Course

This module should take approximately 30 minutes to work through.

Chapter 5 - Local Authority Functions: Access and Other Rights

Chapter 5 is a lengthy part of the Act, setting out the wide range of local authority functions relating to statutory access rights. It should be noted that the sections of the Act relating to local authorities also apply to national park authorities.

The unofficial term “access authority” is widely used as a generic title that refers to the powers and duties vested in local and national park authorities in Scotland. Whenever the Land Reform Act refers to a local authority, it should be read as including national park authorities as well.

Module 5 of this course will take you through the key points that you are likely to need to know about in Chapter 5 of the Act, plus a brief summary of Chapter 6 (Sections 28 to 32).

There is a great deal of fine detail in Chapter 5 of the Act, and it would significantly lengthen the time needed to work through this module if we were to go into every aspect of that detail. With that in mind, the main points that will be covered in this module are the duties and powers that the Act has created for access authorities. In order to emphasise the difference between duties and powers, we have highlighted these words in bold, plus we have also highlighted the words shall and may, to make it clear what level of compulsion there is meant to be on authorities to carry out these functions. The words in bold have been inserted for clarity in this module and do not appear in bold in the Act.

A local authority is not required to do anything in pursuance of this duty that would be inconsistent with the carrying on of any of the authority’s other functions.

The local authority may institute and defend legal proceedings and generally take such steps as they think expedient.

Section 14 describes the responsibilities that the owners of land have in respect of prohibition signs, obstructions and other dangerous impediments.

Owners shall not, for the purpose or for the main purpose of preventing or deterring access:

·         put up any sign or notice,

·         put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation,

·         position or leave at large any animal,

·         carry out any agricultural or other operation on the land, or

·         take, or fail to take, any other action.

A local authority which considers that something has been done to contravene these protections may give written notice to the landowner to seek remedial action to remove the sign or obstruction. If the owner fails to comply with such a notice, then the local authority may take the remedial action specified in the notice and recover the costs from the owner.

An owner on whom a notice has been served may appeal against it.

This section of the Act is designed to protect access rights on the ground, but the reality is that many signs and obstructions go unchallenged by local authorities. The result is that many of these signs and obstructions are largely ignored, and occasionally damaged or removed by members of the public.

Section 15 covers another area of local authority powers in relation to statutory access rights. Under the heading of “Measures for safety, protection, guidance and assistance”, local authorities may take such steps as appear to them appropriate to warn the public of and protect the public from danger on any land in respect of which access rights are exercisable. This would usually be in the form of putting up and maintaining notices and fences.

If the local authority consider that a fence or wall presents a danger that is likely to injure a person exercising access rights, they may give written notice to the owner of the land on which it is placed to request that the danger be removed.

The local authority may install and maintain gates, stiles, moorings, launching sites or other means of facilitating the exercise of access rights, and seats, lavatories and other means of contributing to the comfort and convenience of persons exercising access rights.

In exercising their powers under this section, local authorities shall:

·         have regard to the extent to which there are existing facilities in their area for the purposes of assisting persons to exercise access rights, and

·         have regard to the needs of persons with disabilities.

Section 16 gives local authorities power to acquire land to enable or facilitate the exercise of access rights. The authority may acquire land by agreement or, with the consent of Ministers, compulsorily.

Section 16 powers aren’t the only means by which local authorities can acquire land, and local authorities appear more reluctant to flex their muscles when it comes to non-motorised travel compared to their determination on issues connected to road infrastructure, so it is perhaps not surprising that there has only been one known case of the section 16 power being used.

Core Paths

The next four sections of the Act (17 to 20) are all concerned with the procedures surrounding core path plans. Section 17 placed a duty on local authorities to draw up a plan for a system of core paths within three years of the coming into force of this section of the Act. As a result of this, all local authorities in Scotland now have a core paths plan. While there is a general right of access to most land and a presumption in favour of access, core paths are intended to be a system of paths that have added protection and provide the less experienced members of the public with a greater level of confidence.

NatureScot has a webpage showing all the core path networks in Scotland. 

Section 17 was crucial in the development of core path plans but is now mainly of historic interest. Section 18 (8) contains the ongoing local authority duty to keep the plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price.

Section 19 sets out the local authority power, but not duty, to maintain core paths. The wording of this section states: The local authority may do anything which they consider appropriate for the purposes of-

(a)    maintaining a core path;

(b)   keeping a core path free from obstruction or encroachment;

(c)    providing the public with directions to, or with an indication of the extent of, a core path.

Section 20 goes on to describe the procedure for reviewing and amending a core paths plan. In that respect, this is the most relevant section relating to the longer-term management of core path plans. A local authority may consider it appropriate to remove a path from a core path plan, divert the line of a path that is in the plan, or add a further path to their plan. It should be noted that waterways can also be included in core path plans, and this option has been taken up by several authorities.

Sections 21 and 22 set out the procedures for the delineation of paths where access rights are exercisable. Section 21 is straightforward and provides a simple procedure when the authority and landowner are content to enter an agreement together to delineate, create and maintain a path. Section 22 is more complicated and provides for the opposite scenario where the authority and landowner are not in agreement and compulsory powers are required to make a path order.

Section 23 describes the procedure for farmers ploughing, or otherwise cultivating land, which is a core path or right of way. The key part of this section is that it sets a time limit of 14 days from the path surface being disturbed until it has to be reinstated. Failure to comply with this requirement can lead to the landowner being fined. If an owner fails to comply, the local authority may give 14 days’ notice then take steps to reinstate the path and then recover their expenses from the owner.

Section 24 provides the detail for local authorities appointing rangers to work on land where access rights are exercisable. Rangers may be appointed to advise and assist the owner of the land and members of the public on matters relating to the exercise of access rights, as well as to perform other duties relating to access rights. Following the spate of irresponsible behaviour in the summer of 2020 after relaxations in Covid restrictions, a number of local authorities have employed teams of seasonal visitor rangers to deal with issues that might arise and to liaise with visitors and attempt to defuse any problems before they escalate. NatureScot has been supporting local authorities by providing funding towards these ranger posts.

