The Scottish Government

General comments

A number of respondents commented that the document could be better formatted, with page and paragraph numbering for ease of reference. Convention of Scottish Local Authorities (COSLA) was keen to have an index providing page references for main issues.

Our approach

The draft of the guidance now has page numbers for ease of reference. The numbering of each section of the guidance has been removed as this caused confusion with sections of the Act.

The guidance now includes an index providing reference to page numbers. There is also more cross-reference with the Scottish Outdoor Access Code throughout the document to help access authorities when referring to the provisions of the Code alongside the guidance.

Powers and duties

Several respondents raised concerns that this part of the guidance did not accurately reflect what was in the relevant sections of the Act.

Our approach

A number of the entries have been expanded to ensure that they accurately reflect the provisions of the Act. However, it should be emphasised that this section of the guidance is only intended as a quick reference summary of the power and duties.

An explanation of the role of national park authorities in respect of access rights has now been inserted at the beginning of this section.

Section 6 - Exclusions from access rights

Scottish Natural Heritage, COSLA and several other respondents suggested that the guidance should provide some form of summary of the exclusions from access rights in section 6 of the Act, to help local authorities as much as possible.

Our approach

A new section has been added to the guidance which provides local authorities and national park authorities with a brief summary of the categories of land that are excluded from access rights by virtue of section 6 of the Act.

Section 10 - The Scottish Outdoor Access Code

A number of local authorities and others expressed the view that there needed to be consistency in the approach taken by SNH and local authorities in carrying out the duty under section 10(7) of the Act to publicise the Code through media material and other methods. As well as SNH and local authorities, there were other organisations that could help disseminate the Code to a wider audience. Some also felt that the requirement placed on local authorities to provide SNH with their proposals to publicise the Code should be voluntary and that there needed to be co-operation between SNH and local authorities on this issue.

A large body of opinion felt that the guidance, in general, needed to 'cross-refer' more to the guidance provided in the Code.

Our approach

This section has been re-drafted, primarily to emphasise what SNH will do in terms of publicising the Code at both a local and national level. It also emphasises the need for consistency at a national level and, given the complexity and the extensive nature of the Code ensures that messages about responsibilities are consistent and compatible with the Code. The guidance clarifies that in order to achieve this, local authorities should work closely with SNH in the preparation, implementation and evaluation of their own local programmes to publicise the Code.

In order to achieve widespread dissemination and understanding of the Code at a local level, SNH will maximise opportunities to publicise and promote understanding of the Code through integration, as appropriate, into publications, leaflets, displays, meetings, presentations, events, and media opportunities.

Section 11 - Power to exempt particular land from access rights

There was significant support for the need to provide more examples of where the section 11 powers might be appropriate and, indeed, to re-emphasise where they would not be appropriate. Respondents representing recreational interests were very concerned that this power might be used for purposes not provided for in the Act, in particular for land management purposes, thus excluding large areas of land from access rights.

A number of local authorities wished to see more technical detail on the procedures for making orders under section 11 and for the guidance to provide a series of 'model orders' that they could adapt for their own use, thus ensuring consistency of approach.

Our approach

A number of changes have been made to this section. The guidance now provides examples of circumstances when an order might be considered acceptable and others where an order should not be considered. It provides more examples, other than those where a charge for admission is levied, where an order might be appropriate, both for short term and longer term exclusions.

Whilst this is not a requirement of the Act, the guidance recommends that local authorities might wish to liaise with their local access forums on orders proposed with duration of less than six days. The guidance also explains the requirement to carry out the consultation requirements in section 11 when revoking, amending or re-enacting an existing order.

The need to consider alternative routes where an order is proposed is re-emphasised. With regard to the procedure for making of orders, it is not felt appropriate to stipulate a 'time limit' on applying for an order. Local authorities are best placed to issue guidance on this to suit local circumstances. A model order has been provided.

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

There was widespread support for the guidance on byelaws. A number of local authorities wished to clarify that byelaws made under section 12 of the Act could extend to private land. Respondents representing recreational interests raised concerns that local authorities might be tempted to use these powers to restrict access unnecessarily and not to use them for the intended purpose as set out in the Act. In particular, they were concerned that local authorities might be under pressure from land managers or sporting interests to agree to their exclusive use of some areas of land at the expense of those wishing to exercise their access rights.

There was a view that the guidance should identify the differences between the applicability of the powers in sections 11 and 12, and when and where each would be more appropriate.

Our approach

The guidance now tries to explain the difference between when an order under section 11 to exclude land might be appropriate and when a byelaw under section 12 might be appropriate to exclude conduct on land over which access rights are exercisable.

