The Scottish Government

No.

SUMMARY OF RESPONSE

Issues

1

Section 10 - Should make reference to the fact that Ministers have agreed with SNH that they will convene a National Access Forum to assist them in reviewing the Access Code under section 10(9) of the Act.

No reference at the core paths section to the amendments in Schedule 2 of the Act to the Natura Regulations which bring both the core path planning process and also related implementation under the process of assessment as a relevant plan or project (assuming a Natura interest arises).

Section 17 and 18 - Harvey Maps would like to obtain core path plan maps for depiction on company's maps. They are very sensitive to the reality that their main competitor, the Ordnance Survey (OS) has a special place in public sector thinking and didn't want to be left out. Guidance to local authorities touches on this. However, this is set in terms of transferring the data to the Ordnance Survey, and this should also refer to other map publishers. Harvey Maps (now the OS's main competitor) have always been good at providing Country Code material, and I assume that this company would also be very willing to include text on the Access Code.

Sections 10, 17
and 18

2

Section 6 - While recognising that the exclusions from access rights set out in section 6 of the Act do not relate to duties or powers of local authorities, we would still like to see guidance made available on these to be helpful and promote consistency.

Section 11 - Would benefit from more examples. Might help to mention that entrance charge mentioned in first paragraph for short term exclusions could relate to village fetes and highland games and possibly society weddings. Should consider the need from land managers to seek exclusions under section 11 for land management practices and also where there might be a problem with 'night-time' access around urban fringe where the new right might aggravate rural crime at night. Where there are persistent problems such as those, section 11 might offer a solution.

Section 13 - Local authorities have not woken up yet to consequences of new duty under section 13 of the Act. Duty under section 46 of 1967 Act only applied to ROWs, whereas duty under section 13 of this Act applies to all land within access rights. This needs to be flagged up in the guidance. Monitoring of this will be important if the duty is to be taken up seriously. Guidance should refer to the use of explanation and persuasion as means of problem solving, with the assistance of local access forums.

Section 14 - Local authorities are going to find it very difficult to determine whether action is taken for the main purpose of deterring access (particularly where action taken is for legitimate land management reasons). The guidance should recognise this difficulty and provide pointers on how to distinguish the situations. The paragraph relating to 'misleading signs' could be clarified. We would like to see guidance to local authorities on sorts of advice that might be given to farmers co-existence of access rights and farm animals. Simply treating it as an obstruction will sometimes be unduly confrontational.

'Measures for safety' - local authorities need to be clear about how far they will be liable if they take steps to protect the public which turn out to be unsuccessful. They will also need to consider, in the context of section 15 (2), how to respond to land managers where a fence, wall, etc has been constructed for good land management reasons. Simply requiring its removal is a pretty negative approach.

Annex A to section 15 is in wrong place and should be at the end of the guidance. It is also, in some cases, out of date. It needs to come with a 'health warning' that some of these publications pre-date the 2003 Act.

Section 17 - needs to flag up that local authorities will rely heavily on local access forums in preparation of core path plans.

Paragraph relating to 'dealing with developers' doesn't reflect advice in Circular 12/1996 that community benefits should be related directly to, and be in proportion to, the development being promoted. Currently it might be seen as encouragement to local authorities to seek unrelated or disproportionate planning gains. We have doubts over the practicality of advice on integration of core paths plans into local plans. Unless local authorities improve current performance on updating other plans then any inter-relation is likely to be incidental. Local authorities should be discouraged from delaying core paths plans while progressing their local plans. Unclear how it is possible to prevent 'subjecting' core path plans to scrutiny at a local plan inquiry if there are objections to it, even though any objections to the core paths plan may already have been the subject of an inquiry. An objector at a local inquiry has a right to be heard.

Making use of hearings rather than public inquiries to deal with objections to core path plans would be preferable, particularly as it may be possible to mediate solutions. Recognises that section 18(4) refers to a local inquiry but an inquiry tends to be confrontational.

Sections, 6, 11,
13, 14, 15, 17
and 18

3

Section 10 - This section states that local authorities should evaluate their publicity, keep records of their operations and supply this information to SNH when requested. Whilst local authorities may potentially carry out these activities, it is not a requirement of the Act and, as such, they have no duty or responsibility to do so. This section could be improved by stating that it would be beneficial to keep such records and that the provision of information to SNH would be carried out on a voluntary basis. It is likely that this reporting would be carried out through the Access officer's and Ranger Service's Quarterly and Annual Reports to SNH as a matter of course anyway.

Section 11 - The guidance that the power to exempt land for access rights should be used sparingly, and applied in respect of the minimum land and for the minimum period necessary, is extremely welcome. It would be helpful if the guidance included that nearby alternative routes should be provided wherever possible.

The draft guidance currently suggests that exemption would be permitted on health, safety or security grounds, whereas the Act does not allow for areas to be exempted on these grounds. In these cases it would be the responsibility of the landowner to conform to health and safety regulations. The guidance currently identifies issues such as privacy, commercial or child security reasons as being appropriate justification for exemption, whereas section 11 of the Act is intended to provide for short-term community events that require to charge for admission and not to provide a mechanism for such exclusions. Also, whilst it is mentioned in the short summary of local authority duties provided it would be beneficial to reiterate that the longest term for an exemption is two years.

Section 12 - The guidance refers to management rules, which are not in fact covered in the Act, and this section therefore requires clarification. It would also be beneficial to provide a statement explaining the status of such rules in relation to the Act and to highlight that it would be best practice to review any existing management rules in respect of the Act. At this point it would also be valuable to reiterate that they should not be treated in the same manner as byelaws. It would also be beneficial to include a statement reaffirming the requirement to access land responsibly and to refer to the Code.

Section 13 - It would be beneficial if this section provided more guidance to the local authorities and also referred to Section 2 (Access Rights to be Excised Responsibly) and Section 3 (Reciprocal Obligations of Owners) of the Act. The wording of the guidance currently reiterates the Act and makes no reference to the Code.

Section 13(2) - The reference is made that the grant of planning permission for development on land over which access rights are exercisable will not contravene the section 13(1) duty. There is a need for this paragraph to go further as this matter may be raised by members of the public. The paragraph could also provide that 'while the existence of access rights are a material consideration which requires to be taken into account by planning authorities when determining a planning application, the existence of such rights does not stop the local authority from granting permission. Once a dwelling house or building is constructed, in accordance with the planning permission, access rights will cease in the curtilage of such a building, unless the subject of planning condition'.

Section 13(3) - There is provision that the local authority may institute and defend legal proceedings and generally take such steps as they think expedient. With reference to 'such steps as they think expedient', examples would be useful.

Section 14 - This section prohibits a person from doing something for the purpose or the main purpose of preventing or deterring access. No guidance is given on how to determine whether the 'purpose or main purpose' is to prevent or deter access rights. It is suggested that this is an area where the guidance needs to link with the Code. On the face of it many land management operations, such as putting up a fence or carrying out agricultural operations, could stop access rights. The question is whether these are being carried out as part of responsible land management, with land management or business objectives as their primary aim, and whether the impact and access is incidental and kept to a minimum.

