Land reform, a long and winding road

April 2003

by Andrew Ralton

Exploring Scotland’s heritage on foot, cycle, horseback – not discounting canoe or mechanical buggy – is highly popular with residents and visitors alike.

The purposes of these journeys are many and various: to conquer the highest peak; to reflect on the beauty and fascination of nature; while to others, paths, tracks, closes, lanes, vennels, loanings are an essential lifeline to reach much needed shops, health and community centres, and friends.

Anyone who has participated in any of these activities will have used a public right of way, whether they have realised this or not.

If we cast our mind’s eye back a few hundred years, travelling through the Scottish countryside could take several days, but few folk took a journey for its own sake or with pleasure in mind. That is before the time of Wordsworth and the ‘romantic view’ of landscape emerged.

The advent of the city, the factory, and the motorcar have done much to divorce man from the landscape. Many of these old routes remain and can be traced back to the time of the drovers, the Romans, or further, and they are in greater demand than ever as a leisure and tourist resource.

In order to help keep these routes alive, ScotWays (the Scottish Rights of Way and Access Society – probably one of the world’s oldest surviving access organisations, founded in 1845) has recorded over 7,000 routes totalling over 10,000 miles in the Catalogue of Rights of Way (CROW). This may sound a lot, but when one discovers that this equates to an average density of 0.2 miles of path per square mile in Scotland, and the comparable figure is 2.2 miles per square mile in England and Wales, then there is some serious catching up to do. England and Wales have gone through the formal process of proving and verifying many of their rights of way through a formal statutory process as a result of the National Parks and Access to Countryside Act (1949). Much of the Act did not apply to Scotland, which is partly why rights of way are not denoted as such on Ordnance Survey maps.

THE Lairig Ghru: Part of a vital network of rights of way; thousands of miles of forest paths, ancient drove and coffin roads, hill and lowland tracks which give access to some of Europe’s wildest and most spectacular scenery.[photograph: jim law]

The Scottish common law criteria for a public right of way are:

The route must join two public places. (A public place is where the public are entitled to be).
It must follow a more or less defined route. (It need not be visible on the ground, but should follow a consistent line).
It must have been used openly and peaceably by members of the public as of right, without the permission, express or implied, of the landowner. (The use must be consistent with the type of terrain and the density of the surrounding population, without any stealth or violence on the part of the user and in such a way as it clearly indicates the public’s right to the landowner).
It must have been used without substantial and effective interruption for a period of 20 years or more. (It is not necessary for the same people to have used the route throughout this period but it is necessary for members of the public to have used the route for this period).

ScotWays has successfully signposted and waymarked over 2,000 routes in the Scottish countryside, and with over 700 new signs installed throughout Scotland in the last year alone we aim to provide the public with greater confidence in using routes. This we believe also helps land managers manage their land where there is public access involved, as the Scottish countryside is a living, working environment. Unlike countries like the USA where vast tracts of wilderness land are set aside solely for conservation and recreation, in Scotland, and the UK as a whole, conservation and recreation co-exists with farming, forestry and other land uses. The Scottish countryside is not a museum, and as well as the afore-mentioned land uses, many people choose to live in the countryside and certain measures of privacy are expected. It is therefore inevitable that conflict arises from time to time.

It should be noted that rights of way rarely lead to mountain tops, and notwithstanding the huge popularity of ‘Munro-bagging’ and even visiting the tops of smaller hills, this activity relies on the tolerance of landowners. This de-facto freedom of access has been a strong part of the tradition of hill-going in Scotland from time immemorial.

As a result of this, the Scottish Executive brought forward the Land Reform project with part of its aim to update and simplify access legislation. Helping them in this were Scottish Natural Heritage (SNH) and a newly created alliance of organisations known as the National Access Forum (made up of recreational organisations, including ScotWays), landowners and land managers (represented by the National Farmers Union of Scotland and the Forestry Commission for example).

This alliance proposed that a new ‘right of responsible access’ for all users (walkers, cyclists, and horse-riders, but not motorised users – except disabled buggies) should be created and that this right should be a balanced package which includes codes of behaviour, a major programme of education obligations on local authorities and land managers, better mechanisms for facilitating and measuring access and a co-operative approach in which all interests are respected. (SNH, 1998: 16).

From that point to the present the route has been fairly winding to say the least. First of all the long-awaited Draft Bill emerged in February 2000, coinciding with the devastating outbreak of Foot and Mouth Disease. Some of the Draft Bill’s provisions potentially limited the tradition of de facto access. This however was not taken forward into the Bill, as introduced, partly it can be presumed as a result of the responsible attitude displayed by the public in staying away from the countryside throughout the Foot and Mouth crisis; indicating the public ability and desire to ‘do the right thing.’ The Bill has since passed through two Committee stages of the Scottish Parliament where it has undergone general approval and line-by-line scrutiny – with yet more changes. At time of writing (January 2003) there are over 200 amendments to be debated, as the Bill awaits the third and final Stage 3 scrutiny before being voted on by the whole of the Scottish Parliament.