The guidance now confirms that byelaws made under section 12 can extend to private land. Local authorities are also urged to consult with each other on any proposed byelaws, with a view to ensuring that similar management problems are dealt with in a consistent manner. The consultation requirements placed on local authorities will also ensure that those with an interest are able to express their views to local authorities before byelaws are submitted to ministers for approval. Those local authorities will need to take into account all representations they receive when proposing byelaws under section 12 of the Act.

Section 13 - Duty of local authority to uphold access rights

Many local authorities were worried that unless sufficient resources were provided by the Executive there would be a significant extra burden on them to carry out this duty effectively. There was some concern regarding a level of consistency in the approach across the country. Local authorities were also unsure of the relationship between the duty under section 13 and the powers in sections 14 and 15.

Concern was also raised over the duty placed on local authorities under section 13 and how they would address the needs of those with a disability when considering the practical means of facilitating access rights.

The Cairngorms National Park Authority highlighted their unique position, having all the responsibilities under the Act in respect of access rights but not have full development planning powers, and the difficulty they may experience in carrying out the duty under section 13(2).

Our approach

Part 1 of the Act provides statutory rights for everyone and, as such, local authorities must consider the needs of everyone when providing for access in their area. The guidance, while allowing for different local circumstances, also sets out guidance on the powers and duties under the Act, providing the national framework within which all local authorities will need to operate.

An explanation is now given of the relationship between the duty placed on local authorities under section 13 and the powers available to them in sections 14 and 15 to help them carry out the duty.

Local authorities are reminded of their obligations under existing legislation relating to those with a disability.

The role of local access forums in the consultation and dialogue process is re-emphasised as a means to help build a consensus in the local management of the new access rights.

The particular position of the Cairngorms National Park Authority and the relationship with local authorities exercising planning powers in the Park area will need to be addressed through local protocols.

Several authorities requested guidance on how to identify deliberate impediments and what should be deemed a deliberate obstruction. Other concerns were raised about the serving of written notices and the length of time which should be allowed for a response. There was also concern over how areas would be made accessible to the disabled.

Our approach

Part 1 of the Act provides statutory rights for everyone regardless of ability and, as such, local authorities should consider the needs of everyone when providing for access in their area.

This section has been re-worked with a view to encouraging a less confrontational approach than might have been implied by the initial draft.It has to be recognised that landowners will, where appropriate, need to take measures in the interests of responsible land management, which might have the unintended consequence of restricting access. Every obstruction must not immediately be seen as a deliberate obstruction. A link to the Code is inserted since the Code provides further information on this issue. The guidance now sets out the kinds of issue which local authorities may wish to consider in making a judgement under section 14.

The section on 'contacting the landowner' has been removed as it seems inappropriate to give guidance on matters where local authorities have considerable practical experience.

Section 15 - Measures for safety, protection, guidance and assistance

Local authorities requested clarification of who would be responsible for public safety; that there should be recognition that the countryside is not risk free; and that those exercising access rights should take responsibility for their own actions. They commented that while it might be reasonable for some fixtures (such as barbed wire) to be replaced, others might amount to a reasonable land management practise, for example fences enclosing livestock. A number of local authorities wished for clarification of where and when consent is required to carry out the functions of section 15. Local authorities also had concerns about their duty to consider the needs of the disabled and that barriers such as stiles must not be put in place.

Our approach

Part 1 of the Act provides statutory rights for everyone regardless of ability and, as such, local authorities must consider the needs of everyone when providing for access in their area.

As with section 14 this section has been re-drafted to suggest a less confrontational approach than might have been implied by the initial draft. It also seeks to re-emphasise the third key principle of the Code - that those exercising their access rights are responsible for their own actions. However, landowners are under obligation under existing health and safety legislation.

Like section 14 not all hazards identified will have been deliberately placed or adapted to cause injury. Local authorities will have to exercise discretion and, if needs be, consult with their local access forum. It has to be recognised that there are legitimate land management practices that will continue to be necessary in the interests of responsible land management. Again a link to the Code is provided here.

The guidance tries to address the confusion which seems to have arisen over the consultation requirements under section 15(4) of the Act by clarifying where and when it is necessary.

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

It was generally recognised that there would rarely need to be recourse to compulsory purchase, only when there were compelling reasons or as a last resort. Acquisition by agreement would be the preferred option.

Our approach

Local authorities are reminded in the guidance 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 to acquire land in order to enable or facilitate full enjoyment of access rights established by Part 1 of the Act.

The reference to 'feu' in this section has been qualified in light of recent legislation.

Sections 17 to 20 - Core Path planning

Local authorities felt more clarity was required in the definition of core paths; the role of Outdoor Access Strategies and the relevance of other strategies covering, for example transport or tourism; and the form of any consultation. Whether Long-Distance Routes should be included as core paths was another issue raised. There were varying views on the timing of adoption of core path plans and subsequent schedules for implementation and on the mapping format. It was suggested that maps be made available on local authority websites. Some thought there should be differing symbols for established core paths and paths for future development and for type of use ie. walking, horse-riding or cycling. There were questions raised about whether some core paths would be of a higher priority than others. Concerns were raised over funding for core paths, and that the statutory planning process is labour intensive and protracted with significant financial implications for local authorities.

