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Key Principles (p19)
Explaining the principle behind the Land Reform (Scotland) Act 2003
At the very beginning of the Code, it should be stated that the passing of the Land Reform (Scotland) Act 2003 confirms and strengthens a presumption in favour of access to most land and water for recreational and other purposes. It should further state that both land managers and those accessing land should act responsibly so that public enjoyment is compatible with safety, privacy and the needs of land management. It should reinforce that the right is for non-motorised use, unless permission has been granted or provision made for those with special needs.
The Code as a 'reference point'
The opening paragraph of the Code states that it is intended to be the 'reference point' on access rights and responsibilities. In fact, it is the reference point for the statutory rights established under the Land Reform (Scotland) Act 2003, and not for other access rights, whether common law or customary. It is very important that it is made clear that the Code is the reference point for the 2003 Act access rights, which for the sake of clarity should be prefaced by the word statutory.
The four key principles
Whilst supporting the basic tenet of these principles the MCofS would like to see them re-drafted so that they clearly apply to land-managers as well. Although they are intended to apply to both parties, currently the language is skewed towards responsible conduct on the part of users. For example bullet one (p9) could read “Always be courteous to the visitors and managers you meet, and respect the peace, privacy and enjoyment of others” and bullet three (p19) could read “Look after the places you visit, enjoy or manage etc”.
Section 1 - Introduction
In the introductory section there should be a statement on the basis for access in Scotland. This is important because as well as introducing the new statutory rights, it would enable reference to be given to existing common law rights, and customary freedoms. It should also be made clear that the Act does not alter these existing rights of way, entry, passage or access. This is particularly relevant in the situations where access is taken over land falling outwith access rights.
Section 2 - A Summary of your access rights
What you can do under access rights (p24)
The Act establishes rights for “recreational and other purposes”, but as this is not defined by the legislation, the Code should not attempt to give it further definition, however well meaning, and risk limiting it's intent. The words “activity that depends upon the natural or cultural qualities of the outdoors for its enjoyment” in 2.8 could potentially act to diminish the breadth of the Act's intent, and in our view should not therefore form part of the text. For example, swimming and yoga are normally practiced indoors, but some people enjoy them in the outdoors when the opportunity arises. It can be argued that these activities do not depend on the natural qualities of the outdoors, but there should be no barriers, except the normal expectations of responsible behaviour, for those who like to practice them out of doors.
Paragraph 2.14 makes a valuable statement, which could unfortunately be misinterpreted. In saying that: “Access rights also allow you to cross over land”, the draft Code is referring to the important right to take access over land as part of a non-recreational journey, for example to get to work or to shops, but we have a concern that this statement could be interpreted to mean that you should not stop moving. This would be against the spirit of the Act, which clearly intends the public to have a right to remain on land to have a picnic, to watch nature, to watch people climbing and to set up a belay, etc. Journeys, whether recreational or functional, are not simply about “getting from one place to another” as could be deduced from this paragraph, but about enjoying the full range of responsible facets of an activity.
Section 3 - Exercising access rights responsibly
The wider concept of responsible behaviour
The statutory access rights conferred by the Act are very wide but there are occasions when people will find themselves on land outwith access rights, or undertaking activities that fall outwith access rights. However, their presence or behaviour may well be responsible and law abiding. Examples might include a hill-walker crossing a dam to reach a group of Munros, or a group of hill-walkers or climbers returning on a track through a farmyard after coming off a hill or crag. Therefore it is important that the Code acknowledges that acting outwith access rights is not of itself irresponsible - it is the behaviour that results in damage or disturbance that would be regarded as such. The Code should give guidance on responsible behaviour to the outdoors in a general sense - both within and outwith access rights. It is to the benefit of everyone, users and land managers alike that, whatever the basis of someone taking access, it is done responsibly.