The reference to 'purpose or main purpose' in section 14(1) is likely to cause problems for the Courts. In these circumstances guidance would be useful. The guidance could perhaps suggest to local authorities that:

1. If a land manager is not able to provide any responsible land management or business reason for the impediments then the local authority would normally exercise its discretion to remove the offending item.
2. If a reason was suggested then the local authority should, in determining whether to take action, balance the detriment to access rights against the reason provided. In carrying out this exercise the local authority should have regard to whether the land management or business objectives could be met in a manner which would not impact on access rights. If the local authority comes to the view that the land management or business objectives outweigh any detriment to access rights, then they can be satisfied that the works were not for the purpose or main purpose of preventing or deterring access rights, and take no further action. If, on the other hand, the local authority take the view that the detriment to access rights outweighs any land management or business reasons then they would be entitled to exercise their discretion to remove the item.

Section 14(3) - With reference to the form of letter to the landowner provided at Appendix A, whilst this is useful, this level of detail is not usually appropriate in guidance.

It would be beneficial if this section clarified the relationship between the Act and the Countryside Act 1967, Subsection 4, which identifies dangerous breeds of bull. It would also be advantageous to state which Act has precedence in this area and the guidance should also state that any animal, not just a bull, can cause a barrier to outdoor access.

With regard to serving written notices the guidance states that notices must be served not less than 14 days before the date on which it is due to take effect. The right of appeal to local authorities is for 21 days and therefore any notice needs to be in place not less than 21 days before the date on which the notice is due to take effect.

A form of written notice is contained in Appendix B, Enforcement Notice. A Schedule 1 is referred to in the Notice but not annexed. Would Schedule 1 contain similar information to that included with a Planning Enforcement Notice? In addition, it is suggested that at the top of the Notice, in large bold type should appear the words 'Important - This Affects Your Property'.

Section 15 - It would be advantageous to link this section with the Code and reiterate that the right of access is solely for responsible access. It should also be noted that local authorities are not responsible for posting signs warning of natural hazards under the Act and that, when accessing land, users are responsible for their own actions. The list of man-made hazards provided may encourage landowners to remove some of the listed structures in an attempt to avoid possible liability and therefore it may be beneficial to remove this.

It should be pointed out that it is the landowner or occupier who owes the primary duty of care to those on his ground. The grant of discretionary powers under section 15 is not intended to impose any duties or liabilities on local authorities, nor to relieve landowners of existing statutory rights.

In the first paragraph on page 2 of Section 8, headed 'Written Notice', delete 'of' in line 1 and 'it' in line 2.

The guidance should state that under s.15(1) signs, way markers and fences can be erected without landowner consultation, whereas the text currently lists these under s.15(4). This would therefore imply that such facilities would require local authorities to consult with landowners before construction, which is not the case. It would also be beneficial to state that the building of new access control mechanisms, such as gates, will require the landowner's permission and that this is also the case for these structures on core paths.

Section 15(4) and 15(7) - These sections allow a local authority to install, on land, various items including gates and stiles, but only with the consent of the owner. This will give local authorities considerable difficulties in expanding the path network, whether core paths or otherwise. With reference to 'if, however, the equipment is installed on a core path then they do not require to seek consent', it is considered this is incorrect since section 19 only provides power to maintain a core path, not to carry out works of improvement.

In the second page of section 11 which deals with the section 18 provisions for core paths plans, it is noted that not all new paths will require to be delineated by a path agreement. New paths will only require an agreement or Order if construction is necessary. The obvious intention is that new paths or links can be created by 'desire lines'. However, such 'desire lines' can often only be created by utilising stiles. If the agreement of a landowner cannot be obtained then local authorities will be unable to install gates and stiles without resorting to compulsory purchase. Moreover, and as mentioned later on, the compulsory purchase provisions do not allow the purchase of a right to install such items. Instead the entire ground would have to be acquired.

Compulsory purchase procedure is expensive and slow. Local authorities will not resort to such a procedure to install the odd gate or stile against the landowner's consent. This severely restricts an authority's ability to create a 'desire line' path without the landowner's agreement. It would have been beneficial if, within the Act, the local authority had power to install gates and stiles without the owner's consent. It is accepted that seats, lavatories, moorings, launching sites etc should require landowner's approval. It is suggested that consideration should be given to amending Section 15(4) and 15(7) in relation to gates and stiles. Otherwise, one of the key aims of the Act, to extend the path network, may be difficult to implement. It is understood that the provisions relating to trees are to be amended by Statutory Instrument and this might also be the vehicle to amend this provision.

Within Annex A, the Countryside Access Design Guide is mentioned twice. It would also be beneficial to mention the Fieldfare Trust's Countryside for All Standards and Guidelines, available in both paper and CD-ROM form. A number of information leaflets and guidelines are also available free on-line from Sustrans, Paths for All Partnership and a wide range of other organisations.

Section 16 - As previously mentioned, it is considered unreasonable that a local authority who wished to install a stile or gate against a landowner's consent should have to resort to a Compulsory Purchase Order.

Section 17- It would be beneficial to state that whilst local authorities have a duty to draw up a core path plan in three years there is no requirement to implement the plan during this period. This section should also highlight that although there is no duty on local authorities to implement the core path plan, it is likely there will be an expectation from the public that they do. The guidance should also state that whilst local authorities have a power to maintain core paths they do not have a statutory duty or obligation to do so.

To avoid doubt, the guidance should indicate that while a reasonable level of core path provision for all access users, is intended not all paths will be suitable for all types of users. For example, paths in mountainous areas will often be unsuitable for use by wheelchairs, horses and cycles. Environmental factors should be a key consideration in determining the level of construction or maintenance of a path and its target user group.

This section refers to the 'types of path' and makes reference to existing adopted minor public roads being designated as core paths, as an interim measure, until a better segregated path can be provided. It should be noted that if there was a requirement for vehicles to be regulated in order to provide safe access for non-motorised modes, a Traffic Regulation Order under Roads legislation would be required. The success of such an Order would be doubtful and require significant input, therefore potentially causing implications to staffing resources.

Other Factors in Identifying Core Paths

Resources

At the bottom of page 3 of item 10 it is assumed that local authorities will have an obligation to establish, manage and maintain the core path system. While this is understandable, the Act contains no obligation on local authorities to maintain the core network. Nor is there any indication that Scottish Executive funding will be made available in the long term for this purpose. The guidance should not attempt to oblige local authorities to maintain the core path network, for several reasons. Firstly, there is no legal duty to do so. Secondly, there are no indications that any resources are available for this purpose. Thirdly, any such advice could result in claims being made on the local authority for breach of a duty to maintain. It is suggested that the section on resources is amended to point out that extension of the core path network will not be achievable and sustainable without injection of local authority funds into maintenance and renewal. However, it should also indicate that the local authorities have no obligation to do so.

Relationship between Core Paths and Local Plans

There is a need for planning guidance. This guidance should confirm:

1. that the existence of access rights are a material consideration in determining planning applications;
2. that as a normal part of land use planning, it is appropriate to impose conditions which attempt to preserve access rights or make provision for public access through a development site. This could go some way towards meeting the problems created by Paul v Ayrshire County Council 1964 SLT 207 which held that it was ultra vires of a planning authority to impose conditions to preserve a disputed right of way, where such a right of way had not been proved in court.
3. The guidance notes that 'it is not expected that further consideration will be given to similar issues and representations when incorporating a Core Path Plan into a Local Plan'. This will need legislation. While planning guidance could minimise such objections, parties will still attempt to raise objections by claiming changed circumstances, for example.

