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Part 1 Land Reform (Scotland) Act 2003

Draft Guidance for Local Authorities and National Park Authorities

10. Section 17 17Core Paths Plan

17(1) It is the duty of the local authority, not later than 3 years after the coming into force of this section, to draw up a plan for a system of paths ("core paths") sufficient for the purpose of giving the public reasonable access throughout their area.

Every local authority in Scotland is required under section 17(1) of the Act to draw up a plan for a system of paths (core paths) sufficient for the purposes of giving the public reasonable access throughout their area. This must be done within 3 years of the coming into force of Part 1 of the Act.

Core paths are paths or routes, waterways or any other means of crossing land to facilitate the exercise of access rights under the Land Reform (Scotland) Act 2003 and identified as such in local authority core path plans. Only those paths identified in the core paths plan will form the system of core paths. In other words, it is the core paths plan that will form the system of core paths.

While recognising that access rights will not be restricted to core paths, a system of core paths throughout Scotland is an essential element in the new arrangements for access established by the 2003 Act. Accordingly local authorities should give priority to their development in pursuance of their duty under section 17(1) of the Act. Most people prefer to use paths, and a well-marked, clearly defined system of routes identified in a published core paths plan alongside maps of the system, will encourage more people into the countryside. Equally important, the provision of paths will assist in the management of access, particularly over agricultural land.

Timetable for the core paths plan

The core paths plan is to be drawn up within 3 years of the legislation coming into force. During that time period there should be an 'informal consultation' process of local and stakeholder consultations to provide the basis for the draft core paths plan. Once drawn up, the draft core paths plan will be subject to a period of 'formal consultation' the requirements for which are set out in section 18 of the Act. Thereafter, the core paths plans, following the procedure for adoption also set out in section 18 should be adopted by the local authorities.

"sufficient for the purpose of giving the public reasonable access throughout their area"

Scotland has around 100,000km of paths and tracks and extensive inland water: lochs, rivers and streams. While access rights will apply to the majority of land and inland water, the purpose of core paths system is to provide a network of priority paths and waterways which will offer assured and welcoming access. The system should provide for a variety of recreational uses (e.g. walking, cycling, horseriding, swimmers and canoeing) as well as utilitarian everyday uses, and for all ages and abilities.

The assessment of the network being "sufficient for purpose" should be based on local consultations, and would aim to meet the needs of the whole community. Local authorities should only consider the provision of core paths for particular categories of user, where there is a demand for that use in their area (e.g. where there is not a demand for a core path suitable for horse riders or cyclists, then there will be no need to cater for it). This assessment by the local authority in drawing up the system should particularly involve the Local Access Forum as a major consultee. Core paths should contribute to achieving key public policy objectives including health, sustainable transport, social inclusion and rural regeneration. The system will need to be achievable and sustainable, so will also take account of resource availability.

It is expected that many core paths will be located close to where people live, and where they can be used by visitors and tourists. There should be a particular emphasis on the core paths network on the urban fringe providing connections with the wider countryside, and providing links through green corridors and public open spaces. The system should also link coherently across boundaries.

Section 17(2) - Paths that may be included within Core paths plan

(2) Such a system of paths may include-

(a) rights of way by foot, horseback, pedal cycle or any combination of those, being rights which are or may be established by or under any enactment or rule of law;

(b) paths, footways, footpaths, cycle tracks or other means of access (however described but not falling within paragraph (a) above) which are or may be provided by or under any enactment other than this Act;

(c) paths which are or may be delineated by a path agreement under section 21 or a path order under section 22 below;

(d) other routes, waterways or other means by which persons may cross land.

Types of Paths:

17(2)(a) There is no presumption that all current rights of way must become core paths, and they should be assessed on their usefulness in providing meaningful core routes. Rights of way which cross land that is outside the general access rights are likely to have particular importance. The local authority maintains information on rights of way. It may be that where a right of way is 'claimed' but not fully asserted its designation as an agreed core path would be the simpler way to establish and recognise the path's status.

17(2)(b) This sub-section gives the opportunity to designate other existing paths which are not rights of way as core paths. This will be a major focus of attention, since it will make sense to designate existing paths, tracks, launching points, etc where suitable. Existing paths and waterways represent a substantial resource and investment, they are immediately available, and they are likely to reflect existing demands to a significant extent.

However, again there is no presumption that all major paths would necessarily become core paths. As with all paths, routes such as designated Long Distance Routes, National Cycle Network routes, or urban road cycle lanes should be assessed through a consultation process to allow area-based assessment of their appropriateness for the core paths network.

Adopted minor public roads or pavements might be designated as core paths where they meet particular needs and are of a suitable condition - perhaps with motorised traffic being either restricted or regulated to provide safe and priority access for non-motorised modes. It may well be that for instance a minor road is designated as an interim measure to provide a particular link route, until a better segregated path can be provided in due course.

There is no requirement that all core paths must interconnect either nationally or at local authority level to form complete networks, as long as provision is made "throughout" the area. However, there is an expectation that core paths will provide meaningful loops and networks, and link, where it might be appropriate and/or feasible to neighbouring communities, or to neighbouring authorities' core paths if boundary issues exist close to settlements, and connect to other places of interest where demand will be high.

17(2)(c) The use of path agreements and path orders is covered later in this guidance

17(2)(d) A fresh appraisal of where new access links would be beneficial is enabled by this subsection. 'Other routes, waterways or other means by which persons may cross land' provides the basis for addressing current requirements, even where no paths may exist at present, so as to establish a 'sufficient' system. New access links are likely to be a key theme within the informal consultation processes, and the subject of consultation with land managers and developers to ensure the widest mutual benefits.

