Publication - Advice and guidance

Part 1 Land Reform (Scotland) Act 2003: Guidance for Local Authorities and National Park Authorities

Published: 7 Feb 2005
ISBN:
0755939093

Guidance on duties and powers under the Act

77 page PDF

451.8 kB

77 page PDF

451.8 kB

Contents
Part 1 Land Reform (Scotland) Act 2003: Guidance for Local Authorities and National Park Authorities
Page 1

77 page PDF

451.8 kB

Part 1 LAND REFORM (SCOTLAND) ACT 2003 Guidance for local Authorities and National Park Authorities

Introduction

The Land Reform (Scotland) Act 2003 ("the Act") received Royal Assent on 25th February 2003. Part 1 of the Act establishes statutory rights of responsible access on and over most land, including inland water. It is expected that access rights will be exercisable from early in 2005 when the relevant parts of Part 1 of the Act are brought into force.

Part 1 of the Act sets out the statutory duties, responsibilities and powers of local authorities and national park authorities in relation to the provision and promotion of the right of access. This guidance is issued by the Scottish Ministers in accordance with the powers conferred by section 27 of the Act and has been prepared in consultation in particular with COSLA and Scottish Natural Heritage. The recommendations, advice and information contained in this guidance, to which local authorities are required to have regard by virtue of section 27(3) of the Act, are intended to assist local authorities with the performance of their functions under Part 1 of the Act and should be read alongside the provisions of the Act. Authorities should familiarise themselves with the terms of the statutory provisions which in all cases of doubt are to be regarded as providing the definitive description of the duties placed on authorities and their responsibilities and powers.

Part 1 of the Act places emphasis on the local management of access. With the duties and powers that local authorities already have under existing legislation in respect of access, it is appropriate that they should be the main bodies responsible for the implementation of the new access arrangements under the Act. However, within National Parks the National Park Authorities will have the duties and powers exercised elsewhere by local authorities.

The Act is not limited to the establishment of access rights, but also addresses the need for better provision of infrastructure to facilitate the exercise of access rights. As a result there is growing public expectation that the provision for public access will be improved significantly over the coming years. An important element in the facilitation of access will be the core paths plans to be drawn up by local authorities under section 17 of the Act. Core paths will enable and encourage all members of the public, regardless of ability, to exercise their rights of access.

Guidance on the responsible exercise of access rights and the responsible management of land with respect to access rights is set out in the Scottish Outdoor Access Code ("the Code") which was approved by the Scottish Parliament on 1 st July 2004. The Code also contains information relevant to the discharge of powers under the Act and local authorities may find it helpful, therefore, to refer to the Code when interpreting this guidance. The Code can be viewed on SNH's website ( www.snh.org.uk).

The Scottish Ministers will keep this guidance under review and will issue any further guidance as necessary in light of experience gained. Any constructive feedback on the guidance is welcomed.

All references to "The Act" throughout this document should be taken to mean the Land Reform (Scotland) Act 2003. 1

The Land Reform (Scotland) Act 2003 ("the Act") received Royal Assent on 25th February 2003. Part 1 of the Act establishes statutory rights of responsible access on and over most land, including inland water, for the purpose of open air recreation. It is expected that access rights will be exercisable from early in 2005 when the relevant parts of Part 1 of the Act are brought into force.

The emphasis in Part 1 of the Act is very much on the local management of access. With the duties and powers that local authorities already have under existing legislation in respect of access, it is appropriate that they should be the main bodies responsible for the implementation of the new access arrangements under the Act. However, within National Parks the National Park Authorities will have the duties and powers exercised elsewhere by local authorities.

The Act is not limited to the establishment of access rights, but also addresses the need for better provision of infrastructure to facilitate the exercise of access rights. As a result there is growing public expectation that the provision for public access will be improved significantly over the coming years. An important element in the facilitation of access will be the core paths plans to be drawn up by local authorities under section 17 of the Act. Core paths will enable and encourage all members of the public, regardless of ability, to exercise their rights of access.

This guidance is issued by the Scottish Ministers in accordance with the powers conferred by section 27 of the Act and has been prepared in consultation with COSLA and Scottish Natural Heritage. The recommendations, advice and information contained in this guidance, to which local authorities are required to have regard by virtue of section 27(3) of the Act, are intended to assist local authorities with the performance of their functions under Part 1 of the Act and should be read alongside the provisions of the Act.

Guidance on the responsible exercise of access rights and the responsible management of land with respect to access rights is set out in the Scottish Outdoor Access Code ("the Code") which was approved by the Scottish Parliament on 1 st July 2004. The Code also contains information relevant to the discharge of powers under the Act and local authorities may find it helpful, therefore, to refer to the Code when interpreting this guidance. The Code can be viewed on SNH's website ( www.snh.org.uk).

The Scottish Ministers will keep this guidance under review and will issue any further guidance as necessary in light of experience gained. Any constructive feedback on the guidance is welcomed.

All references to "The Act" throughout this document should be taken to mean the Land Reform (Scotland) Act 2003.

Summary of Powers and duties of local authorities under Part 1 of the Act 2

National Park authorities

On implementation of Part 1 of the Act, the two National Park authorities in Scotland (Loch Lomond and The Trossachs and The Cairngorms) will be responsible within their areas for all of the local authority functions in respect of access rights established by Part 1 of the Act. The term "local authority" is defined in section 32 of the Act as including National Park authorities. Accordingly, references to "local authorities" throughout this guidance document include National Park authorities for the purposes of land which falls within the area of a National Park in Scotland (unless otherwise indicated).

Duties

Section 10: The Scottish Outdoor Access Code

There is a duty imposed on local authorities (and SNH), by section 10(7) (a) of the Act, to publicise the Code once it has come into operation. The operation date of the Code will be fixed by the Scottish Ministers under section 10(6) of the Act.

Section 13: Duty to uphold access rights

Section 13(1) of the Act places a duty on local authorities to uphold access rights which entails asserting, protecting, keeping open and free from obstruction any route, waterway or other means by which access may reasonably be exercised. This duty applies to all land over which access rights are exercisable and not just core paths. It is, however, subject to the limitation contained in section 13(2) which provides that local authorities are not required to do anything in pursuance of the duty to uphold access rights which would be inconsistent with the carrying out of any of the authority's other functions under any other legislation or otherwise. In carrying out this duty, local authorities also have powers to institute and defend legal proceedings and a general power to take such measures as they think appropriate.

Section 17: Core paths plan

Local authorities have a duty, within 3 years of the date on which section 17 of the Act comes into force, to draw up a plan for a system of core paths sufficient to provide reasonable public access throughout their areas. The types of paths which may be included in the plans are set out in section 17(2). Attention is also drawn to the requirements that local authorities must consider in drawing up the plan which are set out in section 17(3).

Section 18: Core path plan: further procedure

Under section 18(1) of the Act, local authorities have a duty to publicise their core path plan and any maps, and to make them available for public inspection for at least 12 weeks. In addition, the local authority must consult the local access forum (or forums) for their area, persons representative of those living, working or carrying out recreational activities on the land proposed to be affected by the plan, Scottish Natural Heritage and any other persons or bodies it deems appropriate. When the plan is adopted section 18(8) requires the local authority to publicly notify its adoption, compile a list of core paths, make the plan available for public inspection and sale, and send a copy to the Scottish Ministers. If there any objections to the plan which are not withdrawn, it cannot be adopted until the Scottish Ministers direct (section 18(3)).