Relationship between Core Paths Planning and Community Planning

It would be advantageous to highlight the links between core paths and community planning and provide guidance on how local communities can be involved in core path planning and outdoor access. It would be useful to direct local authority staff to the community planning guidelines, for general information.

Section 18 - The text within brackets in s.18(8)(c) this relates only to maps illustrating the system core path is not part of the Act. If it is deemed necessary, it should be stated separately to the legislation.

It would be beneficial if the guidance provided a clear explanation of the definition of a path being 'fit for purpose'. It would also be beneficial if the fact that it will take time to ensure that the majority of paths are fully accessible was noted and that the supporting text element of the Core Path Plan could include details of the suitable type's of usage of individual paths.

Guidance is contained at the top of page 2 that 'it is not envisaged that all proposed new footpaths will require an agreement or Order unless surfacing or other construction is considered necessary'. This is helpful. In the local authority's bullet point on the same page it is noted that all core paths should, at a minimum, be sign posted with all boundary crossings in a safe and useable condition. However, and as previously mentioned, such boundary crossings will require owner's approval or compulsory purchase. This is likely to make implementation of new paths extremely time consuming and bureaucratic.

Components of Core Path Plan

It is suggested that the supporting text could also explain the type of use suitable for the route, whether pedestrian, wheelchair, horse, cycle, for example.

The second paragraph of the Notice of Adoption implies that local authorities have a duty to implement the plan within a set period, whereas this is not the case. It may be beneficial to reword or remove this section.

Section 19 - This section should, in a similar manner to section 17, reiterate that local authorities have powers to maintain core paths but are not under any statutory obligation to do so. The final sentence within the second paragraph is incorrect as it wrongly suggests that local authorities have to maintain a core path for vehicular access. It would also be beneficial to identify the local authority's responsibilities in relation to core paths on land owned by other public bodies within this section, as there is no obligation on Councils to maintain these.

Section 19 only allows a local authority to maintain a core path, not to improve or rebuild it. It would not entitle local authorities to install new stiles or gates, for example. This would still need the consent of an owner, or compulsory purchase.

Management Systems -The recommendation is made that the local authority should have an inspection schedule for all routes and associated structures. This seems to assume that the local authority will have an obligation to maintain the core path and could be liable in negligence for any such failure. However, section 19 does not contain such an obligation. Accordingly, there should be no expectation that the local authority should have an inspection schedule, or a monitoring system to ensure that both regular and sporadic maintenance needs of the network are undertaken. This implies a maintenance obligation and liability assumptions, and such should not be introduced in the guidance.

Section 22 - It would be worthwhile for the guidance to reiterate that desire line core paths do not need to be delineated unless construction works are being carried out. Section 22 only gives compulsory powers to delineate paths. If works of improvement or rebuilding are necessary then these would not fall within section 19(a). Instead compulsory purchase of the ground would still be necessary.

Section 23 - The style letter in Annex A seems inappropriate for guidance.

Section 25 - It would be advantageous to state within this section that the Act allows for the Local Access Forum to be consulted on proposed access exemption orders only when the order is for six days or more.

10,11,12,13,
14,15,16,17,
18,19 22,
23,25

4

Would like generic term used in the guidance such as 'access authorities', instead of referring to 'local authorities'

General

5

Four key points:

1. Stress the importance of education in schools. If the public is to learn to be responsible, this must be taught in schools as part of Citizenship. Section 10 needs amending to reflect this.
2. Integration of core paths with other paths. It is important that the core path network is integrated with Rights of Way and other path networks. Section 17(2) fourth page needs to include this.
3. Local Access Forums.
   (i) A key function of a Local Access Forum is to offer help in the resolution of disputes at a local level. Section 18. second page, second paragraph, first line only mentions dispute resolution at a strategic level. Resolution of local disputes must be included.
   (ii) Section 25 - A key feature of the National Access Forum, and one of the reasons for its success, has been that membership is exactly balanced between access providers, access users and official bodies. Notwithstanding the difficulties, it will be very important that this principle is translated into the membership of Local Forums. If any section feels outnumbered the system will not work harmonious

10,17,18
and 24

6

Section 11 - Further guidance or clarification may be required, relating to short term Exclusion Orders. We have established a reasonably reliable communication system, within the Award, of being contacted by Forest Enterprise and many Land Managers if there are land operations that would require detours. We pass this information on to Award Expedition Groups.

Currently about 130 Expedition Groups of between five and seven young people complete expeditions in the Loch Lomond and Trossachs Area, while about 200 other Award groups complete training exercises in the area. Many of these travel from many miles away, having completed route plans at least six weeks prior to arriving in the area. These routes have been agreed by their local authority in accordance with the Outdoor Licence Regulations. It would be imperative that these authorities were informed of changes in the planned route.

We suggest that to ensure the safety of young people is not compromised, some system of communication between the authorities and the Expedition Assessment Committees be established.

We fear that the Scottish National Parks may follow the example of the English National Parks and prohibit wild camping except in established (serviced) sites - this, of course, would contradict the stated intention of the Scottish Executive.

Recognise that there are issues of 'Human Waste' disposal at certain honey pot sites. The North American National Parks have resolved this by the installation of 'Wilderness Toilets' in sensitive areas. These are installed each Spring - sanitised and sealed each Autumn and relocated (within the area) the following year.

Section 15 - Recognise that Section 15 gives Authorities powers to install toilets, but we feel a clearer guide might avoid the possible initial reaction to the issue of Prohibition.

11,15

7

Section 11 - Should be possible for a 'short term exclusion' to be enacted even if there is no entry charge such as, for example, parking fields for an equestrian event. In such a situation the event organisers, risk assessment would/may be conditional on the public not being able to enter such areas.

Section 12 - Where path orders or core paths are provided, mapped and promoted the byelaw provision for dealing with litter collection is a fundamental necessity.

Section 14 - (preventing/deterring access) - The local authority must consult with land managers during the process of creating a core path network to ensure that farmers are not penalised where core paths pass through places where cattle normally graze.

Section 14 (locked gates) - Text in this paragraph is loose and should, therefore, be redrafted to separate the issue of locked gates into those gates that are on core paths and those that form part of regular filed boundaries and farm yards.

Section 15 (warning the public) - The problem with this clause is that whilst the council may take a view that a barbed wire fence or other feature is a potential danger to the public, the land manager may decide that the fence or electric fence is essential to enclose his livestock and stop them from escaping and by erecting or maintaining the fence/wall he/she is managing the situation in the way which is common to all farms in UK. This clause should only apply to such features that are erected deliberately to stop access.

(Hazards/written notices) - This clause does not address the question of the ownership of the feature and, therefore, who is responsible for paying for the repair or removal.

(Installation and maintenance) - This clause is not acceptable to land managers and consent must be sought for installations at all times and in all places.

Section 17 - 17(2)(d) - Reference to new access links welcome but would be helpful if councils viewed their strategy when setting out to plan the paths or core paths in such a way as to broaden the burden of paths on landowners' land by ensuring as fair a distribution of paths over land under different ownership. Where a landowner is already in agreement with authority over routes or parts of routes over their land, and where the remainder of that route is not agreed with other landowners, then the council should take account of that part of route already agreed.

Section 18 - Whilst the list of those who should be consulted is adequate, it may be insufficient to cover the owner of land in cases highlighted in section 18(1) (c) (ii) and therefore, it would be wise to add the landowner, tenant and/or land manager to the list of those people.