Section 25 sets out the procedures for the establishment of local access forums. The Act says that: Each local authority shall establish for its area a body, to be known as the “local access forum”…..

The functions of the local access forum are listed in the subsections within section 25. These include:

·         Its role in advising the local authority and any other person or body consulting the forum on matters relating to access rights.

·         The existence and delineation of rights of way.

·         The drawing up and adoption of a system of core paths.

·         Offer and give assistance to the parties in any dispute about access rights, rights of way and core paths.

A local access forum consists of a balance of members drawn from recreational access takers, land managers and owners, the local authority and other public bodies. National representative bodies like the Ramblers, Mountaineering Scotland, Scottish Land and Estates, National Farmers’ Union Scotland and other similar bodies regularly nominate their local members for positions on local access forums.

Despite being a statutory body that this Act requires local authorities to have, there are some authorities that have failed to maintain their local access forums. While some are active and working effectively, there are others that haven’t met for several years.

This section also states that a local authority may have more than one local access forum. This is mainly included for the benefit of local authorities with very large areas to cover. For example, Highland Council covers a third of the land area of Scotland and has six local access forums.

Section 26 provides local authorities with the power of entry to land for a purpose connected with the exercise or proposed exercise of the authority’s functions under this part of the Act. A person authorised by the local authority may enter land at a reasonable time and on giving reasonable notice to the owner of the land. These conditions relating to time and notice do not apply in the case of an emergency or in relation to the local authority’s powers under sections 15 and 19 relating to core paths.

Section 27 is the final section under the chapter on local authority functions. This section sets out the system whereby Scottish Government Ministers may give guidance to local authorities generally or to a particular local authority. Before giving such guidance, Ministers shall consult each (or the) local authority that they wish to give advice to and lay a draft of the proposed guidance before the Scottish Parliament. The guidance shall not be given until after a period of 40 days beginning with the day on which the draft was laid before Parliament. Scottish Government guidance was published in 2005, and whilst considered to be out-of-date in certain sections now, this version is still the most recent and therefore represents the current version. A 2016 draft is unavailable for public use and has yet to be finalised and passed.

Chapter 6 – General and Miscellaneous Provisions

The final chapter, Chapter 6, in Part 1 of the Act contains a small number of sections that didn’t fit within the main body of Part 1. We will take you through each of these sections to complete this journey through the access rights part of the Act.

Section 28 is titled: Judicial determination of existence and extent of access rights and rights of way. This section sets out the procedure that allows anybody to make an application to a sheriff to determine whether a specified area of land is land in respect of which access rights are exercisable. This can, however, be an expensive process, which may explain why it has been used so rarely. Nevertheless, it exists for any party (land manager, public body, voluntary body or member of the public) to seek clarification if an application is submitted to the sheriff.

Section 29 contains Powers to protect natural and cultural heritage. NatureScot or Scottish Ministers may put up and maintain notices for the purpose of protecting the natural heritage of land in respect of which access rights are exercisable. Any notice put up under this section may warn people of any adverse effect their presence on the land, or any activities they might conduct, might have on the natural or cultural heritage that they wish to see protected.

Section 30 is mainly of historical interest now. At the time it set out the new law for dealing with “Existing byelaws providing for public access to land”. Where there had previously been byelaws that restricted access and would have been in conflict with the new statutory rights of access, the existing byelaws had to be modified within two years of those new rights coming into force.

A significant example of this section being used to delete old byelaws that had restricted access over many years was on large waterbodies where access had been denied due to byelaws being in place. For many years, recreational access to Loch Katrine had been denied by a restrictive byelaw, but that byelaw was deleted within the two-year timeframe and access to the loch for non-powered recreational craft was opened as a result of section 30 of the Act.

A very short section, Section 31 confirms that Sections 14 (Prohibition signs, obstructions, dangerous impediments, etc.) and 15 (Measures for safety, protection, guidance and assistance) apply in relation to rights of way in the same way as they apply in relation to the statutory rights of access. For staff dealing with obstructions and/or safety issues, it is helpful that this one section can be used on any problem, no matter where it is.

The final section in Part 1 of the Act is Section 32 which provides an interpretation or series of definitions of terms used throughout Part 1.

To pick up one definition from this section, the definition of “land” includes –

(a)    Bridges and other structures built on or over land;

(b)   Inland waters;

(c)    Canals; and

(d)   The foreshore, that is to say, the land between the high and low water marks of ordinary spring tides.

The following table shows the location in the Act of the various Duties, Powers and Responsibilities placed on Local Authorities, Scottish Government Ministers, Scottish Natural Heritage (Now NatureScot), Landowners and members of the public.

Scottish Outdoor Access Code

This module should take approximately 45 minutes to work through.

Scottish Outdoor Access Code | Scottish Outdoor Access Code (outdooraccess-scotland.scot)

Having looked at each section of the Act, we will now turn our attention to the Scottish Outdoor Access Code. As previously mentioned, the Code is the easier to read, more public-facing guidance that explains the law and provides useful background information for those exercising their rights of access and those who own and manage land.

In order to provide you with a reasonable understanding of the Code, you will now be taken through a series of key points from the six chapters in the Code.

Part 1 - Introduction

The very first section of the Code (1.1) sets the scene and is worth reading in its entirety.

The point is well made in this opening statement that: “open-air recreation provides people with great benefits for their health and well-being and contributes to the good of society”. As we all carry out our work and have some kind of contact with access rights and responsibilities, it is worth remembering this underlying principle behind the statutory rights of access in Scotland.

The other sections in the Introduction to the Code make these important points about the aims of the Code.

As an example, in the case of Mrs. Ann Gloag versus Perth & Kinross Council and The Ramblers Association, the sheriff's view was that the role of the Code is: to identify what is responsible.

Part 2 – Access Rights

Part 2 of the Code clarifies the extent of access rights and describes the content of the first two chapters of the Act in a more easy-to-read way for public understanding.

Part 2 begins with “A summary of your access rights” which will be shown here in full.

