Overview of Evidence on Land Reform in Scotland

2. Access Rights

Awareness and Understanding of the Scottish Outdoor Access Code

2.1 It is not possible to quantify the extent to which statutory access rights are being exercised by recreational and other access-takers due to a lack of available and readily comparable data (MacLeod et al, 2010).

2.2 However, a recent report on monitoring responsible behaviour among recreational users and land managers highlights that awareness of the Scottish Outdoor Access Code and its contents has increased significantly, both among recreational users (from 35% in 2002/03 to 73% in 2008) and among land managers, from 39% in 2002/03 to 63% in 2008 (MacLeod Research Ltd., 2011). These findings are supported by the Scottish Recreation Survey, which shows that, since it came into effect in February 2005, respondents' awareness of the Scottish Outdoor Access Code and associated legislation has in general risen. This finding is highlighted in the table below (Table 2.1) - it should be noted that the particularly large decrease (between 2008 and 2009) in respondents' awareness of the statutory legislation on access rights depicted in this table (9%) is thought to be due to a shift in SNH's communications to focus on the Access Code rather than the associated legislation.

Table 2.1 Respondents' awareness of the Scottish Outdoor Access Code and the statutory legislation on access rights

Use of the Countryside

2.3 Findings from the Scottish Recreation Survey provide details of respondents' visits to the outdoors for recreational purposes, which appear to have remained relatively stable since 2006 (TNS Research International, 2010). The table below (Table 2.2) provides details of the percentage of respondents who reported they had made at least one recreational visit to the outdoors within the previous 12 months, and also the percentage who had made at least one recreational visit to the outdoors each week in that particular year.

Table 2.2 Respondents' visits to the outdoors

The Scottish Recreation Survey also provides details of the percentage of visits made by respondents in which access problems were encountered (TNS Research International, 2010). The frequency of these visits appears to have undergone a general decrease since the Outdoor Access Code and Land Reform (Scotland) Act 2003 came into effect in February 2005, with 29% of respondents' visits encountering the problem in 2004, 18% in 2005, 25% in 2006, 20% in 2007, 22% in 2008, and 20% in 2009. The access problems most commonly reported by respondents in 2009 were overgrown paths (reported for 7% of visits), restrictive signage (for 5% of visits), and blocked paths (for 4% of visits).

2.4 The above finding is supported by Scottish Natural Heritage's survey to Monitor Responsible Behaviour Amongst Recreational Users And Land Managers as, between the original baseline survey and the follow-up study in 2008, the proportion of recreational users who felt 'very comfortable' when using the outdoors increased from 63% to 75% (MacLeod Research Ltd., 2011).

2.5 More generally, MacLeod et al (2010) found that the clarification of statutory access rights is viewed as increasing the confidence and assertiveness of access-takers in relation to exercising these rights.

2.6 MacLeod et al (2010) also identified concerns that a minority of access-takers are emphasising their statutory rights over their responsibilities when taking access. However, such behaviour is very much a minority activity and the Responsible Behaviour Surveys show an increasing and widespread awareness of the key responsibilities for access to the outdoors as detailed in the Code among both recreational users and land owners/managers (MacLeod Research Ltd., 2011).

2.7 Despite the largely responsible approach taken to land access by land owners and managers, MacLeod Research Ltd does note that 'whilst land owners and managers demonstrate a high awareness of their more general responsibilities as laid down in the Code, the findings identify an opportunity to increase awareness of specific responsibilities under the Code among land owners and managers' (MacLeod Research Ltd., 2011).

2.8 Related to the above point, 17% of recreational visits to the outdoors made by respondents to the Scottish Recreation Survey in 2009 were reported to have encountered inappropriate behaviour. The most common types of inappropriate behaviour were dropping litter (8%), dogs not being kept under control (7%) and misuse of alcohol and drugs (3%) (TNS Research International, 2010).