Section 18(8) - Must be re-drafted. A general policy of premature signing must be resisted to paths which are not yet up the required standard for a core path.

Section 19 - Guidance must address issue and make provision for councils to collect litter. Where authorities enter into a management agreement with other organisations such as the Forestry Commission Scotland then the issue of litter collection must be included in agreement.

'Promoting paths' - Landowners must be consulted in every situation regarding path management, alteration and deviation.

Section 21 - Question of making arrangements for litter and rubbish collection must be an integral part of all path agreements.

It would be useful to have guidance on section 6 exemptions and how to liaise with landowners who manage such areas, and how best to indicate to the public that such areas exist. There is a lack of guidance on dog fouling.

11,12,14,
15,17,18,
19,20,21

8

Guidance seems clear. Highlighted some typos in sections 12, 15, and 18

12, 15, 18

9

Guidance on Code clear and concise

Section 11 - Helpful. Would be helpful to have guidance on content or wording of such orders. A flowchart outlining process would be helpful. Where entrance fee charged, event organisers should be encouraged to consult their local authority/national park authority on this.

Section 12 - Good and provides a great deal of detail on how and when they should be used. Any byelaw needs to be consistent with letter and underlying purpose of the Act. Procedure for making byelaws very formal and requires lengthy consultation. Management rules provide simpler alternative.

Section 13 - Insufficient in relation to what constitutes obstruction and encroachment and how and to what extent the local authority should interpret this general requirement. The importance local authorities give to this duty, relative to other functions, is crucial so more detailed advice would help for example how local authorities weigh the importance of public access when dealing with planning applications.

Section 14 - Generally good, but inclusion of model letters and notices requires further attention as the process outlined is confusing and conflicts with statutory procedures for making summary applications to Sheriff Court.

Guidance sets time limit for serving notices of 'not less than 14 days' before date on which the notice is due to take effect. Thus notice can be served on landowner at any time provided it is not less than 14 days before the notice is due to take effect. This is not an obligation in terms of the Act and should be amended. Guidance suggests that local authorities have discretion of determining how long to give the landowner to rectify the breach, and whatever time scale is decided upon, the time starts running after the notice takes effect. This whole section is ambiguous. The notice should be served on the landowner not less than 21 days before the date on which it is due to take effect, and not the 14 days referred to previously. When deciding effective date, it should be no less than 21 days after the notice has been served on landowner. The time limits for removing or rectifying the breach is at the discretion of the local authority and is not necessarily a 14 day period, as it incorrectly states on the draft letter Appendix A in the draft guidance notes. A flow chart outlining the process would be helpful here.

Section 15 - Generally helpful but adds little that is not already set out in the Act. The 'background' paragraph is confusing and should be rewritten or omitted. Clarification on the extent to which path surfaces can be repaired or improved under this clause would be helpful here.

Section 16 - Useful.

Section 17 - Comprehensive and welcome but could be improved by the following:

• Timetable for core path plan implementation confusing and adds nothing that is not already set out in the Act.
• Clarification sought on what constitutes 'sufficient for the purpose of giving the public reasonable access throughout…' required. No guidance available on planning for disabled access, and provision for wheelchair users etc. (Disability Discrimination Act now applies).
• Lack of confusion created by omission of long distance and/or urban routes. Issue of relationship between core path plans and local plans not adequately addressed. Question raised over whether an objection to a local plan on the grounds of a core path contained in it could be taken to public local inquiry or not; this requires further clarification. Separate guidance should be issued, probably in the form of a Planning Advice Note, on this issue in relation to the implications of this Act for the local plans processes.
• A flow chart outlining the process and relationship between plans would be helpful here.
• Need to clarify implications of the Act for development control practice in relation to both core path planning and the general duty to uphold access rights. In order to do this, it is recommended that the SE consider an early review of NPPG 11 (Sport, Physical recreation and Open Space).

Section 18 - Generally clear and helpful, but more work required. The Scottish Paths Record (SPR) maintained by SNH will form the basis of core path plans but anticipates significant extra digitising to fill in gaps in the record in the light of local knowledge and to incorporate new routes. Any new system of coding should be consistent with those already in use by some local authorities. Desirable that core path plans should be available to public in electronic format. Would welcome technical annex on mapping. Duty to maintain paths by local authorities will put extra financial burden on them.

Sections 21 and 22 - Provides little more than is set out in the Act itself. Further guidance on what matters such agreements or orders could include is required. A flow chart outlining process would help.

Section 23 - Helpful but adds little to what the Act already sets. Act suggests that other operations which disturb paths should be handled in the same way but guidance does not address this.

Section 24 - Brief but to the point.

Section 25 - Generally good but confused over local access forums' role in relation to (short term exclusions section 11). Although not required under the Act there may be a strategic role for forums in guiding policy, but is unlikely they will be able to help in individual cases. Reference to paths for all guidance needs to be updated.

Section 30 - appears good but is of little relevance in Perth and Kinross where there are no current byelaws relating to access.

One are not covered in guidance and could be is guidance on interpretation section 6(f)'s provisions in the Act.

10,11,12,
13,14,15,
16,17,18,
21,22,23,
24,25,30

10

Guidance needs to be unambiguous and written in clear and easily interpreted style. More detail required on rationale and basis on which any additional funding has been calculated and sums allocated to each council. Although not ring fenced it needs to emphasise what money is to be spent on. Needs more cross reference between sections, where appropriate. Inconsistency of detail between different sections.

Guidance should be updated in light of developments and experienced. Therefore, final document should be in 'ring-binder' design so updates can be inserted.

Summary

Useful, but should provide interpretation of distinction between duties and powers. What sanctions are available against local authorities who fail in duties?

Section 10 - More cross reference required between guidance and Code. Responsibility for keeping record of operations to publicise the Code should rest with SNH not local authorities.

Section 11- Should provide model forms of public notices and information. On the making of orders, are there rights of third party appeals?

Section 12 - More guidance required on byelaws over private land and more examples of where byelaws can be made. Info. required on objections/appeals.

Section 13 - Might be appropriate to issue an Outdoor Access Planning Advice Note or National Planning Policy Guideline to confirm role that devolved planning should have in delivering access agenda.

Section 14 - Guidance needs to be clear that where a landowner erects some form of wall, fence, etc it should only be deemed to be an obstruction if appropriate facilities such as gates or stiles are not incorporated in feature. Need clarification on inconsistency with section 44 of Countryside(Scotland) Act 1967 and guidance over 'pasturing of bulls'

Section 15 - Guidance should be provided on what mechanisms are available for local authorities to provide facilities on non core paths where consent of landowner has not been granted.

Section 15(4) guidance is incorrect.

Sections 17-20 - Requires introduction providing statement on purpose and function of both Core Paths (CPs) and Core Path Plans (CPPs). Needs to be set in context of wider access rights and should define CPs and the CPP. Guidance should emphasise that three year deadline for preparing CPP is distinct from and separate from 'formal consultation' and adoption of CPP which, if a local public inquiry and endorsement by SMs is required and may take longer.

Model examples and specifications of the form of core paths should be provided either in guidance or separate technical annex.

Guidance should be provided on relationship of the local authorities with other bodies in terms of managing and promoting core paths and associated infrastructure. Position of whether or not to include other paths such as Long Distance Routes as core paths needs to be clarified.