Following on from that Summary, this section of the Code goes on to discuss the following topics:

The following list highlights several bullet points that appear under those headings. These points have been selected on the basis of being less widely known than the obvious places like mountains, forests, rivers, lochs, urban parks and so on:

You can exercise access rights in places such as:

Furthermore,

In terms of the places where access rights do not apply, the list given in the Code includes:

Activities excluded from access rights include:

Public rights of way and navigation continue to exist and are unaffected by this Act. Where a public right of way passes over land excluded from access rights, such as the land associated with a building or where crops are growing, you can still use the route as a right of way.

Part 3 – Exercising Access Rights Responsibly

This part of the Code describes a wide range of scenarios and goes into a lot of detail in terms of how you are expected to exercise your access rights. This level of detail is too lengthy to describe in this course, so we will just repeat the summary of your main responsibilities as shown at the start of this section of the Code.

The pages that follow this summary go into some very useful detail that is well worth reading if you can find the time. The following themes are key to the general message in Part 3:

·         Spells out an individual’s responsibilities when taking access;

·         Provides information designed to help an individual with their decision-making options;

·         Attempts to raise an individual’s outdoors awareness;

·         Gives examples of practical situations that an individual might encounter in the future;

·         Helps educational and commercial operators decide when they should just go out with a group, when they should seek advice from a landowner and when they should ask permission.

Part 4 – Managing Land and Water Responsibly for Access

Part 4 of the Code explains how land managers can manage their land and water responsibly in relation to access rights and begins with a couple of summary pages, which we will show here to present the main thrust of what is in this section.

As a land manager, you must manage your land or water responsibly for access and this part of the Code explains how you can do this. A summary of your main responsibilities is provided below:

There is some particularly useful advice in this part of the Code and it is worthwhile reading for any land manager. The general content of Part 4 can be summed up as:

Part 5 – A Practical Guide to Access Rights and Responsibilities

This part of the Code is set out in the form of a table with a range of activities, and alongside each activity what is expected in terms of the “responsible behaviour by the public” and “responsible behaviour by land managers”.

The full list of activities is:

Here are a couple of examples from this table. This should give a feel for the kind of advice being provided in Part 5.

The activity specific guidance in this part of the Code is backed up by a series of leaflets and webpages from various recreation and land management bodies that have provided supplementary advice and messaging for specific audiences, activities and professions. This guidance is intended to highlight the key parts of the Act and Code for farmers, hill walkers, canoeists and so on. Links to guidance produced by Mountaineering Scotland, National Farmers’ Union Scotland, Ramblers Scotland, Scottish Canoe Association, Scotways and several others are provided in the Existing Resources section that accompanies this course.

Part 6 – Where to Get Help and Information

This short section at the back of the Code provides advice on:

The Code cannot cover every possible situation, setting or activity. Free information and advice on access rights and responsibilities, and who to contact in your local authority is available online here.

Annex 1 – Existing Criminal Offences Created by Statute

This annex contains a list of existing criminal offences with some kind of relevance to the management of access rights. As the Act states, “A person has access rights only if they are exercised responsibly” and as the Code states, “By definition this excludes any unlawful or criminal activity from the time at which it occurs”.

Some people criticised the Land Reform (Scotland) Act 2003 for not including offences for dropping litter, having a dog out of control or disturbing wildlife, for example. The reason that the Act doesn’t include these offences is that they already exist. It is already an offence to drop litter, allow your dog to be out of control and to disturb wildlife. There are clearly issues around enforcement but repeating a crime in two separate pieces of legislation is not the way to increase enforcement levels.

Annex 1 is a helpful resource and useful go-to section if you are encountering, or have witnessed, problems associated with criminal activity in the outdoors. Here are a couple of examples to demonstrate how the Annex 1 table has been set out.

Rights of Way and Rights of Navigation

This module should take approximately 15 minutes to work through.

Rights of Way

Before the implementation of Scottish access rights in 2005, the only legally certain routes that could be followed were public rights of way.

How does a route become a right of way?

To be a right of way, a route must meet all of the following conditions:

• It must join two public places (e.g. public roads or other rights of way); and
• It must follow a more or less defined route; and
• It must have been used, openly and peaceably, by the general public, as a matter of right, i.e. not just with the permission of the landowner; and
• It must have been used without substantial interruption for at least 20 years.

Originally just part of the Common Law of Scotland, the last two conditions above are now included in the Prescription and Limitation (Scotland) Act 1973.

ScotWays works with local, national park authorities and local communities to determine whether routes meet the above conditions, as the interpretation of the law can be contentious. Ultimately, if it is not agreed that a route meets the necessary conditions to be a right of way, it is up to the courts to decide whether the criteria are met.

Who can use rights of way?

That depends upon how a route has been used over the 20 years that lead to the route becoming a right of way.

If it was only used by people walking, then it is a right of way for pedestrians. If it was used by horses, then it is a right of way for horses and pedestrians. If it was used by vehicles, including carts, then it is a right of way for vehicles and horses and pedestrians.

This hierarchy of users means you can always assume a right of way can be walked, but you can’t always assume a right of way can be used (as a right of way) on horseback or by motorised vehicles.

Given that most rights of way are on land where statutory access rights apply, then cyclists, horse riders and other non-motorised access takers are now able to use a pedestrian right of way using those rights. However, there are some pedestrian rights of way through farmyards, for example, where statutory rights don't apply. Strictly speaking, a cyclist should push their bike through the farmyard rather than ride it, and a horse rider may have to decide whether it would be better to walk their horse through the yard or take it around the farm using a more favourable route.

Ongoing need for rights of way

People still depend on these existing rights in circumstances where access rights do not apply or where they are limited in some way. In particular:

• Many well-used rights of way exist through the curtilages of buildings or other land where access rights do not apply, particularly through farm steadings and in urban areas.
• Any limitations applying to access rights (e.g. for land management needs) do not apply to the use of rights of way, although people should still act responsibly when using them.
• Statutory means of limiting access rights do not restrict the use of a right of way, although byelaws may affect how people can use it.

