The land of Scotland and the common good: report

Section 29 - Public Access

29.1 Land Reform Act

5 The arrangements governing public access over land in Scotland have undergone a major transformation since devolution. Part 1 of the Land Reform (Scotland) Act 2003 formalised Scotland's traditional 'right to roam' into a statutory framework of public access rights.

6 These public access rights are based on the principle of responsible access, with obligations on both the access users and the owners of land over which there is public access. Guidance on these responsibilities is set out in the Scottish Outdoor Access Code ( SOAC), as developed and promoted by Scottish Natural Heritage ( SNH) and approved by Scottish Ministers. Scotland's local authorities and national park authorities act as access authorities in their areas with a number of specific responsibilities. These include developing a Core Path Plan, keeping access routes free of obstructions and establishing a local access forum. There are now more than 17,000 kms of recognised Core Paths in Scotland compared, for example, to less than 100 kms of formally asserted Public Rights of Way in 2003. ^[1]

7 The Review Group recognises that, in the past, there were significant concerns amongst both access and land owning interests about developing a statutory framework for public access, and that years of discussion were involved in developing the provisions contained in Part 1 of the Land Reform Act. Now, ten years after the legislation came into force, the Group's view is that the new statutory framework should be judged a considerable achievement that has delivered significant public benefits and is " generally working well on the ground". ^[2] There are undoubtedly problems to be addressed in some areas as described below and there have been some prominent recent issues. However, the Group considers that these are essentially issues over implementation rather than with the terms of the legislation.

8 The Review Group considers, however, that Scottish Ministers could usefully review and update the Guidance they can give to local authorities on implementing their responsibilities under section 27 of the Act. The original Guidance issued by Ministers is now ten years old and was focused on bringing in the new arrangements. The Guidance should be brought up to date, clarifying and refining it in the light of experience. ^[3]

9 Amongst the matters that could be covered in a review of the Guidance is clarifying two aspects of Sections 18-20 of the Act, which are concerned with Core Paths. Guidance could address the apparent lack of clarity in Section 18 (3)-(7) over the number of public consultations that local authorities have to carry out to incorporate changes following a local inquiry dealing with objections to a Core Path Plan. ^[4] The other aspect raised with the Review Group which could be clarified is that, in Section 20 (1), access authorities can instigate a Core Path Plan review "at such times as they consider appropriate" ^[5] without Scottish Ministers also "requiring them to do so". ^[6] That requirement should, as appears intended, only be a fall back power to be used by Ministers if necessary. Consideration might also be given as to whether the procedures, in Section 20 of the Act, for local authorities to be able to amend Core Path Plans, could be made less onerous and more straightforward.

10 Another particular aspect that should be considered in updated Guidance, is dispute resolution. The Act and SOAC do provide a framework to address local access issues, which is primarily based on the access authorities and Local Access Forums, with recourse to Sheriff Courts if necessary. These issues might be between different user interests, as well as users and the owners or occupiers of land. Resolution of local issues has become an important part of the work of the National Access Forum and the Local Access Forums. However, there are issues that may not be resolved through the Local Access Forums and the Group recognises concerns that the next step of taking an issue to the Sheriff Court, can be a potentially difficult and expensive option. ^[7] The Group considers that the Ministerial Guidance should be encouraging access authorities to make more use of dispute resolution techniques such as mediation and arbitration, including formal arbitration under the terms of Scotland's recently modernised arbitration legislation. ^[8]

11 The Review Group appreciates that some interest groups would like to see some particular aspects of the SOAC changed. However, while a review may be appropriate at some point in the future, the Group does not consider a review of the SOAC is warranted at this point in time. The main tasks at present should be the continued promotion of the Code to build on existing progress, and its improved implementation on the ground. ^[9] In carrying this out, it is important that access authorities are taking account of the concerns of both land managers and access users. Among the issues raised with the Group were dog fouling and dogs not under control, blocked accesses, tensions between canoeists and anglers, damage by mountain bikes and horses and concerns about wild camping, as well as problems that can arise from commercial and intensive access use.

12 Issues over dogs, including commercial dog walking in urban and peri-urban areas, are the most widespread of these problems. In part, this reflects the importance of dogs as part of many people's outdoor recreation, with surveys showing that more than 40% of all visits by adults are accompanied by a dog. While some issues like dog fouling and worrying livestock are generally criminal offences that can be reported to the police, the wider issues over dogs need to be addressed by continuing educational initiatives. Many of the other problems listed above tend to arise in particular locations and can require specific local solutions. However, there is also a continuing need for promotion of the Access Code and education, including the publication of guidance of good practice. Existing examples include guidance developed by a number of different organisations for public access management on golf courses, the management of informal camping and the responsible use of inland water responsibly.

13 There is a need for adequate resources to support the promotional and educational work required to improve the implementation of the SOAC. There is also concern that the pressures on SNH and access authority budgets and their many other responsibilities, are squeezing this provision. The Group considers it is therefore important that the wider public benefits of public access for health and wellbeing are appropriately recognised in allocating budgets. Investment in public access that delivers improvements in fitness, for example, can save on public health costs later. Improved public access can also assist in delivering more sustainable transport policies. As part of this, the Group considers that Scottish Ministers might give clearer direction across government and associated public bodies to ensure that they play their part as appropriate in the promotion and delivery of responsible public access. In addition, there should also be suitably accountable funding opportunities available, for example, through the SRDP, to encourage land managers to undertake relatively small scale access projects to deliver on the ground improvements in public access provision.

