Public access rights have become a concern again for many landowners as a result of the Covid-19 outbreak and the Coronavirus (Scotland) Act 2020 (CSA). The legislation and the general Government advice about Covid-19 and lockdown have focussed the attention of landowners and the public alike on what forms of exercise are permitted and where.
This has prompted many queries on what is, and what is not, allowed in relation to accessing the countryside as the lockdown is eased. With the rules now being relaxed and people permitted to travel to take exercise, are landowners able to manage the potential increase in footfall while continuing to exercise responsible land management? Pictures of people flocking to beaches and other beauty spots naturally cause concern for landowners.
Public access rights
The statutory basis for public access rights in Scotland is the Land Reform (Scotland) Act 2003 (2003 Act), while the Scottish Outdoor Access Code (Code) provides the practical details about people’s rights to cross land and for what purposes.
The 2003 Act sets out the land where rights cannot be exercised, including land that forms the curtilage of a building, such as garden ground which allows a reasonable degree of privacy to the occupants, compounds or enclosures containing fixed machinery and land on which crops have been sown or are growing. General access rights under the 2003 Act do not extend to activities such as shooting or fishing, and the Act requires all those accessing the countryside to do so responsibly.
Does Covid-19 change anything?
Under the new CSA access rights remain the same and the public must continue to exercise their access rights responsibly. There has been no extension, even temporarily, of the land where access rights are exercisable under the 2003 Act.
Likewise, CSA does not change landowners’ rights or their ability to restrict access. Their rights and responsibilities as land managers remain as set out in the 2003 Act and highlighted in the Code. Landowners are not to obstruct or discourage the public from exercising their rights of responsible access and fences and obstructions can be removed by the local authority with removal costs being recoverable from the landowner.
The Code discourages landowners from erecting signs which deter access other than for temporary periods, though they can be used to make requests which help to avoid conflict with walkers, for example, where there are ongoing land management operations such as calving or lambing and timber harvesting. These requests should suggest alternative routes if available and any restrictions should apply for the minimum time necessary and then be lifted.
Options for landowners
Under the 2003 Act a landowner can make a summary application to the Sheriff Court requesting confirmation that access rights are not exercisable over certain land. The landowner can also ask the Sheriff to confirm whether or not an identifiable person has been exercising access responsibly. The 2003 Act itself does not provide for an appropriate remedy where irresponsible access has occurred, meaning that the only feasible options are to try and resolve the issue with the local access officer or refer the matter to the Sheriff Court.
The National Access Forum has been working with stakeholders to develop a guidance note on the use of professional mediation as a tool for helping to resolve difficult access cases.
As people come out of lockdown, the public should continue to exercise access responsibly, though there are unanswered questions as to exactly what responsible access is in these unique times. If landowners and land managers do experience problems with people accessing land not covered by the 2003 Act or with access being exercised irresponsibly, the solution, as at other times, is the use of temporary signage and working with local access officers.
