The Right to Roam

In Scotland, the public are entitled to the “right to roam” which is a statutory right introduced by the Land Reform (Scotland) Act 2003 (“the 2003 Act”). This right allows members of the public to enjoy the right of access over most of the land in Scotland for activities such as cycling, walking, horse riding and camping. The Scottish Outdoor Access Code (“the Code”) provides the practical details about people’s right to cross land and for what purposes they are allowed to do so.

As a landowner, there is an obligation under the 2003 Act to manage their land responsibly in respect of these access rights and they cannot carry out any type of action which could prevent or deter people from exercising this right. If restriction on access is made by a landowner, they must show that the reason for the restriction is a genuine land management decision and the purpose is not to simply deter access to the public.

COVID-19

As a result of the COVID-19 outbreak and the Coronavirus (Scotland) Act 2020 (“CSA”) as well as the lockdown restrictions, these public access rights have become a concern for many landowners as well as members of the public as to what forms of exercise are permitted and where. As lockdown restrictions tighten, many members of the public still wish to walk in the countryside or visit beaches as a form of escapism from their homes and naturally this can cause concern for some landowners. There have been questions as to what is, and what is not, allowed in relation to accessing the countryside during lockdown.

Under the new coronavirus legislation, access rights remain the same and the public must continue to exercise their access rights responsibly. Similarly, the legislation does not change landowners’ rights or their ability to restrict access to the public. Their rights and responsibilities remain the same as per the 2003 Act and as highlighted in the Code. Landowners are not allowed to obstruct or discourage the public from exercising their rights of responsible access and further fences or any type of obstruction can be removed by the local authority. The cost of such removal however can be recoverable by the landowner.

Further, the Code discourages landowners from erecting signs which deter access other than for temporary periods. For example, if a landowner is carrying out ongoing land management operations such as calving, lambing or timber harvesting then the landowner can make a request asking walkers to use an alternative route. However, these requests should only be applied for the minimum time necessary and then lifted. In contrast, if the restriction on access is genuinely a land management decision then this is allowed. In the case of Tuley v Highland Court, a landowner was concerned that horse riding on his path was damaging the terrain and so he closed the path to horse riders and notified them of an alternative path to use. In this case, the horse riders were unsuccessful in claiming their right to roam as it was held that the landowner had acted responsibly by taking action to minimise potential damage to his land.

Options for Landowners

Access taken by hikers, cyclists, horse riders etc. must be taken “responsibly” however the 2003 Act does not provide for any appropriate remedy if the access was deemed to have been taken irresponsibly. Therefore, the only feasible options are to try and resolve the issue with a local access officer or refer the matter to the Sheriff Court. If a landowner believes access has been taken irresponsibly then they would need to ask the Sheriff to confirm this. A landowner can make a summary application to the Sheriff Court requesting confirmation that access rights are not exercisable over certain land but there would need to be appropriate justification.

The National Access Forum has been working with stakeholders to develop a guidance note on the use of professional meditation as a tool for helping to resolve difficult access cases which may be a useful way to assist in problematic circumstances that arise.

If landowners and land managers experience problems with people accessing land that is not covered by the 2003 Act or if such access has been exercised irresponsibly, then the solution, as at other times, is the use of temporary signage and working alongside local access officers.

At the time of writing, the majority of Scotland is currently in one of the most restrictive lockdowns since March 2019 and even our right to roam is currently restricted to our own Council areas. It is understandable that during lockdown, people wish to be outdoors to enjoy fresh air which is good for their physical health as well as mental health, but it is important that the public exercise this right responsibly and respectfully.