NEMT response to Scottish Natural Heritage (June 2003)
Bridget Dales
Recreation & Access Group
Scottish Natural Heritage
Battleby
Redgorton
Perth
PH1 3EW
Draft Scottish Outdoor Access Code - Response to Consultation
Dear Madam,
The North East Mountain Trust welcomes the opportunity to contribute to the
development of the Scottish Outdoor Access Code. The Trust represents well over
13,000 climbers and walkers, mainly resident in Scotland, but including some
in other areas of the United Kingdom. As such, it naturally has a keen interest
in the outcome of this consultation.
We would like to draw attention to what we believe to be major shortcomings of the Draft Code.
Firstly, we consider that the Code will only be successful if it achieves an equitable balance between the interests of recreational users and land managers. It is our view that the Code concentrates much more on guidance for the recreational user than on guidance for the land manager. The Code should offer general guidance on responsible behaviour for both the recreational user AND the land manager. The Code should make it clear that access can also be taken responsibly outwith the provisions of the Land Reform (Scotland) Act 2003 but in line with Scotland's customary access traditions.
Secondly, we believe the term "must" is overused. We would recommend that the practice of the Highway Code should be followed in this respect and "must" used only in areas where it refers directly to requirements laid down in legislation. For instance, dropping litter or permitting a dog to worry sheep are offences defined in legislation. The Land Reform (Scotland) Act did not create any new offences to justify the use of "must" in a document whose main purpose is guidance on responsible conduct for recreational users and land managers alike. The Code should offer advice/recommendations on accepted good practice to both recreational users and land managers. A term such as "should" is therefore more appropriate.
Specifically, we would like to make the following points.
Key principles (p 19)
The introductory statement should emphasise that the Land Reform (Scotland)
Act 2003 confirms the traditional assumption that access to most land and water
is permitted in Scotland for recreational purposes. It should also make it clear
that land managers and recreational users are expected to act responsibly so
the Scottish people and visitors to Scotland can enjoy the Scottish countryside
freely without compromising the safety, privacy and management needs of those
who live and work in the countryside.
The Access Code is the reference point for rights established by the Land Reform (Scotland) Act and not for common law or customary rights. This should be made clear by the use of the term "statutory" in relation to the rights confirmed by the Land Reform (Scotland) Act.
The first and third of the Key Principles should be reworded to make explicit
that the principle of responsible behaviour applies equally to users and land
managers.
There should be a clear statement that the right only applies to non-motorised
use except where permission has been explicitly granted or where provision is
made for those with mobility problems.
Section 1. Introduction
It should be made clear that the Act, while introducing new statutory rights,
does not do away with existing rights of way, access, entry or passage, even
where those do not come within the terms of access rights as defined in the
Act.
It would be appropriate to include in the section a statement that the guidance on responsible behaviour which the code provides in relation to statutory access rights is equally appropriate in relation to non-statutory rights.
2. A summary of your access rights
In paragraph 2.14, it should be made clear that, as well as permitting the user
to "cross over" land to get from place to place for recreational or
educational purpose, the access right also permits the user to "remain
on" land for the same purposes.
Where the Code is quoting directly from the legislation, it would be helpful to make this more explicit and to include reference to the specific clauses of the Act.
3. Exercising access rights responsibly
The responsible exercise of access rights needs to be set within a wider concept
of responsible behaviour. The statutory right will not cover all access situations
and it is important to emphasise that the expectation of responsible behaviour
does not lapse because a user is on land not covered by the statutory right.
This is also in the interests of land managers.
The Code cannot and should not provide a definitive answer to how people should behave in every access situation. It can, however, offer guidelines to improve the quality of decision making by emphasising factors to be considered and available options. For instance, where a group of users is taking access through a farmyard at night, the expectation of privacy and legitimate concerns of the inhabitants about possible illegal activity would indicate the desirability of a prompt and discreet passage.
3.13 Access rights at night
Parliament confirmed the fundamental right of the Scottish public to exercise
access rights at night in the face of a determined campaign to secure its removal.
We believe this section should reinforce that fact as well as advising on how
to exercise it responsibly. We fully agree with the specific advice offered
in this section.
3.27 - 3.29 Passing through fields
This is a particularly important and difficult area. Access to crags and mountains
in some areas can require field crossings and the potential for damage to crops
is a clear and obvious concern to land managers. We fully support the emphasis
on avoiding damage to crops. An extra bullet point at 3.28 could encourage users
to follow any reasonable guidance offered. It would also be helpful to encourage
land managers to take account of heavily used access routes across their land
and provide a suitable route which avoids difficulties for all parties.
3.39 Take extra care if you are organising a group or event
We are not convinced that the number of different distinctions this section
attempts to draw is necessarily helpful. The most significant distinction here
surely lies between group organisers and event organisers and so the guidance
could be divided up into points applicable to both, points specific to groups
and points specific to events. Included in the general section could be a responsibility
to educate on access rights and responsible behaviour, though this would probably
be more easily achieved in a group context.
4 Managing land and water responsibly for access
Mention should be made here that Parliament expected land managers to continue
to support access over land outwith statutory access rights such as farmyards
and steadings where that access did not interfere with management operations,
privacy or safety. Encouragement to provide alternative routes would also be
appropriate here.
There appears to be a lack of attention in this section to the role of good signage in the management of access. Land managers should be encouraged to think of signs as a vital communication tool to ensure the co-operation of visitors. The code should offer guidance to help managers make use of signs which are appropriately designed and sited. A good sign should be informative, not intimidating. It should identify its source (farm, estate etc), inform the visitor clearly about the reasons for an alteration to normal access, possible alternative routes, contacts for further information and the duration of the alteration.
4.8 - 4.14 Act reasonably when limiting public access during land management
operations
Use of the term "limiting" here could be taken to imply that land
managers have the power to reduce or remove access rights when in fact only
a local authority can do this. It should be made more explicit to land managers
that they themselves can only manage or alter access rights where a short term
management requirement makes this desirable and that only by request to a local
authority can limitations on access rights be applied.
4.15 - 4.19 Help people to enjoy the outdoors responsibly
In 4.16, "indicating and facilitating alternative routes" should be
added to the list of bullet points.
5. A practical guide to access rights and responsibilities
The sections on farmyards, dams and other locations where statutory access rights
do not apply should make it clear that access is commonly taken there under
existing customary freedoms and this will continue subject to being exercised
responsibly. Land managers should also be encouraged to invoke the assistance
of their local authority when they need to manage access on land outwith the
statutory rights.
6.2 - 6.6 Dealing with irresponsible behaviour
The existence of dispute procedures is not sufficiently emphasised here. The
wording suggests that irresponsible behaviour is associated only with persons
exercising access rights and not with land managers. The history of access disputes
does not support this view. The Code should acknowledge that either or both
sides in an access dispute can exhibit unreasonable behaviour. A court would
not necessarily uphold an assumption by a land manager that a person has behaved
in such a way as to forfeit their access rights. Land managers should not be
encouraged to expect a rapid resolution of a dispute by either the local authority
or the police. Reference should however be made to the possibility of obtaining
an interdict against an individual who repeatedly behaves irresponsibly.
There should be advice to the public as to how they should respond to a land manager acting irresponsibly or in a threatening manner.
This section should specifically address the resolution of problems which arise from high levels of responsible access as distinct from those caused by the irresponsible behaviour of individuals.
In conclusion we hope that the consultation will lead to the successful development of a Code which reflects the views of the majority of responders ie users and managers.
Will Campbell and Donald Thomas, June 2003
For and on behalf of the General Council
North East Mountain Trust
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