www.ramblers.org.uk


Scottish Outdoor Access Code (Background)

For latest news on Scottish Outdoor Access code, click here

Background to Consultation 

June 2004

The Proposed Scottish Outdoor Access Code has now been laid before the Scottish Parliament.

The Justice 1 Committee of the Scottish Parliament has been appointed to consider the code and has sought views from all interested parties on the proposed Scottish Outdoor Access Code. The Committee will consider the code on 30 June. 

Justice 1 Committee:  Convener: Pauline McNeill Lab

Membership

Bill Butler Lab
Marlyn Glen Lab
Michael Matheson SNP
Margaret Mitchell Con
Mr Stewart Maxwell SNP
Margaret Smith Lib Dem

Proposed Scottish Outdoor Access Code
Public access to the outdoors: your rights and responsibilities
Written evidence to the Justice 1 Committee, Scottish Parliament

Ramblers' Association Scotland - June 2004

General comment
We support the Proposed Code as laid before Parliament and recommend that it be approved. We consider that the legislative framework provided by the Land Reform (Scotland) Act 2003 along with the Scottish Outdoor Access Code will provide Scotland with arrangements for public access to land and water which are better than 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.
The Proposed Code is long and quite complex. We therefore hope that the Committee will seek clarification from the Minister on several points, in line with ministerial assurances given during the parliamentary debates and discussion that accompanied the passage of the land reform legislation through the Parliament. 


Access to land where crops are growing
The wording on access to land on which crops are growing leaves some room for uncertainty. During passage of the Bill the Minister made clear that the statutory right of access would apply to the tramlines or tracks made by agricultural vehicles crossing fields and to land between rows of crops such as potatoes, providing this could be done without causing damage. We hope the Minister will reinforce this point during discussion and emphasise in particular that such access can potentially be taken by walker, cyclist or horserider, perhaps also noting that he would not expect the right to be exercised if the crop is at such a late stage of growth that access along tramlines is impractical. This applies to a crop such as oil seed rape, which develops into a tangled mass in its later stages. Also it would be useful if, in relation to tramlines, the Minister indicates that access along such routes should normally be taken in single file.
In relation to field margins (para 3.36) there is some ambiguity in the proposed Code in that the Code recommends staying “close to the edge” in order to minimise damage. In fact less damage to a crop will usually be caused by using the first vehicle track or tramline, which runs parallel to the edge of the crop, rather than struggling to take access along the very edge of the crop where it abuts the hedge or fence. It would be useful to hear if the Minister agrees with this and supports the use of tramlines within field margins, where appropriate. 
The Committee may also wish to note that land managers are encouraged by the proposed Code to leave uncultivated margins around fields to assist access. It would be useful if the Committee were to welcome this and recommend that uncultivated margins be made a requirement under the new GAEC (Good Agricultural and Environmental Condition) requirements, which will become a condition for receiving CAP support. Two metre margins have been discussed as a condition requirement. 
In addition wider margins and other measures to enhance access are under consideration as part of Land Management Contracts. We welcome these proposals and hope that the Committee can note that payments to farmers to manage such wider margins will help significantly in providing access, as well as creating new wildlife habitats in farmland.

Nature Conservation 
There is a need for clarification as to how the Nature Conservation Act relates to the Code. In particular there is a need to clearly set out that the implementation of new provisions within that legislation must not undermine the intent of the Land Reform (Scotland) Act. The main provisions that are of concern are those relating to reckless disturbance and third party damage to designated sites. We do not want such provisions to be used in an inappropriate way by land managers or other persons so that the intentions of the land reform legislation are undermined. 
When the Environment and Rural Development Committee questioned the Minister on this matter he assured them that responsible access, consistent with the Outdoor Access Code, should not be denied as a result of the nature conservation legislation. A further statement to that effect, in the context of the discussion on the Proposed Code, would be welcome. We would also appreciate a comment from the Minister, which indicates that he expects local authorities to take action against any persons using these nature conservation provisions in an inappropriate way. 