Rights of way (and rights of navigation) also provide important strategic cross-country routes. Some (such as drove roads) are of great historic interest. Most key local rights of way are likely to have been incorporated into the core path system. However, other rights of way will often complement and extend local access beyond core path networks.

The first bullet point, above, is emphasised in sub-section 3.21 of the Code: “You can still use public rights of way that run through gardens or along driveways, or which pass next to houses.”

Rights of Navigation

The equivalent of a right of way on water is a public right of navigation. Rights of navigation exist on tidal parts of rivers and also on non-tidal sections of some rivers.

Their existence must be established by habitual use from time immemorial (usually 40 years) but, unlike rights of way on land, the route does not need to be between two public places and rights are not lost by non-use.

An example of a right of navigation being established on a non-tidal section of river comes from the court case that proved the existence of a right on the River Spey. The case was taken to court by Clive Freshwater who had set up the Cairngorm Canoeing and Sailing School on Loch Insh.

This is the leading Scottish case on navigation law. It established that there was a public right of navigation on the River Spey, a non-tidal river, and sets out the principles which apply in relation to such a right.

The facts: The Wills Trustees owned lands and held the salmon fishing rights on both banks of the River Spey, along a considerable stretch where the river was non-tidal. The Sailing School organised courses of instruction in canoeing and sailing from Loch Insh, a small loch considerably further upstream, through which the River Spey flowed. Parties of canoeists from the Sailing School traversed the Knockando stretch of the river ten to twelve times each year during the summer season. The Wills Trustees claimed that their fishings at Knockando had been adversely affected by the passage of these canoes and they sought a Declarator that they had the exclusive right of navigation on the stretch of river flowing through their lands, and also sought Interdict against the Sailing School, maintaining that the Spey was a private river.

Decision: It had been proved that from the 17th century until the end of the 19th century, there had been a practice of floating timber and other commodities down the Spey. This practice ceased after about 1885 and there was no general navigation in the Spey until the 1920s, when canoeing began, followed by a significant further increase after the Second World War. The House of Lords held: (1) that the Spey was a public navigable river; (2) that the fundamental requirement for a public right of navigation in a non-tidal river was that it must be navigable as being suitable for the passage of vessels or rafts so as to provide a means of communication and that it must be proved that there had been habitual regular use from time immemorial (at least 40 years); (3) that the right of public navigation was not a servitude and could not be lost by non-use; (4) that the theoretical basis of the public right of navigation was that the Crown had not and could not have alienated the right to use the river for navigation but had retained it in trust for the public; (5) that it was not strictly analogous to a right of way on land and did not require to run between two public places; (6) that in relation to a public right of navigation on a non-tidal river, the question of public interest or benefit was irrelevant; and (7) that the public right of navigation in the River Spey which was established in 1783 and was still in existence, extended to permit any operation by a vessel which could be reasonably described as a boat, including a canoe.

Additional Information

This module should take approximately 20 minutes to work through.

As well as having an understanding of the access rights and responsibilities contained within the Land Reform (Scotland) Act 2003 and Scottish Outdoor Access Code, plus rights of way and rights of navigation, there are a number of other pieces of access-related information that it will be useful for you to be aware of.

Anti-social behaviour

Since the days before Scottish Access Rights came into being, there has been a problem with groups of people behaving badly and causing damage in the countryside. The problem has been around for many years, at least as far back as World War Two, and various hotspot areas have been targeted by the people causing the problems.

Congregational roadside camping has been a constant part of the anti-social problems caused by these people. These problems usually include litter, fires out of control, uncontrolled dogs, barbecues (including disposable barbecues) and pollution caused by thoughtless toileting. The problems reached unprecedented levels in the summer of 2020 as Covid lockdowns were relaxed and people were once again able to travel. That is when the issue became known as ‘dirty camping’.

It is important to note this style of camping is not wild camping as described in the Code. True wild camping takes place in remoter locations, in small groups and where the ethos is very much on leaving your camping spot at least as tidy as you found it, and preferably tidier than when you arrived.

These examples of anti-social behaviour invariably break laws such as littering, damage to property, pollution, breach of the peace and so on, so in that respect the perpetrators are acting outwith their access rights.

A welcome response to the problems in 2020 has been the deployment of additional rangers tasked with managing anti-social behaviour and being there to defuse problems before they escalate out of control.

Guidance for land managers dealing with anti-social behaviour is contained in the Code and via the National Access Forum's Managing Camping With Tents in Scotland (see Existing Resources).

Interdict

In Scots law, an interdict is a civil court order that tells a person not to do something or to stay away from someone, their children or a specific place, such as their house. If a person doesn't abide by the conditions of an interdict, the police might be able to arrest them if the interdict gives them the power to do so.

The equivalent term in England is an injunction.

In terms of access to land, an interdict is the mechanism by which a landowner can prevent a named individual who has been causing a nuisance on their land and is likely to repeat their behaviour in the future. In order to secure an interdict, the landowner has to convince the sheriff court that the nuisance behaviour has been repeated and likely to continue.

An interdict can also be served against a landowner who has repeatedly blocked access and is likely to repeat that behaviour in the future.

Section 9, subsection (b) of the Land Reform (Scotland) Act 2003 states that Conduct excluded from access rights includes “being on or crossing land for the purpose of doing anything which is an offence or a breach of interdict or other order of a court”.

National Access Forum

The National Access Forum was established by Scottish Natural Heritage (now NatureScot) in 1994 to debate and resolve access issues at a national level and to advise on national issues linked to Scottish access rights. Membership of the NAF is drawn from the recreational, land management and public sectors - with an interest in access to the outdoors.

The National Access Forum complements the work of local access forums, which advise on and help to resolve local access issues. Unlike Local Access Forums, the National Access Forum isn’t a statutory requirement of the Land Reform (Scotland) Act 2003.

Over recent years the National Access Forum has produced several guidance documents, on a range of topics where more detailed advice was needed. These guidance papers have generally been prepared by a special sub-group, bringing together a range of relevant people and interests, and using dialogue, site visits and consensus-building to arrive at the detailed practical advice. The National Access Forum has also provided input to other bodies' advisory publications, for instance with NatureScot or with the Moorland Forum. Links to the National Access Forum guidance papers are included in the Existing Resources section of this training course.