Factors which should be considered in drawing up the plan are:

• The needs of users, including existing and future needs (these may have emerged through an outdoor access strategy, or may require a fresh review);
• That core paths should provide a range of path types for a variety of users, including all abilities access, (i.e. they should be fit for use);
• That core paths should assist the interests of sound land management, without compromising accessibility. Through facilitating and encouraging access along suitable and agreed routes, the core paths should aim to achieve mutual benefits.

The Scottish Outdoor Access Code should be referred to for guidance on the use of core paths, particularly in relation to the interests of land management and nature conservation, and the responsible use of different path types by different types of user.

Other Factors in Identifying Core Paths:

Outdoor Access Strategies: Local authorities and partners are encouraged to prepare and update outdoor access strategies which provide a broad context for identifying core paths. SNH have published advice on the preparation of outdoor access strategies. Local authorities have made significant progress in recent years in preparing and implementing outdoor access strategies, particularly in relation to planning and establishing local path networks for all types of users. This work provides a good foundation for progressing the core paths plan, particularly in respect to audits of supply and demand, priorities for provision and for the promotion of facilities.

Other relevant strategies: These may include any relevant Cultural, (e.g. Gaelic) or Tourism related strategy, Community Plan, Development Plans and Physical Activity Strategy. Account should also be taken of other relevant agency strategies, such as the Forestry Commission, British Waterways, VisitScotland, etc.

Developers: Local authorities should also seek reasonable opportunities for developers to create, divert and manage core paths, through appropriate planning conditions and planning agreements within the Town and Country Planning (Scotland) Act, 1997, subject to the scale and nature of developments.

Resources: The core paths system will need to be achievable and sustainable at suitable standards in the long term. Consequently, the resource base which will be needed to establish, manage and maintain the system will be a material consideration in shaping the network. The resources will include capital funding for initial planning and works, and revenue support for the suitable regular management and maintenance operations, as well as staff resources. These considerations mean that priority based decisions will require to be made.

Local authorities will have three years from the date of legislation coming into effect to draw up the core paths plan. This time-scale is designed to allow for a broadly based assessment and substantive informal consultations. At the start of this period, local authorities should identify a broad range of consultees consulting as widely as possible on the needs of local people and visitors for core paths. This should:

• Take into account any other relevant access consultations carried out by local authorities e.g. access strategies and local path networks - there will be no need to replicate recent consultations;
• Identify settlements and/or particular geographical zones for further consultations (as informed by outdoor access strategies where they exist);
• Include the local access forum and key stakeholders such as SNH in agreeing the scope and extent of consultations.

It is recommended that these consultations are open to a broad cross-section of society, including:

• People who do not currently access the outdoors because they are excluded socially or economically;
• different types of access users, including people of all ages and abilities;
• land managers and occupiers.

The pre-draft informal consultations should be as widely inclusive as possible. In recent years many local authorities have carried out participatory consultations on outdoor access, organising local area workshops, and using participatory appraisal techniques. It is recommended that this continues, and that local authorities should also consider broader opportunities afforded through community planning forums, regeneration partnerships, and community council networks. Neighbouring local authorities should liaise to ensure that core paths consultations are complementary and to avoid duplication of effort.

Prior to drawing up the draft core paths plan, these consultations with all parties would aim to reach as much agreement as possible over the approach and priorities for the core paths - those which are already in a fit condition for use, and those which may be improved or brought into fill intended use within the period of the core paths plan. Taking sufficient time to achieve full agreement at this informal consultation stage may avoid subsequent formal objections, and the need for an inquiry.

Priority use of s16 land acquisition; s24 Rangers; s26 powers of entry

These sections of the Act each provide powers for local authorities, and it is expected that the powers will be exercised particularly to address the needs of the core paths system as a priority. It should be noted that under s16, land may be acquired by agreement not only through purchase, but alternatively by leasing the land, or by negotiating a land exchange. More detailed guidance is provided in the section relating to sections 16 and 24 in this document

Relationship between core path plans and local plans

The interface between core path plans and land use planning is important. It is expected that the core paths plan will be incorporated by the planning authority into the appropriate local plan as soon as is practical. The appropriate local plan is that within which the system of paths is located. It may be the case that coverage is required in more than one local plan to reflect the core paths plan. Where there are cross-boundary implications, good liaison between local authorities is expected to ensure that appropriate local plan coverage and implementation of the core paths plan is achieved.

Core paths plans should contribute to local plan objectives and be compatible with other local plan policies, for example, on open space / transport integration etc. When being prepared core paths plans must take into account relevant broader local plan objectives. Such plans will be material considerations in considering planning applications.

The preparation of core paths plans, including consultation, finalisation and adoption will provide the opportunity for planning authorities to consider issues and representation in detail. It is not expected that further consideration will be given to similar issues and representation when incorporating a core paths plan into a local plan. Further issues and representation may be brought forward which relate to issues which the broader interests of a local plan bring into play which were not considered in terms of a core paths plan. In such circumstances the planning authority are at liberty to consider them. It is, however, expected that core paths plans as adopted will be incorporated into local plans.

Any review of a core paths plan should have regard to local plan interests and any subsequent amendment to a core paths plan should be similarly incorporated into the local plan for the area.

Relationship between Core Paths planning and Community Planning

In preparing core paths plans local authorities must be aware of the new duties being placed on them with respect to community planning under the Local Government (Scotland) Act 2003.