Section 20: Review and amendment of core paths plan

Under section 20 of the Act, local authorities have a duty to review the core path plan for their area, either when they consider appropriate or by virtue of a Ministerial direction. Following that review they can, under section 18(2), amend the plan by removing or diverting a core path provided they are satisfied that it is expedient to do so. Section 18(4) provides that the core path plan must be amended if any core path is stopped up or diverted by order under section 208 of the Town and Country Planning (Scotland) Act 1997. If a core path is added to the core path plan the procedures under section 18, including consultation requirements, must be followed (section 20(7)).

Section 25: Local access forums

Section 25 of the Act places a duty on each local authority to establish at least one local access forum consisting of persons, and bodies representing the interests of such persons, with an interest in public access on and over land including the exercise of access rights, rights of way, core paths plans and the use of core paths, and owners, or bodies representative of owners, of land in respect of which access rights are exercisable. In accordance with section 25(4) (b) local authorities must ensure a reasonable balance among such bodies and persons appointed to the local access forum.

The functions of a forum, set out in section 25(2), are to provide advice where requested to do so by the local authority, and to provide assistance in any dispute resolution in relation to the exercise of access rights, the existence and delineation of rights of way and the drawing up and adoption of core paths plans.

Sections 25(5) to (7) enable a local authority to appoint one or more of its own members to a forum, to establish more than one forum for its area and also to pay expenses and allowances to the members of the local access forum.

Section 30: Existing byelaws providing for public access to land

Section 30 of the Act requires all byelaws relating to public access to land in respect of which access rights are exercisable which have been made by local authorities under any legislation to be reviewed by the local authority within 2 years of the coming into force of section 30 and, if necessary, modified to ensure consistency with the provisions of the Act.

Powers

Section 11: Power to exempt particular land from access rights

Section 11 of the Act provides a mechanism for local authorities, whether on application from third parties or at their own initiative, to exempt a particular area of land from access rights for a particular purpose, for either a short period of time, for example four days or longer if required. The powers in section 11 are intended to address a number of situations which range from small events such as local village fetes to larger more organised events such as the golf Ryder Cup. Local authorities must consult the public and the owner of the affected land on the proposed order (section 11(2)) and any order which excludes land for six days or more will require Ministerial confirmation (section 11(3)). Section 11(9) provides that all orders must be notified to the public. Under section 11(12), an order has effect for a maximum of two years unless re-enacted, in which case section 11(13) applies.

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

Section 12 of the Act provides powers for local authorities to make byelaws for any of those purposes set out in section 12(1) and (2) provided it does not interfere with a public right of way or navigation or the role of statutory undertakers (section 12(3)). Byelaws made under this procedure will be subject to the consultation procedures set out in section 12(6) to (8) of the Act. Sections 202 to 204 of the Local Government (Scotland) Act 1973, which set out further procedures relating to byelaws, apply to all byelaws made under this Act (subject to the qualification set out in section 12(5)).

Section 14: Prohibition signs, obstructions, dangerous impediments etc.

Section 14 of the Act provides a power for local authorities to ensure that landowners or those managing land do not deliberately undertake any activity for the purpose or main purpose of preventing or deterring the exercise of access rights. If an owner of land does anything for that purpose then local authorities have powers under section 14(2) to require the owner, by written notice, to take remedial action. If the owner fails to comply, section 14(3) empowers the local authority to remove signs or notices or take other remedial action and to recover the reasonable costs of doing so. An owner on whom a notice has been served by a local authority may appeal against it by summary application to the sheriff under section 14(4).

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

Local authorities have powers under section 15 of the Act to take steps to warn and protect the public against any danger on any land in respect of which access rights are exercisable, and to indicate or enclose recommended routes or to give directions to that land where there is a danger. They can also, by written notice under section 15(2), require a landowner to remove anything which they consider might be likely to cause injury to anyone exercising access rights. They can also, with the consent of the land owner, install and maintain gates, stiles, moorings, launching sites and any other means of facilitating the exercise of access rights, and seats, lavatories and other means for the comfort and convenience of the public, with the consent of the landowner by virtue of the power given to them by section 15(4). They can also, with the consent of the landowner, provide life guards and boats and equipment for inland waters in respect of which access rights are exercisable (section 15(5)). In exercising their powers under section 15 local authorities must have regard to existing facilities and the needs of persons with disabilities (section 15(6)). Local authorities are drawn to the provisions of section 26 which confirm the position relating to power of entry for local authority staff to undertake work set out in amongst other sections of the Act section 15.

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

Section 16 of the Act provides local authorities with powers to acquire land other than that in respect of which access rights do not extend by virtue of section 6(1) (a) (ii), (d), (e) or (f) and land excluded by way of an order made under section 11(1) to enable or facilitate the exercise of access rights. The acquisition of land by local authorities can be either by agreement or, compulsorily with the consent of the Scottish Ministers. The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 applies in relation to compulsory purchases made under this section.

Section 19: Powers to maintain core paths etc.

Local authorities have powers under section 19 of the Act to do anything which they consider appropriate to maintain a core path, keep it free from obstruction or encroachment and provide the public with directions to a core path. This will allow them, for example to put up signs directing the public to core paths or informing them of a route of a core path. This section should be read alongside section 26 which provides a power of entry to land within access rights.

Section 21: Delineation by agreement of paths in land in respect of which access rights exercisable

Section 21 of the Act provides that local authorities may enter into an agreement for the delineation and maintenance (and, if necessary, creation) of a path over land in respect of which access rights are exercisable. Such an agreement will be on the terms and conditions agreed between the local authority and the person with whom they enter into the agreement. Those terms and conditions may, amongst other things, provide for the making of payments (section 21(2)).

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

A local authority, where they consider it impracticable to delineate a path by agreement under section 21 of the Act, may make an order (a "path order") delineating it under section 22 of the Act. The local authority may make a path order only if they consider, having regard to the rights and interests of the owner of the land over which the proposed path passes and persons likely to exercise access rights on or over the land, it appropriate to do so.

By virtue of section 14(3), where a path order is made, local authorities will have a duty to maintain the path delineated in the order and, if necessary, to create it. They also have the power to revoke any path order under section 14(5).

The Occupiers' Liability (Scotland) Act 1960 makes provision as to the duty of care which an occupier or person in control of land must show to persons on the land. Section 22(4) of the Act provides that regard may be had to a local authority's duties to create or maintain a core path in determining whether they are in control of the path and therefore owe the duties set out in the Act of 1960.

Section 22(6) provides that a path order must be in a form prescribed in regulations made by the Scottish Ministers, but requires in any case that it contain a map showing the delineation of the path. The procedures for making an order are detailed in Schedule 1 to the Act.

Section 23: Ploughing etc.

Section 23(1) of the Act allows an owner to plough, or to carry out other land management practices on land incorporating a core path or a right of way. However, where core paths or rights of way are disturbed in this way, there is a duty, set out in section 23(2), on the owner to reinstate the path or right of way within 14 days beginning on the day the path was first disturbed, or within such longer period as the local authority may allow.

Section 23(3) provides that an owner who fails to reinstate the path within the required period is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

If an owner fails to reinstate a path within the period set, the local authority may, after giving the owner 14 days notice of their intention, take all steps necessary to reinstate the path or right of way and recover their reasonable expenses from the owner (section 23(4)).

Section 24: Rangers

Local authorities have the power, conferred by section 24 of the Act, to appoint any persons authorised by them to act as rangers in relation to any land in respect of which access rights are exercisable. Rangers' functions are to provide advice and assistance on matters relating to access rights and to perform such other duties in relation to those rights as the local authority may specify.