The NAF aims to be as open and participatory as possible and welcomes contributions from all bodies with an interest in national access issues.

Roads (Scotland) Act 1984

There can at times be confusion in terms of the interplay between the access rights in the Land Reform (Scotland) Act 2003 and the roads legislation in the Roads (Scotland) Act 1984.

The Roads (Scotland) Act covers anything that is a road, and a road is defined as anything to which a right of passage applies (Section 151). Land Reform Act rights do not count as a right of passage due to the clarification in subsection 5 (6). Thus, anything that can be defined as a road may not have the freedom of use that the general right of access brings. The exception to the rule is where a road has been designated a core path. In that instance, the freedom of the general right of access applies.

This is not an issue for walkers who have a right everywhere, but it is a problem for all other levels of non-motorised users. Cyclists and horse riders, for example, may not be allowed to use certain roads, and as the Roads Act takes precedence, that means that cyclists and horse riders are unable to exercise access rights on such roads.

In practice, there is no way that a user can tell the difference on the ground unless they have access to all the necessary records or there are clarifying signs.

Rights of way are classed as roads and what use can be made of those may have been determined by prescription, use of the route in a particular way, as of right, for over 20 years.

Pavements and private roads are also classed as roads and given that the use classification of a road is determined by the relevant roads authority, the designation of a particular pavement or private road is determined by that authority.

Many pavements are now designated as multi-use paths and have blue signs indicating that they are for walking and cycling. However, a pavement that is designated for walkers only cannot be legally used by cyclists. In other words, a cyclist can’t claim to be exercising access rights because the Roads Act designation of being pedestrian only overrides access rights.

Wildlife Legislation

Since Scottish access rights came into force, the laws aimed at curbing disturbance to wildlife have been strengthened, including the introduction of the offence of reckless disturbance. The addition of the reckless offence, which goes beyond the previous offences of intentional or deliberate disturbance, is a change that access takers in Scotland should be aware of.

Different types of wildlife are covered by a range of varying Acts, so this is a basic look at some of that legislation:

Birds, red squirrels and pine marten are protected by the Wildlife and Countryside Act 1981 (as amended). The wording of this legislation states that it is an offence to “intentionally or recklessly” disturb these species.

Cetaceans, otters, bats and wildcats are protected by the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended). The wording of this legislation states that it is an offence to “deliberately or recklessly” disturb these species.

The reckless disturbance clauses in these Acts mentioned above are primarily aimed at developers and industrial operators like fish farms, renewable energy developers and wildlife watching guides, but a recreational visitor to the countryside could fall within the scope of the offences. For example, a pair of climbers could recklessly disturb a bird nesting on a crag if they failed to check for information or guidance before going out and were then oblivious to a parent bird flying overhead.

Other relevant wildlife legislation in Scotland include: Protection of Badgers Act 1992 and Marine (Scotland) Act 2010.

See the links to the various Acts in the Existing Resources section.

Criminal Justice and Public Order Act 1994

The Criminal Justice and Public Order Act 1994 contains provisions for “public order, collective trespass or nuisance on land” that were created to deal with new-age travelers, field sport saboteurs and environmental protest groups. This is UK legislation that applies in Scotland.

There could be implications for access takers, although the Scottish Office Circular at the time said: “While there may be circumstances in which it could be alleged that hill walkers, etc., are disrupting a lawful activity merely through their presence on land, the Crown Office has indicated that procurators fiscal are likely to confine themselves to taking proceedings against persons who can be said to have acted with the specific and ulterior motive and intention of obstructing or disrupting, or intimidating persons engaged in lawful activities.”

Here is a link to the Criminal Justice and Public Order Act 1994.

Health and Safety Legislation and Occupiers' Liability Legislation

The provisions of the Health and Safety at Work Act 1974 and the Occupiers' Liability (Scotland) Act 1960 still apply, and guidance has been developed to show how they interact with the Act.

Section 5, sub-section (2) of the Act and Paragraph 3.8 of the Code state that: "The extent of duty of care owed by an occupier of land to another person present on the land is not affected by the access provisions in the Act." This means that access rights do not alter the nature of the liability owed by a land manager. 

To clarify this, a landowner or manager does have a duty of care towards people on their land, but the Act hasn't changed the extent of that duty.

There are various sources of advice in this area. These include the "Brief Guide to occupiers liabilities in Scotland in relation to public outdoor access" and the Health and Safety Executive's guide to "Cattle and public access in Scotland".

It should be remembered that health and safety laws don't trump other legislation, so for example, an assessment made of a path under legislation such as the Health and Safety at Work Act 1974 which recommends a closure for safety reasons, would require other relevant pieces of legislation to be used to actually enable the closure.

These other Acts might include Countryside (Scotland) Act 1967, Roads (Scotland) Act 1984, Town and Country Planning (Scotland) Act 1997, as amended, Land Reform (Scotland) Act 2003, Road Traffic Regulation Act 1984 or The Compulsory Purchase of Land (Scotland) Regulations 2003.

Military Training Areas

Access is restricted in eight military training areas in Scotland.

• Barry Buddon (Tay Estuary between Carnoustie and Monifieth)
• Blackdog Ranges (East coast, north of Aberdeen)
• Cape Wrath Training Area (Northwest corner of Scottish mainland)
• Castlelaw Training Area and Ranges (Pentland Hills Regional Park)
• Fort George (Moray Firth coast, east of Inverness)
• Garelochhead Training Centre (Gareloch, northwest of Helensburgh)
• Kirkcudbright Training Area (Solway Firth)
• Tain Air Weapons Range (East coast, east of Tain)

Red flags are usually used to indicate that live firing is taking place on military training areas.

Further information about access to military training areas.

Tidal Waters

The United Nations Convention on the Law of the Sea (UNCLOS) sets the rules of navigation on the high seas beyond the territorial waters of individual nations.