Community planning is the process through which greater collective engagement of the public sector with communities can be secured. The purpose is to more successfully assess the needs of communities and to develop policies and deliver services which best meet these needs. It is essentially about providing better links between national, regional, local and neighbourhood priorities, more effective joint working and flexible solutions driven by the needs and priorities of local communities.

Community Planning process is one in which the public services provided in a planning authority area must be planned and provided after consultation with community bodies and other public bodies responsible for providing those services, and with the on-going co-operation among those bodies. Section 15 of the Local Government (Scotland) Act 2003 requires planning authorities to initiate maintain and facilitate such a process in their area and they have responsibility to determine the means of consultation and co-operation.

In the Guidance and Advice Notes to Community Planning it is acknowledged that Community Planning Partnerships are working to find the best way to integrate other planning systems and partnership structures into the overall Community Planning framework. Although this situation has improved as familiarity with the aims of Community Planning has increased this does remain a challenge for both the Scottish Executive and public bodies. The statutory underpinning for Community Planning gives it the recognition as the overarching partnership framework at the local level.

Core paths plans should be developed within this framework in partnership and after engagement with communities and consultation with other key stakeholders.

Annex 1 - Summary of Core paths planning process

11. Section 18 Core paths plan: further procedure

18(1) The local authority shall-

(a) give public notice of the plan drawn up by them under section 17 above and any maps it refers to;
(b) make the plan and any such maps available thereafter for public inspection for a period of not less than 12 weeks; and
(c) consult-

(i) the local access forum for their area;
(ii) persons representative of those who live, work, carry on business or engage (or would be likely to engage) in recreational activities on the land on which it is proposed that there be core paths;
(iii) Scottish Natural Heritage; and
(iv) such other persons as the local authority think fit,

in each case inviting objections and representations to be made to them within such period as they specify.

The formal consultations on the draft core paths plan will follow the detailed procedures set out in Section 18. At the formal consultation stage the draft core paths plan will consist of the map(s) and supporting text, and a draft list. Consideration should be given to the draft core paths plan being made widely available - e.g. issued through council offices, libraries and other venues, published in standard and in large print versions, lodged on the internet, and produced in languages other than English.

Application of Core path plans - Section 18(8)

Once the core paths plan has been adopted, as specified in section 18 of the Act then local authorities have a duty under that same section of the Act to :-

( a) Give public notice of its adoption; The standard format for a public notice under s.18 is attached. See Annex 1 to this section.

(b) Compile a list of core paths;

(c) Keep the plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price; (this relates only to maps illustrating the system of core paths) and

(d) Send a copy of each of those documents to Ministers.

It is expected that most of the paths to be identified in a core paths plan will be existing paths or tracks, but others will simply be indicative routes between two points. As soon as the core paths plan is adopted by a local authority, those paths, tracks and routes will immediately become "core paths".

However, section 17(2)(c) of the Act identifies paths that may be included as core paths in the core paths plans as "paths which are or may be delineated by a path agreement under section 21 or a path order under section 22". It is not envisaged that all proposed new footpaths will require an agreement or order unless surfacing or other construction is considered necessary, for example to facilitate wheelchair users. New cycle paths or bridleways are likely to require more construction work and an agreement or order is likely to be the appropriate approach.

If the core paths plan proposes new paths, once it is adopted, those routes or paths will be core paths for the purposes of the Act, even if the path agreement or order is not currently in place. Although there will not be a formal path, the route will be a route over which access rights are exercisable. The public will be able to use these core paths and the duty under section 13 of the Act, (which will apply to paths or routes whether or not they are core paths) and all the powers under the Act will, therefore, apply to such proposed paths even if, when the plan is adopted, it consists of an informal route across land, rather than a formal path.

It is acknowledged that a lot of the paths designated as core paths may not be immediately fit for use for the category or categories of users intended.

For example: -

• some paths will already exist and will be in a fit condition for use;
• some paths will require only minor works to bring them into suitable condition;
• some path proposals will be scheduled for implementation in the short term;
• other core paths will be implemented in the medium term (2-3 years), because:

they may be of lower priority;

• negotiations and other implementation details may still require to be agreed;
• funding may not be readily available;
• physical problems may need to be resolved;
• all routes should be fit for purpose, but this does not mean all routes will be available for all, or constructed and maintained to the same standard. However, it should mean that all the core paths will be signposted, with all boundary crossings in a safe and usable condition and the path surface serviceable for the anticipated users.

Local authorities, however, will need to consider these issues when formulating their plan. The plan should be considered as a whole, on the basis of whether or not it satisfies the clear duty placed on local authorities in section 17(1) as to whether or not it reflects the needs and requirements for access throughout the local authorities' areas. The duty placed on local authorities under section 18 to consult on the proposed core paths plan before they adopt it, is an important step in this process. It will provide all those who have an interest with an opportunity to comment on the proposed system of core paths and determine the extent to which it will meet local access requirements and expectations of all the different category of recreational users and how far local authorities have gone in carrying out their duty.

The consultation process further allows for members of the public to raise objections to the core paths plan. If an objection is raised and subsequently withdrawn then local authorities must adopt their core paths plan as required by section 18. However, if an objection is raised and not withdrawn then local authorities must not adopt their core paths plan until directed to do so by ministers.

Where a member of the public or more than one member of the public continues to refuse to withdraw their objection(s) then Minister will not direct local a local authority to adopt their core paths plan without first holding a local inquiry. An important point for local authorities to note is that this local inquiry will, in particular inquire into whether the core paths plan in question, if adopted, fulfils the purpose mentioned in section 17(1) of the Act

If an effective consultation process is undertaken at this stage, it should reduce the likelihood of objections being raised and further, there should not be a need at a later date for local authorities to add new paths to the core path plan with regular frequency.