Golf courses (2.19)
The Executive has altered the wording here by inserting the word “some” to suggest that not all golf courses are suitable for sledging. While this may be true in situations where a golf course is completely flat it does not apply to cross country skiing, which can be carried out on all snow covered golf courses, providing the areas of the greens are avoided. We suggest that the Minister is asked to confirm that such activities, carried out under the basis of existing custom and tradition, are expected to continue. 

Guidance on crossing railways
We note that the Code makes no specific guidance to the public on how to cross railway lines and gives no advice to the managers of railways on their responsibilities under the land reform legislation. Such guidance should be in the Code as there is a requirement for managers of land that is contiguous to land on which the statutory right applies to take account of access. This is particularly important where railway lines pass through areas of farmland, woodland and moorland where statutory access rights will apply to land on both sides of the track and the public will expect to use any obvious crossing point to get from one side of the track to the other.
We are not surprised at this deficiency, as we understand that Network Rail, as the organisation expected to negotiate suitable wording for the Code, could agree nothing with Scottish Natural Heritage. This parallels our own experience from meeting Network Rail officials. They appeared to be badly informed about the new access legislation, ignorant of the existing basis by which the public take access across railway lines and deficient in their understanding of the requirements laid upon them by health and safety legislation. These unproductive discussions, late in 2003, have been followed by further action by Network Rail in recent months. New notices have been erected at many level crossings that are used for public access. These notices state “private level crossing - authorised users only” and are confusing to the public and potentially inhibit access. They were erected without any consultation with SNH, local authorities or voluntary organizations.

We recommend that the Committee expresses its disapproval of the way that Network Rail have been acting in relation to access across railway lines and in their non cooperation over the development of the proposed Code. We suggest that the Minister is asked to produce supplementary guidance, perhaps contained within the advice that will be issued to local authorities on implementing the land reform legislation, in order to clarify the position. 

We appreciate the opportunity to provide the above comments on the proposed Scottish Outdoor Access Code.

Background to Consultation

Scottish Natural Heritage published the draft Scottish Outdoor Access Code on 26 March - you may have seen the teddy bear press adverts. They are inviting comments on the draft code over a three-month consultation period ending on 30 June. We are very keen to encourage people to respond to the consultation. As we learnt during the passage of the Land Reform legislation individual responses really do make a difference.

We have done a quick analysis of the paper and have summarised the key issues. This should help inform people's initial reading of the consultation. Once we have done a more thorough assessment we will update the advice on this website.

If you have any questions about the consultation or our response please contact IanM@scotland.ramblers.org.uk Tel: 01577 861222.

For a copy of the consultation paper please contact Bridget Dales at SNH: 01738 444177. Alternatively you can download a pdf version of the consultation paper:

You can find further information on the consultation on the SNH website at: http://www.snh.org.uk and there is a forum for discussing the Scottish Outdoor Access Code online at: http://213.121.208.4/SOAC/forum/index.htm

You can respond to the consultation by email -soac-consultation@snh.gov.uk - or in writing to Bridget Dales, Recreation and Access Group, Scottish Natural Heritage, Battleby, Redgorton, Perth PH1 3EW.

Responses should be returned to SNH by 30 June 2003.

Consultation on the access forum

The Land Reform (Scotland) Act 2003 says that SNH must keep the Code under review and may modify it from time to time. Ministers have asked SNH to convene a national Access Forum. SNH are also running a consultation on the future of the existing Access Forum and Access Forum (Inland Water). A separate consultation paper is available on this issue, please contact:
Mark Wrightham 0131 446 2534 mark.wrightham@snh.gov.uk or visit www.snh.gov.uk

The consultation on the future of the Access Forum also runs to 30 June 2003.


Finally - remember that the legislation introduces new statutory rights of access and that these do not sweep away existing freedoms. Until the legislation takes effect - probably in 2004 -it is essentially "business as usual" and we should continue to take access as we have done in the past. It is important to resist any suggestion that we cannot exercise such rights until 2004.

