The original consultation document to which this response has been submitted can be found here.

Introduction
The Mountaineering Council of Scotland (MCofS) is the representative body for hillwalkers, climbers and off-piste skiers and receives core grant funding from sportscotland in recognition of this status. We are a membership organisation with over 2,000 individual members plus 139 affiliated clubs that contain over 7,000 members. Our Committee structure is entirely voluntary and appointments are the result of a democratic process. The professional staff complement is made up of four posts at our Perth office.

The MCofS has been a member of the Access Forum since its inception and we have responded to every consultation exercise in the process of developing the new legislation and Code. We are pleased to see the access section of the Land Reform (Scotland) Act in place and believe that, along with the Scottish Outdoor Access Code, the Guidance for Local and National Park Authorities is a vital element in the process of modernising Scotland's management of access to land.

We have a wide range of comments to make to this consultation paper and will set out our arguments under 6 headings.

1) Approach to risk
Many of the activities that come under the new statutory right of access have elements of risk inherent in them, and whilst the level of risk varies between activities, and different types of countryside, it is important to accept that we are dealing with the outdoors and the objective dangers, such as rock fall and weather condition changes, to be found in the outdoors. The Guidance seems to take no account of this and appears to be written from a perspective of safe access. Whilst there is a need for “safe” paths (i.e. ones with surfaces suitable for people with specific needs such as wheelchair users), there needs to be a recognition of the concept of access to places that are wilder and not made safer, and this is not reflected in the guidance with the result it looks as though local authorities are being encouraged down an overly cautious safety approach. We believe that some balance needs to be found in this debate and an overly cautious safety approach should be resisted. The primary purpose of paths in mountain areas is to protect the landscape rather than to make the mountains safer. The MCofS safety policy endeavours to use education to make mountain users safer, rather than making the mountains safer.

The examples that the MCofS believe support this analysis are:

1. Part 2 on Guidance on Powers and Duties (Summary section) refers to Section 15. The Guidance says local authorities have powers to take steps to warn and protect the public, but miss out the vital words: “as appear to them appropriate”, which is in the Act. It is not in our view appropriate for local authorities to put signs up by every crag warning of dangers of falling off the top or at the start of every path up into the hills stating it is rough and the person may twist an ankle. This would lead to a suburbanisation of the countryside. It would also erode the concept of self-reliance and personal responsibility, which is essential to the promotion of mountain safety.
2. Part 4 of Guidance on Section 11 powers, short-term exclusions, says an exemption order might be justified to ensure safety of players at the Ryder Cup. We cannot see how the exemption in itself would increase security, as anyone wanting to harm a player could simply pay to get in and then commit their crime. The Ryder Cup is surely just an issue of payment and we would accept that if you continued to allow access over golf courses during major tournaments it would be exploited by some people wanting to get in free. A better example in relation to safety would be a motor rally on forest tracks where the local authority might want to exempt the route itself in the interests of safety.
3. Part 8 on Measures for safety, protection, guidance and assistance in Section 15 of the Act as quoted says: Local authorities “may take such steps…as appear to them appropriate”. The Guidance alters this (in Part 8 Background) completely by saying “Local authorities in managing public access are responsible for making the public aware…” This could lead to a proliferation of signs all round our hills stating they are dangerous and warning of lots of dangers. This is not only environmentally inappropriate, but we believe that a general proliferation of signs will not reduce the number of accidents and will only erode the concept of self-reliance and personal responsibility highlighted above. The key here is that the words “where appropriate” need to be reinserted. The list of hazards given in this section of the draft Guidance are all about land-management practices, which is fine for local authorities to advertise; but the guidance should make clear that it is not generally up to local authorities to advertise dangers of natural hazards, except where there has been a history of accidents involving ordinary members of the public with little awareness. We believe that it may be reasonable to introduce a sign about dangerous currents in a place where there have been accidents involving people who are not aware of dangers, but most visitors to the countryside do not want signs every 50 metres along every river bank. Furthermore, whilst it may be acceptable to put up a sign in a walkers' car park it would be deemed an inappropriate intrusion to introduce the same sign on the open hillside.
4. The final bullet point in Part 11 states: “all routes should be fit for purpose, but this does not mean that all routes will be available to all or constructed or maintained to the same standard”. We believe the guidance needs to be far more clear about different usages of paths, and that different types of surface are appropriate in different areas. We would recommend that reference is explicitly made to the various path design guides (this comment is also applicable to Part 12 - Management Responsibilities, which states that the network should be properly managed and maintained - it needs to be made clear what “properly” means). It is important that Guidance is clear on what is fit for purpose, given numbers of cases where Forestry Commission have been sued by people who have twisted their ankle on the basis that the path was uneven or slippery. The Guidance as currently phrased could be used as the basis for demonstrating local authorities have failed in their responsibilities and encourage civil actions. This could have the effect of deterring local authorities from creating a good core path network because the more paths they include, the higher the risk of people injuring themselves and then taking out a court action.
5. The meaning in the same bullet point in Part 11 on Core path plans is unclear when it says that: “all boundary crossing (should be) in a safe and usable condition”. The word “boundary” is a little confusing and we have struggled to think of a single generic word, so we suggest replacing “boundary” with “fences, hedges and walls”.