Components of the Core Paths Plan -

The Core Paths Plan, once adopted, will normally comprise of three elements -

a) Map or maps of the core paths system
b) List of designated core paths
c) Supporting text

a) The maps will clearly show designated core paths. The published maps should also illustrate the context of links to other paths, minor roads, public transport, recreational sites, etc.
b) The Core Paths List will be a definitive listing of all paths which have Core Path status, kept up to date with any alterations to the network.
c) The supporting text may explain the criteria and process behind the selection of Core Paths, and some of the broader context. This is likely to include the relationship to the Outdoor Access Strategy, the functions of the local authority and local access forum, and the relationship to more general access rights. Also for instance the connections to Local Plans and to other policies, such as for example, Paths to Health, Safer Routes to School etc, may be explained, along with proposals for managing and promoting the network.

Mapping format

It is recommended that the maps for core paths plans are produced in a nationally standardised format, to create consistency of approach between local authorities. This will facilitate the sharing of boundary data between adjoining local authorities, and the transfer of data to Ordnance Survey for inclusion in popular map products, and for instance the monitoring of progress nationally. It will particularly help the public in the use of core paths, sourcing information from a consistent information base.

Maps for the core paths plan should be produced using a Geographic Information System (GIS), to allow easier data capture, management and transfer of information between different organisations. The existing Scottish Paths Record on GIS should be used as the basis from which the potential core paths maps are derived, thus reducing the amount of new digitising required, and automatically generating national consistency. There is a need in some areas for further development of the SPR resource to achieve full adoption and coverage. All data capture would be carried out at an appropriate scale, suitable for future management needs using the OS Landline or Master map products as a base.

Symbols - The core paths map will clearly show the core paths, through a standardised national symbol, and will form an individual layer in the GIS mapping. The symbol for showing the core paths is a continuous purple line. This colour is chosen to be consistent with the colour for core paths to be used in Ordnance Survey mapping.

The first edition of the core paths plan might have to show as core paths, only those paths which are capable of designation and use with immediate effect. There may be other routes proposed in order to achieve the suitably 'sufficient' coverage for the system within approximately two-three years, (as described in earlier paragraph on implementation of plan). If the first edition of the core paths plan needs to show these routes proposed for future development, they may be shown as a dashed purple line.

Referencing - Each core path (and component sub-sections of the path) shown on the core path map should have a unique reference, so that they can be easily referred to in the accompanying plan list and text. Part of the reference numbering should include a national sequence as a prefix, coded to local authority areas, so that national referencing is possible. These national prefix references may be hidden when dealing only in the local context, to aid simplicity. (e.g. a full national reference like PK/324/4 could be simplified to 324/4 within a localised Perth and Kinross context). It may be that in drafting, a local referencing system is used during the drafting and consultation periods, since there may be many changes and selections being made. Once the core paths plan is ready to be formally adopted, the referencing can then adjusted to a more finalised sequence and to national compatibility

Mapping Layers - One of the benefits of mapping on the GIS system is that varying levels of supporting and background information can be included to suit different functions, because different data sets are saved in separate layers. For instance, for internal administrative purposes the GIS might be set to show or print only the core paths layer, while maps printed for public or field use could use more layers to show fuller background information. The separate mapping layers may carry information showing the OS base mapping, other paths and promoted links which connect with core paths, public transport facilities, key recreational sites, etc. This can assist in making sense of the core paths system and how it links to other facilities.

Map Scales - The scale of the mapping similarly can be adjusted on the GIS to suit different purposes. Printed versions of the core paths plan map(s) might generally be on a 1:50,000 base, reduced further if required, with the core paths shown using the same symbols above. There might be inserts for more complex areas at a detailed scale of up to 1:10,000 or as appropriate, in which case an overview map might be included as a key to the areas of detailed map cover.

In addition to the printed version it is recommended that the map(s) should be publicly available on the internet/intranet local authority sites. This should include an overview map to allow people to navigate to their area of interest and then the ability to zoom to a more detailed 1:10,000 base showing the core paths. The electronic format allows for easy maintenance and updating.

[ Note - Comments are sought on the merits of having a technical annex on mapping, to provide clear illustration and specifications of the standard mapping required.]

[Name of Council]

NOTICE OF ADOPTION OF CORE PATHS PLANS ADOPTED UNDER SECTION 18 OF THE LAND REFORM (SCOTLAND) ACT 2003

Notice is hereby given that XXXXXXXXXXXXXX Council's core paths plan was adopted on XXXXXXXXXXX. In adopting the plan XXXXX Council have carried out the statutory requirements of section 17 & 18 of the Land Reform (Scotland) Act 2003.

It is a statutory requirement under that Act that all local authorities in Scotland must draw up a plan for a system of paths (core paths) sufficient for the purposes of giving the public reasonable access throughout their area. This must be done within 3 years of the coming into force of Part 1 of that Act

The core paths plan provides the public with: -

a) A Map or maps of the core paths system
b) List of designated core paths
c) Supporting text

a) The maps will clearly show designated core paths and illustrates the context of links to other paths, minor roads, public transport, recreational sites, etc.
b) The List of Core Paths is a definitive listing of all paths which have Core Path status, kept up to date with any alterations to the network.
c) The supporting text may explain the criteria and process behind the selection of Core Paths, and some of the broader context including the relationship to the Outdoor Access Strategy, the functions of the local authority and the relationship to more general access rights. It also provides connections to Local Plans and to other policies, along with proposals for managing and promoting the network.

