Part 1 (Access Rights) of the Land Reform (Scotland) Act 2003 will come into
force on 9 February 2005. The coming into force of this final
part of the Act has been long anticipated since the Act received Royal Assent
in February 2003, and has been given added piquancy this week with the furore
in the Scottish Parliament surrounding its debate on a Sewel motion on the
provisions of the Serious Organised Crime and Police Bill, presently before
the UK Parliament at Westminster.

A Sewel motion is required when the UK Parliament is legislating for the
UK over matters which are devolved to the Scottish Parliament, in this case
on matters of law enforcement and criminal justice.

In the event an eleventh hour volte-face removed the offending provisions
relating to Scotland, which sought to create an offence of entering a designated
Royal site in Scotland without lawful authority, intended to be equivalent
to the English version of trespass on similar designated sites. It seems however
that the UK Home Secretary will still have powers to designate sites in Scotland
on grounds of national security, although it is expected that this should be
in consultation with Scottish Ministers. There already exists power to the
Secretary of State to give directions excluding or restricting the exercise
of access rights under the Land Reform Act in respect of any land specified
in the direction, where the Secretary of State is satisfied that it is necessary
for the purposes of defence or national security, under the Land Reform
(Scotland) Act 2003 (Directions for the Purposes of Defence or National Security)
Order 2003
which came into force on 1 October 2003 (See report in Open
Door of 26 September 2003
).

The right to roam

The statutory right of responsible access to land will entitle everyone to
be on land for particular specified purposes and to cross land and includes
going into, passing over and remaining on the land for any of the authorised
purposes, and then leaving it.

"Land" includes bridges and other structures, inland waters such
as lochs and rivers and the foreshore, and rights may also be exercised above
and below the land as well as on the surface. A draft order correcting the
omission of woodlands from access rights is currently before Parliament for
approval (See report in Open Door of 1 October 2004).

The rights may be exercised only:

  • for recreational purposes;
  • for the purposes of carrying on a relevant educational activity (i.e.
    one which is carried out for the purpose of furthering the person’s understanding
    of natural or cultural heritage, or enabling or assisting other persons to
    further their understanding of the natural or cultural heritage) or;
  • for the purposes of carrying on, commercially or for profit, an activity
    which the person exercising the right could carry on otherwise than commercially
    or for profit.

Certain conduct or activities will be excluded from the access rights. This
includes:

  • exercising access in breach of a court order such as an interdict or for
    the purpose of doing anything that is an offence or a breach of a court order
  • hunting, shooting or fishing;
  • being on land when responsible for a dog or other animal not under proper
    control;
  • for the purposes of removing things from the land for commercial purposes
    or for profit;
  • being in or with a motorised vehicle or vessel (other than one constructed
    or adapted for use by a person who has a disability, being used by that person);
  • being on a golf course for recreation etc;

A person has access rights only if they are exercised responsibly, so as
not to cause unreasonable interference with any of the rights, including access
rights and rights of ownership, of any other person.

Owners have a duty to use and manage land and to conduct their ownership
in a way which is responsible so far as access rights are concerned.

There are certain categories of land over which access rights are not exercisable.
These include land:

  • to the extent that there is a building or other structure or works on
    it or plant or fixed machinery, or caravan, tent or other place of shelter;
  • which forms the curtilage of a building or buildings other than houses;
  • which consists of land next to and used as a school;
  • in respect of a house, sufficient adjacent land for a reasonable measure
    of privacy, and for the enjoyment of the house not to be unreasonably disturbed;
  • developed or set out as a sports or playing field, or for a particular
    recreational purpose;
  • to which members of the public are admitted only on payment (for at least
    90 days of the year);
  • on which there are building, civil engineering or demolition works or
    works being carried out by a statutory undertaker;
  • which is being used for surface mineral working or quarrying;
  • in which crops have been sown or are growing.

Scottish Outdoor Access Code

Scottish Natural Heritage prepared the Scottish Outdoor Access Code required
in terms of the Act. The Code provides extensive practical guidance to persons
exercising access rights, and landowners and land managers on the responsible
use of land in relation to access rights.

There are three Key Principles in the Code which apply equally to recreational
users and land managers, and these are:

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

(Further detail on the Code appeared in Open Door of 30 January 2004)

The Scottish Outdoor Access Code has the approval of the Scottish Parliament.
It is available from Scottish Natural Heritage and can be viewed on their website
at:

http://www.snh.org.uk/pdfs/access/ApprovedCode050604.pdf

The Scottish Rural Property and Business Association have produced Guidance
for Owners and Managers of Land, containing information to help them assess
the implications of access for other land management activities, and providing
a range of access management techniques designed to help integrate access with
other land uses. Their website is at:

www.srpba.com

Local authority powers in respect of Access rights

Local Authorities have a duty to assert, protect and keep open any route,
waterway or other means by which access rights can reasonably be exercised.

If a landowner attempts to prevent or deter access users by erecting any
signs or notices, or putting up fences, etc or placing obstructions, then the
local authority can require that remedial action be taken, and if necessary,
can remove any such notices or carry out other remedial action if needed.

Local authorities can take steps to warn the public of any danger on land
over which access rights may be exercised and can require that any fences,
walls etc which may be a risk of injury (for example where there is barbed
wire or an electrified fence) should be remedied to remove the risk of injury.

A local authority may also, but only with the landowner's agreement, install
gates, stiles, moorings or launching sites which may facilitate the exercise
of access rights and may install such things as seats or toilet facilities
for the comfort or convenience of those exercising access rights, always having
regard to the extent to which there are existing facilities and to the needs
of people with disabilities.

In appropriate circumstances, a local authority can acquire land for access
purposes, either by agreement, or compulsorily if approved by Ministers.

Rangers may be appointed by the Local Authority to advise and assist landowners
and members of the public with access rights.

Core Paths Plan

Local Authorities have a duty to draw up a core path plan within 3 years
of the coming into force of this part of the Act. The aim is to provide a system sufficient
for giving reasonable access to the public throughout the authority's area,
and may include rights of way, paths, footways, footpaths, cycle tracks; paths
delineated under path agreements or path orders under the Act; and other routes,
as well as waterways or other means by which persons may cross land.

The Core Path Plan must have regard to the likely use and desirability of
such paths, and balance the interests of landowners.

Local authorities will have powers to do whatever they consider appropriate
to maintain the core paths and keep them free from obstruction or encroachment;
as well as providing the public with directions to, or with information as
to the extent of, a core path.

There are provisions for the review and amendment of core path plans, when
appropriate, or as required, and may result in the removal, diversion or addition
of core paths.

Local authorities will have the power to enter into a path agreement or to
make path orders for the delineation, creation and maintenance of a path.

Local Access Forums

Each Local authority will have a duty to establish a local access forum for
its area for the purposes of :

  • advising the authority and other persons or bodies consulting the forum
    on access rights, rights of way and core path plans;
  • offering assistance to parties in any disputes about access rights, rights of
    way, core path plans and the use of core paths.

Further information

Full text of the Land Reform (Scotland) Act 2003 is available from the HMSO
website at:

http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2003/20030002.htm

The Land Reform (Scotland) Act 2003 (Directions for the Purposes of Defence
or National Security) Order 2003 is also available from HMSO at:

http://www.legislation.hmso.gov.uk/si/si2003/20032250.htm

For copies of the Back Issues of Open Door referred to in this article please
email to opendoor@shepwedd.co.uk

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