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Part 1 Land Reform (Scotland) Act 2003

Draft Guidance for Local Authorities and National Park Authorities

3. Section 10 The Scottish Outdoor Access Code

10 (7) It is the duty of-
(a) Scottish Natural Heritage (SNH) and local authorities to publicise the Access Code;

(b) SNH to promote understanding of it.

The duties of publicising and promoting understanding of the Scottish Outdoor Access Code will be key to successful implementation of the new rights of public access to the outdoors - rights that come with responsibilities. Although the Act separates these duties, appropriate publicity is an integral part of the education process that will promote understanding. For example without suitable publicity to make the people aware of the Code the process of promoting understanding of its content cannot begin. As such, both duties will support an education process to:

• raise awareness of the Code;
• help people to understand and take on board their responsibilities.

Given the complexity and extensive nature of the Code, it is essential that there is consistency, compatibility and cohesion in the activities that deliver the messages on responsibilities. To achieve this, Local Authorities and SNH should work closely in the preparation, implementation and evaluation of their programmes to publicise and promote understanding of the Code. This process will use logos and designs to help with visual recognition and consistency.

Whilst the duties formally rest with SNH and Local Authorities, many other organisations and individuals will have a role in promoting the responsibilities that accompany the new rights. This role will support the concept of cascading information that underpins the marketing strategy proposed by SNH for the promotion of understanding of the Code.

There are many ways in which a wide understanding of the new Code can be achieved. The use of traditional, as well as a range of inventive and innovative approaches, should be used to provoke and capture the attention of the different audiences. It is equally important that the messages conveyed relate to people's everyday experiences so that they can see the relevance of it to their everyday situation and a message needs to be revealed in a memorable way to have greatest impact.

Means of delivery: -

As a minimum, Local Authorities should:

• make the Code available for examination in all their Offices, Libraries and community centres;
• publicise its existence in newsletters, websites and other relevant publications;
• ensure that appropriate staff (rangers, access officers, planners etc) are briefed and trained in its content and can answer any questions and queries.

The marketing strategy prepared by SNH identifies 10 key target audiences. To maximise the roll out of the education programme to these 10 key audiences, local authority ranger services, access officers and appropriate staff should assist SNH by cascading the code's messages using the visual identity in the most appropriate manner. This may include: presentations, talks, signage, displays and use of websites.

Under section 10 (8) of the Act:

SNH shall keep the Code under review and may modify it from time to time.

To assist with this, Local Authorities should evaluate their publicity, keep a record of their operations to publicise the Code and supply this information to SNH when requested.

Key Target audiences:

• General public - contains the casual user and by definition is a mass market group requiring the use of mass market techniques;
• Dog owners (25% of general public were accompanied by a dog on their last visit to the countryside);
• Active pursuits - enthusiastic and committed activist - not a member of a particular club or association;
• Land and Water managers;
• Commercial recreational interests - covers outdoor retailers, mountain guides, freelance outdoor instructors, youth hostels, wildlife tourism operators etc;
• Recreation managers - access officers, rangers, local authority staff, wardens;
• Education providers - formal and informal education and groups where learning is an integral element of the organisation;
• Visitors to Scotland;
• Outdoor clubs and associations - non profit organisations whose membership is interested in a particular activity e.g. Scottish Canoe Association;
• Legal advisors - from local authority lawyers to the Police.

4. Section 11 Power to exempt particular areas of land from access rights

11(1) The local authority may (whether on application made to them or not) by order under this section made in respect of a particular area of land specified in the order exempt it for a particular purpose specified in the order from the access rights which would otherwise be exercisable in respect of it during such times as may be specified in the order.

Section 11 of the Act enables local authorities, whether on applications from third parties or on their own initiative, by order, to exempt a particular area of land from access rights.

It is likely that the main use of these powers will be to exclude land from access rights for either a few days or on a more permanent basis to allow a charge to be levied for admission. Examples are provided below. However, there may be other reasons why local authorities may consider it appropriate to exempt areas of land from access rights, for example in the interests of safety or security.

It should be emphasised that, given the duty of local authorities under the Act to uphold access rights, the power to exempt land for access rights under this section of the Act should be used sparingly and applied in respect of the minimum area of land, and for the minimum period, necessary.

When considering making an order local authorities should have regard to whether or not alternative routes might be required to facilitate access over or around land affected by such an order.

Examples of when these powers might be exercised

Short term exclusions

The Act establishes rights of access to all land except that specifically excluded by section 6. Where an event is held on land over which access rights may be exercised, there may be a need to exclude the land from access rights for the duration of the event to allow for the levy of an entrance charge.

It is not envisaged that an order will be required for all events for which an entrance fee is to be charged. It is only where there is considered likely to be a problem in imposing a charge for entry from those attending that an order should be considered.