XXXXXX Council maintains copies of the plan, any maps it refers to and the list of core paths referred to in it for public inspection. They can be viewed at the Council offices between the hours of XXXXXXXX. They are also available to the public to buy and cost XXXXXX

The contact name and address for further information relating to the Plan is:

12. Section 19 Power to maintain core paths etc.

S.19 The local authority may do anything which they consider appropriate for the purposes of-

(a) maintaining a core path;

(b) keeping a core path free from obstruction or encroachment;

(c) providing the public with directions to, or with an indication of the extent of, a core path.

Management responsibilities - Under s19 local authorities are provided with the powers to do anything which they consider appropriate on core paths for maintenance works. This may include keeping the paths free from obstruction or encroachment, and providing directions and information for the core path users. To enable local authorities to undertake this sort of work, section 26 of the Act provides them with the necessary power of entry. For the network of core paths to remain welcoming and functional and to protect the investment put in to them, it is important that the network is properly managed and maintained. Local authorities therefore should make provision to use these powers for the effective management of the core path network.

Where a core path is a path created by agreement under the Land Reform (Scotland) Act 2003, the Countryside (Scotland) Act 1967 or other legislation, the owner of the land may have agreed to undertake, or contribute, to the maintenance of the path. In other circumstances the owner will have no direct management responsibility for the public access component of the path. A farm road which is also a core path may still have to be maintained for private vehicular use.

Priority use of s15 measures - It is expected that local authorities will manage a significant proportion of core paths, and may use these powers to assist private landowners where they have some responsibility for the management of core paths on their land. Under s15 of the Act, local authorities have wide powers to take steps in support of access rights, and it is expected that, in the application of these powers, core paths will be afforded a degree of priority. In particular, under s15 (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', with the consent of the owner This provides broad scope to install suitable infrastructure and signing, which the local authority would subsequently maintain. Management arrangements may also be set up through path agreements.

It is also expected that other public bodies with land management interests will actively manage core paths, including Scottish Natural Heritage, Forestry Commission, Scottish Water, Crown Estates Commission, MoD, Enterprise Network, Land-managing non-governmental organisations (e.g. National Trust for Scotland, Royal Society for the Protection of Birds, Scottish Wildlife Trust, Woodland Trust, John Muir Trust. etc.) should also be encouraged actively to manage any core paths on their land.

Management systems

It is recommended that a management system should be set up to include:

• An electronic version of the core paths list. This should show

  - the line of each core path
  - location of any infrastructure e.g. signposting
  - links to any inspections and maintenance issues
  - an inspection schedule for all routes and associated structures
  - appropriate maintenance standards and schedules for the different
  - types of core paths
  - a monitoring system to ensure that both the regular and sporadic maintenance needs of the network are undertaken.

Managing the network will require adequate resources and it is important that local authorities make sufficient provision for this. It will require a cross-departmental approach, involving not only access officers and rangers but also legal, administrative and technical support functions, planning and development departments, roads or transport departments, and linking to educational and promotional activity. There should also be involvement from other partner bodies and agencies, particularly through the local access forum. The core path network should have explicit links to the Community Planning process, aspects of the Joint Health Improvement Plan, and to the national Walking Strategy and Cycling Strategy of the Scottish Executive.

Promoting core paths

Core paths are a means to an end and not an end in themselves. Core paths will only be successful if people are using them. Promotional strategies must be developed to communicate the benefits of core paths within the broader access rights. Clear signposting and waymarking will be required as well as information on the core paths through appropriate media such as leaflets, mapboards and website.

Everyone should:

• Be aware of the benefits of paths
• Know where they are
• Be encouraged to use them

Partnerships should be developed to maximise the use of core paths. Different strategies will attract different users. For example, encouraging inactive people to be more active may require a different approach and partners (e.g. Health Board, community health partnerships).

The intention of the Act is to result in core paths delivering health, social, economic and environmental benefits for Scotland. Well planned and implemented promotion will be required to achieve this.

13. Section 20 Review and amendment of core paths plan

S.20(1) Review and amendment of core paths plan

(1) The local authority shall-

(a) at such times as they consider appropriate; and

(b) on Ministers requiring them to do so,

review the plan adopted under section 18 above (or that plan as amended under this section).

It is expected that when drawing up the core path plan, local authorities will need to consider what the access requirement will be and to take a "holistic" view of those requirements to ensure that they are met within the plan and reduce over frequent additions.

However, it is also recognised that circumstances will change over time, and so local authorities should ensure that their core path plan retains its area wide relevancy. If it doesn't then local authorities may wish to reconsider retention of some routes or the addition of others, either by agreement or order under sections 20 and 21 of the Act.

Scottish Ministers may also direct a local authority to review their core paths plan. This may be required where a local authority has been deemed not to have met its obligations under sections 17 and 18 of the Act with regards to access.

There is no timescale on the requirement to review the core paths plans, but it is expected that at the earliest opportunity core paths plans will be incorporated into the local plans so that local and core paths plans can be reviewed simultaneously. There is guidance on the relationship between the core paths plans and other local authority plans in the guidance on section 17 relating to the core paths plan.

Proposed changes/amendments to core path plans

Section 20(2) of the Act allows local authorities to alter the line of a core path or remove a core path from the core paths plan. It will not be necessary in these circumstances to require local authorities to consult on its core paths plan every time a path is diverted or removed from the plan. It will also not be necessary to consult on the Plan every time a path is stopped or diverted in circumstances specified in section 20(4) of the Act.