Paragraph 13 is ambiguous over issue of what criteria local authorities should apply when considering changes/amendments to CPP.

Section 21 - Further clarification required on distinction between path agreements made under 2003 Act and 1967 Act.

Section 22 - Same comment as for section 21 Does 2003 Act allow for compensation?

Section 25 - Need to emphasise non-executive nature of LAFs. Clarification required on relationship between LAFs and local authorities. Might be helpful if guidance could be given on constitution of LAFs.

10,11,12,
13,14, 15,
17,18,19,
20,21 22,
25,
Funding

11

Section 10 -The process of publicising Code needs to start a.s.a.p.

Section 11 - Standard style of order should be provided.

Section 14 - Landowners will need to seek advice from local authorities in advance of creating anything which might be deemed to be an obstruction to access. Where no access has previously been a common feature it is reasonable to uphold landowners' rights.

Section 15 - Local authorities do not take liability either in identifying the hazard or not having identified it. At any one time it would not be possible to identify all hazards and, therefore, it should be quite clear in guidance that the powers will be exercised under exceptional circumstances. Even if a hazard has not been identified by the local authority, the responsibility rests with the landowner.

Section 17 - '3-Year' deadline for preparing Core Path Plans. What is the end point? Canal towpaths omitted. No matter the nature of such routes, the inclusion of them should be on basis that their designation as a Core Path does not relieve the owning body from maintenance responsibilities unless the designation requires upgrading to a standard that would not otherwise have been planned for.

Funding -Further consideration should be given of how the CPP addresses both paths that meet the required standard as well as routes that in lifetime of the Plan, or its successor, will be brought into the network and necessary works undertaken.

Relationship with Planning - guidance desirable, however, timescale of local plan preparation and review will hamper the integration process. It should not hinder subsequent reviews of the CPP nor influence the timing of such reviews. Further, a recommended minimum period for reviewing the CPP would be helpful.

Section 18 - Further guidance required on the nature of supporting evidence for a candidate core path where possible objections from a landowner are raised, which could create difficulties in preparing for delivery of CPP. The Council would welcome a technical annex on mapping format.

Section 21 - Model path agreement essential. Such agreement will most likely be needed for routes across private land. Same model should be used across country.

Section 25 - Guidance required on procedures to be adopted, publication of minutes, and the use of advice as evidence in the supporting text of the CPP.

Section 30 - Further guidance required as to whether general byelaws covering all open spaces should be rescinded, amended or substituted with management rules, as are applied in Council's country parks.

Funding,
11,14,15,
17,18, 21,
25,30

12

Section 11 - Might be useful to give additional examples of alternative reasons for making order other than those currently provides, although current ones are welcomed by the Trust.

Section 14 - Wording under 'fences, walls, hedges etc' seems vague potentially misleading. Guidance does not make distinction between scenarios where alternative routes or crossing points have been provided or where access had been totally prevented. Might have been more positive if there was suggestion that many issues might be resolved via informal discussions between access officers and land managers before resorting to the formal process prescribed.

Section 15 - 'Background' section needs rewritten. It contradicts the spirit of the Act and Code, which indicate that the countryside is not completely hazard free and that people should take responsibility for their own actions. The further paragraphs on hazards are also poorly drafted.

Section 16 - 'Access area' is not an accepted term and could be misleading.

Section 17 -It is not clear in the guidance whether each core path will be designated as suitable for a particular range of purposes and at what point in the consultation and approval process this designation will become clear. It would seem that the proposed use of the path should be specified at the point a path is identified as a potential core path. This is particularly alluded to in some of the paragraphs following '11 Section 18 Core paths plan: further procedures' but it is not clear whether a CPP has to record which activities a path is suitable for. It should surely be the case that such details should be sorted out and consulted on before a core path is approved. Under section 19 power to maintain core paths etc. and management systems there is reference to types of core paths but this seems too late in the process to introduce such gradations.

The guidance here should also clarify how the two requirements of CPPs can be achieved without confusion. These are: the need to designate paths that are already fit for purpose; and the need for them to form the vision for core paths in the area which aspires to meet the needs of the community but which will take some time, dictated by resource, to achieve on the ground.

11,14,15,
16,17

13

Section 11 - This section should be as concise as possible. It is currently inaccurate and could encourage a large number of exemption applications that are not allowed under the Act. It also lacks any guidance on how to undertake short-term exemptions, nor does it provide specimen forms for any exemption.

The guidance could encourage applications for exemptions for any health and safety reason, such as routine land management duties. The Act does not actually allow for access to be denied due to health and safety as it is up to the land manager to comply with health and safety regulations. Due to this the reference to health and safety might benefit from being removed to discourage exemption applications.

It would be helpful if the Executive could cite examples of the kinds of application for exemption that might not be suitable for consideration.

Additionally, section 11 of the Act is intended to provide for short-term community events that require entrance charging, and not to provide a mechanism for denying access due to privacy, commercial or child security reasons. The guidance should not contain paragraphs on these issues as they could encourage applications that have no basis in law.

It would be beneficial if the Executive could provide a draft of both the Order and the advertisement to be used in exercising the powers under this section.

Section 12 - In the main this section is good, although there is a need for clarification of the status of management rules with respect to the Act. The Act does not mention management rules, which means the paragraph 'Point to Consider - Management Rules' would benefit from being revised by adding a statement such as:

'If Local Authorities introduce management rules they should be carefully revised to ensure they do not conflict with access rights.'

As this section is essentially about controlling how and where access is taken, more reference would need to be made to the Scottish Outdoor Access Code (SOAC) which is supposed to be the key document for defining responsible use.

Section 13 - This section contains little guidance and is not much more than a restatement of the Act. It is important that this part of the guidance is concise and makes specific reference to sections 2 (Responsible Access) and 3 (Reciprocal Obligations of Owners) of the Act. It would be beneficial if this part of the guidance made specific reference to sections 2 (Responsible Access) and 3 (Reciprocal Obligations of Owners) of the Act and to the Code.

Section 14 - The sample forms and notices in this section provide excellent samples.

This section requires clarification on the relationship between the Act and the Countryside Act 1967, section 44. This section in the 1967 legislation deals with what are and what are not legally acceptable justifications for the presence of a bull on a public right of way. It would be beneficial to state whether or not there would be a breach of both Acts in such a case. The guidance should also state that any animal, not just a bull, can be an impediment to access.

Since the right of appeal to local authorities is for 21 days, it would be beneficial to state that when serving a written notice, care should be taken when drafting it so as to comply with the statutory time period.

No reference is made to section 31 (application of sections 14 and 15 to rights of way) in this section. Perhaps a paragraph highlighting this would be an important link.

Section 15 - This section needs to point out that the primary duty of care still lies with the landowner, and the powers given to local authorities under section 15 do not place on them a duty, or a liability, or relieve landowners of their duties to care for people on their land. However, it should be pointed out that the local authority would take on a duty of care/liability for the upkeep of any path development or furniture they install to aid public access.

We would suggest the list of hazards be removed, as local authorities can signpost any man-made hazard; providing a list may encourage some landowners to remove stiles, boardwalks and bridges etc to avoid possible liability.

Section 15(7) states that the local authority may carry out the operations authorised by subsections (4) and (5) within the land over which access rights are exercisable, only with the consent of the owner. Section 15 (1) states that the local authority may take steps to warn and protect the public but does not state that the local authority has to consult the owner. This is clearly a significant difference that would benefit from being highlighted in the guidance. At present there is a danger of the responsibilities being confused.