Section 26: Powers of entry

Under section 26(1) of the Act, persons authorised by a local authority may enter any land for a purpose connected with the exercise or proposed exercise of any of the authorising authority's functions under Part 1 of the Act. Such a person may, however, enter land under this power only at a reasonable time and after giving reasonable notice to the owner of the land (section 26(2)). However, Section 26(3) disapplies this requirements for reasonableness of entry and notice for a purpose connected with the exercise or proposed exercise of local authority's powers under section 15(1)(a) and (4) and 19 where that land is or forms part of a core path or where there is an emergency.

Persons authorised to enter land may, by virtue of section 26(4), take onto land any machinery, other equipment or materials required for the purpose for which they are entering the land.

Section 28: Judicial determination of existence and extent of access rights and rights of way

Section 28(1) allows persons to apply to the sheriff for a determination of whether access rights are exercisable over particular land; of whether persons exercising those rights are doing so responsibly; or of whether the owner of land in respect of which access rights are exercisable is using, managing or conducting ownership in a responsible way.

Section 28(2) further allows persons to apply to the sheriff for determination of whether any path or bridleway or other means of crossing land is or is not a right of way by foot, horseback, cycle or any combination of these.

In either case, the proceedings are those for an action of declarator initiated by summary application to the sheriff. The local authority must receive notice of an application and are entitled to be a party to the proceedings. The Scottish Executive is in the process of arranging for Rules of Court to be drafted, as required by section 28(8) of the Act, for these proceedings.

Sections 6 and 7: Land over which access rights not exercisable

This section provides a brief summary of the land over which access rights are not exercisable under section 6 of the Act, as supplemented by section 7. There is further interpretation of some of the exclusions set out in section 6 in sections 2.11 and 3.13-3.17 of the Code ( www.snh.org.uk).

Section 6(1)(a) excludes from access rights land on which there is any building or other structure or works, plant, fixed machinery, caravans, tents or other places used to give a person privacy or shelter.

Section 6(1) (b) (i) and (ii) excludes land surrounding and associated with non-domestic buildings and land which encloses structures, works, plant or fixed machinery. This exclusion would apply for example, where a fence was erected round a telecommunications mast for reasons of security. In that case, the land within that fence would be excluded from access rights. Section 6(1) (b) (i) of the Act uses the term "curtilage" to describe the type of land surrounding and associated with non-domestic buildings. The extent of curtilage in any given situation will depend on the particular features of the property in question. In most cases, the extent of curtilage should be obvious. In the event of any dispute as to the extent of land in respect of which access rights are or are not exercisable, recourse could be had to judicial determination under section 28 of the Act.

In relation to school buildings, section 6(1) (b) (iii) excludes land contiguous to and used for the purposes of a school. School playing fields apart from a school are not covered by this exclusion but may be governed by the exclusion in section 6(1) (e). "School" is defined in section 7(4) as including schools which fall within the meaning of "school" as set out in section 135(1) of the Education (Scotland) Act 1980 and any other institution which provides education for children under school age within the meaning of section 135(1). Section 135(1) defines "school" as: " an institution for the provision of primary or secondary education being a public school, a grant-aided school, a self-governing school or an independent school, and includes a nursery school and a special school". Children below school age generally means children under five years old subject to the qualifications referred to in section 31 of the Education (Scotland) Act 1980.

Section 6(1)(b)(iv) excludes land which is adjacent to a house, caravan, tent or other similar domestic place as is sufficient to give persons living there reasonable measures of privacy and undisturbed enjoyment. This is intended to respect a person's fundamental human right to privacy and peaceful enjoyment of that person's property without state control in the use of that property under Article 8 and Article 1 of Protocol 1 to the European Convention on Human Rights. Whilst the extent to which land is sufficient to achieve the purposes of section 6(1)(b)(vi) will be a matter to determine according to the specifics of each particular case, section 7(5) of the Act sets out factors to assist in such a determination. It provides that the location and other characteristics of the place to which the land relates are, amongst other matters, relevant to determining how much land is sufficient in this context.

Section 6(1) (c) excludes private gardens, to which two or more persons have rights in common. This will cover areas like those gardens located in several parts of the New Town of Edinburgh, which are jointly owned and held by residents for their private use.

Section 6(1) (d) provides that the regulation of public access by or under any other enactment is not diminished or replaced by access rights. There are, for example, other enactments which prohibit, exclude or restrict public access to military establishments and railways, such as section 14 of the Military Lands Act 1892 (as amended and expanded by the Military Lands Act 1900). Access rights under the Act will be subject to those legislative restrictions. Section 7(6) clarifies that this exclusion does not prevent access rights being exercised in a manner which would not contravene any other enactment prohibiting, excluding or restricting access rights.

Section 6(1) (e) excludes land which has been developed or set out as either a sports or playing field or for a particular recreational purpose. Section 7(7)(a) qualifies this exclusion in relation to sports and playing fields by providing that it applies only when the fields are being used. It further qualifies the exclusion in relation to other land developed or set out for a recreational purpose by providing that the exclusion does not apply in relation to access rights which would not interfere with the use to which the land is being put.

Section 7(7)(b) and (c) provide that the section 6(1)(e) exclusion applies in relation to certain vulnerable surfaces including golf greens, bowling greens and other similar grass surfaces and certain types of artificial surfaces at all times, and not only when in use. Section 7(8) provides that certain developments undertaken for the purposes of fisheries management do not bring the land within section 6(1) (e).

The intention behind section 6(1) (e) is that the exercise of access rights should not interrupt or impede sporting activities. There is no reason why for example the public should not be allowed to walk on areas in parks marked out as football, hockey or rugby pitches. However, it would not be responsible to exercise access rights when a game is actually in progress. The same principle applies to any land developed or set out for a particular recreational purpose, such as archery, mountain bike events or slaloms. People engaging in these activities should be free to enjoy them without interference. In addition, there could be issues of public safety.

The further qualification in section 7(7)(a) allows the exercise of access rights even where the land is in use, however, only if this can be done in a way which does not interfere with the recreational use to which the land is being put. For example, there is no reason why someone should not exercise the right to cross a golf course when golf is being played if this is done in a responsible manner which does not interfere with golfers' shots, or compromise the safety of the person exercising the access rights.

Section 6(1)(f) provides that land in respect of which a charge was levied for public admission for at least 90 days each year prior to 31 January 2001 and for which a charge continues to be levied for the same period after that date, is excluded from access rights. This exclusion is included to allow those who have received an income from charging for entry to land to continue to do so. However, it applies only where a charge was made in the past and not where a charge is introduced. Anyone who wishes to commence charging for admission to their land will require to persuade a local authority to exclude their land from the right of access by order under section 11 of the Act. Section 7(9) clarifies that the rights of access of those who were previously exempt from the admission charge, are not affected. This could apply to young children or pensioners.

Section 6(1) (g) and (h) excludes land on which building, civil engineering, demolition works or other works, such as works by a statutory undertaker for the purposes of the undertaking are underway. Land used for the working of minerals by surface workings such as quarrying is also excluded.

Section 6(1) (i) excludes land on which crops have been sown or are growing. "Crop" is defined, for the purposes of the Act in section 7(10). Land excluded under this section includes land on which grass is growing, but only where that grass is being grown for hay and silage and whilst that same grass is at such a late stage in its growth that the exercise of access rights may cause damage to it. However access rights may be exercised over any other grassland. Crops do not include either headrigs, endrigs or other margins of fields in which crops are growing. However, access rights in these circumstances must still be exercised responsibly and with due care.

