Take responsibility for your own actions
Our view of paragraph 3.9 is that it is too short to cover some important issues on this subject.

As 'liability' is a major concern of land managers, it would be useful to open this paragraph with the statement from the Act concerning duty of care namely that: “the extent of duty of care owed by a land manager to another person present on land or water is not affected by the access provisions within the Act.”

We believe that this section on accepting risks should show some form of recognition to the fact that people have been taking recreational access to Scotland's countryside for many years, and that the principle of taking responsibility for your own actions has always been a part of the ethos of outdoor recreation. Reading this draft document quite often gives the impression that a range of new activities are about to be introduced to Scotland for the first time ever. This is clearly not the case. People go walking, climbing, cycling, canoeing and so on now, and have done for many years.

Whilst it is the case that we live in an increasingly litigious society, it is also apparent that spurious claims for injuries sustained in the pursuit of outdoor recreation are not following this trend. The acceptance of risk and of taking responsibility for your own actions is widely accepted, especially in terms of natural hazards.

Although paragraph 3.9 refers to “natural hazards” it should, in addressing the issues connected to risk, give recognition to the extra duty of care owed to visitors at the more highly managed and promoted countryside attractions. Members of the public, including the elderly and infirm, who visit countryside tourist attractions, do not expect to experience the kind of risks that mountaineers would accept in remote countryside. There is therefore a gradation of risk expectation, and a corresponding gradation of duty of care on the part of the landowner. By mentioning this in the Code, it would be helpful in promoting understanding of these issues, which in turn should help to emphasise the general acceptance of natural hazards when taking access in the more remote and wild areas of Scotland.

It is worth re-iterating that the Code cannot give guidance on responsible behaviour that is outside the remit of access rights and responsibilities (see “What is responsible behaviour” above). It is important that people are allowed to take responsibility for their own actions, and to be able to use their own discretion in making decisions about hazards. The levels of risk presented by the outdoor environment will be perceived and managed very differently by different users. Therefore land managers should be discouraged from being overly protective of the public in respect of natural hazards that the public may well choose to engage with if they are undertaking risk activities on an owners land or water. However, land managers will remain responsible for advising the public of hazards of their (the land managers) own making that could not be reasonably foreseen by the public.

We are very concerned about the last sentence in paragraph 3.9 and believe that it should be removed, or significantly altered before the final version of the Code is produced. There is more to “taking responsibility for your own actions” than “following the responsibilities and guidance set out in this Code”. This suggests that the Code covers all eventualities, which it simply cannot do.

This is a complex, but very important part of the Code, which needs to be well written in the final version of the Code. Whilst we have a few comments that we will discuss below, our overall impression is that this section has been properly thought through and reasonably well produced.

Respect people's privacy and peace
Paragraph 3.11, which explains curtilage, is well crafted because it deals well with the huge variety of curtilage in Scotland, without attempting to impose fixed limits or describe different types of curtilage. Instead, it outlines the factors determining what might be regarded as 'intrusiveness', such as intensity of management, proximity to house, and the extent to which a house is overlooked.

Paragraph 3.13, which addresses night-time access, will no doubt come under heavy pressure from land management interests who would wish to see access at night portrayed as unnecessary, undesirable and irresponsible. 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 that must be protected, and claims that “anyone out at night is up to no good” must be regarded as arrogant and outdated. The right is in the Act and the Code should give guidance on exercising that right responsibly, but it should not in any way attempt to diminish the right.

Whilst defending the right of access at night, we recognise the legitimate concerns of those living near paths, and feel that the guidance in the Code could give greater, and clearer, emphasis to the need to keep a sensible distance away from a house and to not linger close to a house after dark.

There could be scope in this section for re-affirming the positive aspects of law-abiding citizens taking access at night. A sentence could be included along the following lines: “Remember that your lawful presence at night can be a deterrent to those people intent on criminal activity”. Indeed, the Code should state that: “at all times of day and night, citizens should call the Police or land manager if they suspect someone is causing damage or breaking the law.”

Helping land managers and others to work safely etc.
There is a strange interpretation of paragraph 3.15 that we are sure was not intended. Saying that: “you must help land managers to work safely and effectively”, gives an impression that you have to offer to help whenever the opportunity arises. We are sure this was not intended to be read this way, and feel that this could be re-worded to read: “you should allow land managers to work safely and effectively”.