14 The lead responsibilities for improving the implementation of the statutory framework for public access provided by the 2003 Act, rest with SNH and local access authorities. While Local Access Forums are part of that framework, Scotland's National Access Forum ( NAF) is not. The NAF is a voluntary association of different interest groups established by SNH to provide advice on national access issues and help SNH fulfil its duty to keep the Access Code under review. The Review Group's view is that the existence of this national level forum has been a helpful and constructive influence in the implementation of the new access rights and responsibilities since the legislation came into force. The Group notes that the NAF is already considering the types of access problems identified in paragraph 7 above and considers that the NAF has a key role in progressing these issues on a consensus basis between access user and land management interests. SNH is due to review the NAF in the coming year and the Group considers that, while there appears no need to put the NAF on statutory footing, the NAF's role and operation should continue to be strongly supported.

15 The Review Group's view is that Part 1 of the Land Reform (Scotland) Act 2003 has delivered a progressive statutory framework for improved public access over land in Scotland, and that the main challenges involve continuing improvements in implementation. The Group recommends that Scottish Ministers should, as part of that, update the Guidance provided to access authorities under Section 27 of the 2003 Act.

29.2 Other Public Access Rights

16 The land covered by the statutory public access rights in the Land Reform (Scotland) Act 2003 includes the foreshore, defined in Scotland as the land between the high and low water marks of ordinary spring tides. However, there are other common law public rights over the foreshore and the public also has other access rights over inland waters, seabed and sea. The activities covered by these common law public rights over the foreshore are, as described below, more extensive than those in the 2003 Act. The other common law public rights over water include a right to navigate, a right to fish and a right of recreation. ^[10]

17 The common law rights over the foreshore and seabed are important public rights, yet there is little public awareness of them. More generally, the current position with these rights might be considered archaic. In Scotland's system of land ownership, these rights are held in trust for the public by the Crown and there is no effective system to assert or protect these rights if they are infringed. As the Scottish Law Commission ( SLC) has commented: " In theory at least, the Crown is obligated to protect public rights over the foreshore and seabed. The role of guardian of the public rights is undertaken by the Lord Advocate. However, the power to protect public rights in individual cases has rarely, if ever, been used in modern times". ^[11] In addition, there is also a degree of uncertainty over the full scope of the ancient common law rights over the foreshore.

18 The Review Group considers that the arrangements governing these common law public rights should now be replaced by statutory public rights to clarify and protect them in the public interest. This should be seen as a next step to follow the formalisation of the public's traditional access rights over land into the statutory access rights in Part 1 of the 2003 Act. The Group also notes that the SLC's report on the Law of the Seabed and Foreshore at the time of that Act, made proposals for converting these common law public rights into statutory public rights. ^[12] However, those proposals have yet to be taken forward since.

19 A first stage should be to integrate the two sets of public rights over the foreshore, the statutory rights under the Land Reform Act and the common law rights held by the Crown. The 2003 Act Part 1, in introducing access rights, specifically states that " the existence or exercise of access rights does not diminish or displace any public rights under the guardianship of the Crown in relation to the foreshore". ^[13] However, some of the public's common law rights of recreation over the foreshore identified by the SLC would now be considered covered by 'recreational purposes' in the 2003 Act. ^[14] In a modernised public access rights framework, those common law rights could be superseded by the existing statutory provisions, while the remaining common law rights over the foreshore not covered in the 2003 Act, should then be converted into statutory public rights. This should be done so that they are fully integrated with those under the 2003 Act, for example, in terms of lawful and responsible use and the responsibilities of access authorities for these rights. It might also be noted in this context, that the Crown still owns around 50% of Scotland's 18,000 kilometres of foreshore and that the Review Group has recommended, in Section 11 of this Report, that local authorities should become owners of these areas.

20 The remaining common law rights over foreshore not covered by the 2003 Act, principally include the right to fish for sea fish and ancillary activities, the right to gather shellfish, the right to shoot wildfowl over the foreshore and sea, and the right to use the foreshore for purposes ancillary to the common law public rights of fishing, recreation and navigation in the sea. These latter purposes include, for example, embarking and disembarking, loading and unloading, drying nets and gathering bait. ^[15] Currently, the right to fish excludes salmon and the right to shellfish excludes naturally occurring mussels and oysters, as the rights to these are still held by the Crown in Scotland. The Review Group has recommended abolishing these Crown rights in Sections 11 and 31 of this Report.

21 The Review Group's view is that, from the starting point of Part 1 of the Land Reform Act, all the public's common law access rights in Scotland over land, inland water, foreshore, seabed and sea should become modernised without diminution into an effective, integrated and enforceable system of statutory public rights across all these environments. The Group also notes a particular need for the public's rights in the sea to be fully recognised, given the transformation of Scotland's marine environment over the last 15 years or so. This on-going change is both in terms of the sea's increasing use for different purposes, such as renewable energy generation, and the new level of planning and regulation through Marine Scotland, including measures that constrain some of these public rights.

22 The Review Group recommends that Scotland's current common law public rights over the foreshore, inland water and seabed should be replaced by statutory public rights that are integrated with the public's statutory access rights over land under Part 1 of the Land Reform (Scotland) Act 2003.