The legislation that is proposed is certainly radical in its scope and resembles the Scandinavian model of countryside access where the tradition of ‘friluftsliv’ (literally ‘free-air-life’) gives extensive freedom of access to the countryside. In areas of extensive wilderness land this is to be expected. The Scottish legislation will require that local authorities draw up a system of paths “sufficient for the purpose of giving the public reasonable access throughout their area”.

However, the Bill at present does not seek to limit users to paths and tracks. The key point to remember is that access must be exercised responsibly, and it is intended that a Scottish Outdoors Access Code should be published for consultation after the Bill has become enacted. This will provide guidance on where, when and how access can be exercised responsibly. In exercising access rights it will be very important to avoid damaging or disturbing land management or wildlife, and also to respect privacy. Currently in its third draft form the Outdoors Access Code runs to 46 pages, a good deal more than the current 12 strictures of the old Country Code.

In addition, each local authority will be required to set-up a Local Access Forum with representatives from recreationalists (walkers, cyclists, horse-riders, and others), land managers (farmers and foresters, etc.), and landowners. These forums will be a key element in raising awareness and widening involvement in access, sharing good practice, assisting with the development of core path plans and access strategies, co-ordinating access projects, and advising and problem solving at a local level.

Through this open approach to access it is hoped that conflict can be avoided and that access in Scotland will be amongst the most open in Europe. Hopefully it will also facilitate today’s society and future generations to explore and identify with the Scottish landscape and lead to an enhanced understanding of the countryside for the 21st century modern man and woman.

For more information, contact:

ScotWays at 24 Annandale Street, Edinburgh, EH7 4AN
Tel/Fax: 0131 558 1222
e-mail: info@scotways.com

Paths for All Partnership website

The case for reform

My reaction when I sat in the balcony of the Parliament on 23 January – the day the Bill was passed – was elation. All the hard work had paid off. The years of waiting and wondering were over. James Bryce’s dream had been realised. (Bryce, from Aberdeen, was the MP for Tower Hamlets who introduced the Access to the Mountains, Scotland, Bill in 1884.)

Now the elation has gone and has been replaced by a mild anxiety at what lies ahead. It is no small task that I and others in similar posts now face. The immediate need is to get to grip with the Act and work out exactly what it means, take that knowledge and turn it in to a form that my colleagues and the councilors will readily understand. Plain English and Acts of Parliament never seem to go hand in hand.

The phone calls have started to bring in questions from the public and land managers. ‘What does this Act mean for me?’ is a recurring theme.

I will need to develop a network of core paths – not totally on my own, I hasten to add. New procedures for everything from how to divert a path to what to do when a route is blocked. Access to the countryside is at a turning point and people’s expectations are increasing. Will the resources to meet these demands be available? I don’t know. I do know that it is going to take time to meet those expectations. One thing is sure, there will be no shortage of work.

Richard Barron, Access Officer, Stirling Council

The case against change

The Scottish Landowners’ Federation has been a member of the national Access Forum since it was established, and we played our part in bringing forward the key recommendation for a right of responsible access.

It is worth repeating in full this proposal because it gives some indication of just how far the Land Reform Bill has deviated. The Access Forum said that, “…the Scottish Parliament should introduce a right of access to land and water, exercised responsibly, for informal recreation and passage. This right should be one part of a balanced package which includes codes of behaviour, a major programme of education, obligations on local authorities and land managers, better mechanisms for facilitating and managing access, and a co-operative approach in which the needs of all interests are respected.”

The right now extends to educational groups, recreational groups, and unbelievably, to commercial operators. We are deeply concerned with legislation that allows private commercial operators to carry out their business on land, without having to contact the land manager or to contribute to the maintenance of the resource.

There are many reciprocal obligations on land managers, including a host of actions that cannot be taken in case these should prevent or deter access. That doesn’t sound too unreasonable perhaps, expect when it states that landowners must not, “…permit to grow any hedge, tree or other vegetation”.

Does this mean that if a land manager doesn’t maintain paths, and brambles or nettles grow across a path then they can be said to be “preventing or deterring” access? If so this is a ridiculous position.

While we have many concerns with the legislation – though not with informal recreation – we also want to work to better integrate access with land management. One of the ways that this can be achieved, especially close to settlements, is through the establishment of Core Paths (some of which will be existing Rights of Way), which will establish good public access networks.

The SLF is already involved with a number of local access forums, and looks forward to engaging with others as they are established. It is important that those most affected by access – landowners and managers, walkers, riders, cyclists, water sports enthusiasts and the local community – work together to make the best of the legislation that the Parliament has served up to us.

John Don, Convener, Scottish Landowners’ Federation, Musselburgh

Andrew Ralton ba (hons) is assistant secretary at ScotWays where he advises on access and rights of way, and signposts routes ‘in the field’. He studied Rural Recreation and Tourism at the Scottish Agricultural College in Ayrshire, and Tourism Management in Edinburgh. He is a Member of the Tourism Society.

This is an article from the April 2003 edition of Leopard Magazine. To read much more like this every month, subscribe to Leopard Magazine.