Section 7(1) provides that access rights are exercisable on core paths over land otherwise excluded from access rights.

Section 7(2) and (3) limits the extent of the exclusion in section 6 in respect of land on which a development is being carried out which requires planning permission under the Town and Country Planning (Scotland) Act 1997. Accordingly, the exclusion only applies while the development is being carried out and only to the extent that the development is in conformity with any planning permission.

Section 10 The Scottish Outdoor Access Code

10 (7) It is the duty of-

  1. Scottish Natural Heritage (SNH) and local authorities to publicise the Access Code

  2. SNH to promote understanding of it.

The duties of publicising and promoting understanding of the Code will be key to successful implementation of the new statutory right of access. Although the Act separates these duties, appropriate publicity is an essential and integral part of the education process that will promote understanding. As such, both duties will support an education process to:

  • raise awareness of the Code;

  • help people to understand and take on board their responsibilities;

Given the complexity and extensive nature of the Code, it is essential that there is consistency, compatibility and cohesion in the activities that deliver the messages on responsibilities. To achieve this, local authorities should work closely with SNH in the preparation, implementation and evaluation of their own local programmes to publicise the Code.

Means of delivery

At the national level, as part of its promotion and education programme, SNH will publicise the Code in a variety of ways including:

  • Design and distribution of the Code and Summary Code;

  • Branding the Code to create a popular visual identity;

  • A formal media launch;

  • A comprehensive programme of media coverage.

At the national level, as part of its promotion and education programme, SNH will promote understanding of the Code through a variety of ways including:

  • Developing and promoting an access website (www.outdooraccess-scotland.com);

  • Delivering training to access and countryside professionals;

  • Preparing and distributing guidance on developing Codes of Good Practice;

  • Developing and distributing comprehensive signage guidance.

At the local level, SNH will maximise opportunities to publicise and promote understanding of the Code through integration, as appropriate, into publications, leaflets, displays, meetings, presentations, events, and media opportunities. This will be important in cascading information to the local level.

To complement and further the work of SNH, local authorities should help to cascade publicity and messages developed nationally as well as developing and implementing their own local programmes to help publicise the Code.

In progressing their duty to publicise the Code, as a minimum, local authorities should:

  • make the Code, any summary code and related guidance on codes of good practice available for examination in all their offices, libraries and community centres;

  • publicise its existence in newsletters, websites and other relevant publications;

  • ensure that appropriate staff (rangers, access officers, planning, legal, property, public relations, etc ) are briefed and trained in its content and can answer any questions and queries.

There are many ways in which local authorities can locally promote a wide understanding of the new code. The use of traditional, as well as a range of inventive and innovative approaches, can be used to provoke and capture the attention of the different audiences. It is important that the messages conveyed relate to people's everyday experiences so that the relevance can be seen, and that messages are revealed in a memorable way to have greatest impact. Methods for promoting understanding might include:

  • Personal contact; e.g. liaison with visitors and land managers, presentations, talks and site visits;

  • Educational approaches; e.g. signage, interpretation, leaflets, posters, displays, training and good practice guidance information, through guided walks and talks, by linking to schools curriculum and first hand experience of the outdoors and through community education;

  • Media and communications; e.g. websites, newsletters, discussion groups, forums, local newspapers and radio;

  • Reviewing and updating existing information to ensure compatibility with the Code.

Under section 10(8) of the Act:

SNH shall keep the Code under review and may modify it from time to time.

To help implement this duty, SNH will have a key role in monitoring and evaluating publicity on the Code. To assist with this, it will be beneficial if local authorities keep SNH informed and up to date of publicity activities under the section 10 duty.

SNH will involve the National Access Forum in reviewing the Code.

Section 11 Power to exempt particular areas of land from access rights

11(1) The local authority may (whether on application made to them or not) by order under this section made in respect of a particular area of land specified in the order exempt it for a particular purpose specified in the order from the access rights which would otherwise be exercisable in respect of it during such times as may be specified in the order.

Section 11 of the Act enables local authorities, whether on applications from third parties or on their own initiative, by order, to exempt a particular area of land and/or inland water from access rights.

It is likely that the main use of these powers will be to exclude land from access rights for short periods of time in connection with admission charging for an event. However, it is recognised that there may be occasions where longer term exclusions will be required (examples are provided below). Issues relating to safety or security are other reasons why local authorities may consider it appropriate to exempt areas of land from access rights are in the interests of safety or security.

In general the reasons for exemptions under section 11 should be limited to: -

  • Allowing a charge to be levied for admission to a particular event;

  • In the interests of safety and security; and

  • Ensuring the protection of privacy, where the provisions of section 6 of the Act are not deemed sufficient in individual circumstances and the local authority considers the exclusion necessary.

Circumstances where exemption should not usually be considered include: -

  • Reasons of land management (the Act provides sufficient exclusions and further guidance on the responsible exercise of access rights over agricultural land is provided in the Code);

  • Large country houses or estates seeking an extensive exclusion for their whole estate well outwith any reasonable expectation of what is needed for privacy;

  • An area of land that is already subject to some management measure prohibiting or restricting access, e.g. where an existing byelaw is in place that deals with the issue;

  • Where a charge for admission is proposed and the charge is for access only and not for an event.

Where authorities are in doubt they should seek advice from their local access forum and/or the Scottish Executive, although any legal advice should be sought from a local authority's own legal advisors.

There is no time limit set for when someone is required in advance to apply to their local authority for exemptions under section 11. For larger events where an admission charge is to be imposed and where dates are set well beforehand, such as for example a professional golf tournament then there should be scope for making an application well in advance. Clearly, when there is a requirement to consult on a draft Order then applications have to be made in time to allow for this. For smaller events such as local village fetes where the duration of the order is such that consultation is not required, an application nearer to the date of the requested exemption may be acceptable. Local authorities are best placed to issue their own guidance on practical issues such as timing.

Short term exclusions

The Act establishes rights of access over all land except that specifically excluded by section 6. Where an event is to be held on land over which access rights can be exercised, there may be a need to exclude the land from access rights for the duration of the event, and possibly periods immediately before and after. The exclusion might be to avoid interference in the event, for example a wedding, or to allow an entry fee to be levied, for example a village fete or highland games.

Where an entry fee is to be levied it is not envisaged that an order will be required for all such events. It is only where there is considered likely to be a problem in imposing a charge for entry from those attending that an order should be considered.

At some sporting events there could be other issues, such as security, where there might be a need to control access. For example, some major golf tournaments might justify an order not only to allow spectators to be charged but to help ensure the safety of the players.

Longer term exclusions

Longer exclusions again could relate to entry charges for an event lasting several days or to a permanent visitor attraction. There may be a need to have a mechanism to introduce entry charges where there has been no charge in the past. This might be needed so as not to undermine the ability of organisations such as the National Trust for Scotland to agree to take on new properties if there is no facility to charge visitors in order to offset the costs of upkeep of the property. There may also be circumstances where private landowners wish to establish a new business venture such as, for example, a country park or arboretum.

Another example might be an archaeological site of particular cultural heritage value which could possibly become an important local visitor attraction. If there existed no means of excluding the site from access rights to allow visitors to be charged, it might simply have to be filled in again. This would be a loss not only to the public generally, but also to the economy of the area. Local authorities are best placed to decide whether there is a good case for excluding land from access rights in such circumstances.