At some sporting events there could be other issues, such as security, where there might be a need to control access. For example, some major golf tournaments, of which the Ryder Cup in 2014 is one of the most obvious, might justify an order not only to allow spectators to be charged but to help ensure the safety of the players.

Longer term exclusions

Longer exclusions again could relate to entry charges. There may be a need to have a mechanism to introduce entry charges where there has been no charge in the past. This might be needed so as not to undermine the ability of organisations such as the National Trust for Scotland to agree to take on new properties if there is no facility to charge visitors in order to offset the costs of upkeep of the property.

Another example might be where a new archaeological site is opened up, which could possibly become an important local visitor attraction. If there existed no means of excluding the site from access rights to allow visitors to be charged it might simply have to be filled in again. This would be a loss not only to the public, but also to the area. Local authorities are best placed to decide on whether there is a good case for excluding certain land from access rights in such circumstances.

Privacy and commercial activities

Section 6 (a) and (b) of the Act specifically provides that access rights are not exercisable on land that forms the curtilage of a non-domestic building. In the cases of houses, the Act excludes sufficient adjacent land to enable persons living there to have reasonable measures of privacy to ensure that their enjoyment is not unreasonably disturbed. Section 7(4) of the Act further provides that the location and other characteristics of the house will be taken into account when deciding the extent of land which is excluded from access rights.

There may be particular circumstances where these provisions in the Act may not provide the degree of privacy necessary to the success of certain commercial enterprises, such as some hotels and estates whose financial viability depends on the guarantee of privacy for their clients. In cases such as these local authorities may be faced with applications from such parties to have particular areas of their land excluded from access rights.

Local authorities should treat these cases on an individual basis. They are best placed to weigh such issues as the threat of responsible access to the viability of the enterprise; the importance of the enterprise to the local economy; and the loss to the public of excluding the land from access rights. It is likely that only in a very few circumstances is an order likely to be considered appropriate.

Child security

Section 6 of the Act excludes from access rights not only schools but all contiguous land used for the purposes of the school for the reasons of child security. However, there are other circumstances where child security might have to be considered. For example, education authorities and youth organisations run outdoor centres which are usually residential. Depending on the layout and position of such a centre it may be considered appropriate to exclude the land associated with it from access rights to ensure the security of the children. On the other hand it might be argued that a strong public presence actually helps to improve security.

Where exclusion of the land from access rights is considered the appropriate action, an order under section 11 provides a suitable mechanism. However, byelaws made under section 12 of the Act should also be considered as a possible approach to any problem.

Consultation

Local authorities need not consult in respect of any proposed order which would have the effect of excluding land from access rights for a period of 5 days or less.

However, where a proposed order would exclude land from access rights for 6 days or longer, the consultation requirements are set down in section 11(2) shown below. The local access forum established under section 25 of the Act will play an important role in advising the local authority on any proposed orders under section 11

The consultation requirements set out in section 11(2) are as follows: -

(2) Before making an order under this section which would have effect for a period of six or more days, the local authority shall-

(a) consult the owner of the land to which it would relate, the local access forum established by them and such other persons as they think appropriate; and
(b) give public notice of the intended purpose and effect of the proposed order,

inviting objections to be sent to them within such reasonable time as is specified in the notice; and shall consider any such objections and any other representations made to them.

It should also be pointed out that section 11 requires that any order having effect for 6 days or longer requires to be confirmed by Ministers. In confirming an order Ministers will wish to be satisfied that the consultation has been carried out in accordance with the requirements set down in section 11 of the Act.

Finally local authorities will be required to review any such orders not later than 2 years from their date of coming into force, and thereafter at intervals of not more than 2 years, at which date they will expire unless re-enacted.

5. Section 12 Byelaws in relation to land over which access rights are exercisable

12(1) The local authority may, in relation to land in respect of which access rights are exercisable, make byelaws-

(a) making provision further or supplementary to that made-

(i) by sections 2 and 9 and under section 4 above as to the responsible exercise of access rights; and
(ii) by section 3(2) and under section 4 above as to the responsible use, management and conduct of the ownership of the land;

(b) specifying land for the purposes of section 6(j) above;

(c) providing for-

(i) the preservation of public order and safety;
(ii) the prevention of damage;
(iii) the prevention of nuisance or danger;
(iv) the conservation or enhancement of natural or cultural heritage.

(2) Byelaws made under section (1)(c) above may, in particular-

(a) prohibit, restrict or regulate the exercise of access rights;

(b) facilitate their exercise;

(c) so as to protect and further the interests of persons who are exercising or who might exercise access rights, prohibit or regulate-

(i) the use of vehicles or vessels;
(ii) the taking place of sporting and recreational activities;
(iii) the conduct of any trade or business;
(iv) the depositing or leaving of rubbish or litter; and
(v) the lighting of fires and the doing of anything likely to cause a fire,

on the land.

