Know the Code
Access and YOU in the Scottish Countryside
With the Land Reform (Scotland) Act 2003 we now have statutory access rights and all parties have clear responsibilities set out in the Scottish Outdoor Access Code.
One of the many challenges we face in implementing the new system is persuading those with experience in their field, be they walkers, climbers, farmers, gamekeepers or whatever, to pick up the Code and read it. In my mind, everyone needs to do that, because I think that everyone can learn from it.
The Scottish Natural Heritage (SNH) awareness raising campaign to promote the Code via TV and newspaper has been successful in spreading the basic idea of the new system to a wide audience. You should "Know the Code before you go. Every Scottish resident or visitor should be reading the Code and taking it seriously, but we should also be getting outside, to put that learning into practice.
Where can I go and what can I do?
You have the right to access MOST land and inland water including mountains, moorland, woods and forests, grassland, fields, rivers and lochs, coastal areas, most parks and open spaces, golf courses (to cross them); day and night, providing you do so responsibly. You can undertake pastimes, family and social activities, horse riding, walking, cycling, climbing and wild camping. You can undertake educational activities, and some commercial activities where these are the same as those done by the general public. You do not have the right to access houses or gardens or places such as non-residential buildings and associated land, sports or playing fields when in use, places like airfields, working quarries, construction sites, Telecom sites, military bases and visitor attractions.
It's All Common Sense
What does the new system mean for you, and in particular how should you be interpreting it? The main answer is that it is attempting to encourage common sense. Common sense in that it should be possible to predict the advice of the Code from having a good knowledge of the principles contained in it.
One of the more useful sections of the Code is Chapter 5 - "A Practical Guide to Access Rights and Responsibilities". This gives advice on responsible behaviour by the public and by land managers regarding a variety of situations and activities. The advice is practical, well thought out and easy to follow. Furthermore, the MCofS influenced a great deal of what went into this chapter, including last minute changes to the advice on wild camping. Here are some examples:
- Houses & Gardens
The Code says, “Access rights do not extend to houses and gardens.” In some cases the extent of a garden may be difficult to judge. Look out for clear boundaries such as walls, fences, earth banks or hedges, or natural boundaries such as streams. Look for mown lawns, flowerbeds and tended shrubs, garden houses and vegetable gardens. Larger areas of land referred to as the 'policies' of the house that are intensively managed for domestic enjoyment (including some of the above) will be regarded as part of the garden. The wider, less managed areas enclosed or not, would not be classed as Garden. Land managers are encouraged to signpost alternative routes through their 'policies'.
- Car Parking
You need to park sensitively, not block entrances to houses or fields, obstruct tracks, potentially cause an accident, try not to damage soft verges and use car parks if nearby. You don't have a right to drive your car on private roads or tracks without the landowner's permission. When local residents find parking causing concern, they should work with their local authority to see if a formal car park can be provided.
You have the right to climb. The main issue is that of disturbance of rare nesting birds and the onus is on you to follow any agreements between land managers and other bodies such as ourselves - check the MCofS website, or take note of displayed signs written by a relevant authority.
You have a right to cycle. Cycling on hard surfaces (wide paths and tracks) causes few problems. On narrow routes be careful not to frighten or endanger others (e.g. walkers, horse riders, farm animals, dogs and wildlife) and 'give way' to these users by dismounting or stopping till they have passed. Think of it like the Highway Code! If you are cycling off-path, avoid wet, boggy or soft ground. A landowner should work with the local authority to identify potential cycle paths and if fences are to be built across the line of a path or track then gates that allow cycle access should be installed.
- Deer Stalking in Woodlands
This occurs around dawn and dusk. You should be extra vigilant at these times and follow advice on signs which may tell you where to avoid. Land managers should be aware of recreational activity and although not always necessary, putting up signs may help people use alternative routes.
- Deer Stalking on the Open Hill
This occurs during many months of the year, but is especially sensitive from 1st July - 20th October (stag shooting). Minimise disturbance by taking reasonable steps to find out where stalking is happening. Use the Hillphones service if there is one. Take advice on alternative routes. Land managers should arrange their stalking with regard to recreational use (paths, popular routes and ridge lines) and use the Hillphones or give on-the-day information on staking on signs and provide alternative routes - it would be unreasonable to prevent access completely.
