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Overview of landowning interest concerns
3.1 Landowners were mainly concerned that they would lose the ability to manage their land after the introduction of a right of responsible access to land. They also questioned the wisdom of including enclosed agricultural land within the right, notably as they considered that this would increase the risk of accidents on farms and result in an increase in their liability insurance premiums. Landowning interests also emphasised the need for redress against individuals who fail to exercise the right of access responsibly.
Overview of recreational interest concerns
3.2 The responses to the consultation from recreational interests mainly reflected the concerns that they had about the promotion in the legislation of the particular activities in which they are involved. However there were some common themes. The recreational interests emphasised the need for provisions in the legislation to prevent landowners from obstructing access to their land. They also stressed that extra resources should be made available for the provision of access, notably for the creation of core path networks, the expansion of ranger services, and the education of the public in responsible access.
Overview of environmental interest concerns
3.3 Environmental interests were mainly concerned about the potential for damage to sensitive habitats as a result of the introduction of the right of access. They suggested that riverbanks, fragile upland environments, and nature reserves would be particularly vulnerable to damage as a result of increased visitor pressure. They urged the Executive to provide for temporary and long-term limitations on access to such areas in the legislation, on grounds of nature conservation.
Eligible areas
3.4 Many farmers and landowners argued that there should be no right of responsible access. Instead, they suggested that access should continue to be by agreement between landowners and recreational users. They considered that the introduction of the right would interfere with their ability to manage their land, and possibly result in damage to their property.
| Outcome: The draft Bill provides for a right of responsible access to land. Ministers believe that the current access arrangements have failed to provide the level of access required, particularly close to where people live. Moreover, many people are confused as to where in the countryside they can legitimately go. Ministers believe that a new initiative is necessary if the public is to be provided with greater opportunity and confidence to enjoy the countryside. |
3.5 Many respondents to the White Paper opposed general access over enclosed agricultural land. They argued that limiting access to path networks in areas of enclosed land would meet the public demand for greater access without interfering with the ability of farmers to manage their land.
| Outcome: The draft Bill provides for access to all land, both open and enclosed. Although it is recognised that most people will prefer to exercise the new right on paths and tracks, Ministers did not consider it desirable to distinguish between enclosed and open land. This would be difficult not only in the legislation but, more importantly, on the ground. One of the main proposals of the legislation is to avoid such uncertainty and provide people with confidence to go out and enjoy the countryside. However, as described below in paragraph 3.10, land managers will be able to restrict access on a temporary basis for the purposes of land management. This will be particularly important in relation to enclosed land. |
3.6 A number of landowners and many individuals with a commercial interest in angling opposed the proposal to extend the right of access to inland water. They cited conservation grounds, such as the need to protect fish stocks and sensitive habitats, as reasons for opposing access to inland water. It was also recognised that access to water raised a number of different legal issues from access to land.
| Outcome: The draft Bill provides for a right of access to inland water. Ministers believe that the concerns raised about the difficulties of creating a right of access to inland water have been overstated. In addition, the legal difficulties have proved not to be as great as originally thought and Ministers recognise the arguments in favour of including access to inland water within the new right. |
The extent of the right of access
3.7 The White Paper made reference to the fact that people would be able to exercise the right as part of a club outing. However a number of respondents took the view that the right should not extend to groups, primarily on the basis that groups would cause more erosion and damage to sensitive habitats than individuals.
| Outcome: The draft Bill makes provision for an individual right of access but there is nothing to prevent collective exercise of the right providing this is done responsibly. Guidance on responsible behaviour on the part of groups of people is set out in the draft Scottish Outdoor Access Code. |
3.8 The difficulty of using the term curtilage to define individual privacy was mentioned by eleven per cent of respondents to the White Paper. It was pointed out that while the curtilage of a suburban dwelling might be easy to identify, this would be far more difficult in respect of country houses. However few of the respondents made constructive suggestions as to how curtilage should be defined. Nor did many of them provide an alternative means of defining privacy. Individual concerns included the need to include formal gardens and ornamental lakes within the definition of 'curtilage', even if they are not within the immediate policies of a house.
