Is the Scottish Outdoor Access Code No Longer Fit for Purpose?
Date: 07/06/2022 | Regulatory Law
The legislation
The so-called existing “right to roam” was introduced as part of the Land Reform (Scotland) Act 2003. Everyone now has the right to be on and cross land (and inland water) for:-
- recreational purposes;
- carrying on a relevant educational activity; and
- carrying on for profit an activity which could be carried out on a not-for-profit basis (e.g. guided mountain biking).
There are a number of exceptions to the above, including access to residential and non-residential buildings, land used for growing crops, gardens allowing a reasonable degree of privacy, schools, sports fields when in use, synthetic pitches or manicured grass for certain sports, and to the extent that a site is closed off for construction/ quarrying. In addition, such rights do not extend to caravans or cars.
As a matter of statute, the above access rights must be exercised reasonably and responsibly. The Scottish Outdoor Access Code (“the Code”) is a set of guidelines, approved by Parliament in 2004, to be followed to help ensure that land is accessed responsibly in accordance with the Land Reform (Scotland) 2003. It outlines some basic, common-sense principles, such as ensuring that (a) the members of the public exercising the access rights are responsible for their own actions; (b) they respect other people’s privacy and peace of mind; and (c) care is taken to not harm the environment. The Code also gives guidance to land managers in relation to land where access rights apply. The landowner or manager must conduct ownership responsibly. Some landowner conduct can never be responsible where it unduly deters responsible access. Local authorities (or, where relevant, national park authorities) have a duty to uphold access rights. They can serve notice on landowners where they consider that impediments have been made to access.
The result is that Scotland has some of the most open access rights in the world. In England, rules on roaming are much stricter.
Caselaw
A number of cases have come before the courts since the legislation was introduced. Please follow this link for a consideration of three of these in particular.
Recent issues with public access
The COVID-19 pandemic has seen an unprecedented increase in the volume of the public taking access to the countryside (many of them for the first time). Organisations, such as NFU Scotland, have been reportedly inundated with complaints from landowners of hundreds of visitors taking access every day, gates being left open, dogs being out of control and broken fences and litter left in their wake. In addition, there have been increases in sheep-worrying and fly tipping, wild camping, access to farm buildings and private gardens.
This, ultimately, led to NFU Scotland conducting a survey in November last year. Respondents described the Code as no longer being effective for landowners and requiring modernisation to reflect the scale and type of access now being taken by the public. Many are looking for the Code to be reviewed. It has not been formally reviewed since it was first approved by Parliament in 2004. NFU Scotland have asserted that the increased public access seen since 2020 has shown that more needs to be done to protect Scottish farmers and crofters’ “ability to safely produce the high quality, sustainable food and drink expected by consumers”.
Assistance
NatureScot has a duty to keep the Code under review. Its website emphasises that it needs to be made aware if there are any issues relating to the operation of the legislation and the Code. In order to record a minimum of information about access issues, they request that the Scottish Outdoor Access review form is completed and sent to NatureScot at recreationandaccess@nature.scot to highlight issues for consideration in any future review of the Code. That said, NatureScot are clear that individual incidents or problems at specific locations will not be resolved by completion of this form and these should be reported to the local or national park authority.
In addition, NFU Scotland has created an access hub on its website. The hub provides members with information on a range of access issues, including guidance on access, signage, livestock worrying, wild camping and a log to record any issues members may be experiencing with access.
Of course, irrespective of the above, it should also be borne in mind that the Dogs (Protection of Livestock) (Amendment) (Scotland) Act 2021 came into effect on 5 November 2021 to tackle the issue of out of control dogs attacking and worrying livestock. Livestock for the purposes of the legislation includes sheep, cattle, goats, swine, horses, camelids (alpacas/llamas), ostriches, farmed deer, enclosed game birds or poultry. Owners of dogs that attack or worry livestock can now be fined up to £40,000 or even sent to prison for up to 12 months. Police Scotland recommend that farmers and landowners call 999 if the crime is ongoing and animals are being injured. If the crime is not ongoing, an online “Contact Us” form can be completed on Police Scotland’s website or landowners should call 101.
Ultimately, there needs to be a balance between the economic benefit to rural areas which outdoor access can bring, versus the needs of farmers and landowners who are trying to run a business. Davidson Chalmers Stewart LLP has significant experience in all aspects of Rural Business. Please get in touch with Louise Jones if you require advice on any aspect of the above.