During discussion of the Bill in Parliament reference was made to the need to guarantee privacy to the clients of certain hotels and similar establishments Section 6(1)(b)(i) of the Act specifically provides that access rights are not exercisable on land that forms the curtilage of a non-domestic building. . It was argued that there may be particular circumstances where these provisions in the Act may not provide the degree of privacy necessary to the success of certain commercial enterprises, such as some hotels and estates whose financial viability depends on the guarantee of privacy for their clients. In cases such as these local authorities may be faced with applications from such parties to have particular areas of their land excluded from access rights.

Local authorities should treat these cases on an individual basis. They are best placed to weigh such issues as the threat of responsible access to the viability of the enterprise; the importance of the enterprise to the local economy; and the loss to the public of excluding the land from access rights. It is likely that only in a very few circumstances is an order likely to be considered appropriate.

It should be emphasised that, given the duty of local authorities under the Act to uphold access rights, the power to exempt land for access rights under this section of the Act should be used sparingly and applied in respect of the minimum area of land, and for the minimum period, necessary.

When considering making an order local authorities should have regard to whether or not alternative routes exist or can be provided to facilitate access over or around land affected by such an order.

Consultation

Local authorities need not consult in respect of any proposed order which would have the effect of excluding land from access rights for a period of less than 6 days although it is expected that in all cases where an order is proposed that local authorities seek advice from their local access forums, established under section 25 of the Act, since they will play an important role in advising the local authority on the appropriateness of any proposed order.

However, where a proposed order would exclude land from access rights for 6 days or longer, the formal consultation requirements set down in section 11(2) shown below must be adhered to: -

(2) Before making an order under this section which would have effect for a period of six or more days, the local authority shall-

  1. consult the owner of the land to which it would relate, the local access forum established by them and such other persons as they think appropriate; and

  2. give public notice of the intended purpose and effect of the proposed order,

inviting objections to be sent to them within such reasonable time as is specified in the notice; and shall consider any such objections and any other representations made to them.

It should also be pointed out that section 11 requires that any order having effect for 6 days or longer requires to be confirmed by the Scottish Ministers.

Ministerial consideration of orders with duration of more than 6 days

In considering whether to confirm any order the Scottish Ministers will wish to be satisfied that: -

  • Where a charge is to be levied for admission that the charge is necessary to the viability of the visitor attraction and the loss of public access can be justified in terms of other benefits to the local community. Further information on this is provided in the Code;

  • Adequate consideration has been given to the demand for access in the area affected by the proposed order;

  • Consideration has been given to the provision of alternative routes;

  • The local authority has provided the Scottish Ministers with copies of all objections or representations received on the proposed orders and that the authority can justify proceeding with the proposed order in light of any objection or representation;

  • The local authority has undertaken the consultation requirements set out in section 11 of the Act on the proposed order prior to submitting it for confirmation;

  • The purpose and effect of the order is clearly defined and is proportionate to the issue it seeks to address.

Once an order is confirmed the local authority will be informed by letter from the Executive.

It is also important to note that where a local authority revokes, amends or re-enacts an order and where the revoked, amended or re-enacted order has duration of 6 days or more, then the local authority must follow the procedures set out in section 11(2) to (9).

A series of model orders are provided as annexes to this section of the guidance. These can be adapted to suit for either an order with duration of less than 6 days or of 6 days or more.

[pro-forma notice given under section 11(2)(b) of the intended purpose and effect of a proposed section 11 exemption order]

[Name of Local Authority]

NOTICE OF PROPOSED ORDER TO EXEMPT LAND FROM ACCESS RIGHTS

Notice is hereby given under section 11(2)(b) of the Land Reform (Scotland) Act 2003 ("the Act") that [insert name of Local Authority] proposes to make [insert name of proposed order] ("the Order") under section 11(1) of the Act.

The effect of the Order will be to exempt [insert description of land] from the access rights which would otherwise be exercisable in respect of that land by virtue of Part 1 of the Act.

The purpose(s) for which the Order is being proposed is/are [ insert details of purpose(s) for which Order is being proposed]

It is proposed that the Order will take effect from [insert date] and will expire on [insert date].

Objections or representations in respect of the Order may be made to the Local Authority at the address given below, for its consideration, no later than [ ] days after publication of this notice. These should be made in writing [and in the case of objections, the grounds on which they are made should be stated].

[insert contact details of local authority including email address if appropriate]

[pro-forma notice given under section 11(9) of a section 11 exemption order where made without confirmation]

[Name of Local Authority]

NOTICE TO EXEMPT LAND FROM ACCESS RIGHTS

Notice is hereby given under section 11(9) of the Land Reform (Scotland) Act 2003 ("the Act") that on [inset date of making order], [insert name of Local Authority] made [insert name of order] ("the Order") under section 11(1) of the Act.

The effect of the Order is to exempt [insert description of land] from the access rights which would otherwise be exercisable in respect of that land by virtue of Part 1 of the Act.

The purpose(s) for which the Order is made is/are [ insert details of purpose(s) for which Order has been made.]

The Order will take effect from [insert date - either the date on which it was made or a specified date] and will expire on [insert date if applicable], unless revoked earlier.

[pro-forma notice given under section 11(9) of a section 11 exemption order where notice requires confirmation]

[Name of Local Authority]

NOTICE OF ORDER TO EXEMPT LAND FROM ACCESS RIGHTS

Notice is hereby given under section 11(9) of the Land Reform (Scotland) Act 2003 ("the Act") that on [inset date of Ministerial confimation],the Scottish Ministers acting under section 11(7) of the Act confirmed the [insert name of order] ("the Order") [with modifications], proposed by [insert name of Local Authority] under section 11(1) of the Act.

The effect of the Order is to exempt [insert description of land] from the access rights which would otherwise be exercisable in respect of that land by virtue of Part 1 of the Act.

The purpose(s) for which the Order is made is/are [ insert details of purpose(s) for which Order is being proposed]

The Order will take effect from [insert date] and will expire on [insert date if applicable], unless revoked earlier.

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

12(1) The local authority may, in relation t o land in respect of which access rights are exercisable, make byelaws-

  1. making provision further or supplementary to that made-

    1. by sections 2 and 9 and under section 4 above as to the responsible exercise of access rights; and

    2. by section 3(2) and under section 4 above as to the responsible use, management and conduct of the ownership of the land;

  2. specifying land for the purposes of section 6(j) above;

  3. providing for-

    1. the preservation of public order and safety;

    2. the prevention of damage;

    3. the prevention of nuisance or danger;

    4. the conservation or enhancement of natural or cultural heritage.

(2) Byelaws made under section (1)(c) above may, in particular-

  1. prohibit, restrict or regulate the exercise of access rights;

  2. facilitate their exercise;

  3. so as to protect and further the interests of persons who are exercising or who might exercise access rights, prohibit or regulate-

    1. the use of vehicles or vessels;

    2. the taking place of sporting and recreational activities;

    3. the conduct of any trade or business;

    4. the depositing or leaving of rubbish or litter; and

    5. the lighting of fires and the doing of anything likely to cause a fire,

Section 12 of the Act sets out local authority powers to make byelaws in respect of all land and inland water over which access rights are exercisable including core paths identified as such in local authority core paths plans drawn up under section 17 of the Act. This means that byelaws can extend to private land provided that the land is land over which access rights are exercisable. It sets out the purposes for which byelaws can be made, the procedure to be followed and obliges the local authority to consult certain persons and bodies.