However, diversions/removals and closures should be noted by the local authority as amendments to the plan. Any such amendments to the core paths plan made under section 20(2) and/or section 20 (4) will require them to apply the provisions of section 18(8) to those amendments as they would a core paths plan adopted under that same section.

That is: -

( a) give public notice of its adoption;

(b) compile a list of core paths;

(c) keep the plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price; and

(d) send a copy of each of those documents to Ministers.

Consultation on Amended Plan - Point to note

While local authorities need not carry out a consultation on their core path plan every time a plan is closed or diverted, as set out in the previous paragraphs, any proposed extensions to the system of core routes, (e.g. a new core path created through sections 21 and/or 22 of the Act) will require them to apply the provisions of sections 17(3) and (4) and the whole of section 18 of the Act.

14. Section 21 Delineation by agreement of paths in land in respect of which access rights exercisable

21(1)The local authority may enter an agreement (a "path agreement") with a person having the necessary power for the delineation and maintenance or, as the case may be, for the delineation, creation and maintenance of a path within land in respect of which access rights are exercisable.

(2) A path agreement shall be on such terms and conditions as to payment or otherwise as may be specified in it.

These path agreements will only apply to land already within access rights, so there will be no need to use path agreements to secure basic access (in the way that Access Agreements have previously). Therefore, s21 path agreements may be used by local authorities for the following purposes:

• to agree a particular line for the core path with the land manager - this may involve some deviation from an existing path-line to achieve operational benefits for all parties if possible ( but would not remove access rights from the previous path)
• to agree management and maintenance issues - this might for instance include up-grading works to bring a path up to a suitable standard
• to agree the creation of a new path as a core path, involving development and construction works, signposting, etc.

The terms and conditions as to payments or otherwise will be specified within the path agreement. It should be stressed that any payments are not in respect of charging for access.

It is not expected that all core paths will need to be subject to path agreements and local authorities may also acquire an interest in a path solem by lease or acquisition.

15. Section 22 Compulsory powers to delineate paths in land in respect of which access rights exercisable

22(1) Where, in the circumstances set out in subsection (2) below, it appears to the local authority that, having regard to the rights and interests of the owner of land in respect of which access rights are exercisable and persons likely to exercise these rights, it is expedient to delineate a path within that land, the authority may, by order (a "path order"), do so.

(2) These circumstances are that it appears to the local authority to be impracticable to delineate the path by means of a path agreement.

Section 22 path orders may be used by local authorities, again on land within access rights, for delineating any path in instances where agreeing the line of the path has been impracticable. It is expected that any path requiring this form of action is highly likely to merit core path status.

On land outwith access rights, paths and rights of way may still be secured or managed by agreement and/or order under the provisions of sections 30 & 31 respectively of the Countryside (Scotland) Act 1967 Act, and any other land acquisition powers that local authorities currently have. (This is despite Sections 30 - 38 of the 1967 Act having been repealed for other purposes).

The procedures for the making of an order under section 22 are set out in Schedule 1 to the Act. The Act requires that a path order shall be in such form as is prescribed but shall contain a map showing the delineation of the path.

16. Section 23 Ploughing etc.

23(1) Where land is, in accordance with good husbandry, being ploughed or having its surface otherwise disturbed and it is convenient to plough, or otherwise disturb the surface of, a core path or a right of way which forms part of the land, nothing in this Part of this Act prevents that path or, as the case may be, right of way from being ploughed or from having its surface otherwise disturbed.

(2) The owner of land being a path or, as the case may be, right of way which has been ploughed or which has had its surface otherwise disturbed in accordance with subsection (1) above shall, however, within the period of 14 days beginning on the day on which the path or, as the case may be, right of way is ploughed or has its surface otherwise disturbed or such longer period as the local authority may allow, reinstate the path or, as the case may be, right of way.

Reinstatement of core path or right of way

Following disturbance of the surface of the core path or a right of way the owner of the land must reinstate it:

• within 14 days beginning on the day it was first disturbed or
• if appropriate a longer period which has been agreed by the local authority.

Examples of operations that might disturb a path surface include ploughing, digging irrigation channels and other excavations.

Contacting the owner of the land

Contact should be made with the owner of the land before taking legal action. A letter should be written to advise of their responsibilities under Part 1 of the Land Reform (Scotland) Act 2003 and the need for the public to be able to exercise their access rights on that land (Annex A can be used for this purpose). If you discuss the matter with the owner of the land ensure that they are aware of land managers' responsibilities and make them aware of the guidance in the Scottish Outdoor Access Code.

Core paths or rights of way not reinstated

If the core path or right of way is not reinstated within the 14 day period or the period agreed by the local authority the owner will be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

Local authorities reinstating the core path or right of way

Sect 23 (4)

(4) If the owner fails to comply with subsection (2) above, the local authority may, after giving the owner 14 days' notice of their intention to do so-

(a) take all necessary steps to reinstate the path or, as the case may be, right of way; and

(b) recover from the owner their reasonable expenses in doing so.

If the owner of the land does not reinstate the core path or right of way within 14 days, the local authority may wish to:

(a) reinstate the core path or right of way and

(b) recover reasonable expenses from the landowner.

Prior to restoring the path, the local authority should give the owner 14 days notice of their intention to undertake this work. It will be at the discretion of each local authority the amount they can reasonably reclaim from the landowner. Local authorities should follow the procedures agreed by their Finance Department to recover any expenses from the landowner.

Annex A

IMPORTANT NOTICE

Name
Address

(Name the local area)
Ploughing etc. Land Reform (Scotland) Act 2003 Section 23

I am writing to request to a meeting to discuss a possible contravention of section 23 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.