You have the right to walk with your dog. But you should be responsible by keeping the dog "under proper control". Never let them worry livestock, avoid fields with lambs, calves or other young animals, avoid fields of vegetables or fruit (unless there is a path) and if in a field of livestock, keep the dog on a short lead or under close control and keep as far away from the animals as possible. The same goes for open land with sheep etc. Control your dog equally during the bird nesting season (April - July), letting them run far and wide on moorland for instance may be disturbing ground nesting birds. Pick up and remove their faeces if they defecate in a public open place. Land managers need to control their working dogs so as not to alarm people, particularly near paths or tracks.
Access rights do not extend to farmyards but in some places it's the only means of access to higher hill land. If it's a right of way or a core path you can follow it at any time. If a reasonable alternative is signposted around the farmyard follow this. Otherwise, if you are uncertain about entering a farmyard use your access rights and go around the buildings on the most reasonable route. Farmers are encouraged to continue to allow access through farmyards if it does not interfere unreasonably with their work, or identify an alternative with their local authority.
- Fields of Growing Crops
You have the right to cross them via paths or tracks, or by using the margins of the field or any unsown ground. Sometimes there is little room between the crop and the fence/hedge, in which case keep to single file or find an alternative route. Land managers are encouraged to leave uncultivated margins, to help wildlife and to help you take access. When fields are being sprayed with fertilisers or pesticides, farmers are required to ensure public safety for the duration of the risk (between a few hours and 4 days). They should do this by signage indicating the area sprayed, materials used and the period of risk. They should be removed when time lapsed.
- Fields of Grass
It may not look like a crop, but enclosed fields of grass without grazing animals may be for hay or silage. You can walk across them, unless it's at a late stage of growth (about ankle height of 8inches/20cm). In which case treat them like a crop as above.
- Fields with Animals
You have the right to access such fields but remember some animals (particularly with young) can react aggressively. Find an alternative, or if not possible, keep a safe distance and watch them carefully. Farmers should keep animals known to be dangerous away from fields crossed by core paths or other well used routes. If not possible then they should make the public aware of the danger and signpost reasonable alternative routes.
- Gates, Fences, Dykes and Hedges
Use a gate if one is provided and leave it as you found it. If no alternative exists and you have to climb over one of these structures, avoid causing damage - cross near a vertical post or climb a gate at the hinge end. Land managers should not lock gates or build fences across a path without reasonable cause - this would be viewed as an unreasonable obstruction. Electric fencing and barbed wire are needed but should allow for protection at access points.
- Wild Camping
Camping lightweight, in small numbers, for only 2 or 3 nights in any one place on any land where access rights apply is also a right. But to help limit problems for local people and land managers, use common sense and avoid enclosed fields of crops and animals, keep away from buildings and roads. If there's no alternative seek the owner's approval. Wherever you camp, Leave No Trace.
What happens in a Dispute?
The Act and Code provide us with a statutory right to go to most places on the basis that we act responsibly. To act irresponsibly is to step outside of the right. There will however be times of argument, when each side feels they have been responsible and the other has been irresponsible. One way of sorting out such an incident might be to consider what is stated in the Code. Another could be to look at the cause of the dispute, which may be the wording of advice from the land manager (a sign or Hillphone message for instance). Was that guidance accurate and reasonable, and did it contain vital information like the nature of the operation, the start and finish date, the extent of the area affected and the favoured alternative route?
If a sign, or any other form of request, gives good, accurate and responsible advice then we should act responsibly by following the advice. To ignore it would be considered irresponsible, but we believe that it is not irresponsible to ignore a confusing, inaccurate or misleading sign, if you are confident that it is irresponsible.
Finally, local Access Officers are based in every local authority. They are responsible for resolving all access difficulties, and are the first port of call. Their role also includes running Local Access Forums where local access issues can be discussed by representatives of landowners, recreation users and government.
Looking to the Future
Scottish legislation will hopefully be regarded in 50 years time as it is in Norway, because after years of use it will work for all parties. So although old style signs will no doubt continue (and continue to be ignored) for a time, we should be prepared to react more positively to well written, reasonable and responsible requests; and in time the number of access disputes will reduce as our legislation becomes regarded as a proud tradition.
Copies of the Code can be ordered over the phone by calling SNH's Publications Section at their Battleby Office on 01738 444 177 and asking for 'Publications'. Alternatively, download the Code from: www.outdooraccess-scotland.com.