In Scottish waters, people in control of non-powered recreational craft have a right to move freely on the surface of the sea and to dive or swim below the surface. The only restrictions are in military training areas (see above) and within enclosed areas (e.g. fish farm cages). A structure, such as a fish farm cage, should not block a recreational craft from moving from one part of the sea to another, so should not, for example, block the route in and out of a bay.

Access to the foreshore, between high and low water marks of ordinary spring tides, is included in Scottish access rights. This is confirmed in Section 32. In addition to this right in Scotland, there is an international convention that mariners are allowed to land in duress of the weather and take shelter.

A number of Scottish harbours are not freely available for launching or landing because of harbour board, harbour trust or port authority byelaws, therefore launching and landing can be subject to a charge.

Access is prohibited in certain sensitive coastal waters such as busy harbours and ports, and around military sites such as Faslane in the Gare Loch.

Level Crossings

A current and ongoing dispute centres around Network Rail and the closure to public access of private level crossings around Scotland. As the body responsible for railway lines throughout the UK, Network Rail's position is they don’t accept Rights of Way exist across level crossings in Scotland, and that the statutory rights established by the Land Reform (Scotland) Act 2003 don’t apply on railways. Discussions with Network Rail are still ongoing at the time of writing and any changes to the situation will result in this section being updated.

Court Cases

To date, there have been ten cases taken to court under this Act, and these are important in terms of providing guidance on the interpretation of the Act.

Cases have so far been initiated under two different sections of the Act. Under Section 14, a landowner can appeal to the Sheriff Court against a notice that the local authority has served on him in respect of an alleged obstruction of access rights.

Under Section 28, anyone may apply to the Sheriff Court for a court order in relation to: whether access rights apply on particular land; or whether particular land managers or users have acted responsibly in relation to access; or whether there is a public right of way.

For a list of cases, with commentary on the background and outcome of each one, visit the Court Cases section of the Ken facility within the Scotways website and click on “Cases under the Land Reform (Scotland) Act 2003”.

Applying the knowledge

This module should take approximately 40 minutes to work through.

Applying the knowledge you have learned from this module

Depending on what your role is and where you are likely to come into contact with Scottish Access Rights, it is hoped that this course will have provided you with new knowledge and a better understanding of how the Act, Code and other legislation work.

Gaining new knowledge is one thing, but this course is also aimed at helping you apply that knowledge in real life situations.

Rather than being overly prescriptive, the system is designed to encourage sensible decision making, so on that basis this course has hopefully provided you with the skills to make informed decisions in keeping with the spirit of the Act and Code.

Task to complete

We now want to present five typical scenarios for you to think about. We would like you to read through each scenario and consider the questions that are posed at the end of each one.

There are no right or wrong answers, partly because it just isn’t possible in a short written description to provide you with the kind of details you would pick up from a site visit to a real-life location. Nevertheless, if you could read the information that is presented and consider your response to each scenario, based on the information you have learned from working through this course.

After presenting the five scenarios, we have provided a brief description of what happened in each of these cases.

Scenarios

Scenario 1

There is an estate in a rural area close to a number of small villages. The main house is used as a holiday home for part of the year while the landowner lives in a smaller house on the edge of the estate. There are a number of tracks and paths throughout the woodland and agricultural land on the estate, which is encompassed by a wall. Although there are possibilities for circular walks within the grounds, most of the paths converge on the area around the main house. This means that most access takers will pass the house, at a distance of around 40 metres if keeping as far away as possible. The estate is popular with local dog walkers and runners, plus the occasional visitor. The landowner wants to stop access past the house as they are planning to put more effort into promoting it for exclusive holiday lets. However, this will have a knock-on effect on access to the entire estate because people will generally only be able to walk up towards the house and return the same way. Signs have been put up around the perimeter saying, ‘Private garden, No access, No right of way’. This has led to a local backlash, with people damaging the signs and the occasional altercation with the landowner on site. Feelings are running high on both sides.

·         Do you think access rights apply to the paths around the main house?

·         What are the range of options open to the access authority?

Scenario 2

An urban-fringe farmer has been experiencing increasing problems such as fly-tipping, littering, vandalism and livestock worrying by dogs. He has responded by putting up signage telling people to keep out of certain fields at all times and by locking some farm gates which have previously been used for access. The access authority has spoken to the farmer and asked for the gates to be unlocked and signage removed, but they are unable to do more than offer to design more compliant signage due to funding issues. The farmer is getting very stressed about this situation, but there is a lot of bad feeling growing amongst dog owners, walkers and runners who use the fields to get to upland areas beyond.

·         Who else can the access authority and farmer turn to for help?

·         What are the options for enforcement?

Scenario 3

For decades people have been walking on a track past a farm to get to hills further on. The farmhouse is off the track to one side, and beyond that the road goes between farm buildings which have been unused for the past 5 years. Now there is planning consent for the farm buildings to be converted into housing. The developer is starting work and has blocked off the road with a locked gate and a sign saying ‘Private – No Access’. At the moment walkers are climbing over the gate but there is clearly a growing issue. The only alternative route to get to the hills is two miles down the road, unless people go through fields around the farm buildings, but this isn’t suitable for horses or cyclists.

·         Is the ‘Private – No Access’ sign legal?

·         Does the landowner have a legal duty to provide a replacement path?

·         What are local people likely to do if they are asked to go two miles down the road?

·         What can the access authority do to resolve the dispute to everyone’s satisfaction?

Scenario 4

An announcement is made that the World Fly Fishing Championships are to be held on a major Scottish river in six months’ time. The river is popular with canoeists and, despite tensions from time-to-time between canoeists and anglers, the two activities usually manage to share the water amicably. However, the prospect of such a major international event means that these championships represent a different consideration to the normal type of recreational angling that takes place on the river.

·         Which organisations would have an interest in this case?

·         What courses of action could be taken to manage access during these championships?

Scenario 5

You are walking 13 miles from one car park to another. After 12 miles you come across a forestry sign with the message: “No Access - Tree Felling In Progress”.  

·         What do you do?

