information on any of these points if that would be of help.

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