2) Legal Points

1. The summary section on powers and duties (Part 2 of Guidance) relating to Section 15 does not state that the consent of the owner is required to do works. This vital piece of information is also omitted in the more detailed guidance, (Part 8 - 15(4)), which would appear to be an appropriate place to make the point, but it is finally made on the following page under 15(7). It is therefore in our view fairly easily missed and we would suggest the words: “but only with the consent of owner”, are added against the list of works in 15(4) and in the summary section in Part 2.

2. The summary section on Section 22 Powers and Duties (Part 2 of Guidance), third line, refers to “a local authority's duties to create or maintain a core path”. This is not correct. The duty in the Act is to create and/or maintain a path that has been delineated by means of a path order. The local authority only has a power to delineate, not a duty. The words “a core path” should be replaced by the words: “a path they have delineated”, in other words the point is that local authorities are not legally responsible under Owners Liability for all core paths, but only paths they have delineated using a path order.

3. The first sentence in Part 6 of this draft Guidance says: “access rights enable all members of the public to enjoy the countryside and to take part in informal recreation on land and inland water”; but there is no reference to the right to cross land, which we regard as the basic principle of the new legislation. We believe the current statement in the draft Guidance is therefore legally not fully correct.

4. The reference in Part 7 about contacting the owner where a problem has arisen seems to be fraught with difficulty. The Act provides for the owner to be contacted, and the guidance refers to local authorities contacting the responsible party be it owner, tenant, occupier, etc., but then goes on to talk about meeting the owner. Owners are not the same as tenants, licensees, etc. and we know how difficult it can be to identify the owner of a piece of land, especially if it is an offshore company. We suspect therefore that if a local authority were to try to take action against tenants under Section 14 this could be open to legal challenge because they are not named in this Section of the Act. However, it would still be open for local authorities to use Section 13. It seems to us the best advice might be to say if the owner is not identifiable, consider using Section 13 instead.

3) Role of local authorities in promoting Code (Part 3 of Guidance on Section 10)
The list under Means of Delivery of what local authorities should do as minimum could reasonably be strengthened to ensure “joined up thinking”. In terms of staff, the guidance is at present only suggesting that fairly junior staff are briefed. We believe that unless senior staff and councillors are briefed we will have an uphill struggle. In addition we feel the list of appropriate staff for detailed briefings should be extended beyond the usual recreational personnel, and that a point should be added about reviewing existing publicity that may not be consistent with the Code.

We would therefore add the following:

• ensure that councillors on, and senior staff servicing, relevant committees (e.g. committees that deal with transport, parks/land management, planning, education, tourism) are aware of the Code and how its provisions are relevant to their areas of work.
• to list of appropriate staff: managers responsible for land and water-use (e.g. estates staff), recreation/sports managers, legal services and public relations.
• review existing publicity about access (e.g. leaflets on parks and walks) and ensure these are compatible with the Code.