Respect people's privacy and peace
The Code must not go down the road of using rigid measurements, because there will always be examples where the chosen number causes unforeseen problems. For example, if the Code suggested that you should not walk within, say, 25 metres of a house; what would happen when a path, that everyone is currently happy with, passes about 20 metres away from a house? If the only way to stay 25 metres from the house was to climb a fence into a field, to then walk in an arc, before climbing back over the fence, then it would surely seem more sensible and preferable for people to continue using the path. Further problems we foresee would be that peoples' judgement of 25 metres would be fairly subjective; horse riders, cyclists and elderly walkers would not be so able to take the necessary avoiding actions like crossing fences; and two houses that are, for example, 49 metres apart would effectively create a barrier when a path passing between the houses may not be causing any problems.

The size of some gardens would mean that access rights would not come within 25 metres of their house in any case, whereas people living in roadside locations have people walking past their front windows all the time, so a rigid distance in the Code would be meaningless. In any case, putting such a distance into the Code is introducing an element of “black and white” in that you should not be 24 metres from a house, but you can be 26 metres away. If that is what the Scottish Executive wanted it would have been in the Act. The Code is meant to be about “shades of grey”, in other words helping people make their own judgements and decisions, so they are better enabled to judge for themselves how close they should be to houses, especially in relation to the time of day, or bearing in mind the nature of their activity.

The Access Forum was always against the use of rigid numbers, and despite their use in some countries, we do not believe that such a system would represent a common sense approach.

Access through farmyards
Paragraph 3.18 should begin with the word “Statutory”, but is otherwise quite cleverly worded because it does refer to customary existing access through farmyards, whilst stating that (statutory) access rights do not extend to farmyards. Obviously public access will not be compatible with busy, hazardous, working farms but not all farms fall into this category and sweeping closures of previously unproblematic access will be a retrograde step in respect of the new Act. However there is still the problem of what someone should do who finds no alternative marked, no advice from a land manager and no presence on the farmyard. In this case, people should be encouraged to take the course of action they judge to be most appropriate and responsible - which might be to continue through the farmyard (outwith statutory access rights), than clamber around it's periphery (within statutory access rights but potentially creating more damage or exposing themselves to greater hazard than the first course of action). Reference to this option would allow walkers to still feel confident when taking access in and around farmyards, particularly when the farmyards are not busy or hazardous.

As mentioned earlier in our response to question 5, we are concerned that the definition of farmyard could be stretched to include groups of old buildings and remote sheds. We would like to see the Code address this issue in paragraph 3.18 or 3.19, and thereby prevent access being restricted in areas that to most people would not fit the description of a working farmyard.

Access over land on which a land management operation is under way
Our overall impression of this section is that it is sensible and workable. We do, however, feel that it would benefit from some extra detail in paragraph 3.23, explaining what information should be included in any sign that is put in place to communicate with those taking access. This is mentioned briefly in 3.23, but we feel it is a very important issue that the Code should address more clearly. We would suggest that any sign should contain the information in the following list of bullet points:

• The name of the estate or farm, and a telephone number.
• What management activity is taking place.
• How long this request is likely to be in place.
• The area affected.
• Recommended alternative route(s) or course of action.
• The date when the request was first issued.
• A contact name and number for further information.
• If a Section 11 order, the name and number of the authorising person with the local authority.

This format for a sign would, we believe, give signs a level of accountability that is likely to lead to good cooperation and compliance from access takers. Furthermore, we feel that one of the worst forms of access problem in the past has been signs that were erected to deter, confuse, intimidate and mislead. The new system of managing access with an Act and a Code should aim to replace these outdated and unpopular signs with a new breed of sign that should welcome, inform and assist. This is one of the biggest changes to the countryside that this Code can achieve, but it can only happen if the Code gives the unequivocal guidance that we are suggesting.

We very much welcome the use of the word “request” in 3.23, because land managers do not have the power to remove the access rights of individuals who are abiding by the laws of the country and being responsible, but they quite rightly have the right to request that the public not exercise their right over certain areas of land if there is a valid reason for making such a request. The Code should state that the word “request” should appear on signs when land managers need to guide or divert access takers away from certain areas and onto other routes.