Under 'Background' it states 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. It should be made clear that in some cases, it may not be appropriate to warn against potential hazards such as cliffs as these are obvious hazards. There is a greater need for the users to be responsible for their own safety. There needs to be a paragraph highlighting the fact that land is open to responsible access only and emphasising those users should take greater care for their own well being.

No reference is made to section 31 'application of sections 14 and 15 to rights of way' in this section. It would be beneficial if a paragraph were added to highlight this important link.

Section 17 - Local authorities have a duty to draw up a draft Core Path Plan in three years and this is not made clear. Nor does this section clearly state that local authorities do not have to implement the plan in this period. The Core Paths Plan will be a visionary document that will take longer to implement than it takes to draft. There is no duty on local authorities to implement the findings of the Core Paths Plan, although there will be an expectation from the public that they will.

The guidance should also state that although local authorities have a power to maintain core paths, there is no statutory duty or obligation for them to do so.

Section 17(2) (d) implies that the core paths can be restricted to particular categories of user and not open for all. The statement 'and the responsible use of different path types by different types of user', should be omitted.

Under types of path the second paragraph (17(2)(b)) includes launching points as a route. These are not routes but points and are the land based equivalent to including gates or stiles in the list.

In the final paragraph on this section the word 'fill' on the fourth line should actually read 'full'.

The section on the relationship between the Core Path Plan and the local plan should be deleted in its entirety. There is a concern that linking these could encourage objections to local plans.

The section on community planning refers to the relationship between core paths and community planning. Although it is good to see this link, there should be guidance on how local communities can be involved in core path planning and access generally.

The flow chart in Annex 1 has two mistakes. In the second line of the first box, it is necessary to add the word 'draft' between 'a' and 'plan'. Also, add 'a' between 'for' and 'system'. In the right hand column, the local authorities box states that after adopting the plan all the routes identified therein are core paths for the purposes of the Act. This appears to be an erroneous statement as there is nothing in the Act to support it.

There should be more advice and guidance as to what the plan for a system of core paths should entail. Clarification as to what 'reasonable public access' implies would ensure national consistency with regards to the extent of the core path network and also give local authorities a target to work towards. However, it is appreciated that this measurable access can differ from area to area and we support this.

Section 18 Core Paths Plan: Further Procedures - The guidance states that under section 18 (8) (c) local authorities have a duty to 'Keep the plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price; (this refers only to maps illustrating the system of core paths)' The text in brackets does not appear in the Act and this could lead to confusion.

The guidance should also give a clear statement as to what is meant by a path being 'fit for purpose'. Particularly in the early stages of route development, many paths may not be suitable for all user groups. Some paths may be unsuitable for horse riding or cyclists but may be satisfactory for walkers. The guidance must state that the core path plan provides the vision for a future local path network, and that for all paths to be fully accessible to all user groups could take many years.

Under 'mapping format' the second paragraph has an error on the third line. The 'should' after GIS should read 'could'.

The council is unaware that the use of the Scottish Paths Record (SPR) will generate national consistency, nor is it clear how the SPR resource will achieve full adoption and coverage. The SPR, as it has been compiled, is of little use in Shetland.

Under the Symbols section, the second paragraph notes that the first edition of the core path plan might have to show as core paths, only those paths which are capable of designation with immediate effect. This is plainly an erroneous statement as, until the first plan is adopted, there will be no core paths; thus it cannot contain any core paths, only potential or proposed core paths.

'The notice of adoption of a core paths plan' should be altered to remove paragraph 2. The adoption of a plan only occurs after a local authority has drawn it up. Therefore, by definition this notice will only be displayed after the council has already complied with the duty as set out in 17 (1) of the Act. There is no duty on local authorities to implement the plan within any time frame, but this paragraph may give that impression.

Section 19 - As stated previously, local authorities have powers to maintain core paths but no statutory obligation to do so. Local authorities certainly do not have to maintain a core path for car access as is suggested.

Although local authorities can put in place signs, waymarkers and fences as set out in section 15 (1) without seeking the consent of landowners, they can only maintain existing facilities listed under s15 (4), and cannot install or improve stiles or gates, for example, without the landowner's permission. This must be stated in a clearer way that does not confuse the reader as to when permission needs to be sought. This section also needs to state what the local authority's responsibilities are in relation to core paths on land owned by other public bodies, especially since there is no obligation on councils to maintain these paths.

Section 20- Paragraph 4 again refers to incorporating the plan into the local plan. We have already suggested this may not be wise and that it might be better if it were removed. There appears to be no obvious advantage in such incorporation.

Section 21- Consideration should be given to include an example path agreement to provide guidance in developing agreements and ensuring consistency nationally.

Section 22 - The Act does not state that compensation is payable under this section and the opportunity should be taken to clarify this.

Section 25 - It would be beneficial if procedures were to be set up to allow Access Forums to communicate with each other to share opinions, ideas and assist in problem solving. There may be a consistency established on how the service is provided.

Other comments:

The present format of the document, lacking either page or paragraph numbering, does make it less than user friendly. Whilst some sections, such as core paths and ploughing, have quite detailed guidance, others such as powers to exempt land and the duty to uphold rights have very little. There are also a number of inconsistencies and errors in referencing the Act. To be of most use to local authority staff the guidance must be accurate, provide a basis for consistency in applying the new Act across Scotland and be presented in an easy to use format.

It is often difficult for local authorities to accomplish agreement with crofters and farmers that the implementation of access improvements through the countryside brings benefits to the area. The guidance notes could make clear the benefits to the community that will result after the implementation of core path networks. This will provide local authorities with material to emphasize the benefits to the community. As well as benefits in terms of tourism, health, recreation, regeneration and the economy, the benefits to land managers should also be stated, for example visitor management; redirecting people away from crops and animals; minimising damage to fences and dykes. It should be made clear that there has always been a traditional responsible access to the countryside in which case the new legislation will only assist in managing these access rights to everyone's benefit.

The guidance appears to state that a core path network should be in place within the three-year period. On the other hand it is written in a way that implies that the availability of resources will restrict the extent of the paths in the area. The notes should make clear whether a complete core path network for the whole area should be drawn up or if the network should be restricted, according to available finance. We suggest that a complete core path network plan is drawn up for the area, which will include all the desired routes. It would then be a case of developing these routes as time and resources allow during the three-year period. The guidance notes do not outline the procedures after the three-year period.

Finally, if the entire exercise is to be properly funded, it would be wise to ring-fence the financial resources available from the Scottish Executive relating to core path networks. Otherwise they may not reach the Department responsible for this work.

11,12,13,
14,15, 17,
18,19, 20,
21, 22,25

14

No comments

15

Section 10 - BASC is in position increase awareness and understanding of Code although not a duty. Also within 10 key target audiences identified by SNH. Disappointed that under 'means of delivery' there is no clear mechanism for other organisations to disseminate the Code to their constituents. In particular there are no clear means by which local authorities or SNH can financially support these organisations.