Section 12 of the Act sets out local authority powers to make byelaws only in relation to all land and inland water over which access rights are exercisable including core paths identified as such in local authority core paths plans. It sets out the purposes for which byelaws can be made, the procedure to be followed and obligations to consult certain persons and bodies.

The powers to make byelaws set out in section 12 relate specifically to access rights established by the Act and should not be made for any other purpose. It is also not expected that local authorities will make byelaws on land owned and managed by other public agencies that have their own byelaw making powers. If there was a problem that is identified on such land then it would be up to the appropriate agency that has responsibility to make byelaws on the land in question to address the issue.

As set out in section 12, the purposes for which byelaws may be made fall into three categories:

Firstly, as set out in section 12(1)(a)(i) byelaws may make provision setting out what may not be responsible conduct over a particular area of land by persons exercising their access rights. They may also similarly make provision determining what is not responsible conduct in respect of the use, management of the ownership of land, over which access rights are exercisable.

Secondly, byelaws may also specify land over which access rights are not exercisable for the purposes of section 6(j).

Thirdly, byelaws under section 12 may also provide for those purposes specified in section 12(c)(i) to (iv) of the Act namely, the preservation of public order and safety, the prevention of damage, the prevention of nuisance of danger and the conservation or enhancement of natural or cultural heritage.

The byelaw-making powers in section 12 of the Act are capable of being exercised generally in relation to land (and inland water) or in respect of a specific part of the land over which access rights are exercisable and may affect different provisions for different parts of the land (or inland water) over which access rights are exercisable. They should be limited to those specific areas where the need arises, rather than be applied over extensive areas on a precautionary basis.

In certain circumstances local authorities may be in doubt over the use of the byelaw-making powers available to them under section 12 of the Act with regards to the interpretation of the purposes for which byelaws can be made, (e.g. the conservation of natural or cultural heritage). In cases such as these they should seek early advice from the appropriate bodies, (e.g. Historic Scotland, Scottish Natural Heritage) or anyone else they think appropriate.

In making byelaws under section 12 local authorities must, at all times, have regard to their general duty under section 13 of the Act to uphold the exercise of access rights in so far as doing so is consistent with their other functions, on and over any route, waterway or other means by which access rights may be exercised. It requires local authorities to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised so far as doing so is consistent with other local authority functions. In making byelaws, local authorities must ensure that these are consistent with the purpose of the legislation (in line with the provisions of s.30). Consistency will mean accord with both the letter and the underlying purposes of the legislation.

There may, however, be circumstances where it might be appropriate for a local authority to use byelaws to modify or limit the exercise of access rights whether in limiting certain activities, or affecting how and where access rights might be exercised, or excluding access rights over an area. In all cases such as these local authorities will need to exercise their judgement carefully to the provision for access in that area and consider the best mechanism to managing that particular problem in that area. Local authorities may wish to consider whether byelaws are the most suitable management tool or whether in the case where they are proposing to exclude access over a particular area for a limited period they should consider the use of their power under section 11 of the Act to exempt particular areas of land from access rights, (Guidance on section 11 powers is provided at chapter 4). In either case local authorities should give thought to providing alternative routing, where this is appropriate.

Circumstances in which the use of byelaws could be appropriate might be:

• After other measures of management or advice were not shown to be effective; or
• Where persistent breach of responsible behaviour or responsible management action arises and staff operating on the ground need the support of the byelaw provision;
• Where there has been significant use of a particular area of land and some form of management of that use is felt to be appropriate, in the interests of facilitating the exercise of access rights;
• Where there is conflict between different categories of recreational users using same area of land (water), e.g. jet-ski users and canoeists, (byelaws could be used to "zone areas" for particular use) and this may pose a nuisance or danger to other users;
• Consideration might be given to using byelaws to manage access over land which is being regularly or permanently used by children for example, such as youth centres or scout camps, so as to safeguard the interests of the children;
• Where persistent usage of, for example, a stretch of river of riverbank has resulted in damage to wildlife and their habitats, on land of local importance, other than that already protected by a natural heritage designation and where byelaws already exist;
• Consideration may be given to restricting the use of certain vehicles over areas of land where access rights are being regularly exercised and the use of vehicles on the same piece of land may pose a threat to public safety.

Point to Consider- Management Rules

There may be some circumstances, although it is not expected that there should be many, in which local authorities may wish to consider the appropriateness of introducing management rules under the provisions contained at section 112 of the Civic Government (Scotland) Act 1982, before considering proposing byelaws. These allow local authorities, without the need for confirmation by Scottish Ministers, to regulate the use of and conduct of persons while in or on land and premises which is owned, occupied, managed or controlled by a local authority. Management rules are designed for minor offences in areas such as parks, community halls etc. where a breach would not justify the immediate criminal sanctions of byelaws, e.g. keep off the grass. However a breach constitutes an offence if the offender refuses to desist from contravening the management rule, or to leave the grounds or premises, when requested to do so by an authorised officer of the local authority. Local authorities can also take out exclusion orders against persistent offenders, a breach of which would be a criminal offence.

