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Part 1 Land Reform (Scotland) Act 2003
Draft Guidance for Local Authorities and National Park Authorities
2. Powers and duties of local authorities/national park authorities under Part 1 of Act
Duties
Section 10: The Scottish Outdoor Access Code
It is a duty of local authorities to publicise the Access Code once it has come into operation on a date fixed by Ministers.
Section 13: Duty to uphold access rights
Local authorities have a duty to uphold access rights. They have a duty to assert, protect, keep open and free from obstruction any route, waterway or other means where access can be reasonable exercised. Local authorities also have powers to institute and defend legal proceedings.
Section 17 : Core paths plan
Local authorities have a duty, not later than 3 years after implementation of this section, to draw up a plan for a system of core paths sufficient to provide reasonable public access throughout their areas.
Section 18: Core paths plan: further procedure
Local authorities have a duty to publicise their plan and any maps, and to make them available for public inspection for at least 12 weeks. In addition, the local authority must consult the local access forums, persons representative of those living and working on the land affected by the plan, Scottish Natural Heritage and anyone else it deems appropriate. When the plan is adopted the local authority must publicly notify its adoption, compile a list of core paths, make the plan available for public inspection and send a copy to Ministers. If there any objections to the plan, it cannot be adopted until confirmed by Ministers.
Section 20: Review and amendment of core paths plan
Local authorities have duty to review the core path plan and following that review can remove or divert a core path. The core path plan must be amended if any core path is stopped up or diverted under section 208 of the Town and Country Planning (Scotland) Act 1997 or the Countryside (Scotland) Act 1967. If a core path is added to the core path plan the procedures of consultation under section 18 must be followed.
Section 25: Local access forums
This section places a duty on each local authority to establish a local access forum consisting of a reasonable balance of persons and bodies representing the interests of persons with an interest in public access on and over land and owners of land over which access rights are exercisable.
The functions of a forum are to provide advisory and dispute resolution services in relation to the exercise of access rights, the existence of rights of way and the drawing up and adoption of core paths plans.
A local authority may appoint one or more of its own members to a forum, and also may establish more than one forum for its area. They may pay expenses and allowances to the members of the local access forum.
Section 30: Existing byelaws providing for public access to land
All byelaws relating to public access to land must be reviewed by the person that made them within 2 years of the coming into force of this section and, if necessary, modified to ensure consistency with the provisions of this Act.
Powers
Section 11: Power to exempt particular land from access rights
The powers in section 11 are intended to address a number of situations which range from the local village fete to the events such as the Ryder Cup. Local authorities may by making an order exclude land for a period of less than six days. Any order which excludes land for six days or more will require Ministerial confirmation. Any confirmed order must be reviewed after two years.
Section 12: Byelaws in relation to land over which access rights are exercisable
Section 12 provides powers for local authorities to make byelaws for the preservation of public order and safety, prevention of damage, and prevention of nuisance or danger. Any byelaw made under this power must not interfere with a public right of way or navigation or the role of statutory undertakers. Byelaws made under this procedure will be subject to the consultation procedures set out in section 12 of the Act.
Section 14: Prohibition signs, obstructions, dangerous impediments etc.
If an owner of land does anything for the purpose or main purpose of deterring the public from exercising their right of access, local authorities have powers to require, by written notice, the owner to take remedial action. If the owner fails to comply, the local authority can remove signs or notices or take other remedial action. An owner on whom a notice has been served by a local authority may appeal against it by summary application to the sheriff.
Section 15: Measures for safety, protection, guidance and assistance
Local authorities have powers to take steps to warn and protect the public against any danger on any land in respect of which access rights are exercisable, and to indicate or enclose recommended routes or to give directions to this land. They can install and maintain gates, stiles, moorings, launching sites, seats, lavatories and any other means of facilitating the exercise of access rights, and for the comfort and convenience of the public. They can also provide life guards and boats and equipment.
Section 16: Acquisition by local authority of land to enable or facilitate exercise of access rights
This section provides local authorities with powers to acquire land either by agreement or, with the consent of Ministers, compulsorily, to enable or facilitate the exercise of access rights.
Section 19: Powers to maintain core paths etc.
Local authorities have powers to maintain a core path, keep it free from obstruction and provide the public with directions.
Section 21: Delineation by agreement of paths in land in respect of which access rights exercisable
Local authorities may enter into an agreement for the delineation and maintenance (and, if necessary, creation) of a path over land in respect of which access rights are exercisable. Such an agreement will be on the terms and conditions agreed between the local authority and the person with whom they enter into the agreement. Those terms and conditions may, amongst other things, provide for the making of payments.
Section 22: Compulsory powers to delineate paths in land in which respect of which access rights exercisable
A local authority, where they consider it impracticable to delineate a path by agreement under section 21, may make an order (a "path order") delineating it. The local authority may make a path order only if they consider, having regard to the rights and interests of the owner of the land over which the proposed path passes and persons likely to exercise access rights on or over the land, it appropriate to do so.
Where a path order is made, local authorities will have a duty to maintain the path delineated in the order and, if necessary, to create it. They may also revoke any path order.
The Occupiers' Liability (Scotland) Act 1960 (c.30) makes provision as to the duty of care which an occupier or person in control of land must show to persons on the land. Subsection (4) provides that regard may be had to a local authority's duties to create or maintain a core path in determining whether they are in control of the path and therefore owe the duties set out in the Act of 1960.
A path order must be in the form prescribed in regulations made by Ministers, but requires in any case that it contain a map showing the delineation of the path. The procedures for making an order are detailed in Schedule 1 of the Act.
Section 23: Ploughing etc.
Section 23 allows an owner to plough, or to carry out other land management practices, on land incorporating a core path or a right of way. However, where core paths or rights of way are disturbed this way, there is a duty on the owner to reinstate the path or right of way within 14 days beginning on the day the path was first disturbed or within such longer period as the local authority may allow.
An owner who fails to reinstate the path within the required period is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
If an owner fails to reinstate a path within the period set, the local authority may, after giving the owner 14 days notice of their intention, take all steps necessary to reinstate the path or right of way and recover their reasonable expenses from the owner.
Section 24: Rangers
Local authorities have the power to appoint persons to act as rangers in relation to any land in respect of which access rights are exercisable. Ranger's functions are to provide advice and assistance on matters relating to access rights to perform such other duties in relation to those rights as the local authority appointing them may specify.
Section 26: Powers of entry
Persons authorised by local authorities may enter any land for a purpose connected with the exercise or proposed exercise of any of the authorising authority's functions under Part 1. Such a person may, however, enter land under this power only at a reasonable time and on after giving reasonable notice to the owner of the land, unless entry is needed in case of emergency or for the purpose of warning the public of, or protecting the public from, danger; taking measures to facilitate the exercise of access rights; or fulfilling certain duties relating to core paths.
Persons authorised to enter land may take onto land any machinery, other equipment or materials required for the purpose for which they are entering the land.
Section 28: Judicial determination of existence and extent of access rights and rights of way
This section allows persons to apply to the sheriff for a determination of whether access rights are exercisable over particular land, of whether persons exercising those rights are doing so responsibly or of whether the owner of land in respect of which access rights are exercisable is using, managing or conducting ownership in a responsible way.
It further allows persons to apply to the sheriff for determination of whether any path or bridleway or other means of crossing land is or is not a right of way by foot, horseback, cycle or any combination of these.
In either case, the proceedings are those for an action of declarator initiated by summary application to the sheriff. The local authority must receive notice of an application and are entitled to be a party to the proceedings
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