Land Reform: Proposals for Legislation

7 Access

Eligible areas

7.1 The proposed legislation will create a right of responsible access to all land in Scotland, including enclosed agricultural land as well as open and hill ground, for informal recreation and passage. The right will also extend to inland water.

Right of access

7.2 The proposed legislation will introduce a statutory right that allows the public to enter upon land or water, regardless of who owns or manages the land or water, for the purposes of informal recreation and passage, provided that they exercise this right responsibly. People will be able to exercise the right on their own, in a group of family or friends, or as part of a club outing.

7.3 The right should respect the privacy of those who live in the countryside. The right will therefore not extend to buildings or to the curtilages of buildings. In addition, there are a number of places where public access is proscribed by law, largely to safeguard the safety of the public. These places include working quarries, Ministry of Defence land, airfields and railway lines. The proposed legislation will not create a right of access to those places where public access is already proscribed by law.

7.4 The right of access is not expected to be exercised in all areas and at all times. The requirement that the public exercise the right responsibly means, for example, that they should not exercise the right across a field of growing crops or when trees are being felled. There will also be some instances when constraints will be justified on how the right is to be exercised over certain areas, or for particular activities, for a period of time. The proposed legislation will therefore allow the right to be constrained on a temporary basis where the nature of the land use is such that public access would either be dangerous for all concerned, or damaging for the land use. The intention is that any such constraints will cover the minimum area, and be of the minimum duration, necessary for the activity to continue safely.

Responsibilities of the public

7.5 The proposed legislation will require the right of access to be exercised responsibly. Responsible behaviour by the public will be crucial in ensuring that the countryside remains a safe and viable working environment, that the natural and cultural heritage remains of value to everyone, that the welfare of animals is safeguarded and that the enjoyment of the countryside by others is not spoiled.

7.6 The proposed legislation will require Scottish Natural Heritage to prepare and promote a Scottish Countryside Access Code setting out guidance on what constitutes responsible behaviour. Work is already under way on this.

7.7 A public right of access will bring with it responsibilities not only for the public but also for land managers. The Scottish Countryside Access Code will also set out the responsibilities of land managers.

Responsibilities of public agencies

7.8 Creation of a statutory right of access will not of itself extend significantly the opportunity for people to enjoy the countryside. Public agencies will therefore also be required to make a significant, long-term contribution to the provision of new facilities such as paths, car parks and signposting; to the education of visitors and land managers; and to the management of access in the countryside. The proposed legislation will therefore also:

• place a duty on all public agencies to recognise, accommodate and protect the new right in their policies, plans and actions;
• place a duty on local authorities to facilitate and plan for access in their areas;
• place a duty on local authorities to set down a core path network for their areas;
• place a duty on local authorities to protect and keep open routes forming part of the required path network;
• place a duty on local authorities to establish at least one local access forum in their areas;
• make provision for local authorities to maintain and promote paths, tracks and other routes in their areas and to remove restrictions or obstructions that prevent or discourage people from exercising the right of access; and
• make provision for local authorities to ensure that practical help and assistance are available to visitors and land managers to prevent significant problems arising on land or water from people exercising the right of access responsibly.

Dealing with disputes

7.9 A wide range of activities are already proscribed through existing legislation including vandalism, poaching, theft, aggravated trespass, lighting fires, dropping litter and driving a vehicle more than 15 metres off a public road. The proposed legislation will not introduce any new criminal offence, but will make provision for the resolution of disputes such as a visitor or land manager behaving irresponsibly, either intentionally or unintentionally, or a land manager constraining the right unnecessarily or wrongly.

Local access fora

7.10 As far as possible such disputes should be handled at a local level, ideally through the local access fora to be created in each local authority area. The proposed legislation will make provision for the establishment of local access fora and set out the duties and powers of these fora.