Section 23 of the Land Reform Act 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, subsection (2) places 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.

It has come to our attention that you may have failed in you obligation to reinstate a path within the required period and therefore, may be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Section 23 of the Act states that 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.

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

17. Section 24 24Rangers (or other persons appointed by local authorities to act as rangers)

S.2424

(1) The local authority may appoint persons to act as rangers in relation to any land in respect of which access rights are exercisable.

(2) The purposes for which such rangers may be so appointed are-

(a) to advise and assist the owner of the land and other members of the public as to any matter relating to the exercise of access rights in respect of the land; and
(b) to perform such other duties in relation to the exercise of those rights in respect of that land as the local authority determine.

(3) A person appointed under section 24 to act as a ranger may, for the purpose of exercising any function conferred by or under subsection (2) above, enter any land in respect of which access rights are exercisable.

It should be stressed, that the role defined in section 24 of the Act relates specifically to that prescribed by the Land Reform (Scotland) Act 2003. An important point to emphasise is that most local authority ranger services will continue to provide the full breadth of their current range of services set out under existing legislation. Local authority rangers already play an active role in relation to access to the countryside, for example under the Countryside (Scotland) Act 1967, advising and assisting the public as to any matter relating to the use of land or waterway; to secure compliance with any such byelaws made by a local authority under that Act; and to perform other such duties in relation to the land or waterway as the local authority may determine. We fully expect that rangers should and will continue to carry on their existing functions under existing legislation which go wider than just those specified in section 25 relating to access rights.

The Land Reform (Scotland) Act 2003 makes no reference to their other functions, because the Act deals only with access rights and management.

They will be expected to help deliver byelaws and management rules on the ground where this is necessary. In the main, though, persons appointed to act as rangers are there to advise and assist, and to carry out other duties determined by the local authority.

Although paragraph (b) of section 24 of the Act allows local authorities to appoint rangers to perform duties in relation to the exercise of access rights additional to those in paragraph (a), it is recognised that in many cases local authorities will choose to use other officials to act in this matter.

18. Section 25 Local Access Forums

25(1) Each local authority shall establish for its area a body, to be known as the "local access forum", to carry out the functions set out in subsection (2).

Section 25 of the Act places a duty on local authorities to establish at least one local access forum for their area. This requirement will also apply to National Park authorities for land that falls within the boundary of National Parks in Scotland.

The emphasis in the Act is on the local management of access. This is consistent with the advice Ministers received from Scottish Natural Heritage and the Access Forum. Local access forums will play an important role in this respect in advising local authorities in the discharge of their duties and powers under the Act and ensure the successful implementation of the legislation at a local level.

A number of local authorities may already have established local access forums in their area to assist them in carrying out their existing duties and functions relating to access under current legislation. The establishment of Local Access Forums under the Act seeks to build on existing practices and experience and the excellent work already done by local authorities and other organisations such as the Paths for All Partnership, in the development of local access forums, rather than to replace what already might be in place.

Role of local access forums

Section 25 (2) (a) and (b) of the Act set out what the role and remit of local access forums established under the Act in relation to access rights will be. That is: -

(a) to advise the local authority and any other person or body consulting the forum on matters having to do with the exercise of access rights, the existence and delineation of rights of way or the drawing up and adoption of a plan for a system of core paths under sections 17 and 18 above;
(b) to offer and, where the offer is accepted, to give assistance to the parties to any dispute about-

- the exercise of access rights;
- the existence and delineation of rights of way;
- the drawing up and adoption of the plan referred to in paragraph (a) above; or
- the use of core paths,

towards the resolution of the dispute.

The Act also provides that local access forums must be consulted on any proposed orders made under section 11 (powers to exempt particular land from access rights) and any byelaw in relation to land over which access rights are exercisable, proposed under section 12 of the Act.

Whilst it is not an established role under the Act, one of the most important functions the forums will provide is that they will bring together different interest groups with a variety of experience and knowledge in different fields relevant to access rights and those with an interest in or affected by access rights. This bringing together of knowledge will be vital in enabling the local authorities to effectively carry out their statutory role.

One of the major forums' functions will be in the area of dispute resolution at a strategic level and, therefore, another major function as a consequence of this will be in consensus building. Issues where local access forums might be required to offer assistance and/or advice to local authorities might be, for example: -

• Offering advice in the drawing up of the core paths plan under section 17 of the Act;
• Where conflict might arise in circumstances where different categories of recreational users are using the same area of land and these activities might conflict with each other;
• To offer advice on the making of byelaws under section 12 of the Act, where it has become apparent that access rights might have for whatever reason to be managed and objections have been raised to the proposed byelaws;
• To offer advice on the making of orders under section 11 of the Act seeking to exempt particular areas of land form access rights, whether the order is for less than 5 days or more that 5 days;
• To offer advice where objections have been raised or there is dispute as to how far the system of core paths meets the requirements in section 17 that they are sufficient for the purpose of giving the public reasonable access throughout their area.

This guidance cannot inform local authorities of what should be done in every case across the whole country. There must be flexibility to allow adoption of innovative means and methods to resolve problems. Local authorities will wish to establish their own guidelines and constitutions for their local access forums and may wish to refer to the "Paths for All Partnership" SNH (2002) Local Access Forums: A Guide to Good Practice The Paths for All Partnership. That guidance should be read alongside this guidance, when establishing forums under the act.

Membership of local access forums

25(3) A local access forum consists of such persons as are appointed to it by the local authority.