We welcome the reference at the end of paragraph 3.23 to where “public access is frequent or where the work is dangerous”. This is sensible guidance, because it would be unreasonable to expect a sign to be put in place where access is not frequent and the management activity not dangerous. This rightly places the responsibility on the land manager to make a judgement about the dangers involved in the activity and the likelihood of people taking access in that area. As with much of the guidance for access takers, guidance for land managers needs to give a list of factors to consider and allow them to take a responsible decision on that basis.

This section is a good example of a part of the Code that would benefit from a cross-reference to the equivalent guidance for land managers in Chapter 4.

Access where there are farm animals
The question that is asked does not quite fit with the text in the corresponding section of the draft Code. The text rightly refers to health risks in both directions - to humans and to animals - so we will refer to each of these aspects in our answer.

First of all, however, we would say that this section is wrong to refer just to farm animals. Horses should also be covered by the text in this section of the Code, and some of the points might be relevant to wild animals.

There are dangers when taking access through fields containing certain types of animals and the Code should provide more detailed guidance than it does at present. Horses have sometimes attacked walkers, because the horses have become accustomed to being fed by other walkers, so we feel that it is appropriate to mention this kind of information in the Code.

As well as providing more detailed guidance on the types of animals that are likely to present a danger to humans we also think that the Code should give general advice like looking into a field before entering, and assessing whether you can see the whole of the field; and whether the field is stock-proofed, which is an indication that there are likely to be animals in there. Following these two simple procedures will greatly help access takers to make better judgements and to exercise caution where they still have some doubts.

We also think that the Code should refer readers to other sources of information on this subject.

The sections on farm animals are perhaps good places to remind access takers and land managers about following, and providing, reasonable guidance.

Whilst we are concerned about human safety, and welcome the distinction between walking through a field, but not stopping for a picnic; we feel that the guidance to boil water is straying into non-access type safety issues, and that is not the purpose of this Code in our view.

Passing through fields
The guidance in this section is important for mountaineers, because the route to a lowland crag can often lead through fields, and access to hills and mountains often depends on crossing one or two fields before reaching the open ground above the top wall. Passing through fields, therefore, is not just a low ground recreation issue.

The emphasis in paragraph 3.28 on avoiding damage to crops is sensible, although we believe that an extra bullet point could be inserted with 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 is better the next month. If such a request is made it would appear reasonable to follow it.

The guidance in paragraph 3.29 appears to be sensible, and our only comment would be that “above ankle height” is considerably less than 8 inches. Mid-calf level might be a more accurate way of helping people to judge 8 inches.

We believe it is vital 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.

An issue that is not addressed in this Code, and we believe that it should be, is the way access takers' responsibility is affected by the nature of the crop in the field. We think that there should be recognition of a gradation of crops, for example the difference between entering a field of cabbage, barley or grass. Concern has been expressed by farmers about the susceptibility to damage of certain kinds of crops, such as cabbage, and whilst we believe that this should not be used to deny access to fields of barley or grass, we do recognise the need for the Code to suggest more rigorous guidance for access takers, including the control of dogs, in fields containing the more easily damaged types of crop.

Natural Heritage
For such an important part of the Code, this section is very short and demonstrates a failure to properly address the issues that should be dealt with under these headings. Given the important information that should be included under the “Natural Heritage” subtitle, and given that this draft Code is produced by Scottish Natural Heritage, there really should be something more substantial than “… you must care for your natural heritage. You can do this by leaving it as you find it …”

Within this section should be an explanation of:

• The statutory limitations on access due to the natural heritage (as there is in the privacy section).
• SNH's powers under section 29 of the Act and how SNH will use these powers, and guidance to access takers that disregarding any request made under section 29 is irresponsible by virtue of section 2.
• Other laws that relate to the protection of wildlife.
• Other sources of advice in terms of types of wildlife that may be adversely affected by the presence of people taking access and ways of taking appropriate action (e.g. the MCofS advice for climbers on nesting birds).

We believe that this section would provide recreationists, land managers and statutory authorities with greater clarity and certainty if it were to give a number of examples that provide an indication of where the limits of reasonableness lie. At the moment, the wording is open to incredibly wide interpretation, and it could be assumed that even the slightest level of disturbance would be irresponsible, or alternatively that only the most extreme level of disturbance was irresponsible. Neither would be the case, but either misinterpretation could lead to unnecessary conflict.