4) Power to exempt particular areas of land from access rights

1. The third paragraph of Part 4 of the draft Guidance on Section 11 powers refers to the use of powers to exclude land from access rights … to allow a charge to be levied “for admission”. It needs to be made clear that this is admission to the event, and not admission to the land, which would be creating payments for access.

2. In the section on “Longer-term exclusions” within Part 4 of the draft Guidance on Section 11 powers, it states they may be needed where there has been no charge in the past, but where they may be needed in future to offset the cost of visitors, so as not to undermine the ability of organisations such as the National Trust for Scotland to take on new properties. The use of the wrong wording in this Guidance could undermine the whole basis of the new legislation. We fear the scenario where a number of landowners claim they need to offset the costs of visitors by implementing charges. It is also wrong that there should be discrimination between private and NGO landowners - which is implied in the current wording.

   The Guidance needs to explicitly state that land should only be exempt where a facility is being provided and that any charge is for entry to that facility. This section should give clear guidance on what can be charged for (e.g. entry to gardens, Highland Games, Sheepdog Trials) and what cannot be charged for (e.g. walking in open countryside, on paths and across farmland, and taking non-powered access on inland water).

   We do not think the archaeological example is a particularly good one. There are lots of archaeological sites that people currently visit free. The charge should only be if a facility is provided alongside the site of the dig. This would be in keeping with the current practice where a charge is made for entry to an interpretative facility.

3. The section dealing with “Privacy and commercial activities” is of some concern to us. The argument is made in the draft Guidance that certain commercial enterprises such as hotels and estates may require to be able to guarantee privacy to be commercially successful. They can do this by providing gardens which are exempt from access rights. The implication here is that other land, to which there is a right of access, should also be able to be “bought” for exclusive use. If you accept this for open land adjoining hotels, then the same principle could apply to extensive areas on sporting estates. This clause seems directed for the benefit of commercial enterprises like Skibo Castle and we think it is contrary to everything the legislation stands for and should therefore be removed.

4. The paragraph on “Child Security” gives us some concern, in that we fear it could lead to excessive restrictions around residential centres where there is no real justification for any form of access restriction. If it were shown to be an issue, it might be more appropriate to use bye-laws, for example to prevent people loitering. Some outdoor centres are set alongside paths and tracks, and we should not be preventing people from passing by buildings, indeed as the draft Guidance suggests, paths can add rather than detract from security.

5) Core path plan

1. Part 10 of the draft Guidance refers to Section 17 and says local authorities should refer to demand for a particular type of use in their area before creating paths for that category of user. The issue is how does the local authority ascertain demand? If it is looking at existing numbers of cyclists it may be possible to conclude there is no demand; but this may be because people do not want to cycle on roads. Once built, however, a path may create the demand. A good example is the cycle path between Newtonmore and Kingussie, which has resulted in a significant increase in the numbers cycling between the two villages. We therefore think this could be phrased more accurately, so rather than saying that local authorities should ascertain if there is demand currently, it should say that local authorities should ascertain whether the creation of a path for a certain type of user would be likely to be met by an appropriate demand for it.

2. Types of paths. (17(2)(b). We feel that we need to question the decision that Long Distance Routes would not immediately become part of the Core Path Network. What happens if one local authority does not designate part of a Long Distance Route or national cycle route as a core path when all the others do? We fear that this could be a recipe for confusion. Unless someone can give convincing reason otherwise, we think this Guidance should say all local authorities should automatically include Long Distance Routes, and other national routes, in their Core Path Networks.