·         If you were minded to take a photograph of the sign and report it to someone, who would you make contact with?

Commentary on these cases.

Scenario 1.

This is a very typical scenario that could happen almost anywhere in Scotland, and it is the kind of case where seeing the layout of the paths and proximity to houses and other buildings can only be assessed properly on the ground. Aerial photos are useful, but don't give the necessary feel for how it affects those taking access as well as those living and working there.

This is also the kind of case where bodies like Scotways and Ramblers Scotland work alongside access authority access officers and rangers to find practical solutions to the issues.

In the case described in this scenario, a new section of path was created to link the paths from various sides of the estate and increase the distance from the house to the nearest path. The section of path that was created formed part of a new core path.

Scenario 2.

Once again, this is a very typical kind of scenario that could be found in many parts of Scotland. Access authority involvement, along with the assistance of the National Farmers' Union Scotland and recreational bodies such as Scotways can help to come up with practical solutions.

Whilst enforcement can be an option, it is usually better to explore more practical measures like finding funding for self-closing gates, helpful signage and requesting the use of certain routes.

People will be determined to reach certain places, so blocking access only leads to increased tensions and people climbing over gates and fences, so it is in everyone's interests to search for a mutually acceptable solution.

Also, the more people there are walking on local paths, the more sets of eyes and ears there will be on the look out for fly-tippers and vandals.

Scenario 3.

This is another typical scenario in which new developments can impact popular, traditional, long-standing access routes. In this case it led to the erection of illegal signs, which only acts to raise tensions even further and places an access authority in the position of having to decide whether to pursue a legal route or try to convince a landowner, land manager or developer to take a different approach.

Under Section 14 of the Act, the access authority has the power to give written notice to the owner of the land to take remedial action as specified in the notice. If the owner fails to comply with such a notice, the access authority has further powers to remove a sign or notice, and take the remedial action specified in the notice.

Access routes should be considered at the planning stage, but often get overlooked, and that leads to this kind of situation when development work begins. When properly considered at the planning stage, it should always be the aim to ensure that provision for access be retained.

In the case described, it is highly unlikely that people are going to accept being told to take access two miles away, so it is in everyone's interest to find a practical solution closer to the original path.

As well as looking for the long-term solution, the provision of an acceptable route during construction also needs to be considered and properly signposted.

Scenario 4.

The range of organisations that might have an interest in this case would include the organisers of the event, the landowners, canoeing organisations, rafting companies, local access forum and the access authority.

The Scottish Canoe Association (SCA - now Paddle Scotland) had concerns that a Section 11 closure of the river might be proposed for the three full days of the event and that such an order might be made so close to the event that communicating the news to paddlers could be very difficult in a short time window. So, in order to pre-empt that scenario, the SCA contacted the local authority access officer about five months before the event to suggest that a section 11 order be considered between 09:00 and 16:00 on the three days of the Championships.

This was granted by the local authority and allowed ample time to spread the word about the temporary suspension of access rights on the river. Also, by limiting the timing of the suspension of access rights to the seven hours in which the competition was taking place each day, it meant that access rights would still be exercisable outwith those hours, so any touring paddlers would be able to pass by after 16:00 and the usual evening activities on the river wouldn't be affected.

Scenario 5.

There is a problem here of generic signs, created for use in the rest of the UK, that are often used in Scotland. Signs warning of land management activities, like forestry operations, should take account of Scottish access rights and suggest the best alternative route around the area where trees are being felled and timber moved around.

People that had walked 12 miles were not turning back, so were either finding their own way round the forestry operations or continuing to walk along the path and through the area in question. In order to achieve compliance, it would be better for all parties if the forestry workers were to erect signs that recognise Scottish access rights and suggest the best alternative route.

Anyone seeing signs like this that are not Code Compliant, should report the sign to the relevant access authority and/or to a representative body like Scotways, Ramblers Scotland or Mountaineering Scotland.

From the point of view of the access officer or ranger dealing with issues like these, it is worth referring back to the Code for guidance, and especially to go all the way back to the three key principles of:

• Respect the interests of other people
• Care for the environment
• Take responsibility for your own actions

Going through that process often helps you identify the root of the problem.

Scottish Access Rights: Modern and Easier to Understand

This module should take approximately 10 minutes to work through.

Picture this scenario. An outdoor pursuits instructor in the 1980s, long before statutory access rights in Scotland, was asked three questions relating to access by school-age children. These questions were asked over a period of ten years in that profession.

“Are we really allowed to be here?”

“Who owns this path and are they likely to kick us out?”

“Could we leave this path and walk over there, if we wanted to?”

The instructor tried his best to answer these questions, but had to admit, he wasn’t very confident about his answers. After answering that last question about leaving the path, he discussed it with a couple of friends that were working in other outdoor centres at the time.

The first one agreed with the answer he’d given, but the second felt he’d got it wrong. When told that another instructor had agreed with his answer, the second instructor said, “You’ve asked two outdoor pursuits instructors about outdoor access rights and got two different answers, don’t worry about it. I bet if you asked two solicitors, you’d get two different answers. The law is so complex in this area, even the solicitors don’t fully understand it, let alone agree on it. What chance do we have?” Fair point.

Move forward a decade, and in the 1990s a local authority Access Officer was approached to help resolve an issue with a rogue sign being used to deny access to a popular mountain. The response from the Officer was that the incident hadn’t happened on a right of way, it was just general access to a mountain, so the authority couldn’t get involved. Move forward another decade, and into a new century and new millennium, under modern Scottish access rights, that authority would have a duty to uphold access rights to most land and water.

That demonstrates the difference the introduction of statutory rights has made to the way access to the outdoors is managed in Scotland. Local and national park authorities now have greater powers and are expected to intervene to resolve issues like the one on the mountain in question that went unresolved under the previous system.

Compared to what went before, Scottish access rights are modern, easier to understand and therefore easier for us to use and build into our everyday work, whether that be working as an outdoor instructor, access officer, active travel officer, countryside ranger, transport planner or whatever. So, unlike the 1980s and 1990s, it should now be easier to develop an understanding of Scotland’s access rights and responsibilities and use that knowledge in the course of your work.