Key issues

What about existing rights / traditions? The draft Code mainly covers how to exercise the new statutory access rights responsibly, plus additional sections on farmyards and recreation on golf courses.

It would be preferable to make the Code a more wide ranging document which covers how to take responsible access generally (and what responsibility means for land managers), with the acceptance that it is also possible to take access responsibly in situations outwith the statutory right.

Scotland has long standing traditional freedoms of access. These freedoms of access have enabled people to enjoy the outdoors for a wide range of recreational activities provided no damage or disturbance is caused. The Land Reform (Scotland) Act 2003 aims to increase the opportunity for the public to enjoy the outdoors. It establishes a statutory right of access to land and water for non-motorised recreation, passage, education and various commercial activities provided that these rights are exercised responsibly. The right does not apply to certain areas or certain forms of conduct.

Equally, land managers have a duty under the legislation to use and manage the land in a way that is responsible towards those exercising access rights. This involves land managers not interfering unreasonably with any person's access rights. The legislation largely reflects Scotland's traditions of access, while not diminishing any other rights of entry, way, passage, or access. In other words, the legislation does not prevent the public from carrying out any activity outwith the new access rights, or of taking access to land outwith the new rights provided that this is done responsibly. The Code provides guidance for several scenarios like this. Anyone doing this will however not be within the statutory rights provided by the legislation and the extra legal backup these provide.

The fact that access in farmyards and recreation on golf courses is included in the code is an acknowledgement by SNH that there are situations where access can be both outwith the statutory right and also responsible. At various stages in Parliamentary debate, particularly on issues such as farmyards and sledging on golf courses, the Minister said that, while the right should not extend to these areas / activities, the Code should provide guidance on how to deal with these situations.

Must vs. should: The Code as it is drafted is too regulatory with too much use of the word 'must' and too many statements telling the public and land managers what they can and cannot do. This neither reflects the legal status of the code, or the intentions behind the amendments by the Parliament changing the Code from rules and regulations into guidance. Neither the Code nor the Act introduces any new offences. It is therefore hard to see on what basis SNH can assert that people must do something, or can or cannot do something unless they are referring to other legislation or offences (such as the dropping of litter).

The Code is guidance, and the terminology should reflect this, for example by making more use of the word 'should', and only using the word 'must' when referring to offences in other legislation.

A balanced package: The Code places greater stress on instructing the public to behave responsibly than it does on land managers. For example, the key principles list four points all of which refer to responsibilities of the public. Another example of how the Code could be made more balanced could be through providing a summary of what the Act means for land managers to reflect that provided for the public. The original Access Forum proposals were based on the principles of a balanced package to meet the needs of the public and land managers. It appears to have drifted away from this to put more stress on the responsibilities of the public.

Crops: The text in the Code does not entirely accurately reflect the intentions of the Scottish Executive or the Parliament. The Justice 2 Committee got assurances from the Minister that the exclusion of 'land on which crops are growing' from statutory access rights did not exclude areas within a field where crops are sown or growing, where no crops are actually growing. Examples provided were tramlines (tractor drills) or in between rows of vegetables. While the Code does acknowledge that it may be possible to responsibly go through ground within a field in which crops are growing on unsown ground so long as you do not damage the crop, it does not make it clear that it was also the Minister's intention that this should be within the right of access or provide examples such as were provided in Parliament.

Farmyards: The text in the Code could place more stress on the judgement of the individual and placing more expectation on land managers that responsible behaviour includes not blocking routes through farmyards or providing a reasonable and convenient alternative.

For further information contact Ian McCall, Campaign and Policy Coordinator Ramblers' Association Scotland, tel: 01577 861222, fax: 01577 861333,
ianm@scotland.ramblers.org.uk

Overview of the RA Scotland Response

Scottish Natural Heritage published the draft Scottish Outdoor Access Code on 26 March with a 3-month consultation period ending on 30 June.  An overview of our response is detailed below.  