The power to make management rules is additional, not an alternative, to the power conferred under any enactment to make byelaws for any purpose. Where byelaw-making powers also exist, such as in section 12 of the Act, it is for local authorities to determine what would be the most appropriate mechanism for addressing the particular problem, taking any advice from the Executive as they consider necessary.

Consultation requirements for byelaws under section 12(6), (7) & (8)

(6) The local authority shall, at the same time as they first make the proposed byelaws open to public inspection, consult the persons and bodies mentioned in subsection (7) below on the proposed byelaws.

(7) Those persons and bodies are-

(a)`every community council whose area includes an area to which the proposed byelaws would apply;

(b) the owners of land to which the proposed byelaws would apply;

(c) such persons as appear to them to be representative of the interests of those who live, work, carry on business or engage in recreational activities on any land affected by the proposed byelaws;

(d) the local access forum established by them;

(e) every statutory undertaker which carries on its undertaking on land to which the proposed byelaws would apply;

(f) Scottish Natural Heritage; and

(g) such other persons as they think fit.

(8) The local authority are, for the purposes of subsection (6) above, to be taken as having consulted a person of whom or a body of which they have no knowledge or whom or which they cannot find if they have taken reasonable measures to ascertain whether the person or body exists or, as the case may be, the person's or body's whereabouts.

In order to address public concern that the byelaw making powers under section 12 might be seen to be too restrictive the consultation requirement being placed on local authorities under section 12(6) & (7) ensures that there are safeguards in place for all those interested parties to comment on byelaws proposed to be made by local authorities. It also ensures that local authorities must take account of these comments and may adjust the byelaws in light of such views and comments.

Byelaw-making procedure

All byelaws made under section 12 of the Act, whether on land or inland water are subject to the same process for making, and confirmation of byelaws by Ministers, set out in sections 202 to 204 of the Local Government (Scotland) Act 1973, subject to the modifications specified in subsection (5) of section 12 of the Land Reform (Scotland) Act 2003. Amongst other things, those sections provide for:

• an objection procedure;
• a register of byelaws;
• the revocation of byelaws; and
• offences against byelaws.

Ministerial consideration of confirmation of byelaws

The Scottish Ministers are the confirming authority by virtue of section 202(15) of the Local Government (Scotland) Act 1973. When local authorities put forward made byelaws for confirmation, Ministers will wish to be satisfied prior to confirming any byelaws proposed under section 12 that:

• The byelaws are intra vires with the Act and that the consultation process set out in section 12 of the Act has been carried out fully;
• That they do not duplicate or conflict with the general law, existing byelaws or any local Act, or common law;
• That the nuisance they address merits criminal sanctions, that the byelaws and penalties are fair and reasonable and that they will be enforced;
• That they directly address a genuine and specific local problem and do not attempt to deal in general terms with essentially national issues.

Public Rights of Way and Rights of Navigation

Local authorities should be aware that byelaws made under section 12 of the Act must not interfere with the exercise of any public right of way or of navigation, or with any functions of a statutory undertaker as defined in section 32 of the Act.

Public rights of navigation are just that - rights, and must be respected. It is not appropriate to simply override them. However, byelaws can manage those rights without overriding them - the two are not mutually exclusive. The exercise of a right of navigation as in going from one end of a stretch of water to another, is one thing and quite different from the many recreational pursuits undertaken. This basically means that on a stretch of water where there is a right of navigation that people can still exercise that right, however, for reasons of safety they may need to be directed to avoid certain areas.

National park authorities - powers to make byelaws

National Park authorities will be responsible for the making of byelaws within their area under section 12 of the Act. The National Park authorities are required to consult with, amongst others, the relevant local authorities prior to making any byelaws in the area of the National Park. National Park authorities will also be able to make byelaws under schedule 2(8), and management rules under schedule 2(10) to the National Parks (Scotland) Act 2000 for land within the area of a National Park.

As an aid to local authorities the table below sets out a summary of the different byelaw making powers and also the available powers to make management rules under existing legislation in Scotland and which body is responsible for making byelaws and management rules in each circumstance.

6. Section 13 Duty of local authority to uphold access rights

13(1) (1)It is the duty of the local authority to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised.

The establishment of access rights enables all members of the public to enjoy the countryside and to take part in informal recreation both on land and inland water. Local authorities have a key role in ensuring that these access rights are facilitated on the ground. In order to ensure that these requirements for informal recreation can take place the Act places an emphasis on the local management of access. It is recognised that local authorities require sufficient powers to be able to manage access in each of their areas. The legislation provides them with these new powers and duties.