3. We believe there needs to be some form of advice in this Guidance about connecting networks between neighbouring local authorities so that paths that cross or go near to boundaries are jointly considered and so that the networks are as joined up as possible. Without this there will be no meaningful path network in Glasgow where there is a need for routes that one can take from the city centre out to the countryside, and this cannot be done without the co-operation with six other local authorities that border Glasgow, and are between it and the countryside. There is a statement about this at the end of the Core Path guidance but this just says that paths should be complementary, not that they should join up. The section of text referring to 17(2)(b) would seem to be the appropriate place for this additional piece of text. Furthermore, there appears to be a role here for SNH in monitoring and coordinating the work of local authorities to ensure the networks join up. The Guidance under Part 11 that recommends a GIS system for recording data so that data is compatible is to be commended.

4. The section “Factors in Identifying Core Paths” is crucial and we think is too vague in terms of indicating just what is expected of local authorities. We fear that this could result in some very minimalist Core Path Networks. For instance:
   • This section does not include Transport under the list of relevant strategies. This is a major omission and in terms of joined up thinking the Scottish Executive should be arguing for core paths as a means of people getting to work (walking and cycling) and also getting between communities and to their local shops.
   • Related to the above, settlements in the countryside, especially within agricultural areas should be connected via the Core Path Network. This is not the case for every community in Scotland. In England and Wales there are lots of Rights of Way connecting villages, but this has been missing in Scotland, and has been the one area where access provision is worse than south of the border. This needs to be rectified.
   • The Guidance should explicitly state that there should be core paths to enable people to get to popular attractions in the countryside, for example paths to beaches, lochs, riverbanks (including to launch canoes) and beauty spots such as waterfalls and crags. The Guidance should also state that there should be paths that enable people to get from central areas of towns all the way out to the countryside.

5. The statement that other public bodies with land management interests are expected to actively manage core paths is useful. However, the rationale for the statement that NGOs should be encouraged to manage core paths is difficult to understand. Why not also include private land-managers where public support is available, for example through CAP, forestry grants and so on? The issue for the NGOs is that if there is no funding, why should they take on this task on behalf of the local authority? Conversely, if there is funding, it does not matter what sector the land manager comes from. There needs to be something in the Guidance on the use of public funds to deliver core paths and to ensure the financial burden does not just fall to local authorities.

6. The draft Guidance says waymarking would be required on all paths, however where core paths go into remote country this would not be appropriate and the Guidance should be changed to reflect this sensitivity for remoter areas where the emphasis should be on self-reliance and navigation skills.

6) Other comments

• In Part 5 on byelaws, 2nd page, bottom paragraph; rather than saying that local authorities “may wish to consider whether byelaws are the most suitable tool” - which makes this optional - it would seem more appropriate for this to say “should”.
• Also in Part 5, under the circumstances where byelaws could be considered, we would suggest adding to vehicles being a threat to safety, an example about vehicles churning up paths and so making access very difficult.
• In Part 6 under Duty of local authorities to uphold access rights, we believe this section does not make it clear whom the public should contact if they come across a problem. The Guidance should state clearly that local authorities should promote a point of contact for reporting problems.
• Part 7 on obstructions lists the activities that interfere with access, but makes only limited reference to responsible behaviour by landmanagers as set out in the Code, and which is a longer list. We believe that landmanager responsibilities should be listed in this Guidance. The point about hedges blocking access is not covered in the Code and it is difficult to see why this is mentioned when fences are not. The example here should be replaced by references to fences and state that all fences should have adequate crossing points. The point about animals roaming freely needs to be cross-referenced to the Code.
• The third paragraph of Part 10 refers to “access rights will not be restricted to core paths” which is a negative way of describing the extent of the new statutory right of responsible access. We would suggest this phrase is cut and the sentence starts from “A system of core paths….” The statement that “most people prefer to use paths” is inaccurate. Whilst it would be true for crossing land, people do not use paths to sit down on and picnic on, and paths are no use for water! It would be more accurate to say: “most people prefer to use paths for walking most of the time”.

We hope you will take our comments on board and amend the final version of the Guidance accordingly. Please feel free to contact our office if there are any aspects of this response that you require clarification on.

The Mountaineering Council of Scotland
The Old Granary
West Mill Street
Perth, PH1 5QP

7 May 2004