A copy of our full response can be obtained by clicking on the attached file.  
Code Response

Overview and General Issues

  1. We welcome the opportunity to comment on the proposed Scottish Outdoor Access Code and have provided a response to each of the questions raised in the consultation document. This appears as the "Main Text".Two annexes accompany this. A proposed "Summary of the Code" is provided in Annex A while Annex B contains detailed Technical Issues on the wording of the Draft Code and its relationship to the Land Reform (Scotland) Act 2003 (abbreviated to "the Act" in this submission) and to other law relevant to the access legislation. 

  2. In this Overview we wish to make a few general observations on the process of development of the Code, its purpose and future use, as well as answering the general issues raised in the consultation document.

  3. We consider that Scottish Natural Heritage, in its timely publication of the draft Code consultative document and in the extensive consultations, which it has facilitated throughout Scotland, has fully met its major responsibilities towards the Parliament and the public in this phase of the land reform work. These consultations have, however, demonstrated a problem in that many people when contributing to discussions on the Code have given the impression that they have not fully understood the legislation as passed by the Parliament, especially the extent of the statutory access rights. We are therefore concerned that many of the written submissions on this consultation may, in effect, be trying to rewrite the legislation. SNH need to be aware of this problem and treat such representations with particular care. This is one reason why, in this submission, we are giving additional emphasis to some points which are central to the legislative aims but do not necessarily emerge from the specific questions posed in the consultation document. 

  4. Annex A contains the text of a proposed Summary of the Code. We suggest that such a summary is included as an appendix to the main text of the Code when it goes before the Parliament for approval. We think that parliamentary approval for the summary is necessary to ensure that there is no confusion between the main text being promoted through the Code and the summary version. It also ensures that more specific codes or guidance for particular interest groups or areas of land or water can be based on a common source, ensuring as much consistency as possible. 

  5. Within the Summary of the Code and indeed within the Code itself we believe that four simple messages need to be central and promoted at every opportunity to ensure that there is as wide as possible understanding of the key components of the Act: the legislation provides for a general presumption in favour of public access to most land and water; the statutory right of access and the management of land as it affects access must take place in a responsible way, as described in the Scottish Outdoor Access Code; access is for non motorised use, except where this is required for persons with disabilities; care for the environment is a key component both of access and of management that is related to access. 

  6. Annex B identifies technical issues which we have come across in responding to the present Consultation. In particular it identifies wording in the draft Code which is less favourable to the visitor than the Act or other texts to which it relates. Any such bias against the visitor needs to be removed.

  7. The Land Reform (Scotland) Act 2003 derives from a Government commitment to give people "greater freedom to enjoy the countryside". The Code is of crucial importance in meeting this aim. It is vital that the overall effect is to make people more aware of these freedoms and to encourage them to take more access to the outdoors, in a responsible way. If the end result is a Code which actually has the opposite effect, discouraging people from taking access because the process appears, for example, to be too complicated or too difficult or to involve too many constraints, then the whole legislative purpose will have been frustrated.

  8. It is also important to remember why this legislation has been needed. The fundamental problem has been the attitudes and actions of too many land managers, in all parts of Scotland, who did not understand or care about public access, have challenged traditional freedoms of access and have obstructed or destroyed paths and other access routes. It is because of these difficulties that legislative action was taken, not because of problems being created by those trying to take access to enjoy the outdoors. So while the focus of much of the Code is on the rights and responsibilities associated with taking access it must be remembered that the most important changes in behaviour that need to result from publication and promotion of the Code is in the attitude of land management interests towards public access. It is essential that the Code does not contain wording that enables land managers who are antagonistic to public access to argue for any greater restraints on access than are permitted by the Act.

  9. Another factor has been the failure of public bodies, over many years, to fully understand the customs and traditions on which existing public access to land and water is taken. Such organisations have been insufficiently robust in their protection of the public interest. Too many bodies have limited their efforts to the protection of rights of way and negotiated linear routes. The Act will require public bodies, especially local authorities, to adopt new approaches to public access which are supportive of the general freedoms of access which lie at the heart of the new legislation. The text of the draft Code needs some adjustment to ensure that it is obvious to all who have responsibilities in implementing the Act what is required of them. 