Local authorities will have the main role in the management of access over all land not just paths. The duty placed on local authorities to assert, protect, keep open and free from encroachment those routes by which access may be reasonably exercised will ensure that access will work on the ground. However, the method of undertaking this work will be for each local authority to determine.

Local authorities will have their own procedure by which to involve elected representatives. Often the key to dealing successfully with any problem that arises will be early intervention by the local authority. Consideration should, therefore, be given to the scope for initiatives at official level without reference to Committee to prevent minor problems escalating into major problems.

Assert, protect, keep open and free from encroachment

Land managers have a clear duty to manage land over which access rights can be exercised responsibly. It is essential that in order for the public to exercise their access rights that they should be open and free from obstructions. The powers in sections 14 to 23 of the Act provides local authorities with powers and duties to ensure that the public can exercise their rights of access over land and inland water.

Impact of duties under the Act on other functions

13(2) A local authority is not required to do anything in pursuance of the duty imposed by subsection (1) above which would be inconsistent with the carrying on of any of the authority's other functions.

The duties under this section of the Act does not conflict with a local authority's other functions. An example of this is when they are considering planning applications for development on land over which access rights are exercisable they will still be able to give consent for developments.

Institute legal proceedings

13(3) The local authority may, for the purposes set out in subsection (1) above, institute and defend legal proceedings and generally take such steps as they think expedient.

The Act provides local authorities with powers to commence court action if they are unable to fulfil their duties of being able to assert, protect and keep open and free from obstruction or encroachment land on which access rights can be exercised. It is for the authorities to determine when it is appropriate to take this action.

7. Section 14 Prohibition signs, obstructions, dangerous impediments.

14(1) (1)The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so-

(a) put up any sign or notice;

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

(c) position or leave at large any animal;

(d) carry out any agricultural or other operation on the land; or

(e) take, or fail to take, any other action.

Background

Owners of land should not impede or restrict the public from exercising access rights. Section 14 of the Act provides local authorities with a power to take action if an owner of land does anything for the purpose or the main purpose of preventing or deterring the public from exercising access rights. This provision is additional to the requirements of section 3 of the Act, which provides that landowners should use and manage land responsibly in respect to access rights. Section 14(1) provides a potential list of these types of activity.

Actions which may prevent or deter the public from exercising access rights.

The following are examples of types of action which may prevent or deter the public from exercising their access rights:

• erecting signs or notices which deter the public from entering land over which access rights are exercisable;
• erecting fences or walls or planting, hedges trees or other vegetation;
• blocking culverts;
• leaving any animal for example a bull in a field crossed by a core path.
• parking vehicles, trailers, equipment, building or fencing materials in such a way as to
• unreasonably impede access;
• storing or depositing dung, straw or any animal food stuffs on a path, road or gateway so as to unreasonably impede access;
• locked gates.

Prevention

Fences, walls hedges, trees

Owners of land have a right to manage their land. Natural features such as hedges and trees and manmade features such as dry stone walls define for example fields where livestock are kept. If, however, the public have been exercising their access rights over an area of land and an owner of land commences growing hedges then it may be considered that they have been deliberately planted to prevent or deter access rights.

Deterrence

Signs

The use of signage can be a useful tool to manage public access and to welcome the public to the countryside. A signpost which provides information about an area and where to undertake recreational activity can give guidance to the public and provide reassurance about where they can and cannot exercise their access rights. However, where a sign seeks to deter the exercise of access rights without good reason then a local authority in fulfilling its duty to uphold access rights under section 13 of the Act, should take steps to have it taken down.

Leaving animals roaming freely

Farm animals, in particular bulls, which are left to roam freely in an area where the public regularly exercise access rights may be used as a means of deterring access where the public access land. The Heath and Safety Executive's advice note Agricultural Information sheet No 17 provides useful information on the potential hazards which can occur to workers and members of the public when cattle including bulls are kept in fields where the public exercise access rights. Farmers do, of course, have to keep their animals somewhere. It is expected that where a farmer keeps any particularly dangerous animal in a field crossed by a core path or a right of way that the local authority may regard such action as an obstruction to responsible access.

Contacting the owner of the land

14(2) & (3)

(2) Where the local authority consider that anything has been done in contravention of subsection (1) above they may, by written notice served on the owner of the land, require that such remedial action as is specified in the notice be taken by the owner of the land within such reasonable time as is so specified.

(3) If the owner fails to comply with such a notice, the local authority may-

(a) remove the sign or notice; or, as the case may be,

(b) take the remedial action specified in the notice served under subsection (2) above,

and, in either case, may recover from the owner such reasonable costs as they have incurred by acting under this subsection.