We recognise that the Nature Conservation (Scotland) Bill is currently progressing through Parliament, and whilst it is likely to contain relevant clauses on the reckless, as well as intentional, disturbance of wildlife; this Bill may not be passed in sufficient time to be included in this Code. Nevertheless, it may be possible, and perhaps wise, to at least make mention of it and its likely consequence. Rock climbers, in particular, often come into close proximity with birds, and whilst this is usually not a problem, the Nature Conservation (Scotland) Bill will provide greater clarity and that Act will become a key point of reference in this respect.

Cultural Heritage
We have a lower understanding of the cultural heritage issues, so are not able to comment in anything like the same level of detail as for the natural heritage. However, a minor point of detail that we can suggest is that in paragraph 3.34, the 3rd bullet point should not have “by not” at the end of it, as all four bullet points come under the prefix heading “You can do this by not:”.

Pollution
Although it is not properly included in any of the questions, the section on “Pollution” appears under the “Care for your environment” heading, and this is probably the most relevant place for us to comment on paragraph 3.36. The advice about burying faeces is sensible and we welcome its inclusion, but it should be stated that this is to keep it away from wild animals and dogs, as well as farm animals.

Keep your dog under proper control
The use of must in the opening lines of paragraph 3.37 is appropriate because there is a range of legislation pertaining to dog behaviour. However it is important that particular examples of behaviour are linked to statute, for example: “You must not allow your dog to worry livestock (Dogs (Protection of Livestock) Act 1953, section 1)” is correct. However, stating that: “You must keep your dog under control” is incorrect as there is no general offence of having a dog out of control.

In the first bullet point it is not advisable to have a dog on a lead in a livestock field for the reason that cattle, in particular, may become aggressive to a dog and if the dog is on a lead, the dog's owner may be put at risk. More appropriate wording could refer to “keeping your dog close to heel”.

A well-trained and obedient dog does not need to be on a lead, because the owner of such a dog would be in control. Having said that, it is unfortunate that many people are not the best judges of their dog's obedience. Nevertheless, the Code should not express the assumption that a lead is the only means of controlling a dog. Some dogs will cause damage whilst on a lead, and others will be under their owner's control when off a lead.

The second bullet point of 3.37 and paragraph 3.38 are to some extent overlapping, and whilst they give good guidance, the repetition should be addressed.

The second bullet point makes a good point about vegetables and fruit, along the lines of the reference we made to crops such as cabbages in our answer to question 13, but the wording of this bullet point is a little slack. “For human consumption” is not quite what the issue is about. It is the immediacy of the consumption and the requirement for the fruit or vegetable to be consumed in an unaltered state. A grain from a cereal crop might ultimately be for human consumption in the form of a biscuit or beer, but it will be subjected to a long process of refinement, whereas a cabbage or strawberry could be in a shop within a few days. Once again, this gradation of types of crops could be better explained.

Whilst there are far worse terms that could have been used, we feel that dog excrement, might be a better one to use than dog dirt!

Many of our members do own dogs, so in that respect we represent a group of people that include dog owners and dog walkers.

Take extra care if you are organising a group or event
The business of groups has been discussed many times at the Access Forum over the years and if they could not differentiate between educational, commercial, formal and informal - nobody can! SNH have again tried to define categories of group users, and failed to create any meaningful distinctions. This is a recipe for antagonism and argument as each party tries to argue for the category they believe they fall into.

The basic principles of group responsibilities are the key to getting this section right, and whether it is a school group, commercial group, hillwalking club or whatever, these principles remain the same. We accept that all group leaders and event organisers carry extra responsibilities, over and above those of the individual access taker, but it is the same set of principles that each type of leader or organiser is required to think through whilst planning an activity and before going out into the countryside. These principles are that all those leading others onto land should consider the following factors when planning an activity or journey, and use this as the basis to decide if, and when they should contact the land manager:

• The nature of the activity.
• The sensitivity of the time of year.
• The type of land you are planning to be on.
• The number of people involved.
• The likelihood of land management operations taking place in the area.
• The likelihood of other people recreating in the same area.
• The requirement for special facilities.
• The likely impact of the activity.