| Outcome: The draft Bill excludes buildings and their immediate surroundings from the right of access. In relation to private dwellings, the legislation excludes "sufficient adjacent or associated land to enable persons living there to have reasonable measures of privacy and undisturbed enjoyment of the whole". In practice, this means that the right will not extend to houses and gardens, but that it will extend to the areas of a farm or estate that lie beyond. |
3.9 Numerous individual farmers and landowners, together with representative organisations such as the National Farmers' Union of Scotland, argued that the right of access should not extend to farm steadings. A number of respondents commented that farm steadings are just as dangerous places as working quarries, which were mentioned as being specifically excluded from the right in the White Paper. Not only are members of the public at risk of injury from farm machinery, but their presence in the steading has the potential to impede the farmer's ability to manage his/her land.
| Outcome: Ministers consider that the arguments advanced were persuasive, not least on grounds of health and safety. Therefore the draft Bill excludes buildings and their curtilages from the right of access, except where there is an existing Right of Way. |
3.10 A number of landowners and farmers argued that they should be allowed to decide when and for how long they can constrain access to their land. Most of those who suggested this were opposed to the legislative proposals.
| Outcome: The draft Scottish Outdoor Access Code sets out detailed procedures as to how temporary and long-term constraints on the right are to work in practice, and strikes a balance between the desire of recreational users for increased access and the need of farmers and landowners to manage their land. The draft Bill states that decisions on when to constrain the right of access will be left in the first instance to the land manager. If it is considered that a land manager is abusing the concession then recourse will be through the Local Access Forum and the local authority that will have powers to remove the constraint. |
3.11 A number of farmers, most often those whose properties lie on the urban fringe, suggested that access should be restricted to daylight hours. They suggested that a right of access that extends to the hours of darkness would make it easier for criminals to enter private property, and that it would impede land management activities that take place at night, such as vermin control.
| Outcome: The draft Bill makes no distinction between daylight hours and the hours of darkness. There would be practical problems if the legislation were to restrict the right of access to hours of daylight. The most notable obstacle is that there are considerable seasonal variations between the hours of daylight at the two extremities of Scotland. It would be impossible to legislate in such a way as to satisfy individuals in Galloway and Shetland simultaneously. It could also create difficulties for visitors to the hills who found, for whatever reason, that their outing took longer than expected. |
3.12 The Ramblers' Association Scotland, and a handful of individual respondents to the consultation exercise, argued that the legislation should introduce a right to roam rather than a right of responsible access.
| Outcome: The draft Bill strikes a balance between the desire of recreational users to take access responsibly, and the need of land managers to continue to make a living from the countryside. A right of responsible access differs from a right to roam precisely because it creates an obligation on recreational users to behave responsibly. |
Responsibilities of the public
3.13 A number of respondents to the consultation exercise emphasised that the responsibilities of the public must be clearly set out in the legislation and Code.
| Outcome: Ministers accepted the point made by respondents was a valid one. The draft Code sets out detailed guidance on the responsibilities of land managers and members of the public. |
Dealing with disputes
3.14 A number of landowners suggested that a new criminal offence of 'irresponsible access' should be created. They argued that a new criminal offence is required so that those who behave irresponsibly can be held to account. Additionally, they believed that the enforcement mechanisms against those who behave irresponsibly are inadequate at present. They had little faith in the ability of the Code to persuade irresponsible individuals to behave responsibly.
| Outcome: The draft Bill gives authorised officers of the local authority the power to exclude individuals who have behaved irresponsibly, or who are suspected of intending to behave irresponsibly, from land to which the right of access applies. The power is supported by the creation of a new criminal offence in respect of individuals who refuse to leave land after being asked to do so by a police officer. |
3.15 A number of individuals who commented on the weakness of the dispute resolution mechanisms set out in the White Paper argued that countryside ranger services should be expanded and that rangers should be given additional powers. Rangers would be able to monitor and police the operation of the new access arrangements on a day-to-day basis, thus helping to enforce responsible access. The enthusiasm among respondents for the expansion of ranger services conforms to recommendations made by Scottish Natural Heritage.
