Right to Roam - wild camping in Scotland
The popularity of wild camping following the easing of the first lockdown caused a number of problems for landowners and managers concerned about the impact on the countryside. Now, as we head into a summer of staycations, landowners may wish to familiarise themselves with the public’s right of responsible access afforded by the Land Reform (Scotland) Act 2003.
Access rights under the 2003 Act (commonly referred to as the “right to roam”) extend to wild camping but the access must be responsible – wild campers must leave no trace of their occupation. The Scottish Outdoor Access Code defines wild camping as “lightweight, done in small numbers and only for two or three nights in any one place” and provides comprehensive guidance as to what responsible access means in practice, although the Code is guidance rather than a definite statement of the law. Wild camping cannot take place in a campervan or motorhome unless a landowner has permitted it.
Campers must respect people’s privacy and peace of mind, help land managers and others work safely and effectively, care for the environment and keep dogs under proper control. Unfortunately, not all campers (or access takers) behave responsibly.
What can landowners and land managers do when faced with irresponsible access?
In extreme circumstances, irresponsible access may be criminal–threatening behaviour, setting fires, malicious damage and harming wildlife are all potential criminal offences. Access takers also have to comply with road traffic legislation when it comes to parking campervans and motorhomes.
The police have powers under the Antisocial Behaviour etc. (Scotland) Act 2004 to issue on-the-spot fines to people who are behaving in an antisocial manner, and so it is always worth liaising with the police in the event of irresponsible access.
If someone is taking access lawfully and responsibly, this will not amount to trespass, which is defined as a temporary intrusion into land owned by someone else. However, if someone accesses land excluded from the scope of the 2003 Act or acts irresponsibly, they may be trespassing. Although the police have power, in certain circumstances, to remove trespassers from land, trespass is predominantly a civil wrong and more often than not landowners and managers will look to the civil remedies available.
A court order for interdict (the Scottish equivalent of an injunction) is the primary civil remedy to prevent someone from doing something unlawful, but this is only realistic if the identity of the access taker is known and there is a reasonable apprehension that irresponsible access will be taken, or that the wrong will continue. You cannot interdict the public at large so, when irresponsible wild camping is taking place by unidentified members of the public (as is usually the case), more practical ways of stopping the unlawful activity may be relevant.
A better remedy might be to seek a court order to remove the campers. It is necessary to show that a wrong is being committed – in the case of wild camping, that the occupation of the land does not come within the scope of the 2003 Act, either because it is causing damage or because it is more than a few nights’ lightweight camping. A court order can be obtained at relatively short notice to remove campers, although it is still possible that campers may have moved on before any order can be served. Such actions, can, however, be brought against unnamed persons.
If the perpetrator can be identified, then compensation may be sought if wild camping causes damage. Any loss has to be established and quantifiable. This may include damage to land or crops, the cost to repair or replace damaged items, diminution in value of the land, or loss of profits as a result of the unlawful access.
Mitigating measures to prevent damage from wild campaign
Landowners may be tempted to resort to self-help remedies, such as blocking or deterring access. Rarely should you take the law into your own hands, however, and doing so may put you in breach of the obligation to use and manage land responsibly. The 2003 Act prohibits signs, notices, obstructions and the like that have no purpose other than restricting access rights, and allows the local authority to serve a notice requiring obstructions to be removed. A gate – or a fence or wall – that prevents all access is unlikely to be allowed (unless, of course, the land itself is completely excluded from the scope of the 2003 Act).
More appropriate action may involve mitigating measures such as speaking to access takers to explain what they are doing wrong, putting up advisory signs and designating preferred access routes. Providing equipment and infrastructure, such as litter bins, fire pits and composting toilets, should also be encouraged before other action is considered.
Longer-term measures for landowners
If irresponsible access is being experienced regularly, longer-term strategic land management may be required to deal with matters in a way that balances the rights of those who are wild camping legitimately and responsibly, while addressing the problems caused by irresponsible access.
This article was first published in the Herald Scotland: Wild camping legal rights in Scotland