There were comments on the role of community planning and ways of promoting access as, for example, a way of benefiting health. Also, the relationship between core path plans and local plans. Some suggested that indicators would be required to assess provision for people of all ages and abilities, for all types of activity including walking, horse-riding and cycling, for all types of purpose including functional and recreational, and whether they are fit for purpose. Cycling and horse-riding may require different standards of path than for walking, for example, and there were also questions whether the local authority or the landowner would upgrade paths. Some felt additional guidance on water-based core paths would be useful. Others felt that signage of core paths would not be appropriate in remote areas, but that parking should be provided at the beginning and end of routes. It was suggested that landowners could be employed as contractors.

Some local authorities felt that the core path plan should specifically identify how disabled people are to be provided for and that the onus would be on local authorities, though calculating evidence of demand from people with disabilities would be scarce.

Our approach

Part 1 of the Act provides statutory rights for everyone regardless of ability and, as such, local authorities will consider the needs of everyone when providing for access in their area.

There has been substantial re-ordering of the text in these sections so that it follows the procedure set out in the Act in respect of the whole core planning process.

It also now provides clarification of:

• the purpose of core paths, i.e. delivering a basic network in each local authority area
• the role of core paths in the wider path network
• priority implementation requirements, i.e. signage, then boundary crossings, then surfacing
• timescale for implementation of core paths
• characteristics of core paths
• management and use of core paths in relation to surface types, with reference to Code guidance
• use of section 15, 19, 26 powers
• use of SE funding allocations for access.

A reminder has been inserted for local authorities about the relationship between core path planning and SE Planning Circular 12/1996, the Conservation (Natural Habitats, etc) Regulations 1994 (SI 1994/2716) and the requirement for a Strategic Environmental Assessment to be undertaken on all local authority plans.

The guidance now seeks to explain more clearly the duty on local authorities to implement the core paths plan under section 18, once the plan is adopted, and that not all paths which immediately become core paths will be in the required condition for their intended purpose at that time.

Local authorities are reminded of the need to provide their core paths plans in a format that can be electronically transmitted when submitting them to Ministers.

It was suggested that litter and rubbish collection be an integral part of path agreements. There was concern over the content of path agreements and over legal fees.

Our approach

A model path agreement is now provided for use by local authorities.

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

Some local authorities requested more detail of the types of circumstance when path orders might be used.

Our approach

The guidance confirms that there is no compensation available under this section. It also emphasises that local authorities will most likely not go down this route unless the path delineated is proposed to be a core path. Confirmation is provided that the Scottish Executive is currently preparing regulations, as required by section 22(6) of the Act, prescribing the form that path orders should take. The Executive intends to consult on a draft of these regulations prior to laying them before Parliament.

Section 23 - Ploughing etc.

Guidance was requested on what would be reasonable expenses to be recovered from the landowner in the event of a disturbed path not being reinstated, including costs of reinstatement and any staff and administration time. There were also queries about the definition of reinstatement. For example, if a path had a grass surface would reseeding be required. There were questions raised over whether first contact with the landowner should be by formal letter or an informal telephone call.

Our approach

This section has been slightly amended to improve the wording. More examples are provided on reasons other than ploughing that might result in a path having to be reinstated. The section on 'contacting the landowners' has been removed as a matter on which local authorities do not require specific guidance.

Section 24 - Rangers

It was suggested that rangers work flexible hours in order to assist the public at any reasonable time. Also, that they should have a national badge so that the public know they can contact them for unbiased and properly qualified assistance.

Our approach

No changes have been made to this section.

Section 25 - Local access forums

Some local authorities requested clarification on the relationship between access forums and local authorities. Questions were raised over how often forums would have to meet to deal with disputes. Some thought it would be more effective to refer matters to a sub-committee. Others wanted guidance on when to have more than one forum. Some raised queries about training for the forums, with understanding of the Code, land management, recreational needs, byelaws, management rules, path agreements and orders, conflict resolution and co-operative working. A handbook could be provided.

There were questions about how a chair would be decided and about appointment procedures. Others were concerned about how forums would operate in bringing together stakeholder group representatives, working in a spirit of goodwill and consensus building. There was some interest in providing benchmarking and networking, or links to the national access forum. No advice is given on the legal implications if a dispute subsequently involves litigation. Other questions were raised about the importance of including equestrian interests and catering for the disabled.

Our approach

No substantial changes were made to this section.

Section 30 - Existing byelaws providing for public access to land

Further guidance was requested on whether general byelaws covering all open spaces should be reconsidered, with concerns raised about the amount of staff time this would involve.

Our approach

No substantial changes were made to this section.