Section 12 - Require clarification on sections 12(1)(c)(i) and (II) and 12(2)(c)(ii). With increased numbers of people walking in the countryside the chances of them coming across others engaging in legitimate outdoor pursuits with which they might not agree will also increase. Would like reassurance that local authorities will pay due cognisance to section 2.18 of the Code and section 5(4) of the 2003 Act. This is also a compliance with section 2102(15) of the Local Govt. (Scotland) Act 1973 which states: 'byelaws shall not duplicate or conflict with the general law, existing byelaws or any local Act, or common law'. Also seeking assurance that section 12(1)(a)(ii) will not be used as means or imposing unnecessary controls on sporting shooting particularly where this has taken place for many years.

Hopes that in all cases local authorities will, when proposing byelaws, will exercise their judgement carefully. There is too much emphasis on the role of byelaws in the guidance. It is anticipated that most situations will be dealt with amicably and through education.

Section 18 - Clear concise mapping will be key feature in promotion and education of a CPP, therefore, would welcome a technical annex.

10,12,18

16

Section 17 - Core Path Plans will be most important component of new legislation. It must cater for everyone of all abilities and ages. It should also meet the demands of the community, but contain provision for development and vision as needs change. The network should provide for communities to be linked to one another.

Concern over resources available for core paths. The success of the legislation will depend on adequate funding.

17, Funding

17

General comments

• Greater consistency is needed between the numbering and titles in the Contents and those in the text.
• The text needs pagination and contains various typographical errors.

Section 11 - In order to deal with each case effectively and efficiently, there will be a need for local authorities to develop mechanisms for providing short-term exemptions, probably by the use of delegated powers. As with other aspects of the 2003 Act, authorities will rely heavily on the advice of legal staff. Some clarification of the status of forestry activities and shooting would be helpful. How much notice would be required?

Section 13- A key concern of local authorities will be the need to develop working practices through delegated powers to uphold access rights and keep open appropriate routes etc. This will involve increased dependence upon legal services, with resource implications.

Section 14- Local authorities will need access to the information necessary to identify landowners or tenants quickly without contravention of the Data Protection Act. This will require development of data-sharing mechanisms within some authorities. Legal assistance is also likely to be needed in some cases where landowners are uncooperative and costs have to be recovered. Note the use of 'particularly dangerous animal'; any dangerous animal is a threat.

Section 15 - Local authorities should be clear of their responsibility for the maintenance of any structures that they repair or install. Conversely, landowners should be aware of their duty to keep fixtures in good order where the public has a right to go. Use of barbed wire and locks on gates is appropriate in many cases and the public should respect them. Only where use is inappropriate or neglect may cause a hazard should landowners be required to remove them. Both local authorities and landowners should be aware of obligations under the Disabilities Discrimination Act and seek alternatives to stiles where appropriate.

Section 17- Given the variation in the size and character of local authority areas, the key wording here appears to be: 'the system will need to be achievable and sustainable, so will also take account of resource availability'. Local authorities will tend to take a minimalist approach to core paths unless centrally sourced funding is substantial and ring-fenced. Without adequate resources, the extent and quality of core paths will fail to meet the demands of the public.

'The system should also link coherently across boundaries' provides the suggestion that paths originated to serve individual communities (presumably at community council level) and should form part of a wider network, not only between communities but also between local authority areas. This could be enlarged upon to emphasise the strategic potential of core paths and how they could satisfy a variety of demands.

No indication is given of how far 'core paths' would represent the basic framework of a wider path network, what proportion of paths should be considered for inclusion as core paths and whether or not centres of population should attract more core paths than smaller communities. It is assumed that further information on this aspect will be forthcoming before implementation of the 2003 Act.

Section 18 - Local authorities have traditionally showed reluctance to pursue majority interests in the development of paths against the wishes of the landowner. The spirit of the 2003 Act should make the process easier, although the requirement to hold local inquiries where an objection is not withdrawn will add to the cost of path development. This will inevitably influence core path development.

Section 22 - What influence would local authorities have over land management on paths created using compulsory power? This would be a key area of concern in regard to local authorities' liability in such circumstances.

Section 24 - 'The local authority may appoint persons to act as rangers in relation to any land in respect of which access rights are exercisable'. This presumably means that Access Officers or other access-orientated staff may, as part of their role, thereby enjoy the same powers to enter any such land.

Section 25 - Practical difficulties arise in respect to the involvement of Local Access Forums in disputes over access rights. The Borders Access Forum currently only meets four times a year, which would limit the ability of its membership to contribute to the swift resolution of a dispute. In order to meet the role envisaged, the Forum would benefit from closer links with the Council's legal section and could delegate a sub-committee or other representatives with powers to act on its behalf. This would be simpler and more efficient than having more full Forum meetings in order to deal with disputes.

11,13,14,
15,17, 18,
22,24,25,
Funding

18

The Borders Access Forum convened a 'working group' to consider the draft guidance and provide the following response. The 'working group consisted of a land manager, a local path group member, and a horse rider along with the Local Authority Access Officer.

The document was welcomed and thought to be sufficiently detailed to provide clear advice to the authorities. The group wished its comments to be contained as an Appendix to the Scottish Borders Council response to the Guidance. Most discussion was centred on Section 17.

Section 17 - The Forum supports the advice given and wishes to emphasise the key element of getting the Core Path Plan right. It must be accepted that the Core Path Plan is a living document that will require a regular review which will contain detail of what is currently available and future aspirations. The Core Path Plan must contain a network around settlements, links between settlements and across authority boundaries. In general, land managers support the idea of the Core Path Plan and in many cases are eager to get on with it. The Forum also suggests that training in negotiation techniques be made available to Access officers and local groups involved in access provision.

Land managers support the development of a 'model path agreement' which would address the liability issue.

Resources must be sufficient to develop the proposed network. There is concern that Local Authority Access Teams will not receive all the funding required and thus prevent the Core Path Plan from being implemented. The Forum urges the Scottish Executive to provide 'ring fenced' funding or alternatively provide access funding through SNH or Paths For All.

Section 10 - The Forum recognises that education of all parties is vital to the success of this legislation and that it will assist the Scottish Borders Council in promoting the Scottish Outdoor Access Code amongst its members and the general public

Section 11 - Land managers are concerned about 'shooting' and whether exemption orders will be required whenever this activity is undertaken.

Section 25 - The Borders Access Forum has been operating for over four years and is currently reviewing its role and remit under the legislation. It welcomes the opportunity to advise and mediate where necessary. However as the Forum meets only quarterly there could be considerable delay in providing advice. The Forum will consider options for improving this situation and would welcome greater links with the Legal Section of Scottish Borders Council.

10,11,
17,25

19

Duties

Section 10 (7) - Duty to publicise the Code is placed upon the Council. In reality however SNH should bear the brunt of this burden by promoting the code nationally through an extensive raft of promotion and publicity. Councils' role should be achieved through ensuring reference to the code in local publications, path leaflets, route signage/interpretation, press releases and other local mechanisms. Burden on financial and staff resources is not extensive and should complement existing initiatives.

Section 13 - Could generate a high level of workload for Rangers, Access officers and legal staff depending upon the level of requests from the public. A whole series of locked gates, fences, and 'private' signs could, in effect, be viewed as obstructing the access right. On request from members of the Council a high level of staff involvement in negotiating with landowners and farmers may be involved to have obstructions removed. Where no resolution can be reached legal proceedings would be required to exercise powers, which potentially have considerable financial and legal staff time implications. A great deal of staff time may be required to 'enforce' the accessright.