A local authority should first identify the responsible party, be it owner, tenant, licencee or occupier of the land before serving a written notice. A letter should be written advising that the main purpose in meeting with the owner of the land is to find out their reasons for restricting public access (Appendix A). In discussing the matter the local authority should ensure that any individual upon whom the notice is to be served is aware of their responsibilities under Part 1 of the Land Reform (Scotland) Act 2003 and the public's right to be able to exercise their access rights on the land in question. The local authority should also make all parties aware of the guidance in the Scottish Outdoor Access Code.

Serving a written notice

If the local authority is satisfied that the action of any individual was for the purpose or the main purpose of deterring the exercise of access rights and the said individual is unwilling to remedy the situation a written notice (Appendix B) may be served on the responsible party. The local authority may wish to consider sending this letter by recorded delivery. The notice must be served:

- not less than 14 days before the date on which its due to take effect.

The written notice must clearly specify the actions which the local authority requires the tenant, licencee or occupier of the land to undertake in order to allow the public to exercise their right of access over the land. The notice must also clearly state the date by which the remedial action must be undertaken.

Appeals

The owner of land on whom a notice has been served may appeal by summary application to the Sheriff. The procedures for appealing by summary application are contained in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules (1999). The Statutory Instrument number is 929 of 1999.

Removal of the obstruction

If the terms of the written notice are not fulfilled the local authority can itself take the necessary steps and recover any reasonable costs incurred from the owner of the land.

Appendix A

IMPORTANT NOTICE

Name

Address

(Name the local area)
Prevention/Deterrence of public access rights
Land Reform (Scotland) Act 2003 Section 14

I am writing to request a meeting to discuss a possible contravention of section 14 of the Land Reform (Scotland) Act 2003 on your land. Part 1 of the Act provides for rights of responsible access over land and inland water for recreation and passage and other purposes. [ Provide details of the prevention/deterrence].

Section 14 of the Act provides that it is an offence for an owner of land to do anything for the purpose or the main purpose of preventing or deterring the public exercising their rights of responsible access over land. There are certain areas of land which are excluded from the Act, however I understand that the land named above is included within access rights. If it is found that the public are being prevented from exercising their rights of access, then the local authority may serve a written notice on you requesting that the deterrent, obstruction or impediment be removed within 14 days to enable access rights to continue. If following the written notice, access rights still cannot continue then the local authority may take action and recover the costs from you.

I would be grateful, therefore, if you would write to me at the above address or contact me on tel: xxxxxxxxx to arrange a date to discuss the matter.

Should you have any further queries, please do not hesitate to get in touch as soon as possible.

Yours faithfully

Appendix B

Model Written Notice

LAND REFORM ( SCOTLAND) ACT 2003

ISSUED BY: [ name of Council/National Park authority]

1. THIS IS A FORMAL NOTICE which is issued by the [name Council/National Park authority] because it appears to them that there has been a breach of section 14(1) of the Land Reform Scotland Act 2003.

2. THE LAND AFFECTED

Land at [address of land], shown edged red on the attached plan.

3. THE BREACH OF PREVENTING OR DETERRING THE EXERCISE OF ACCESS RIGHTS

[State what has prevented or deterred the exercise of access rights].

4. REASONS FOR ISSUING THIS NOTICE

[State why the notice is being issued i.e. it appears to the Council/National Park authority that the above breach of section 14 of the Land Reform (Scotland) Act has occurred within the last xx months.]

5. WHAT YOU ARE REQUIRED TO DO

1. State what the owner is required to do i.e. remove sign from a core path.

2 Time compliance: xx weeks after this notice takes effect.

6. WHEN THIS NOTICE TAKES EFFECT

This notice takes effect on XX, unless an appeal is made against it beforehand.

7. YOUR RIGHT OF APPEAL BY SUMMARY APPLICATION

You can appeal against this notice, but any appeal by summary application must be received, or posted to be received by the sheriff clerk WITHIN 21 DAYS OF THE NOTICE TAKING EFFECT. Schedule 1 to this notice gives information on your rights of appeal. Read it carefully.

8. WHAT HAPPENS IF YOU DO NOT APPEAL

If you do not appeal against this written notice, it will take effect on [the specified effective date] and you must then ensure that the required steps for complying with it, for which you may be held responsible, are taken within the period[s] specified in the notice. Failure to comply with a written notice which has taken effect can result in [specify action] by the Council/National Park authority.

8. Section 15 Measures for safety, protection, guidance and assistance.

15(1) The local authority may take such steps (which may include the putting up and maintenance of notices and fences) as appear to them appropriate-

(a) to warn the public of and protect the public from danger on any land in respect of which access rights are exercisable;
(b) to indicate or enclose, or to give directions to, any such land.