For certain activities a quick check through this list would confirm to the leader that they do not need to contact the land manager, whereas for larger events it should be obvious to the leader or organiser that they should make contact six months, or even a year in advance. A lot of events and journeys would probably fall between these two examples, and in a lot of cases contact would be made within a month of the visit. What the Code should state is that leaders and organisers are expected, like anyone else, to make responsible decisions, based on their own judgement, and that in considering the factors above they should be aware that in some circumstances the significance of just one factor might trigger the need to make contact, whereas in another set of circumstances it might be a cumulative effect of several factors combining to make the leader feel that contact would be sensible. This is a concept that should be supported by a number of examples to demonstrate how certain factors should trigger the need to contact the manager, whilst in other circumstances the low-key nature of some activities are such that the impact would be no greater than a small group of friends going out and would be likely to cause less of an inconvenience to the manager than the telephone calls to seek his or her advice.

In the case of many outdoor centres that make regular use of the same sites, the existing system is to meet or speak to land managers on an informal basis. This may only be once a year, or it may be more regular, but it generally works and gives both sides the opportunity to give each other feedback and to discuss any problems. The Code is being written as if every example of group or commercial use is a one-off activity, but the reality is that most providers of educational and commercial outings are using sites on a regular basis and have some form of ongoing dialogue with the land manager. This is an important aspect of this work and it should be given some kind of recognition in this Code.

Paragraph 3.41 does not clarify the difference between a visit whose specific and stated intention is to visit a farm or estate, for example a geography class looking at rural economic issues, and visits that occur as part of an itinerary or incidentally to the group activity, for example passing through an estate at the end of a day's hillwalking. The phrase “turning up unannounced” with it's negative connotations, is unsatisfactory because it describes the way that most people pass through farms and estates as part of accessing or coming off the open hill, or as part of a local low level walk, given that there is no need for people to advise land managers of their routes. It is also highly unlikely to describe school trips (as distinct from those run by outdoor education centres) most of which are organised under HASPEV (Health and Safety of Pupils on Educational Visits) guidelines.

Paragraph 3.42 tries to draw a distinction between educational groups, and small outdoor training groups. It is simply not logical to suggest that an Outward Bound group (which could easily be argued to have an 'educational' remit) should have different responsibilities to an outdoor training group, such as the Duke of Edinburgh Award scheme. This is an attempt to draw a distinction that does not exist, and we repeat again that the idea of a set of principles, as argued above, is much more logical.

In paragraphs 3.45 and 3.46 the Code tries to draw a 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 is another example where distinctions are fictitious and misleading.

An extra responsibility that should accrue to group leaders is to explain and teach their charges about access rights and the concept of mutual responsibility on all parties. We feel very strongly that group organisers of all kinds have been regarded as a problem and treated unfairly throughout this process, when in fact they should be regarded as the means of conveying the educational message about the responsible right to the people they work with. We would like this to be addressed and to see SNH working with educational, commercial and other groups to assist them in promoting the messages that will need to be communicated over the next few years.

What is responsible behaviour?
As with the corresponding section in chapter 3, the key terms, in this case “interfere”, “reasonably” and “take proper account of”, are far too vague and open to varying interpretations. This section, with the two bullet points in paragraph 4.3, is almost meaningless without some form of example to support the argument. There will undoubtedly be land managers that will seek to interpret this section in the lightest possible way, and making a more clear statement of their responsibilities and demonstrating them with clear examples should prevent this.

Avoid obstructing or hindering public access
This section is quite good in that it makes a series of clear statements in paragraph 4.5, and sets out a reasonably comprehensive list in paragraph 4.6. We do, however, have a number of comments for amendments to the bullet points in paragraph 4.6, or for new points that we feel have been missed.

The first bullet point covers the issue of landowners limiting access for too long a time period, but it should also address the related issue of limiting access over too great an area.

The second bullet point should read: “locking a gate without reasonable cause …”. Additionally the term 'well-used' should be removed, as it is the reason for locking a gate that is the important issue here, not whether the route is well-used or not.

In the sixth bullet point these practices could be used as a deterrent to the public without “the route becoming difficult or impossible to use”. This aspect of deterring public access should be addressed in this section.

In the sixth and tenth bullet points the term “well-used” is employed again and should be removed. It is unsatisfactory to utilise terminology that may well be the focus of huge disagreement at a later stage. After all, the local authority, local walkers and climbers, and the local land manager may all have a very different perception of what a well-used route is. Is it a path used regularly by a very few people, or a path used infrequently by a greater number? An alternative term could be “other known route”, because if the land manager knows that people take access on that route then he or she should take this into consideration.