The powers to make byelaws set out in section 12 relate specifically to access rights established by the Act and should not be made for any other purpose. It is also not expected that local authorities will make byelaws in respect of land owned and managed by other public agencies which have their own byelaw making powers. If there were a problem identified on such land then it would be up to the appropriate agency to make byelaws to address the issue.

As set out in section 12, the purposes for which byelaws may be made fall into three categories:

Firstly, as set out in section 12(1)(a)(i), byelaws may provide for what is responsible conduct over a particular area of land by persons exercising their access rights. They may also similarly make provision determining what is not responsible conduct in respect of the use, management or the ownership of land, over which access rights are exercisable.

Secondly, byelaws may exclude land from access rights. It is expected that any such exclusion would be part of wider management arrangements for an area.

Thirdly, byelaws under section 12 may provide for those purposes specified in section 12(1)(c)(i) to (iv) of the Act namely, the preservation of public order and safety, the prevention of damage, the prevention of nuisance of danger and the conservation or enhancement of natural or cultural heritage. Further to this when considering byelaws for any of the purposes specified in section 12(1)(c) further specific purposes for which they can be made are set out in section 12(2).

The byelaw-making powers in section 12 of the Act may be exercised generally in relation to land (and inland water) or in respect of a specific area of the land over which access rights are exercisable. In general byelaws should be limited to those specific areas where a need has arisen, rather than be applied over extensive areas on a precautionary basis.

In certain circumstances local authorities may be in doubt over the use of the byelaw-making powers available to them under section 12 of the Act with regards to the interpretation of the purposes for which byelaws can be made, (e.g. the conservation of natural or cultural heritage). In cases such as these they should seek early advice from the appropriate bodies, (e.g. Historic Scotland, Scottish Natural Heritage).

In making byelaws under section 12 local authorities must, at all times, have regard to their general duty under section 13 of the Act to uphold the exercise of access rights. It requires local authorities to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised so far as doing so is consistent with other local authority functions.

There may, however, be circumstances where it might be appropriate for a local authority to use byelaws to modify or limit the exercise of access rights whether in limiting certain activities or excluding an area from access rights. In all cases, local authorities should exercise their judgement carefully and consider the best mechanism for managing that particular problem in that area. Local authorities should consider whether byelaws are the most suitable management tool or whether other measures might be more appropriate. When it is proposed to make byelaws they should be appropriate and proportionate to the impact. It is important here to emphasise the difference between the powers under section 11 and those here in section 12. Section 11 allows local authorities to exclude particular areas of land from access rights. The byelaw-making powers are more applicable to the management or restriction of certain activities for specific purposes set out in this section rather than excluding the land itself from access rights. Where land is to be excluded by byelaws, this should be part of a wider management scheme.

Circumstances in which the use of byelaws could be appropriate might be:

  • After other measures of management or advice have been shown not to be effective; or

  • Where persistent examples of irresponsible behaviour or irresponsible management action arise and staff operating on the ground need the support of the byelaw provision;

  • Where there is significant use of a particular area of land and some form of management of that use is felt to be appropriate in the interests of facilitating the exercise of access rights and to protect those persons exercising their rights from any nuisance or danger;

  • Where there is conflict between different categories of recreational users using the same area of land or water, e.g. jet-ski users and canoeists, (byelaws could be used to "zone areas" for particular use). Although motorised activities are excluded from access rights, byelaws can be made to manage these under section 12(2) so as to protect and further the interests and safety of persons who are exercising, or who might wish to exercise, access rights;

  • Consideration might be given to using byelaws to manage access over land which is being regularly or permanently used by children, for example youth centres or scout camps, so as to safeguard the interests of the children;

  • Consideration may be given to the need for protection of an area of land of high natural and/or cultural heritage, where there is a persistent use of that land, and a problem is identified with regards to the dropping of litter or rubbish and/or the lighting of fires.

This guidance cannot be prescriptive nor cover all circumstances. Local authorities must use their discretion to determine when there is a management issue that needs addressed and what is the best mechanism for dealing with it.

Point to Consider- Management Rules

There may be some circumstances, although it is not expected that there should be many, in which local authorities should consider the appropriateness of introducing management rules under the provisions contained in section 112 of the Civic Government (Scotland) Act 1982, before considering proposing byelaws. These allow local authorities, without the need for confirmation by the Scottish Ministers, to regulate the use of, and conduct of persons while in or on, land and premises which are owned, occupied, managed or controlled by a local authority. Management rules are designed for minor offences in areas such as parks, community halls etc. where a breach would not justify the immediate criminal sanctions of byelaws, e.g. keep off the grass. However a breach constitutes an offence if the offender refuses to desist from contravening the management rule, or to leave the grounds or premises when requested to do so by an authorised officer of the local authority. Local authorities can also take out exclusion orders against persistent offenders, a breach of which would be a criminal offence.

The power to make management rules is additional, not an alternative, to the power conferred under any enactment to make byelaws for any purpose. Where byelaw-making powers also exist, such as in section 12 of the Act, it is for local authorities to determine what would be the most appropriate mechanism for addressing the particular problem, taking any advice from their local access forums and the Scottish Executive as they consider necessary.

Consultation requirements for byelaws under section 12(6), (7) and (8)

(6) The local authority shall, at the same time as they first make the proposed byelaws open to public inspection, consult the persons and bodies mentioned in subsection (7) below on the proposed byelaws.

(7) Those persons and bodies are-

(a) every community council whose area includes an area to which the proposed byelaws would apply;

(b) the owners of land to which the proposed byelaws would apply;

(c) such persons as appear to them to be representative of the interests of those who live, work, carry on business or engage in recreational activities on any land affected by the proposed byelaws;

(d) the local access forum established by them;

(e) every statutory undertaker which carries on its undertaking on land to which the proposed byelaws would apply;

(f) Scottish Natural Heritage; and

(g) such other persons as they think fit.

(8) The local authority are, for the purposes of subsection (6) above, to be taken as having consulted a person of whom or a body of which they have no knowledge or whom or which they cannot find if they have taken reasonable measures to ascertain whether the person or body exists or, as the case may be, the person's or body's whereabouts.

Byelaw-making procedure

In order to address public concern that the byelaw making powers under section 12 might be seen to be too restrictive the consultation requirement being placed on local authorities under section 12(6) and (7) ensures that there are safeguards in place for all those interested parties to comment on byelaws proposed to be made by local authorities. It also ensures that local authorities must take account of these comments and may adjust the byelaws in light of such views and comments. When considering byelaws, local authorities may find it helpful to consult with other authorities who may be facing similar management issues. This could also encourage a more consistent approach across the country.

Byelaws made under section 12 of the Act, whether in respect of land or inland water, are subject to the process set out in sections 202 to 204 of the Local Government (Scotland) Act 1973, subject to the modifications specified in section 12(5) of the Act. Amongst other things, those sections provide for:

  • an objection procedure;

  • a register of byelaws;

  • the revocation of byelaws; and

  • offences against byelaws.

Ministerial consideration of confirmation of byelaws

The Scottish Ministers are the confirming authority for byelaws by virtue of section 202(15) of the Local Government (Scotland) Act 1973. When local authorities put forward made byelaws for confirmation, Ministers will wish to be satisfied prior to confirming any byelaws proposed under section 12 that:

  • The byelaws are intra vires with the Act and that the consultation process set out in section 12 of the Act has been carried out fully;

  • That they do not duplicate or conflict with the general law, existing byelaws or any local Act, or common law;

  • That the nuisance they address merits criminal sanctions, that the byelaws and penalties are fair and reasonable and that they will be enforced;

  • That they directly address a genuine and specific local problem.