15(2) Where the local authority consider that a fence, wall or other erection is so constructed or adapted (whether by the use of barbed wire or other sharp material or by being electrified or otherwise) as to be likely to injure a person exercising access rights, they may by written notice served on the owner of the land on which it is placed, require the owner to take, within such reasonable time as is specified in the notice, such reasonable action as is so specified, being action calculated to remove the risk of injury.

Background

It is important that local authorities in managing public access are responsible for making the public aware of potential hazards in areas where they can exercise access rights. In order to ensure public safety in these areas, section 15 provides local authorities with powers to enable them both to warn and protect the public against any danger on any land in respect of which access rights are exercisable. It also provides for authorities to indicate, enclose, or to give directions to, this hazardous land.

Hazards which may cause injury to the public while exercising their access rights

If anything which may injure those exercising access rights is identified by local authorities, consideration should be given to making the public aware of the dangers in using any particular route. It will be for each local authority to decide how to communicate this to the public. Examples of this could be, making them aware at starting points used for particular walk or the use of signs.

Land occupiers and managers may use land management practices, which may prove hazardous to the public when they are exercising access rights. This could include:

• the use of barbed wire or other sharp material in inappropriate locations;
• stiles in poor repair;
• dangerous bridges or boardwalks with loose boards;
• steps which are broken;
• locked gates;

This list is not exhaustive.

Written notice

If an owner of land, after being made aware of that the public while exercising access rights may be injured on their land, and the hazard it has not been removed or repaired then local authorities may serve a written notice. Action as per section 14 should be used. The model letter (Appendix A to section 14) and the written notice (Appendix B to section 14) can be adapted for this use.

Installation and maintenance

15(4) The local authority may install and maintain, in any land in respect of which access rights are exercisable, gates, stiles, moorings, launching sites or other means of facilitating the exercise of these rights, and seats, lavatories and other means of contributing to the comfort and convenience of persons exercising them.

To enable the public to exercise their rights access local authorities have powers to install and maintain on any land and inland water over which access rights are exercisable means which will provide comfort and convenience to members of the public exercising access rights.

Types of facilities which may be installed or maintained include:

Land

• Gates;
• Stiles;
• Seats;
• Lavatories;
• Signs and waymarkers;
• Any other method of facilitating access.

Local authorities should refer to Annex A to this section which provides references for guidance and advice on design solutions which meet the access needs of all visitors to the countryside.

Inland water

• Moorings, launching sites or any other method of facilitating access to inland water

and also

• provide trained lifeguards and the boats and equipment for life saving;

Local authorities should ensure that the lifeguard training is accredited with recognised with life saving certificates.

Consideration should be given to the abilities of members of the public who will exercise their access rights in this area, and to the use of particular areas of water in determining where to allocate reserves.

Existing facilities

15(6) In exercising their powers under this section, the local authority shall-

(a) have regard to the extent to which there are existing facilities in their area for the purposes of assisting persons to exercise access rights; and

(b) have regard to the needs of persons with disabilities.

In deciding the requirements for the local area, local authorities should take into consideration the facilities which already exist and the needs of all range of abilities within the local community and potential visitors to the area.

Consulting the owner of the land

15(7) The local authority may carry out the operations authorised by subsections (4) and (5) above within the land over which the access rights are exercisable only with the consent of the owner.

Prior to installing any equipment on land over which exercise rights are exercisable, local authorities must consult with the owner of the land and obtain their consent to do the work. If, however the equipment is installed on a core path then they does not require to seek consent.