  10. At the same time the production and promotion of the Code is an excellent opportunity to encourage all who take access to the outdoors to fully understand their rights and responsibilities. Such access has been taking place since time immemorial and, in many respects, the Code will simply be advising on that which already happens. Nevertheless, development of the Code within the new statutory framework should bring greater clarity to what is regarded as responsible access, a process that will be particularly valuable as more people are encouraged to enjoy the outdoors.

  11. The Code must truly reflect the aims of the legislation as set out in the Act and in the deliberations of the Scottish Parliament. It is not a Code about the enjoyment of the outdoors in general, involving such issues as choice of equipment or clothing, route selection in relation to weather or terrain, or other aspects more appropriately dealt with in other codes or advisory information. The Code must focus on explaining, in as simple a way as possible, the requirements of what is quite complex legislation as well as meeting the Parliament's intention that some matters of detail should be addressed by the Code rather than the basic legal framework. If the Code strays beyond these parameters it will create difficulties, especially in situations where, for example, a sheriff court is required to make a determination on what constitutes responsible or irresponsible behaviour. We agree that the Code should reflect "the final content of the legislation and points raised during Parliamentary debate", as stated by SNH (page70). Superfluous material should therefore be pruned from the Code.

  12. The Land Reform (Scotland) Act 2003 does not extinguish or diminish any other rights. These may include many different types of right that exist at the present time under common law or custom, including rights of way and navigation. It is very important that the wording used in the Code does not imply any loss or diminution of such rights and it is made clear that the Act is largely building on the existing situation of extensive and longstanding freedom of access. Any reduction in what exists today would be contrary to the primary intentions of the legislation.

  13. There is concern that the explanatory text, which accompanies the draft Code, while correctly stating that the statutory rights do not become operational until after Parliamentary and Ministerial approval, does not also indicate that the existing access arrangements, involving the taking of access to most land and water under common law, custom or freedom, should continue. SNH must not give any impression that people should avoid taking access until after the Code is formally approved.

  14. It must also be emphasised that the fundamental purpose of this legislation is about general rights of access to land and water. Although the Act contains very important provisions in relation to local authority powers and the better facilitation of access, such as through new path arrangements, these are secondary to the main purpose. This must be borne in mind when assessing the views of local authorities, especially in respect of the management of access. In our view many local authorities have little experience of the management of access in general, as compared to the detailed expertise they have on the provision of specific facilities, such as recreational parks, car parks, toilets etc, the protection of rights of way and the development of access routes for particular purposes such a walking, cycling and horse riding. This can lead to a belief that the management of access largely involves confining people to specific access routes. Such attitudes need to be resisted by SNH, as they are contrary to the spirit of the legislation and the intentions of the Parliament.

  15. Care must also be taken in the way that the views of wildlife conservation organisations are addressed. We regret that no space could be found on the Access Forum for any voluntary organisation concerned with wildlife protection. It is remarkable that an organisation like the Historic Houses Association has obtained a place on the Forum but no space could be found for a wildlife body like the RSPB or the National Trust for Scotland, with its unparalleled experience in the management of houses, estate land and the wide open spaces. As a consequence, some aspects of the draft Code, especially in terms of wildlife conservation and its relationship to access, are not adequate and more detail is required. At the same time, however, we do not want to see the exaggeration of risks to wildlife as a result of public access or the suggestion that just because a tract of land or water has a special designation or conservation status it has a different status in respect of the exercise of rights of access. In all cases the starting point must be a general presumption in favour of access, with specific, limited locations identified within nature reserves or other conservation areas, if necessary. Constraints should be requested only where specific features, facilities or specialised management, or where existing statutory provisions, in relation to rare species, for example, place a greater level of responsibility on the person taking access to avoid damage or disturbance. Where there might be concerns over cumulative damage the Act provides SNH with adequate powers to erect advisory notices which request the public not to exercise their statutory access rights in particular circumstances. This flexible and responsive arrangement should meet most requirements; if not the more formal procedures available to local authorities to restrict access, or other powers available to SNH under existing wildlife legislation should suffice.

