15 November 2013 by Helen Todd
Most people don’t look for trouble when they go out for a walk. We go walking to enjoy the scenery and the fresh air, get a bit of exercise, blow away the cobwebs, chat to our friends.
Imagine, then, you’re returning to your car after a pleasant walk in the Highlands when a truck pulls up in the layby next to you. The driver jumps out and starts questioning your right to be on his land. He accuses your dog of disturbing his livestock, he suggests you were in danger of being shot by stalkers on the hill, he says you were disturbing the environment. He gets angry and aggressive, demands your name and address and takes photos of your car. What would you do in such circumstances?
Fortunately such incidents are rare, but even with Scotland’s much-lauded access legislation, they do still occasionally happen.
On a less serious level, a steady stream of emails and phone calls come in to the Ramblers Scotland office with reports of unlawful signs, obstructions or incidents relating to land management operations. Our response is usually to give advice and guidance in terms of access rights and to suggest the caller reports the case to the access authority or even the police, depending on the incident.
Yet more and more we’re wondering whether there’s much point in getting in touch with the authorities since they seem powerless to take action, especially in some of the more deep-rooted and long-running conflicts. The Land Reform (Scotland) Act 2003 celebrates its 10th anniversary this year, and by and large the access component is seen as having been a great success.
And yet where there is an entrenched access conflict – some of which pre-date 2003 – the legislation is not managing to resolve the problem. Even when it does work, access issues can take years to sort out. What good is all this legislation if we can’t swiftly resolve access issues on the ground? It belies the impression that Scotland is open to all.
Consider this not uncommon scenario: an access complaint is made to the local authority and an access officer is sent to investigate the issue. The access officer agrees that this is an obstruction and writes a letter to the landowner telling them to remove the obstruction and warning them that if this doesn’t happen, a statutory notice will be served. The landowner’s solicitor then replies to the letter saying: ‘Serve your notice but we will appeal it. See you in court’. This has the result of killing all efforts to resolve the problem by the local authority. In these times of budget cuts you can sympathise with their reluctance to get embroiled in an expensive court case for the sake of keeping open a path when they have to fund schools, social services, etc. But this does mean that the few unscrupulous landowners can make a mockery of our access legislation.
At Ramblers Scotland we are, of course, investigating ways of resolving such problems, and we have suggested to the Land Reform Review Group, set up by the Scottish Government, that they consider an arbitration service to get all parties around a table without the expense of going to court. We’ve also suggested that the guidance for local authorities is updated and strengthened, to make it clearer what is expected on all sides. But why do we make it so complicated for ourselves?
Before 2003, a Norwegian access expert visited Scotland to advise on the drawing up of the Scottish legislation, which is based on the Scandinavian model of access.
He was asked, "What happens in Norway when there is an obstruction or other kind of access problem?" He looked mystified. "What do you mean?" he asked.
"Well, imagine you are walking on a path and there is a new padlock on a gate across it. What would you do?"
He again looked mystified. "The first walker who came across the padlock would cut it off! Everyone in Norway would know that it was illegal, so it would be normal for a member of the public to take action."
Could we ever imagine this happening in Scotland, with the fear of landowners suing you for damaging their property, or local authorities being terrified to act in case they don’t follow the correct procedure?
Are we missing a trick here? Perhaps there’s another way, one which Ramblers members can help with, and which could effectively resolve some of these issues quickly. It’s also free!
The Highland incident described above was not the first time we had heard rumblings about this estate’s attitude to access, but people had been reluctant to go public with their experiences. However, in October 2013, an account of this incident was sent to prominent land rights activist, Andy Wightman, who posted it on his blog. It immediately swept around social media forums, prompting thousands of responses from outraged hillwalkers.
As a result, a mass walk on the estate is planned and the owner has been named and shamed across the internet. That’s not to say that the issue is resolved yet, but it is out in the open and any future walkers in this area will know to publicise further incidents to build up the case against this landowner.
Perhaps it’s time for us to look at using social media to mobilise people who care passionately about their right to roam and get access issues resolved that way? Perhaps we should be advising the judicious use of bolt cutters?
Citizen action might be a lot quicker than waiting for a local authority to act. We always advise people to walk responsibly in accordance with the Scottish Outdoor Access Code and to stay calm if there is an incident, but should we then take things one step further by using twitter, facebook and walking forums, to name and shame these people until they realise their actions are unacceptable to the Scottish public?
I would welcome your thoughts on this - you can comment below or post to the Ramblers Scotland facebook page
Helen Todd is the campaigns and policy manager at Ramblers Scotland. Read more about Helen's adventures in her previous blog posts or follow her @helenrambler.