The Code's role in decision-making
Accessing the outdoors responsibly requires judgements and responses to be made about a huge variety of situations, often on the spur of the moment and without reference to the Code. The Code cannot make responsible decisions for people and should not attempt to assert what people should or should not do in every specific circumstance. It can however help people to make good decisions by outlining factors to take into consideration and the range of options available to them in different circumstances. For example, in the section on respecting people's peace and privacy (p31), readers should be made aware of a choice of options based around preserving privacy such as keeping a sensible distance away from homes if practicable; using paths and tracks if practicable and suitable for the type of access being undertaken; acting directly but discreetly if close to a house. Likewise in the section discussing access through farmyards (p32), readers would be encouraged to bear in mind whether:
- there is a public right of way or a core path through the farmyard;
- an alternative has been indicated and marked and is suitable for the type of access being undertaken;
- reasonable and helpful advice is provided by the land manager;
- in the absence of any of the above, it would cause more interference to take access around or through the farmyard.
This would allow walkers to still feel confident when taking access in and around farmyards, particularly when they are not busy or hazardous.
Passing through fields (p34)
The guidance in this section is important for mountaineers, because the route to a lowland crag can often lead through fields, and access to mountains sometimes depends on crossing one or two fields before reaching the open ground above the top wall. The emphasis on avoiding damage to crops is sensible, but to the bullet points in 3.28 we would add a recommendation to “follow any reasonable guidance” as it may be that a route around the edge of the field will be preferable one month, whilst a route across the middle be better the next month.
It is vital, however, that in places where there is a clear desire by walkers for a route across a particular field that a preferred route is reasonably obvious to those wishing to cross the field. Whilst it is the case that a walker might wish to cross any field, and guidance needs to be in place to help them do this responsibly, we are concerned about places where there is a repeated need to cross a field as part of a recreational activity, and that this kind of passage should not be unnecessarily restricted.
Keeping your dog under proper control (p37)
The first bullet point in 3.37 should be altered so that it advises people to keep a dog close to heel when passing through field containing livestock. Livestock can become aggressive towards dogs, and it is far better that a dog is not kept on a lead (and therefore not connected to the human) in the event of a beast charging it.
Take extra care if you are organising a group or event (p36)
The MCofS is of the opinion that this section needs re-drafting because it tries to define categories of group users, but fails to create any meaningful distinctions. For example the Code tries to draw distinction between “businesses that guide people in outdoor recreation” and “education or activity holiday centres”. Simply speaking, an education or activity holiday centre has as its business (whether commercial or not) the guiding and instructing of people in outdoor recreation. It also tries to draw a distinction between educational groups, school trips and outdoor training groups thus confusing purpose (e.g. education) with origin (e.g. school).
In this section it would be best if the advice and guidance given was directed in two paragraphs to a) group organisers and b) event organisers. The advice should be given in the form of a list of factors that group (or event) organisers should consider when planning their activity. For example:
- Is your group a suitable size for the venue you are planning to visit?
- Is the nature of your activity suited to the terrain and venue you are planning to visit?
- How sensitive is the time of year?
- What is the likelihood of other people recreating in your chosen area and what are they likely to be doing?
- What is the likelihood of land management activities taking place in the area you have chosen?
- Do you have any requirements for facilities (parking, toilets, etc.)?
- Do you intend to occupy a place for any length of time, and will this have significant adverse impact on other users or land managers?
An extra responsibility that should accrue to group leaders is to explain and teach their charges about access rights and the concept of responsible behaviour on all parties. This should be included in this section.
Section 4 - Managing land and water responsibly for access (p40)
Under this section, there needs to be reference to the expectation on land managers to provide alternative routes or suggestions on contiguous land and land that falls outwith statutory access rights e.g. farmyards and farm steadings. It was made clear in the Parliament that land managers would be expected to support continuing access over land falling outwith access rights where it wouldn't interfere with land management operations, or jeopardise safety or privacy, and this was regarded as being a matter for the Code's attention.
Act reasonably when limiting public access (p42)
The corresponding paragraph in the section “Exercising access rights responsibly” guides the user to expect that landowners may make requests or give advice in respect of access when land management operations are going on. However, the wording under the land-managers section is much stronger and gives the impression that land managers can actually limit (in the sense of reducing) people's access, rather than managing or altering it. It is important to stress that land managers cannot reduce or remove access rights (only the local authority can do this under a Section 11 order or byelaw). Although this section does commonly use the words “you can ask people to etc.” it should eliminate references to limitations, unless prefaced by the concept of request. For example, “act reasonably when requesting limitations on public access”.
