Scottish Outdoor Access
Code
Land
Reform (Scotland) Act 2003 - full copy
BACKGROUND
On 23 January 2003 the Scottish Parliament passed legislation that fundamentally changes the balance between public and private interests over much of the land and water of Scotland. The Land Reform (Scotland) Act 2003 is undoubtedly one of the main achievements of the Scottish Parliament in its first term. It establishes statutory rights of access to land and water and provides opportunities for local communities and crofters to acquire land and water through right to buy provisions. This note deals only with the access part of the legislation.
The campaign to safeguard public access rights has been very long, reaching back into the 1890s when the Liberal MP, James Bryce, first placed his Access to Mountains (Scotland) Bill before the Westminster Parliament. All subsequent legislative efforts, including in 1994 another private member's Bill, this time from the SNP's Margaret Ewing, failed as successive governments shied away from any prospect of trying to get such legislation through the House of Lords. By the 1990s however Scottish Labour MPs, no doubt encouraged by the enthusiastic hillwalking Labour leader, John Smith, were pressing the case for "right to roam" legislation for Scotland. Dennis Canavan, Sam Galbraith, Calum Macdonald, John McFall and Brian Wilson soon emerged as leading voices and, by the time Donald Dewar was laying out Labour's programme for the Scottish Parliament, access legislation was central to the proposed land reform agenda. Protecting public access rights and modernising the arrangements for securing paths and other access routes, as well as creating new ones, now had a high political imperative as new landowners ignored access traditions, creating their own private kingdoms, and the intensification of modern agriculture destroyed countless paths and tracks in the lowlands.
In 1994 a report from Scottish Natural Heritage, the government's advisers on outdoor recreation and the countryside called for an ambitious new approach which would give Scotland access arrangements that would be "amongst the best in Europe". As ideas for new access legislation evolved in the following years many looked across the water rather than south of the border to see what would fit Scotland best. Indeed the new access legislation coming into England and Wales, through the Countryside and Rights of Way Act 2000, was viewed with some concern with its limited scope and complex and potentially bureaucratic mapping procedures. There was virtually no support from government, recreation or land managing interests for such an approach in Scotland.
The Land Reform (Scotland) Act clearly sets down in statute a presumption in favour of access, if taken responsibly, over most areas of land and water. It establishes statutory rights of non-motorised access (e.g. for walking, cycling, horse riding, canoeing) to land and inland water for passage, recreation, education and commercial activities. The access rights must be exercised in a responsible manner and there are reciprocal obligations on land managers to act in a responsible manner towards access takers, both in their behaviour and in the way they manage the land. Guidance will be given in a Scottish Outdoor Access Code, a comprehensive explanation of responsible conduct to be drawn up by SNH, in consultation with other interests, and subject to Ministerial and Parliamentary approval. The draft Code has now been published for a three-month consultation period (up to 30 June).
Land over which the new statutory rights will not apply is relatively limited in extent, including the curtilage of buildings and farmyards, quarries, railway property and airfields. Land which is growing crops is not included within the right but Ministers made clear to the Parliament that access along field margins, along tramlines (tractor drills) and between rows of vegetables was within the right so long as no damage or disturbance was done.
The new arrangements for protecting and developing path networks are expected to supercede the existing rights of way arrangements which have proved very difficult to operate in recent times. Local authorities will have extensive new powers to remove obstructions and create new paths were these are needed. Consultants have estimated that at least £350 million will be required over the next 10 years to meet the aspirations. The prospective new framework is, however, already producing a better dialogue between land managers and local interests as the different parties get together in meetings to plan the location and development of community path networks. Pressure is also on the Scottish Executive to use the opportunity of reform of the Common Agricultural Policy to provide new grants to help in the delivery of quality access to farmland.
Many of those involved in the protracted debates and discussions that led to this legislation are very impressed with the outcome. It appears to provide a legislative structure which is perhaps better than that found in any other European country. It provides Scotland with an outstanding opportunity to develop all forms of non-motorised outdoor recreation, an undoubted benefit to the health and social well-being of the nation, but also for land mangers who can see new forms of rural development and regeneration emerging over the years.
It is also a tribute to the Scottish Parliament. From Draft Bill stage to the final outcome this legislation underwent a great deal of redrafting and amendment. In particular it was massively improved by the Justice 2 Committee which had main responsibility for the Bill.
For further information contact Ian McCall, Campaign and Policy Coordinator Ramblers' Association Scotland, tel: 01577 861222, fax: 01577 861333,
mailto: ianm@scotland.ramblers.org.uk
SUMMARY
Aims: The Act establishes statutory rights of non motorised access
(walking, cycling, horse riding, canoeing…) to most areas of land and
inland water for passage, recreation, education and commercial
activities. Mountain guides and outdoor centres, photographers and
university geology field trips are within access rights while large
events like T in the Park are outwith access rights. The statutory
access rights established by the Act do not diminish or displace any
other rights of entry, way, passage or access. Similarly, the duty of
care owed by a landowner to another person present on the land has not
been reduced.
Responsibility: Access rights are to be exercised responsibly with
reciprocal obligations on land managers to use and manage the land in
ways that are responsible to those exercising access rights. The
Scottish Outdoor Access Code will give guidance on responsible conduct
for both groups. It is the duty of Scottish Natural Heritage to draw up
the Code in consultation with other interested persons and bodies.
Following Ministerial and Parliamentary approval SNH and local
authorities must publicise and promote the Code.
Changes to the Act: There are various provisions for Ministers to change
the detail of the Act, for example to alter the land on which access
rights are exercisable. However, this can only be done after wide
consultation and with Parliamentary approval.
Land over which access rights are not exercisable: Various categories of
land are outwith access rights. Privacy concerns are addressed by
excluding the curtilage of buildings from access rights. Where problems
arise with a route through a farmyard the Minister expressed an intent
that an alternative route should be provided. Various provisions ensure
that access rights do not interfere with other sporting activities while
the Minister made it clear that these sections did not apply to areas
like pheasant woods and grouse moors. Land on which crops are growing is
outwith access rights, yet the Minister made it clear that access along
tractor drills, on field margins and in between rows of vegetables would
be within access rights. The list of land on which access rights are not
exercisable can be extended through byelaws.
Conduct excluded from access rights: The list of activities excluded
from access rights has been limited to being on land in breach of an
interdict or other court order; hunting, shooting or fishing; having a
dog out of control; removing things commercially from the land, and
motorized access (apart from vehicles and vessels designed to increase
the mobility of those with a disability).
Exempting land from access rights: Local authorities have the power to
exempt land from access rights. This is a relatively simple exercise for
periods up to six days to be used for events such as village fetes. For
longer periods than this the process becomes far more onerous, involving
public consultation, Ministerial approval and potentially a public
inquiry.
Local authority powers: Local authorities have been given new powers
within the Act to assert access rights. They have enhanced powers for
ensuring that obstructions to access are removed and to take steps to
advise the public of routes or to protect the public from danger. They
must draw up a plan for a system of paths (core path network) sufficient
to give the public reasonable access throughout their area and have
enhanced powers to create this system and new paths. The local authority
must set up a local access forum to assist the local authority with
their powers and duties in the Act.
For further information contact Ian McCall, Campaign and Policy
Coordinator Ramblers' Association Scotland, tel: 01577 861222, fax:
01577 861333,
mailto: ianm@scotland.ramblers.org.uk