  16. We wish to draw SNH's attention to concerns about health and safety and the way in which such considerations may be used to undermine the Act and indeed to suggest that UK legislation about health and safety in some way takes precedence over Scottish legislation. These suggestions need to be firmly resisted as well as attempts to adjust the Code to meet unreasonable health and safety concerns. Our understanding is that the UK legislation is primarily directed towards employers and their employees in relation to safe working practices. It has no direct bearing on people in general and in particular does not contain any specific powers to exclude the public from land and water. Land managers are required not only to ensure safe working conditions for their employees but also to ensure that the working conditions are compatible with their obligations to the public as a whole in facilitating access to land and water. 

  17. It is important to emphasise that the Code is primarily an advisory document, explaining what is accepted as responsible good practice. The Parliament made clear that it is not about rules and regulations. Where land managers perceive a need to restrain the statutory right of access this must be expressed in terms of a request to members of the public to not exercise their statutory right because of a particular, reasonable need. This approach needs to be embedded in the ethos and language used in the Code and suggestions that land managers can in some way "limit" the exercise of the statutory access right need to be avoided. Furthermore we are firmly of the view that the way that the Code is structured should be along similar lines to that of the Highway Code, a point also made in the Parliamentary debates. In particular we consider that the words "MUST" and "MUST NOT" should only be used in the Code when referring to other statutes and, as in the Highway Code, should always be accompanied by cross reference to the other statute. This will help to ensure that the Code is used primarily as an advisory document, providing "guidance" on the Act and not as a set of rules and regulations. 

  18. The Act does not bring in any powers in relation to the limitation or restriction of access, other than the power of local authorities to make byelaws and the associated measures that could be taken against people who were infringing such byelaws, providing such persons claimed to be taking access under the statutory access legislation. If a person taking access claimed that they were doing so under other law or custom then it would appear that any constraints under the statutory right of access would not necessarily apply. The same is true of land that is excluded from statutory access rights. The Act does not, by itself, provide any powers to remove individuals from land or water which is within or outwith statutory access rights. Action against such individuals, if it were appropriate to take any action, would have to be under other law concerned with, for example, breach of the peace, or by the land manager seeking interdict against a named individual. It would be useful for the Code to explain this situation so that the relationship between the new statute law and existing law is clearly understood. Although the supplementary text on page 53 of the Code makes reference to "the existing common law" the text of the Code itself does not explain the common law position, notably the potential use of interdict, albeit that application for interdict to prevent the harmless taking of access is unlikely to succeed. 

  19. It is also important to explain to the access taker what action they can take when faced with, for example, land managers behaving in a difficult or confrontational way. Specific guidance is needed on what action is open to an access taker, such as seeking interdict or requesting police action in regard to possible breach of the peace, harassment, nuisance etc. Again the Code should make clear that these are existing statute or common law provisions and are not being introduced through the land reform legislation. 

  20. Finally we wish to emphasise that we consider the Land Reform (Scotland) Act 2003 provides Scotland with an excellent legislative framework for public access to land and water compatible with the standards expected of a modern European country. This legislation provides for public access rights that are comprehensive, covering most tracts of land and water and encompasses all components of outdoor recreation. It provides a firm basis for the future development of Scotland's social, economic and environmental aims. It will underpin efforts to attract people to Scotland, either as visitors or future residents, and will enhance our reputation as a nation with a welcoming, open and progressive society. But we must also recognise that the reality of the situation on the ground today is far removed from what is required under the legislation. A great deal of further work remains to be done in transforming attitudes and facilitating access. The Scottish Outdoor Access Code is a vital component in the process. We trust that SNH will provide the Executive with recommendations on the Code, which fully meet the requirements of the legislative framework and the aspirations of the Scottish Parliament

The Code and Network Rail - click here

Press Release - January 2004 - click here