Annex A - Publications on Access and Rights of Way

Countryside Access Design Guide by Scottish Natural Heritage ISBN 1 85397 339 4 (15.00)
Anton A. E. Prof. (new edition revised by D. J. Cusine)(1996) Rights of Way: A Guide to the Law in Scotland Scottish Rights of Way Society (5 inc. p&p) ISBN 0 9502811 6 6
Kit Campbell Associates (1997) Countryside Recreation and Access Strategies: Guidance for local Authorities Scottish Natural Heritage (free) ISBN 1 85397 243 6
Kit Campbell Associates (1997) Countryside Recreation and Access Strategies: Summary Scottish Natural Heritage (free) ISBN 1 85397 244 4
Agate E. (Revised 1996) Footpaths A Practical Conservation Handbook British Trust for Conservation Volunteers ISBN 0 9501643 9 9 (10.95)
Davies P. & Loxham J. with Huggon G. (1996) Repairing Upland Path Erosion: A Best Practice Guide. Lake District National Park, National Trust & English Nature, Publication number 03/96/659 (19.95) ISBN 0 906421 42 X
Nightingale D. (1995) Rights of Way Design Guide Northamptonshire County Council (12)
McKenzie D, Rowan-Robinson J, Sanders M (1996) Liability and Access to the Countryside Scottish Natural Heritage (?) Review number 74 ISSN 1350-3111
Oxley P, R. (2002) Inclusive Mobility: A Guide to Best Practice on Access to Pedestrian and Transport Infrastructure Department for Transport. Product code IM/01 (?)
Ove Arup & Partners (1997) The National Cycle Network: Guidelines & Practical Details Issue 2 Sustrans (?) ISBN 0 9527106 9 2
Paths for All Partnership (2000) Signpost Guidance: Planning, Location, Design, Installation & Maintenance The Paths for All Partnership (free)
Paths for All Partnership (2003) Promoting Paths for People: A Marketing Guide & Toolkit The Paths for All Partnership (?)
Reiach Hall Blyth Partnership (1985) Lavatories in the Countryside: A Design Guide Countryside Commission for Scotland (now SNH) (?) ISBN 0 902226 73 8
Reiach Hall Blyth Partnership (1989) Footbridges in the Countryside: Design & Construction Countryside Commission for Scotland (now SNH) (?) ISBN 1 85397 040 9
Scottish Executive (1999) Cycling by Design: A Consultation Paper Scottish Executive (25) ISBN 0 7480 8943 8
Scottish Natural Heritage (2000) Car Parks in the Countryside: A Practical Guide to Planning, Design & Construction Scottish Natural Heritage (9.99) ISBN 1 85397 087 5 B
Scottish Natural Heritage (2000) A technical Guide to the Design & Construction of Lowland Recreation Routes Scottish Natural Heritage (7.99) ISBN 1 85397 085 9
Scottish Natural Heritage, Scottish Enterprise & the Paths for All Partnership (2001) Lowland Path Construction: A Guide to good Practice Scottish Natural Heritage (?)
Scottish Natural Heritage(2003) Countryside Access Design Guide Scottish Natural Heritage (15) ISBN 1 85397 339 4 This replaces the Battleby Display Sheets
Sustrans (1994) Making Ways For the Bicycle Sustrans (10 inc. p&p)
Path Industry Skills Group (now Upland Paths Advisory group) (1999) Upland Pathwork: Construction Standards for Scotland Scottish Natural Heritage (15) ISBN 1 85397 062
Upland Paths Advisory group (2002) Upland Path Management - Standards for Delivering Path Projects in Scotland's Mountains Scottish Natural Heritage (?) ISBN
Visitor Safety in the Countryside Group (2003) Managing Visitor Safety in the Countryside: Principles and Practice Visitor Safety in the Countryside Group (12.50 + p&p)
Health & Safety Executive (1996) Keeping Cattle in Fields with Public Access Agricultural Information Sheet No. 17 HSE Books (free)
Paths for All Partnership SNH (2002) Local Access Forums: A Guide to Good Practice The Paths for All Partnership (free)

9. Section 16 Acquisition by local authority of land to enable or facilitate exercise of access rights

16(1) Where it appears to the local authority to be necessary or expedient for the purpose of enabling or facilitating the exercise of access rights in respect of any land to which this section applies that the land be acquired by them, the authority may-

(a) acquire it by agreement (whether by purchase, feu, lease or excambion); or

(b) with the consent of Ministers, acquire it compulsorily.

Local authorities are reminded that the power available to them under section 16(1) should only be used where they are of the view that it is necessary or expedient so to acquire land in order to facilitate full enjoyment of access rights established by Part 1 of the Act.

This right to acquire land does not extend to land that falls within the category of land set out in sections 6(1) (a) (ii), (d), (e) or (f) and land that is exempt from access rights by way of an Order made under section 11 of the Act.

The use of the word "expedient" in this section means that local authorities must consider whether in all circumstances it is appropriate to acquire the land in question. It is appropriate to allow local authorities this discretion since the emphasis in the Act is on the local management of access.

In determining whether it is appropriate to exercise the powers under section 16, local authorities will have to consider many different interests. They will have to; for example, weigh the interests of the public, local access taking, including those visitors to the area, with the interests of landowners/occupiers, recreational users and conservation and natural heritage interests.

It is because of the aforementioned reasons that it is expected to be very much a last resort power and it is, therefore, not anticipated that this power will be exercised other than in unusual circumstances. For example, a swapping (excambion) to rationalise boundaries in an access area.

It is for the above reason that it is most unlikely that the circumstances will frequently arise where the need will be to acquire land by Compulsory Purchase Order rather than by agreement. However, local authorities are being given the power to acquire an interest in land by both methods. Section 16 also confirms that before a local authority proposes to acquire land by way of a Compulsory Purchase Order then they must firstly obtain the consent of Ministers to do so.

When acquiring land by way of a Compulsory Purchase Order, local authorities are reminded that The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 applies to any Order made under section 16 of the Land Reform (Scotland) Act 2003.

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