In the eighth bullet point we would include “appropriate stakeholders” in addition to the local authority that should be consulted.

In the ninth bullet point we would suggest adding “or requests access takers not to exercise rights for some reason without suggesting an alternative.”

The tenth bullet point refers to: “animal known to be dangerous”, but does not qualify whether this refers to the individual animal or the breed. Furthermore, an animal known by the land manager to not be dangerous could still be used to deter the public from exercising their statutory access rights, as the public would not know that it was not dangerous. This use of a deterrent should be addressed in this section for this reason, as well as the one given above for the sixth bullet point.

The Act refers to “erecting structures or constructions such as they are likely to injure someone” and it would be appropriate for these words to be included in the Code at this point, possibly in an additional bullet point.

Act reasonably when limiting public access during land management operations
This section makes liberal use of the word “limit” which contrasts sharply with the corresponding section for users taking access when land management operations are underway (p33). The Act makes no reference to “limitations” on access - instead it employs the concepts of not “unreasonable interference” with access [Section 3(2)], and “use, management and conduct of the ownership of land in a way which is lawful and reasonable” in relation to public rights of access [Section 3(3) Land Reform (Scotland) Act 2003]. Although users are led to expect that land managers can make requests or give advice in relation to land management activities, it appears that land managers are led to expect that they can actually limit (in the sense of reducing) people's access, rather than managing or altering it. If left unchanged this is bound to lead to conflict. The Code appears to be telling each group what that group would like to hear, rather than reflecting the wording of the Act. In this section, it is probably worth re-iterating for land managers that they alone cannot close land to access and that they need to apply to the Local Authority for a Section 11 Order if they are to impose a closure. 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”. It would be helpful if the Code pointed out that helpful guidance and signage from landowners is more likely to lead to compliance than attempts to assert blanket closures and unjustified restrictions on 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 and make reasonable requests. 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 guidance on signage that we described in answer to question 11 would make a significant contribution to this being a practical and constructive Code. We would urge SNH to check through the document for other examples where the explanatory notes in the white column are actually more comprehensive than the draft Code in the green column.

We believe that the guidance on signage should be given in Chapter 3 under “Access over land on which a land management operation is under way” and Chapter 4 under “Act reasonably when limiting public access during land management operations”, so that both groups of people have the same understanding of what is expected, and what is reasonable, in terms of signage. As we mentioned in our answer to question 11, it is our belief that improving the standard of signage in Scotland is one of the biggest changes to the countryside that this Code can achieve, so we would wholeheartedly recommend that this idea be taken on board in the re-writing of this Code.

Question 19 refers to obligations under other laws, but reading through this section there is no reference to other laws. On reading the explanation of the section on the right hand side of the page (white background) there is reference to the Health and Safety at Work Act 1974 and the Occupiers' Liability (Scotland) Act 1960. These Acts are clearly relevant to this section of the Code and should be included in the Code. Our understanding is that the explanatory notes column in this draft will not appear in the final version of the Code, so it seems illogical to have key information in the explanatory column, but not in the text of the draft Code.

Help people to enjoy the outdoors responsibly
This section is set out reasonably well with good use of bullet points, which makes for ease of understanding. The only comment that we have on the bullet points in paragraph 4.16 is that the last one on signs, notices and leaflets, is far too weak to be the guidance for such an important issue. The previous comments we have made about signage should be cross-referenced from this bullet point. Leaflets can be a very useful means of communicating information, and should be covered in a separate bullet point in this paragraph. Guidance on leaflets should encourage adoption of the same principles that we have described for signs.

In paragraph 4.19 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.

The first bullet point in paragraph 4.19 is very weak and does not reflect the strength of the Act and Code. “Avoiding the use of 'no access' signs” should be replaced by “Do not use 'no access' signs.”

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.

Interpreting the rights and responsibilities: a practical guide
The sections on dams, farmyards, fields of growing crops, golf courses, school playing fields and anywhere else where statutory access rights do not apply (or may not apply) should be re-written to make it clear that access is currently 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. You will probably want to refer back to advice given in Section 3 and 4 of the draft Code.

Farmyards
Although farmyards fall outwith statutory access rights, people commonly take passage through farmyards and steadings to gain access to other land or water. This should continue to cause few problems as long as it is done responsibly and the advice of the land manager in respect of alternative routes and existing hazards is heeded. If there is no advice or alternative indicated by the landowner, it is up to the individual to decide whether to take access around or through the farmyard.

