Public right of access as defined in the Land Reform Act (Scotland) 2003: EIR release

Information requested

My request concerns interference with the public right of access as defined in the Land Reform Act (Scotland) 2003.

My understanding of the role of Scottish Forestry is that, should applicants for woodland creation schemes create a situation in which the existing means of access may no longer be exercised, for example as a result of the erection of fencing without providing a reasonable number of access points or the locking of gates, then Scottish Forestry has the right to recoup some portion of the grant made available for the scheme in question. Is my understanding, as described above, correct? If not, please inform me of the correct position.

Will you also say if Scottish Forestry has not only the power to act in the way referred to, but also a statutory duty to protect the public interest in such a way.

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

My request concerns interference with the public right of access as defined in the Land Reform Act (Scotland) 2003.

1. My understanding of the role of Scottish Forestry is that, should applicants for woodland creation schemes create a situation in which the existing means of access may no longer be exercised, for example as a result of the erection of fencing without providing a reasonable number of access points or the locking of gates, then Scottish Forestry has the right to recoup some portion of the grant made available for the scheme in question.

Is my understanding, as described above, correct? If not, please inform me of the correct position.

In its regulatory role and approving woodland creation schemes and grant awards, Scottish Forestry assess all woodland creation projects against the UK Forestry Standard (UKFS) to ensure that they are compliant prior to approval. The UKFS Chapter 7: Forests and People sets out the UKFS Requirements for Forests and People and the legal requirements for public access rights to forests which we expect applications to adhere to as required under the Land Reform (Scotland) Act 2003 (LRSA).

Projects above the Environmental Impact Assessment (EIA) Forestry (Scotland) Regulations (2017) thresholds are also subject to EIA Screening to determine if EIA Consent is required for a project to go ahead. At this point, we must consider the likely significant impacts of the project on environmental sensitivities such as public access and the mitigation proposed to avoid or reduce impacts to this. Our Screening Opinion should be based on a submission which has taken the views of stakeholders into account when agreeing a fence line as part of a planting project and worked to maintain access where it exists.

Appropriate access points should have been provided to allow through access along existing formal and informal paths and to comply with the LRSA. What it is not reasonable is for us to require access where no access route exists, for example if a mountaineering groups have asked for regular gates on hills to allow emergency decent from the hill where no paths exist.

Where an applicant in receipt of forestry grant funding erects a fence without providing reasonable access, our enforcement action is in relation to contract management under Forestry Grant Scheme (FGS) Grant Contract Clause: 10 Public Access, this states: You must allow access to the Property by virtue of any public rights of way over the Property and comply with your obligations as a land manager in relation to the right of responsible access secured by the Land Reform (Scotland) Act 2003 and the Scottish Outdoor Access Code.

If gates or other items are agreed within the FGS Contract, but not provided, we can refuse to pay for all the fencing costs until the situation is resolved. Likewise, if gates are locked this would constitute a breach of the FGS grant contract and if this persists, we could seek to reclaim grant funding. Therefore in answer to the question we can in these circumstances seek a reclaim or remedial action.

The Land Reform (Scotland) Act 2003 conveys a range of duties upon Scottish Government in relation to casework brought by local authorities and National Park Authorities (“access authorities”). These consist of the following:

• Confirmation of long-term temporary exemption Orders (section 11)
• Confirmation of byelaws (section 12)
• Confirmation of compulsory purchase Orders (section 16)
• Direction to adopt core paths plans (section 20)
• Confirmation of Path Orders (section 22).

2. Will you also say if Scottish Forestry has not only the power to act in the way referred to, but also a statutory duty to protect the public interest in such a way.

Under the LRSA Access Authorities have a duty to uphold access rights and may institute and defend legal proceedings and generally take such steps as they think expedient in this regard (section 13). They convene local access forums for the purpose of resolving problems and disputes (section 25), and have powers to serve statutory Notices on land managers requiring remedial action where there are obstructions (section 14). In managing outdoor access they may institute the various pieces of casework set out in the bullets in Annex A above. Under section 10 of the LRSA it is the access authorities which have a duty to publicise the Scottish Outdoor Access Code(SOAC). Under section 24 they may appoint ranger services with a public engagement and management role.

Scottish Forestry are not an Access Authority and we do not have a statutory duty to uphold access rights and relevant powers under the Act. It should also be noted that the courts have final say on where access rights apply and what constitutes responsible behaviour by land managers and those exercising access rights.

Further relevant information that may be useful here: Public access: delivery plan - gov.scot 

In relation to both questions the individual circumstances of a particular case may be relevant and therefore we also encourage discussion with the relevant local Conservancy team, and their details can be found here: Scottish Forestry - Contact

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