Section 15 (6) - In exercising section15 powers to implement measures for safety, protection, guidance and assistance of people enjoying the access right, the Council have a duty to regard disabled persons needs. This in itself does not have major implications other than to ensure that measures taken do not create 'barriers' to disabled access.

Sections 17 and 18 - Guidance is still awaited as to exactly how to carry out the process of Core Path Planning. It is evident that the process will mirror that of formal Local Plan Preparation including initial consultation, objection period, public inquiry and final plan adoption. This is of some concern in that it is clear that the statutory planning process is labour intensive and extensive in duration and will have considerable financial implications for the Council. One issue is whether such a task should be left to Access officers and Rangers or whether Local Plans officials should be involved and in what capacity. Indeed the Moray Development Plan (Local and Structure Plan) will require to be reviewed to take cognisance of core paths within local plan policies and individual settlement plans. There is no requirement to develop or maintain the core path network, which seems unrealistic given the poor state of many existing paths. Just mapping the routes does not make them accessible.

A continual process of review is required for the core Path Plan with procedures for removal/addition of routes. The review period is left to the discretion of each local authority. The workload implications of this are limited although continual public demand for route inclusions/deletions could require more frequent review periods resulting in greater workload for access officers and managers.

Section 21 - Section 21 gives the Council compulsory powers to delineate paths in respect of where the access right is exercisable. The instances in which this is deemed to be appropriate will be limited to when all other avenues of negotiations have failed. Considerable resource implications will result in legal staff time given to legal process and associated costs. In addition, such an order will result in the Council having the duty to maintain such a route in perpetuity. This will often act as a disincentive to such action being taken.

Section 25 - Only one forum should be required to cover Moray but Access officer time will be required to support the Forum, take minutes etc. It would be appropriate for a senior council official to chair meetings likely to be required up to four times annually. The specific role of the Forum is unclear and further guidance is awaited. It is clear that it will aim to reach consensus on a broad range of access issues between users, land managers and statutory agencies. The Forum may become involved in resolving disputes between users and be part of the development and review process of the Core Paths Plan. Limited staff time is the issue here rather than financial resources.

Section 30 - This would clearly have staff time implications for council legal staff (current byelaws may require to be amended to be consistent with the rights of access. The degree to which this will be required will need to be qualified by legal services.

Powers

A wide range of powers are available to allow councils to ensure that the right of access is maintained. Many of these consolidate previouspowers available from other complementary legislation. Exercising of these powers is clearly discretionary and it is likely that the availability of staff and financial considerations will determine whether and how often these powers are exercised. The powers are available to support the Council in meeting the statutory obligations of the duties placed upon it by the act. The following is a summary of the likely implications and impacts for the Moray Council.

Section 11 - It is likely that a number of landowners will make application to the Council in respect of having their land exempted. The procedures required to make exemption orders will require staff time (particularly legal). Ultimately ministerial approval is required. The amount of staff time involved will depend upon how determined our local landowners are in pursuing this approach. Administrative and legal costs will be involved.

Section 12 - Making new byelaws is not likely to be commonplace and therefore should not impact heavily in terms of staff time and resources. It should be noted that byelaws are likely to be difficult to enforce and are given low credence in court hence their effectiveness is in doubt. Where a new byelaw is pursued this would incur considerable costs in terms of legal staff time and legal expenses.

Section 14 - This is the principle power available to allow the Council to exercise the duty to uphold the access right under section13. This could involve Rangers and Access Officers operating as 'access police' out in the field and could involve a great deal of staff time. Action can be taken subject to a written notice served on the landowner. The level of involvement will depend upon the degree of demand for action from local communities and interest groups. Legal staff time and legal costs will be incurred where landowners appeal against measures implemented by the Council.

Section 15 - This is to protect the public from situations when exercising the access right could expose them to potentially dangerous physical features and/or land management operations. Measures include erecting signage and fencing for protection. Notices can also be served on landowners to remove the risk of injury. At this stage it is difficult to quantify the likely resource implications of this power and will largely be dependent on the level of presence exercised by local communities and interest groups. For instance a safety hazard could include barbed wire fences which could involve considerable staff time in negotiations and procedures if this proves to be a big issue across Moray.

Section 16 - This effectively is a form of compulsory purchase which is unlikely to be implemented often. Costs in terms of acquisition and subsequent maintenance liability are likely to act as a strong disincentive in most cases except where there are compelling reasons for doing so when all other possible courses of action are not available.

Section 19 - Under section17 the Council is not compelled to maintain core paths; only to plan them. It would be imprudent however to allocate routes as core paths unless a robust maintenance regime could be secured. In many cases local voluntary arrangements prove unsatisfactory to sustain the long-term maintenance of paths. It would be ideal if Moray Council were able to allocate staff time and financial resources for core paths maintenance although it is recognised that resource implications would be considerable at a time of increasing pressure on budgets.

Section 21 - In delineation of core paths and other access route developments agreements will be required over land in private ownership, which in Moray contributes the majority of land holdings. This is the key to unlocking a network of access routes across Moray, which is the principle objective of the Moray Local Access Strategy. Such agreements will involve a great deal of staff time in negotiations and preparation of legal documentation. Landowners will often charge legal fees. The issue of public liability often leads to protracted negotiations. Negotiating these agreements is central to the workload of Access officers. It is often appropriate to limit such agreements to a 'simple style' but the attitude of the landowners legal representations can sometimes result in extensive documentation, which has considerable resource implications for the Council.

Section 22 - When agreements cannot be reached the Council can pursue path orders. Although the legal process has been streamlined this exercise is still likely to be resource intensive in terms of legal staff time and costs. For this reason it is unlikely that this measure will be followed unless all other avenues have been exhausted depending upon the relative priority given to the path.

Section 23 - There are few examples in Moray of existing unfenced paths which cross fields. A number do however travel along field boundary edges which can often be obstructed by crop operations. There may be some local pressure on the Council to pursue reinstatement of such paths although any Council action will be guided by the strategic priority given to the path. It is expected that, due to the limited times this may occur, overall this power will have modest resource implications for the Council.

Section 24 - Current Ranger services are limited to the Moray Coast and the Speyside Way. To be effective in carrying out duties under the bill more Rangers will be required to cover all other parts of Moray. Access Officers will also be required in respect of these duties although the act curiously makes no reference on this point. It is possible that inherent in the term 'Rangers' are Access officers although this is not defined. Clarification is required.

What is clear is that to effectively exercise the powers invested in the Council considerable additional staff resources will be required.

Section 26 - This allows Council staff to enter land in pursuance of powers or duties under the Act subject to giving reasonable notice to the landowner. Automatic entry is given in respect of an emergency or where a route is a core path. This power is effective to allow the Council to meet its obligations.

Section 28 -Judicial determination is required where negotiations and 'access code' interpretations have failed to determine whether the access rights exist. Such judicial determinations are intended to be resolved on summary applications made to the sheriff. This is a streamlined and uncomplicated procedure to reach determination expediently. Notwithstanding this considerable staff time (particularly legal) could be involved in expediting legal process in this regard. Summary applications for declarations can be made by local authorities, landowners and third parties and can involve local authority staff being party to proceedings. Pressure groups and landowners may, by implication, use this legal resource on a frequent basis, which has resource implications for the Council in terms of staff time and costs.

10,11,12,
13,14,15,
16,17,18,
19,21,22,
23,24,25
26,28,30