(4) The matters to which the local authority have regard when making appointments to the local access forum shall include-

(a) ensuring reasonable representation in the forum of-

(i) bodies representative of persons with an interest in any of the matters mentioned in subsection 2(b)(i) to (iv) above;
(ii) persons having such an interest;
(iii) bodies representative of the owners of land in respect of which access rights are exercisable or in which there is a core path; and
(iv) owners of such land, and

(b) ensuring a reasonable balance among those mentioned in sub-paragraphs (i) to (iv) of paragraph (a) above.

As stated before, the emphasis in the Act is on the local management of access. Membership of local access forums must, therefore, reflect the local access requirements and needs in each area. When considering appointments to their forums local authorities must ensure that there is adequate local representation from their areas so that the local community feel that they are being adequately represented on the forum(s). This will be crucial in ensuring that the local authorities can effectively carry out their role under the Act. In most case this will mean that a number of differing concerns and interests will have to be addressed. Local authorities will, therefore, have to take a balanced view of the access requirements in their area and then appoint a balance, or as close to that as is achievable of those persons and/or those persons who best represent those persons with an interest affected by access rights and those wishing to exercise their access rights.

Whilst the following list of examples is not prescriptive, in considering appointments to the forums local authorities may wish to consider issues such as: -

• The needs of those with disabilities;
• Natural & cultural heritage;
• Recreational users, (e.g., walkers, cyclists, horse riders, mountaineers canoeists etc.);
• Land managers/owners;
• Community Councils;
• Community Groups.

In trying to balance the different interests on the local access forums local authorities will have to take a view on what the expected size of their forum should be. It is acknowledged that it may not be possible in all cases to achieve the exact required balance on local access forums, but in the first instance local authorities must aim for a membership that best meets the requirements possible. This will be a decision each local authority will have to make its own judgement on bearing in mind all the interests in their respective areas that they have to have represented but also the size of each forum will have to be of a size which allows effective management and operation.

In ensuring affective community involvement in the local access forums, local authorities, should consider other mechanisms that may guide them on this such as the new community planning process established by the Local Government (Scotland) Act 2003. Guidance on this is contained in the section of guidance relating to core paths.

Local authorities may pay to members of the local access forum such expenses and allowances as the local authorities determine. However, it should be stressed that the local access forums will not be committees of the local authorities but rather advisory groups established as a requirement of the Act. The forums could, where it is felt necessary or appropriate, contain members or officials from the local authority itself.

It is anticipated that members of the local access forums would most likely be expected to receive reimbursement of expenses such as, for example, travel and subsistence for attendance at meetings of the forum, and that elected members, where applicable, would receive councillor's allowances in accordance with existing allowances schemes, so far as so entitled as present in respect of analogous duties.

19. Section 30 Existing byelaws providing for public access to land

S.30 It is the duty of every person, body or authority having power under any enactment to make byelaws which may provide for or relate to public access to land in respect of which access rights are exercisable and which is owned or managed by that person, body or authority-

(a) within 2 years of the coming into force of this section, to review those of its byelaws which so provide or relate and are in force at the time of the review; and
(b) to modify any of those byelaws which are inconsistent with the provisions of this Act (including any made under it) as they apply to that land so as to make them consistent.

Section 30 places a duty on all public agencies to review their byelaws in force at the time to ensure that they are consistent with the provisions of Part 1 of the Act. This does not mean that all byelaws will have to be re-made if they are necessary and can be justified in terms of the need to manage access rights established by the Act. The purpose of this section is mainly to ensure that byelaws that are in place do not unnecessarily restrict or prohibit access rights across large areas of land.

Where it is necessary to manage access rights in individual circumstances over small areas of land then this may still be permissible.

Although it is not a statutory requirement under section 30 of the Act local authorities should also consider reviewing any management rules, or any other management regimes they have in place at the time byelaws are required to be reviewed. This would ensure that all management regimes in place that in some way affected access rights established by the Act, were consistent.

Things to consider when reviewing byelaws: -

• Identify those byelaws made under existing legislation that relate to public access in anyway?
• Is the land covered by such existing byelaws within or outwith access rights established by the Part 1 of the Act?
• If within access rights, do the provisions of these byelaws conflict with the statutory public rights of access established by the Act?
• If they do conflict with access rights, are they still necessary for their original purpose and do the byelaws cover an unnecessarily large area of land for their purposes?
• Are they justifiable for reasons of, for example, safety?
• In all case byelaws should be reviewed and if it is felt that they are no longer justified and conflict unnecessarily with the Act then they should be modified and then be submitted to ministers for confirmation.

20. Glossary of terms

The Act - References to "the Act" used throughout this document should be read as meaning Part 1 of the Land Reform (Scotland) Act 2003.

SPR - This is a GIS system mapping all paths, prepared by SNH in liaison with local authorities. It is now supplied to all local authorities in Scotland and is operational. It provides an accurate baseline of information on the length, characteristics and location of paths in Scotland. It will serve as an important tool for planning and monitoring the delivery of improved path provision in Scotland & underpin the expected work on core paths and core path networks.

Note - Throughout this guidance there are quotes from the relevant sections of the Act. It should be emphasised that these are only selected quotes from each section. The guidance document should be read alongside the Act to enable the reader to read through each section in its entirety as it appears in the Act.

National Park authorities

References to local authorities throughout this guidance document should be taken also to mean National Park authorities for the purposes of land that falls within the area of a National Park in Scotland. What this means is that on implementation of Part 1 of the Act, the two National Park authorities in Scotland will take over all the functions in respect of access rights established by the Act. These are set out in section 10(7) (a), Chapter, 4, Chapter 5, sections 28 & 30. In other words the National Park authorities will be the access authorities for their respective areas.

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