Advice for land managers could be changed to: “As there may be existing routes that pass through farmyards, you should not discourage access where this would not cause problems or interfere unreasonably with your work. You should identify the best route through or around the farmyard and involve the local authority if necessary”.

Wildlife sites
The term “Wildlife Sites” is very vague and open to interpretation. A wildlife site could be any part of the countryside where wildlife is found, which by extension is everywhere. It would be more appropriate to have a paragraph on “Nature Reserves” which are specific and managed sites where byelaws and management rules may apply. Byelaws and management rules should not be referred to as “guidance” as there are penalties for transgressing them.

Deer stalking on the open hill
This entry should be amended; otherwise some land managers will use the entire stalking season between July 1st and February 15th to impose restrictions on access. It has always been accepted that the critical time is the stag stalking season, July 1st to October 20th, with the season, in practice, getting underway in mid-August.

“During the stalking season” should be amended to “”During the stag stalking season” and, “and if possible changing your route” to “and if possible and reasonable changing your route”.

The land managers “green box” should be amended to read as follows: “Tell people where stalking is taking place by using a Hillphones service or use signs and information boards (in accordance with this Code) to give day-to-day information at recognised access points rather than to indicate the length of the stalking season, and by ensuring that estate contact details are published in 'Heading for the Scottish Hills' and area Deer Management Group leaflets.”

Wild camping
We are pleased to see the sensible guidance about wild camping in the “white” public box, but wish to see the terminology made more accurate in the “green” land managers' box. We accept that large numbers of campers along roadsides can be a problem, but this is not wild camping. We prefer to call this kind of camping “congregational camping” or “roadside camping” as these are more accurate descriptions of that activity, and also because it removes the link to true wild camping which is an altogether separate, and we would say more rewarding, form of camping. Changing the word “wild” to either “congregational” or “roadside” in the “green box” would clear up this anomaly.

We cannot think of any missing situations at the moment, but if anything has been missed it is most likely to emerge from this consultation exercise.

What local authorities and other public bodies can do to help
The section under the heading: “What local authorities and other public bodies can do to help” makes a reasonable attempt to set out a comprehensive list of ways they can do this. We do, however, have a small number of comments that we would like to explain.

In paragraph 6.8, the last bullet point actually contains a lot of important issues that should be included in this list. For example, one of the benefits of the new system of the Act and Code is that local authorities will be empowered to resolve access disputes throughout their area, and not just on rights of way. Upholding access rights, by removing intimidatory signs and other obstructions is an important example of what local authorities will be able to do now, and this should be properly recognised in this list. However, we notice that this point is then covered, along with three others, in paragraph 6.10, where local authority powers are strangely mixed in with SNH's duties. It would seem sensible in this section to have separate paragraphs for local authority duties, local authority powers, SNH duties, SNH powers, and the powers and duties placed on other public bodies. This section contains a lot of information, but the order and presentation requires a considerable amount of tidying up.

Section 6 appears to be the logical place to describe the existing means of dealing with irresponsible and criminal behaviour on land. These include: Breach of the Peace, Malicious Mischief and Interdict.

Dealing with irresponsible behaviour
We believe this section of the Code needs substantial re-drafting. Paragraph 6.3 does not deal with the realities of disputed access when parties disagree whether behaviour is irresponsible or not. The paragraph assumes that a land manager has correctly judged that someone has behaved irresponsibly, but 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 manager can ask someone to leave, but it is erroneous to give the impression that he or she could draw upon the immediate help of the local authority. In most cases it would simply not be practicable and would lay an undue burden on local authorities. The Act does not confer a policing role on local authority staff, nor can they be of help when incidents occur out of office hours. 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.

Paragraph 6.4 should include advice on how to continue to take access (if possible) in the face of a deliberate or unreasonable obstruction. It should also advise that if a land manager is behaving in a criminal way, this should be reported to the police.  

Closing Remarks

The MCofS believes that by adopting the comments described in this consultation response the outcome should be a more workable version of the Scottish Outdoor Access Code that would more accurately reflect the access provisions in Part 1 of the Land Reform (Scotland) Act 2003. We therefore ask that you consider our comments seriously, and we wish to express our willingness to discuss our comments with SNH if you would like us to clarify any of our suggestions.

Annex 1 - a suggested short code