Wild Land News no 57, Spring 2003

Implementing the Access Legislation Article

The Land Reform (Scotland) Act 2003 has been passed by the Scottish Parliament but it is not likely to be until Spring 2004 that its access provisions will come into effect. The main reason for the delay is that the Scottish Outdoor Access Code needs to be finalised, consulted on and approved.

The code is guidance which will put flesh on the bones of the legislation. A draft has been worked on for some time, but until the legislation was passed the final version for public consultation could not be completed. The consultative draft of the code was published in late March and a 12-week consultation period now commences. The feedback then needs to be assessed by SNH and the revised code submitted to the Scottish Executive, who after due consideration will submit it to the Parliament for approval.

The code will be quite crucial in providing good advice and setting the right tone for resolving issues of access in the countryside. The draft already seems to have ignored some assertions from Ross Finnie, the Minister in charge of the legislation. For example he promised that one could walk along the tramlines in fields of crops, i.e. between rows of potatoes or other crops with distinct spacing layouts. That is not in the code and no doubt will be one of several hotly debated issues amongst the lobbying organisations.

The Wild Land Group feels it is essential that the code is clear and is 'friendly' but still assertive in keeping to the legislation and the spirit of Act.

In the meantime, you can still take access through the common law position on access - i.e. to ban someone from their land, the landowner needs to get an interdict against that named individual. Indeed this common law position is not changed by the legislation, which confers a statutory right for responsible access. In addition, walking on rights of way is still fully legal at all times, so that if a right of way goes through the curtilage of someone's home, then although you would not have a statutory right of access, you still have a right to proceed because of the existence of the right of way.

Alistair Cant