Public Rights of Way and Rights of Navigation

Local authorities should be aware that byelaws made under section 12 of the Act must not interfere with the exercise of any public right of way or of navigation, or with any functions of a statutory undertaker (as defined in section 32 of the Act).

Public rights of navigation are just that - rights - and must be respected. It would not be appropriate to simply override them. However, byelaws can manage those rights without overriding them. The exercise of a right of navigation as in going from one end of a stretch of water to another, is one thing and quite different from the many recreational pursuits undertaken. This means that on a stretch of water where there is a right of navigation, byelaws may be appropriate to zone activities for reasons of safety.

The table below sets out a summary of the different byelaw making powers currently available to local authorities and also the powers available to make management rules.

Governing legislation

Section

Category of land

Byelaw making authority

Local Govt. (Scotland) Act 1973,

Section 201

Land other than that where byelaws can be made for same purpose under another enactment. Land outside area of National parks

Local authorities

Civic Government (Scotland) Act 1982

Section 121

Adjacent waters and seashore outside area of National parks

Local authorities

National Parks (Scotland) Act 2000

Schedule 2(8)

Land within area of National parks

National Park authorities

Land Reform (Scotland) Act 2003

Section 12

Land and inland waters within access rights established by Act.

Local authorities & National Park authorities

Countryside (Scotland) Act 1967

Section 54

Country Parks provided for under section 48 of same Act, outside National Parks and those country parks inside National parks designated as such prior to establishment of National park where that country park is situated. Byelaw-making powers in respect of paths, land and waterways that are subject to access agreements or orders.

Local authorities

Civic Government (Scotland) Act 1982

Sections 112-118

Power to make management rules for the use of and conduct of persons on any land or premises owned, occupied or managed by the local authority or is otherwise under their control and to which public have access whether on payment or not.

Local authorities & National Park authorities

Section 13 Duty of local authority to uphold access rights

13(1) It is the duty of the local authority to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised.

The establishment of access rights assists all members of the public to enjoy the countryside and to take part in informal recreation both on land and inland water. Local authorities have a key role in facilitating the exercise of access rights on the ground. The Act places an emphasis on the local management of access and imposes a specific duty on local authorities to uphold access rights. It is recognised that local authorities require sufficient powers to be able to manage access within their areas, and to fulfil this duty. The Act provides them with new powers and duties. As the new access arrangements are to ensure improved responsible access for all, local authorities are reminded of their obligations under the Disabilities Discrimination Act 1995 and ensure, where it is appropriate to do so, that facilities are in place to allow those with a disability to enjoy safe access to the outdoors.

Local authorities will have the main role in upholding access over all land, not just paths. The duty placed on local authorities to assert, protect, keep open and free from encroachment any route, waterway or other means by which access may be reasonably exercised is an important one, and central to the success of the new arrangements. The emphasis of the legislation on the local management of access means that dialogue and consensus building is vital. Local authorities will rely heavily on advice from their access officers on the ground and from their local access forum(s) which should provide advice based on discussions between all those affected by the new access rights. If this dialogue and consultation is done effectively it should reduce the need to go down the route of having to defend legal proceedings, as allowed for under section 13(3) of the Act.

Local authorities will have their own procedures by which to involve elected representatives. Often the key to dealing successfully with any problem that arises will be early intervention by the local authority. Consideration should, therefore, be given to the scope for initiatives at official level without the delay of reference to Committee to prevent minor problems escalating into major problems.

Assert, protect, keep open and free from encroachment

Land managers have a clear duty to manage responsibly land over which access rights can be exercised. It is essential that in order for the public to exercise their access rights that land is open and free from obstructions. It is important that local authorities understand the relationship between the duties imposed by section 13 and the powers to assist them fulfil this duty provided in sections 14 and 15 of the Act.

Section 14 of the Act provides that owners should do nothing for the purpose of preventing or deterring the exercise of access rights. Where an owner acts in such a manner, section 14(2) provides powers to local authorities by written notice to require the owner to remedy the situation. If the owner fails to comply with the notice, section 14(3) allows the local authority itself to enter the land to undertake the remedial action and to recover the costs from the owner. Section 15 permits authorities to take similar remedial action to remove anything they feel has been erected in such a way that it is likely to cause injury to anyone exercising access rights.

The duty placed on local authorities by section 13 of the Act is clear. Sections 14 and 15 provide powers to assist local authorities to fulfil their duty.

If a local authority fails to act to secure access under sections 14 and/or 15 then this may be a breach of their duty under section 13. Anyone who considers a local authority had acted in accordance with this duty could seek a judicial review of the decision not to act.

Impact of duties under the Act on other functions

13(2) A local authority is not required to do anything in pursuance of the duty imposed by subsection (1) above which would be inconsistent with the carrying on of any of the authority's other functions.

The duty imposed by section 13(1) does not override a local authority's other functions. An example of this is when they are considering planning applications for development on land over which access rights are exercisable they will still be able to give consent for developments. However, where appropriate, local authorities should consider attaching a suitable planning condition to enable them to ensure reasonable continuing public access. A model planning condition is attached as an annex to this section of the guidance that local authorities may adapt for their own use.

The duty imposed by section 13(1) continues to apply in respect of land where the local authority is not the authority with primary responsibility for the discharge of functions under part 1 of the Act. For example, the duty would apply to a local authority considering a planning application in respect of land within a national park where the park authority would be responsible for functions such as core path planning. It is not anticipated that a national park authority would be required by section 13(1) to call in any planning application that might affect the exercise of access rights such as in the case of the Cairngorms National Park authority which does not have the full responsibilities for development control under planning legislation. It would be appropriate for these issues to be addressed in the development Control Protocol between the park authority and the neighbouring local authorities.

Institute legal proceedings

13(3) The local authority may, for the purposes set out in subsection (1) above, institute and defend legal proceedings and generally take such steps as they think expedient.

The Act provides local authorities with powers to commence court action in order to fulfil their duty to assert, protect and keep open and free from obstruction or encroachment land on which access rights can be exercised. It is for the authorities to determine when it is appropriate to take this action, in consultation, if necessary, with their own legal advisors.

Suggested Planning Condition -

Prior to the commencement of works … (if attached to a full planning permission )

or

As part of the detailed application… ( if attached to an outline consent)

….a detailed plan of public access across the site (existing, during construction and upon completion) will be provided for the approval of the council as planning authority. This will show:

  1. all existing paths, tracks and rights of way, and any areas currently outwith or excluded from statutory access rights*;

  2. any areas proposed for exclusion from statutory access rights, for reasons of privacy, disturbance or curtilage, in relation to proposed buildings or structures;

  3. all paths and tracks proposed for construction, for use by walkers, riders, cyclists, all-abilities users, etc.

  4. any diversions of paths - temporary or permanent - proposed for the purposes of the development.

* under Part One of the Land Reform (Scotland) Act 2003.

Section 14 Prohibition signs, obstructions, dangerous impediments.

14(1) The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so-

(a) put up any sign or notice;

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

(c) position or leave at large any animal;

(d) carry out any agricultural or other operation on the land; or

(e) take, or fail to take, any other action.

Actions which may prevent or deter the public from exercising access rights.