| Outcome: The draft Bill extends provision for the employment of rangers by local authorities to allow them to operate over private land. It also allows local authorities to exclude those who have behaved irresponsibly from land and inland water. |
Local access forums
3.16 Some of the respondents were concerned that representatives of recreational interests would dominate the proposed local access forums. As a consequence they suggested that landowners and farmers would have little opportunity to influence the decisions of the local access forums, notably in respect of the advice that they offer to local authorities on the resolution of disputes.
| Outcome: Ministers intend that the local forums should contain a balanced representation of all those with an interest in access. Therefore the draft Bill requires that the membership of local access forums should ensure reasonable representation from those with an interest in the exercise of access rights and from landowning interests. |
3.17 A number of respondents to the consultation exercise suggested that a minimum of one local access forum per local authority area might be insufficient. They considered that it would be appropriate for several local access forums to be created in local authorities areas that are geographically extensive.
| Outcome: Ministers accept the need for flexibility. By stating that the minimum is one access forum per local authority area, the draft Bill ensures that there will be at least thirty-two forums in Scotland. It will be up to individual local authorities to decide how many local forums will be required in their areas. |
Other proposals
3.18 Concerns about liability were raised by almost a quarter of the respondents to the White Paper consultation, mainly farmers and landowners. They believed that once the right of access is in place, there could be a greater number of claims for damages against them and that their liability insurance premiums could increase. The proposal that individuals would exercise the right of access at their own risk did not appease the farming community. They pointed out that they would retain a 'duty of care' towards those exercising the right and suggested that the effect of a right of access to all land would be to increase the burden that this duty imposed upon them.
| Outcome: In the light of the consultation exercise, further consideration was given to the issue of whether the law of liability should be changed so as to limit the 'duty of care' owed by the occupier. However Ministers have concluded that there is no need to change the existing law of liability. |
3.19 The Trespass (Scotland) Act 1865 currently prohibits wild camping. Scottish Natural Heritage had suggested that this should be amended to allow a limited right to camp on land with the permission of the landowner. However a number of respondents objected to this proposal. They believed that it would be difficult to decide where this would be acceptable, expressed concern about the financial implications of a right to wild camp on the viability of commercial campsites, and feared that such a right would lead to fires in woodland areas.
| Outcome: The draft Bill does not alter the existing law. However the Code contains guidance on where it is and is not acceptable to camp on land. |
3.20 A small number of respondents to the consultation exercise argued that the right of access should be for walkers only and should not extend to cyclists. The main objection to the extension of the right to cyclists was that mountain-bikes would cause erosion in upland areas. A larger number of respondents objected to the proposals to include horse-riders in the right of access. Similar concerns about erosion were made as in the case of cyclists. It was suggested that horses could potentially spread disease to livestock. Some farmers were also concerned that they could be accused of obstructing access if they do not make provision for the passage of horses, as well as walkers, through their land. The Scottish Landowners' Federation took the view that horses and cyclists should be restricted to paths and tracks in areas of enclosed land.
| Outcome: The draft Bill includes horse-riders and cyclists in the right of access. Ministers have concluded that it is desirable to improve access to the countryside for cyclists and horse-riders, subject to the same proviso as for walkers that they exercise the new right responsibly. Specific guidance aimed at cyclists and horse-riders is included in the draft Scottish Outdoor Access Code. The draft Bill also makes provision for the creation of core path networks that are to give a reasonable provision of access throughout the area of each local authority. |
3.21 Respondents from various interests, particularly landowners, argued that access legislation should be handled separately from the community right to buy.
| Outcome: The draft Bill covers the access provisions and the 2 community rights to buy. Ministers consider that there is nothing to be gained by separating these sets of provisions. Conceptually, each deals with creating more opportunities for communities and/or the public at large in relation to rural land and the countryside. |
Summary of the resulting changes to the draft provisions:
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