A comment on the place of signage
The Code pays very little attention to signs although this is one of the key ways that land managers communicate with the public in the countryside. It is important that the Code guides land managers on how to develop signs that are welcoming, informative and instructive. Good signage is that which achieves its aims with willing co-operation, and inclusion of the following information helps to influence the sign-readers actions in a positive way.
- The type of operation being undertaken
- The duration of operation and when it will start and finish
- The action requested of access takers
- Any recommended alternative routes / courses of action
- The name of the estate or farm
- The name of the land or estate owner on which the operation is taking place
- A contact name and number for further information
- The date of the notice
- If a Section 11 order, the name of the authorising person with the local authority
Help people to enjoy the outdoors responsibly (p44)
The sentence “people might also take access across your land to get into the countryside” appears to be referring to the fact that users of the outdoors can still be expected to be on most land and water - even on the occasions when that land or water falls outwith access rights. This statement should be re-written to be less equivocal and also to include a statement that land managers should continue to support such access, as does not cause unreasonable interference with their interests. An extra bullet point could be inserted in 4.19 that would suggest, “indicating and facilitating alternative routes” as a helpful means of managing access.
Section 5 - A Practical guide to access rights and responsibilities (p46)
The sections on farmyards, fields of crops, golf courses, dams and anywhere else where statutory access rights do not apply should be re-written to make it clear that access is commonly taken in these places under existing customary freedoms, and should be expected to continue as long as it is taken responsibly. Also included should be advice to farmers and landowners to enlist the help of the local authority when they want to manage access over land falling outwith statutory access rights.
Section 6 - Where to get help and information (p53)
This section of the Code needs substantial re-drafting. The paragraphs on dealing with irresponsible behaviour (p53) do not deal with disputes - for example when parties disagree whether behaviour is irresponsible or not. They do not take into account that there may be mitigating circumstances, nor do they suggest that a discussion take place that might establish the basis for someone's course of action. Paragraph 6.3 (p53) simply assumes that a land manager has correctly judged that someone has behaved irresponsibly - this might not be the case. The statement “if a person does not change their behaviour then that person gives up access rights”, raises legal questions about how access rights are removed from a person, and who has the authority to do so. It is most likely that this could only be decided in retrospect by a sheriff court. A land manger can ask someone to leave, but it is erroneous to give the impression that he could draw upon the immediate help of the local authority. In most cases that would simply not be practicable. The Code is correct in stating that the Police can be involved if the behaviour is criminal, but the Code could also draw attention to the possibility of applying for interdict in respect of repeated nuisance by an individual.
In paragraph 6.6 (p54) the advice about dealing with the irresponsible behaviour of individuals should be separated from advice about seeking resolution for land management problems that might be a result of the cumulative pressure of perfectly responsible access.
Access Rights at Night (p31)
Finally, we must ensure that important rights that now appear in the Act are not diluted by pressure to have contradictory advice in the Code. Recreational bodies had to fight extremely hard to keep access rights at night within the Act, but this is still being challenged by a number of organisations that tried to have it taken out on several previous occasions. Paragraph 3.13 provides advice on exercising access rights at night, and whilst we wish to see stronger wording about not lingering close to people's homes, we believe the right to be out at night must be strongly defended. The right to enjoy a full moon, a meteor shower or a sun rise from a mountain top are all sacrosanct, as is the right to set out three hours before dawn and come down three hours after dusk when making a long winter climb on our highest mountains. This is a basic human right, and cherished pleasure, that must be protected, and claims that anyone out at night is up to no good must be shown up as arrogant and outdated. The right is in the Act, and the Code should give guidance on exercising that right responsibly; but should not in any way attempt to diminish that right.
Consultation Reminder
The closing date for the SNH consultation on the Scottish Outdoor Access Code is June 30th. Please make your individual and club responses before that date. Further information on the Code can be obtained from SNH by e-mailing: soac-consultation@snh.gov.uk
The MCofS urges all its members, and other walkers and climbers, to send in their personal and club responses, using their own words. In writing your letters it is important to clearly state your interests in the outdoors as it helps those reading your letter if they know from the first paragraph that you are, for example, a hillwalker with 40 years experience, or a climber living in a Highland village. We hope this advice helps to guide you towards the most relevant parts of the draft Code, but would stress that responses need to be in your own words.
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