Owners of land should not impede or restrict the public from exercising access rights. Section 14 of the Act provides local authorities with a power to take action if an owner of land does anything for the purpose or the main purpose of preventing or deterring the public from exercising access rights. This provision is additional to the requirements of section 3 of the Act, which provides that landowners should use and manage land responsibly in respect of access rights. Section 14(1) provides examples of these types of activity. It has to be emphasised that local authorities will have to apply this power with great care on an individual case by case basis. This is because it must be recognised that there are a number of necessary legitimate land management practices carried out that are essential for that purpose and may not necessarily have been undertaken for the purpose or main purpose of preventing or deterring access.

Local authorities may wish to consider the following in making a judgement : -

If a land manager is not able to provide any reasonable land management or business reason for the impediment/obstruction then the local authority would normally exercise its discretion to remove the offending item.

If local authorities are in doubt then it might be beneficial at an early stage to seek advice from their local access forum(s).

The following are examples of types of action which if deliberately used to prevent or deter the public from exercising their access rights, would justify local authorities intervening using the powers available in section 14:

  • erecting signs or notices which deter the public from entering land over which access rights are exercisable;

  • erecting fences or walls or planting, hedges trees or other vegetation;

  • blocking culverts;

  • leaving any animal of a type which could be considered to have a dangerous propensity in a field crossed by a core path;

  • parking vehicles, trailers, equipment, building or fencing materials in such a way as to unreasonably impede access;

  • storing or depositing dung, straw or any animal food stuffs on a path, road or gateway so as to unreasonably impede access;

  • locking gates.

Fences, walls hedges, trees

Owners of land have a right to manage their land. Natural features such as hedges and trees and manmade features such as dry stone walls define areas like fields where livestock are kept. Hedges may also have been legitimately planted in the interests of, for example enhancing biodiversity. If, however, the public have been exercising their access rights over an area of land and an owner of land commences growing hedges then it will need to be ascertained whether or not this has been done to prevent or deter access and whether or not adequate provision has been allowed for access through the area, such as a break in the hedge.

Signs

The use of signage can be a useful tool to manage public access and to welcome the public to the countryside. A signpost which provides information about an area and where to undertake recreational activity can give guidance to the public and provide reassurance about where they can and cannot exercise their access rights. However, where a sign seeks to deter the exercise of access rights without good reason then a local authority in fulfilling its duty to uphold access rights under section 13 of the Act, should request that the landowner take down the sign. If the landowner were to fail to do this then the authority should follow the steps set out in section 14 to ensure that the sign is removed. There may, however, be a legitimate reason for the sign e.g. to warn of danger. However, in determining whether or not a sign is legitimate local authorities may find it helpful to refer to section 4 of the Code. Scottish Natural Heritage are also intending to develop supplementary practical advice on assessing the need for signs, their locations and suitable wording to assist safe and effective land management operations.

Access where there are animals present

Any animals, including dogs, which are left to roam freely in an area where the public regularly exercise access rights might be seen by the public as a deterrent to the exercise of access rights. The Heath and Safety Executive's advice note Agricultural Information sheet No 17 (this is available from HSE Books), provides useful information on the potential hazards which can occur to workers and members of the public when cattle are kept in fields where the public exercise access rights. Farmers do, of course, have to keep their animals somewhere, and local authorities will, therefore, have to ascertain the reason they have been left in a particular area. However, it is expected that in situations where a farmer keeps any potentially dangerous animal in a field crossed by a core path or a right of way that the local authority may regard such action as a deliberate obstruction to responsible access (see para. 4.9 and section 5 and section 6 of the Code for further guidance).

Section 14(2) and (3)

(2) Where the local authority consider that anything has been done in contravention of subsection (1) above they may, by written notice served on the owner of the land, require that such remedial action as is specified in the notice be taken by the owner of the land within such reasonable time as is so specified.

(3) If the owner fails to comply with such a notice, the local authority may-

(a) remove the sign or notice; or, as the case may be,

(b) take the remedial action specified in the notice served under subsection (2) above,

and, in either case, may recover from the owner such reasonable costs as they have incurred by acting under this subsection.

Serving a written notice

If the local authority is satisfied that the action of any individual was for the purpose or the main purpose of preventing or deterring the exercise of access rights and the said individual is unwilling to remedy the situation, a written notice (see model written notice at end of this section) may be served on the responsible party. The local authority may wish to consider sending this letter by recorded delivery. The notice ought to be served not fewer than 14 days before the date on which it is due to take effect.

The written notice should clearly specify the actions which the local authority requires the tenant, licensee or occupier of the land to undertake in order to allow the public to exercise their rights of access over the land. The notice should also clearly state the date by which the remedial action must be undertaken. The period for carrying out the action should be a reasonable period calculated by reference to the particular circumstances of the contravention.

Appeals

The owner of land on whom a notice has been served may appeal by summary application to the Sheriff. The procedures for appealing by summary application are contained in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules 1999 (S.I 1999/929).

Removal of the obstruction

If the terms of the written notice are not fulfilled the local authority can itself take the necessary steps and recover any reasonable costs incurred from the owner of the land.

Model Written Notice under section 14(2)

LAND REFORM (SCOTLAND) ACT 2003

WRITTEN NOTICE

ISSUED BY: [name of Council/National Park authority]

1. THIS IS A FORMAL NOTICE issued to you [insert name of owner of the land] by the [name Council/National Park authority] in exercise of the powers conferred by section 14(2) of the Land Reform (Scotland) Act 2003 ("the Act"), because it appears to them that you have contravened the terms of section 14(1) of the Act on the land referred to in Article 2, of which you are the owner.

2. THE LAND AFFECTED

The land on which it appears a breach of section 14(1) of the Act has taken place is [insert full description of land], shown edged red on the attached plan signed as relative hereto.

3. THE BREACH OF PREVENTING OR DETERRING THE EXERCISE OF ACCESS RIGHTS

[State details of what has prevented or deterred the exercise of access rights].

4. REASONS FOR ISSUING THIS NOTICE

[State why the notice is being issued i.e. it appears to the Council/National Park authority that the contravention of section 14(1) of the Act has occurred within the last xx months.]

5. WHAT YOU ARE REQUIRED TO DO

1. State the action the owner is required to take i.e. remove sign from a core path.

2 Timescale for compliance: xx weeks after this notice takes effect.

6. WHEN THIS NOTICE TAKES EFFECT

This notice takes effect on XX, unless an appeal is made against it beforehand.

7. YOUR RIGHT OF APPEAL BY SUMMARY APPLICATION

You are entitled to appeal against this notice by summary application made to the sheriff under section 14(4) of the Act. The rules which apply to an appeal made by you are contained in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (S.I. 1999/929). In accordance with rule 2.6 of those rules any appeal must be received, or posted to be received by the sheriff clerk WITHIN 21 DAYS OF THE DATE OF ISSUE (see below), namely before [insert date which is 21 days after the date of issue below].

8. WHAT HAPPENS IF YOU DO NOT APPEAL

If you do not appeal against this written notice, it will take effect on [the specified effective date] and you must then ensure that the required steps for complying with it set out in Article 5.1, for which you may be held responsible, are taken within the period[s] specified in Article 5.2.

Failure to comply with a written notice which has taken effect can result in [specify action] by the Council/National Park authority which is empowered to recover reasonable costs from you for such action by virtue of section 14(3) of the Act.

Dated:

[date of issue]

Signed:

[Council/National Park's authorised officer]

on behalf of

[Council/National Park's name and address]

[attach plan on which should be written "this is the plan referred to in Article 2 of the foregoing Written Notice, dated [insert date of notice]. The map should also be signed.]