2.9 In addition, Core Paths Plans have been drawn up by Access Authorities in accordance with the Act's access provisions, and these are helping to facilitate access to and use of the countryside. Many view Core Paths Planning as a positive process which has brought different stakeholders together and promoted dialogue and co-operation; thanks in no small part to the role of Local Access Forums. However, their creation has been challenging for some (see below).

Constraints on Success

2.10 The evidence on access provision is not so much about barriers as stakeholder concerns about constraints on success.

2.11 MacLeod et al (2010) found that the factors preventing greater use of the access provisions made by the Land Reform (Scotland) Act were mostly financial and cultural. For example, there remains a concern that the currently challenging financial climate for the Scottish public sector means that the opportunities for encouraging more outdoor access through Core Paths Networks will slip away if funding for their creation, maintenance and management dries up (MacLeod et al, 2010; AECOM Environment, 2011).

2.12 MacLeod et al (2010) also found that a number of stakeholders would welcome definitional clarity in relation to particular issues such as 'wild camping', 'dogs under control' and 'privacy'.

2.13 Another concern amongst local and Access Authorities relates to the temporary closure of core paths. This is because, while the Act makes provision for Access Authorities to exempt a particular area of land from access rights (section 11 orders), there is no equivalent mechanism for the closure of a core path. This has been a problem for the Forestry Commission who want to close core paths temporarily for large, high profile events such as car rallies, where organisers wish to have complete management control of the site so that they can discharge their duty of care (Forestry Commission Scotland and Loch Lomond & the Trossachs National Park Authority, 2010). The Forestry Commission Scotland and the Loch Lomond and the Trossachs National Park Authority have therefore made a case for amending the Act so that section 11 orders could formally close core paths as well. Evidence has been presented to NAF about these sorts of circumstances, and they have recognised that some accommodation would be helpful to give greater certainty to event organisers and land managers. The Scottish Government has now commenced a consultation on using order making powers to amend the Act to allow for the temporary closure of core paths in the context of a wider areal exemption of land from access right (S11 order).

2.14 A further issue concerns the process of handling objections to draft core path plans. This relates to the post-consultation or 'resolution' period in which the authority liaises with objectors who want core paths to be added, modified or deleted. This 'resolution' stage is potentially contentious if the process adopted by the council in its handling of objections does not allow the views of all interested parties to be taken into account as well as the actual objectors (AECOM Environment, 2011).

2.15 Additional concerns expressed by some access officers and others relating to core paths and the core paths planning process include (AECOM Environment, 2011; MacLeod et al, 2010):

• A lack of understanding regarding the purposes and values of core paths amongst some authority staff/members, communities, users and landowners;
• A lack of ambition amongst certain Access Authorities in developing their plans;
• Worries that the process has diverted Access Authorities' attention and resources away from the routine but nevertheless important work of upholding access rights;
• A lack of engagement of some users in the core paths planning process (e.g. water users, cyclists);
• The raising of aspirations by consultation programmes, which cannot then be met due to funding constraints etc.; and
• Potential consultation 'overloads' and overlaps, when core path plans, access strategies, open space strategies, local plans and other plans are reviewed

2.16 Nevertheless, evidence suggests that the introduction of core paths by the Act has been popular and that good progress has been made by most Access Authorities. More specifically, by May 2010, 18 authorities had adopted/were about to adopt their plans, 7 had submitted/were about to submit objections to Ministers, and the remaining 9 were undertaking final consultations, or seeking to resolve objections. Moreover, communities and interest groups are perceived to be generally satisfied with the core paths plans and provision. Those who may be less satisfied include some horse riders and disabled users (e.g. inadequate provision, barriers), landowners and farmers (e.g. disturbance, anti-social behaviour and bio-security concerns), and some communities, which do not consider links between settlements as adequate (AECOM Environment, 2011).

2.17 In summary, the evidence suggests little appetite amongst access stakeholders for significant changes to the provisions with Part One of the Act. However, concerns about some aspects of access provision have been raised, particularly by Access Authorities, in relation to perceived anomalies or weaknesses in the Act.