We have taken two examples there from the fairly recent past to demonstrate the difference that the introduction of statutory access rights has made to the way we now approach access to the outdoors in Scotland.

Over to you

On behalf of the team that has developed this training module, we hope you have gained a valuable insight into how Scottish access rights work and that you have learned new information that will help you in your future work.

Scotland now has something that is unique, that we can be proud of. Try to inject some of that pride into the way you approach your work and present Scottish access rights to the people you deal with in your work capacity.

And don’t underestimate your ability to contribute to the long-term advancement of Scottish access rights by increasing your knowledge, applying your newly acquired skills to perform your role with greater clarity and confidence, and pass on your skills to other people around you, especially the next generation.

Future modules

The Scottish Outdoor Access Network has plans to develop further training courses, so in time this is likely to be the first, basic course in a wider series of training courses on issues relating to outdoor access and active travel.

Feedback

We are keen to learn from the people that take part in these training modules, so therefore welcome feedback from you, our participants, on any aspect of the courses that you take. We will send you a feedback form after you have completed the module and will be grateful for any constructive comments you might wish to make.

Existing Resources

Legislation

Land Reform (Scotland) Act 2003

Scottish Outdoor Access Code (SOAC)

Scottish Government - Part 1 LAND REFORM (SCOTLAND) ACT 2003 Guidance for local Authorities and National Park Authorities

Young Scot – Know the Code

Roads (Scotland) Act 1984

Wildlife and Natural Environment (Scotland) Act 2011

Criminal Justice and Public Order Act 1994

Leaflets

·         Scottish Rights of Way and Access Society

·         Scottish Canoe Association

·         Scottish Orienteering

·         Developing Mountain Biking in Scotland

Websites and Webpages

·         Mountaineering Scotland

·         Ramblers Scotland

·         Scottish Rights of Way and Access Society

·         Paddle Scotland

·         British Horse Society Scotland

·         Cycling Scotland

·         Cycling UK (Scotland)

·         Developing Mountain Biking in Scotland

·         Scottish Land and Estates

·         National Farmers Union Scotland

·         Forestry and Land Scotland

·         Scottish Forestry

·         Using Inland Water Responsibly – Guidance for All Water Users

·         Public Access to Military Training Areas

·         Scottish Outdoor Access Network (SOAN)

·         Scottish Access Technical Information Network (SATIN)

·         Paths for All Partnership

·         NatureScot

·         Core paths in Scotland

·         The Scottish Outdoor Access Code – Education Resource Pack

·         Heading for the Scottish Hills – Deer stalking contacts and guidance for hillwalkers and climbers

·         A brief guide to occupiers’ legal liabilities in Scotland in relation to public outdoor access. NatureScot guidance.

·         Ken – The Scotways Knowledge Base

·         Information on protection of birds, including link to Wildlife and Countryside Act 1981 (as amended)

·         Information on Cetacean species, including link to Conservation (Natural Habitats, &c.) Regulations 1994

·         Information on a wide range of plant and animal species, including links to various wildlife legislation

·         Protection of Badgers Act 1992

·         Marine (Scotland) Act 2010.

·         Scottish Marine Wildlife Watching Code

·         Marine Scotland – The protection of Marine European Protected Species from injury and disturbance – Guidance for Scottish Inshore Waters

National Access Forum Guidance papers:

• Guidance Note on the Use of Mediation for Access (November 2020)
• Unauthorised Mountain Bike Trails - a guide for land managers and riders (November 2018)
• Outdoor events in Scotland - Guidance for organisers and land managers (updated June 2017)
• Managing camping with tents in Scotland (updated February 2021)
• Guidance on lighting fires (updated May 2016)
• Guidance on access with dogs in protected areas to safeguard breeding birds (January 2012)
• Guidance on commercial access to the outdoors in Scotland - local management (March 2014)
• Signs relating to access and locked gates - Summary messages on good practice (May 2012)
• Deer stalking and public access - Guidance on stalking communication (May 2016)

Other contributory guidance documents include -

• Good Practice during Windfarm Construction (NatureScot) (V3 September 2015) - see chapter 7 on 'Recreation and Access'
• Electric fences and public access on moorland (updated July 2012)
• The Law Commission and The Law Commission for Scotland Joint Report on Level Crossings published on 25 September 2014.

Access Authorities

·         Cairngorms National Park Authority

·         Loch Lomond and The Trossachs National Park Authority

·         Aberdeen City Council

·         Aberdeenshire Council

·         Angus Council

·         Argyll and Bute Council

·         City of Edinburgh Council

·         Clackmannanshire Council

·         Comhairle nan Eilean Siar

·         Dumfries and Galloway Council

·         Dundee City Council

·         East Ayrshire Council

·         East Dunbartonshire Council

·         East Lothian Council

·         East Renfrewshire Council

·         Falkirk Council

·         Fife Council

·         Glasgow City Council

·         Highland Council

·         Inverclyde Council

·         Midlothian Council

·         Moray Council

·         North Ayrshire Council

·         North Lanarkshire Council

·         Orkney Islands Council

·         Perth and Kinross Council

·         Renfrewshire Council

·         Scottish Borders Council

·         Shetland Islands Council

·         South Ayrshire Council

·         South Lanarkshire Council

·         Stirling Council

·         West Dunbartonshire Council

·         West Lothian Council

·         Perth and Kinross Countryside Trust

·         Fife Coast and Countryside Trust

·         Scottish Access Officer Contact List

Books

·         The Scotways Guide to The Law of Access to Land in Scotland by Malcolm Combe

·         An Historical Approach to the New Outdoor Access Legislation - Scottish Affairs Number 62, Winter 2008

·         The Book of Trespass by Nick Hayes

Articles

·         John Sheail (2000), The Countryside (Scotland) Act of 1967 revisited, Scottish Geographical Journal, 116:1, 25-39, DOI: 10.1080/00369220018737077

·         https://issuu.com/rsgspubs/docs/rsgs_the_geographer_-_autumn_2017