This response has been submitted to The Scottish Executive in respect of its consultation on draft Guidance for Core Paths Plan Local Inquiries. The details of the consultation are available online from the Scottish Executive website.

The involvement of the Mountaineering Council of Scotland

The Mountaineering Council of Scotland is the representative body for hillwalkers, climbers and mountaineers in Scotland, who as users, will be stakeholders for many core paths. We are a membership organisation with well over 2000 individual members plus over 7000 affiliated members via some 140 associated clubs.

We have a longstanding concern to conserve and enhance the natural heritage of our mountain areas, demonstrated in our Access and Conservation Policies, including our Footpaths and Erosion Policy (1994). These Policies are available on our website under - http://www.mountaineering-scotland.org.uk/council/policies/index.html

MCofS are co-founders and sponsors of the British Upland Footpath Trust who are concerned pre-eminently with 'The challenge ....to find ways of enabling people to venture into the hills without spoiling them' [Foreword by Sir Chris Bonington to 'Repairing Upland Path Erosion' by Peter Davies and others ISBN 0906421 42X]

Members of the MCofS Access & Conservation Committee took part last year in a BUFT Monitoring Survey of paths previously surveyed in 1996 and 1997, including the Coire Lagan Path in Skye, which is relevant to the present submission. An extracted copy of the report on this path is enclosed.

A Core Paths System '...sufficient for the purpose of giving the public reasonable access throughout their area'

We appreciate that in planning the Core Path System, there should be a particular emphasis on the urban fringe and localities 'close to where people live', but we are encouraged that paths should also be 'where they can be used by visitors and tourists'; and indeed, that under statute, there should be reasonable access for the public throughout the local authority area - ie. in every part of it.

Our concern, highlighted in the enclosed Report on the Coire Lagan Path, is over the shortage of skilled labour for maintenance and pre-emptive work on paths, and the longstanding failure to provide dedicated year-on-year funding for that purpose. Core path status would not by itself provide a total remedy, but the responsibilities placed on local authorities in respect of core paths should help, and the power to maintain is itself important on land which is not owned by public agencies or charitable bodies.

On page 46 of the 'Guidance for Local Authorities' under 'Resources', it is stated that '...resource considerations will inform choices in developing a 'sufficient' system of core paths, and may mean that not all candidate paths will necessarily succeed in becoming adopted'. This gives cause for concern in the present context, in case it might be taken to override the statutory requirement by producing a system that is anything less than 'sufficient' in terms of the Act.

The Draft Highland Council Access Strategy 2006-2011 refers at p.25 to the Government Grant Settlement to Access Authorities allocated 'on a population basis so that the Highland Council which covers 35% of the Scottish land area only receives 4.55% of the monies...At present there is no indication from the Scottish Executive as to whether and when the levels of funding will be increased to implement the development of Core Path Networks following Ministerial approval of Core Path Network Plans'.

It would be unfortunate and open to challenge if the interpretation of 'sufficient' were tainted by reluctance to fund recently enacted legislation.

In general terms, MCofS would like to see hill paths appropriately managed, with monitoring throughout, and treatment varying from 'light touch' pre-emptive work through systematic maintenance to full restoration in cases of severe erosion; and many of the popular Munro paths tend to suffer some degree of erosion. We consider that the Core Path System could at least reasonably cover such categories as:-

1. Main routes up popular 'frontline' hills like Ben Vrackie above Pitlochry, Ben Cleuch in the Ochils above Tillicoultry, and Ben An, the most popular ascent for tourists in the Trossachs,

2. Through routes such as the ancient ways from the Angus Glens to Deeside, Glen Tilt etc. (already rights of way),

3. Primary routes from main access points into which subsidiary routes feed, eg. the Coire Lagan Path in Skye. (We would prefer where possible small informal parking areas spreading the access load over non-core paths, but geography and previous developments may dictate otherwise in some places.)

We would like to be able to advance the merits of such paths in terms of the legislation if and where we consider the relevant Draft Core Plan falls short, but the Code of Practice as presently drafted and presented for consultation would not be useful in resolving such issues for reasons explained below.

Validity of Objections

On page 42 of the 'Guidance for Local Authorities', types of paths which may be included are indicated, for instance - a 'claimed' right of way, Long Distance Routes after 'assessment of their appropriateness for inclusion', minor public roads which are of a suitable condition', 'a minor road' as an interim measure, paths which 'connect to other points of interest where demand is high', etc; and on page 43 'A path may have natural limitations arising from the inherent characteristics of the terrain and such natural limitations should not preclude its designation as a core path'.

It is clear from this that the question of whether or not a particular path should be included in the Core Paths Plan depends on its individual merits - and this is inescapable because every path is geographically unique. The total sufficiency of the system is built up as an assemblage of paths, each with its own merits, and these comprise all sorts of path under Section 17(2), not only or even predominantly multi-use paths.

It follows that any objection that the paths system is 'insufficient' must propose other paths which must likewise be considered on their merits, and this accords with the advice in para.9 of the Draft Code of Practice that 'the objection should state....requested additions to correct an omission or to produce a sufficient proposal'.

Therefore, the proposed advice that 'An objection relating solely to a single individual path...in general would not be valid...' is wrong and inconsistent; and moreover it does not follow from the statutory words quoted. A proposed core path system is not sufficient for the purposes of giving the public reasonable access throughout the area if an important component path is missing. The meaning of the words 'unless it had substantive implications for the wider sufficiency of the core path system' is obscure. We request a suitable re-wording to take account of this. Referring to the end of para.7 of the Draft, the objection would be inescapably 'focussed upon' the merits for inclusion or exclusion of a particular path or paths for reasons given above, so the words 'take into account' should be substituted to bring in the required context, namely that the system must be 'sufficient for the purpose of giving the public reasonable access throughout their area'.

Criteria for the Sufficiency of a Core Path System

The terms of the Act itself under Section 17 are crucial, and (non-statutory) 'Guidance for Local Authorities', referring to Section 17, has already been provided. This must be equally intended as guidance for objectors.

Read with statements on "...sufficient for the purpose..." on page 41, the following may be taken from this guidance as criteria for sufficiency:-

(1) Referring to Section 17(3), the 'Guidance' indicates 'Factors which should be considered in drawing up the plan', and bullet points (i) (ii) (iv) and (v) form criteria;

(2) To allow sufficiency for the range of users under Section 17(2), the system should include the diversity of path surfaces indicated under 'Path Surfaces' on page 43;

(3) Also referring to Section 17(2), guidance has been given under 'Types of Path' indicating further criteria for the sufficiency of the system. These include the need to 'integrate with neighbouring authorities' core path systems as far as practicable', and (quoting from the Act) to make provision "throughout" the area.

Public involvement in the core paths plan preparation process
(Pages 44-45 of the 'Guidance for Local Authorities')

We very much welcome the existing guidance on pre-draft informal consultations being as widely inclusive as possible. We hope that this would enable us to resolve all or almost all our perceived problems. However, this would be undermined by the advice under para. 8 of the Draft Code of Practice that 'Access authorities wherever possible should aim to resolve issues over individual paths even if they do not justify an inquiry'.

We have already explained why objections necessarily relate to the merits of individual paths for either inclusion or exclusion. The proposed wording would give access authority officers no incentive to resolve matters informally, because they would be led to believe that representations could be safely ignored in the belief that objections could not be taken to independent determination. Informal negotiation, and indeed, public confidence in the whole process, must be backed by recourse if necessary to independent determination. The requirement of Section 17(1) that the system will be 'sufficient for the purpose...' and the 'balance' required by Section 17(3) will be difficult to satisfy to the agreement of all concerned, and there should be no attempt to avoid making public inquiry procedure available. The last 8 words of the sentence quoted from the Draft should be deleted.

The nature, importance and problems of the Coire Lagan Path are described in detail in the enclosed copy Report. Whether or not we would be right in claiming that this path should be included in the relevant Core Path Plan, we would expect the Draft Code of Practice to provide for discussion and, if necessary, independent determination of such a case on its merits.

The Mountaineering Council of Scotland welcomes this opportunity to comment on this initial Draft and would readily engage with and contribute to any subsequent revision.

On behalf of the Mountaineering Council of Scotland

Mike Newbury, MA(Cantab) FRICS
Member, Access & Conservation Committee
3 March 2006