National Access Forum - 18 September 2024

National Access Forum – 64th meeting on Wednesday 18th September 2024, 10:30 – 13:35

Hybrid meeting – In-person at Battleby and Virtual via MS Teams

1. Welcome, introductions and apologies – Don Milton – 10:30 – 10:45
    
2. Minutes of previous meetings, action points and matters arising – Don Milton – 10:45 – 10:55

AP 62/2: NatureScot to look into better ways of sharing access related knowledge and experience at a local level – discharged; NatureScot is currently reviewing the many access and Code related supporting guidance documents and materials and updating as required. The outdooraccess-scotland.scot website is also having the content refreshed to make it easier for those looking for guidance and additional information whether they are a member of the public or someone involved in managing access at a local level. Scottish Outdoor Access Network (SOAN) continue to offer sharing good practice events, a mountain-biking and access event is scheduled for October, they run an annual conference each year, the on-line knowledge hub group for access professionals and are developing an on-line induction course on access rights in Scotland due to be ready in early 2025. The Outdoor Recreation Network (ORN) covers Scotland and offers webinars and events, they are currently preparing their next 3-year plan. NatureScot is represented on both organisations. NatureScot also organised 3 training webinars this years on SOAC, mediation skills (MediationScotland) and wildlife disturbance and access.

AP 63/1: NAFSec to circulate Harper McLeod response to NAF members – discharged

AP 63/2: NatureScot reps to discuss format options with NatureScot CEO/Chair for input and agreement – on-going

AP 63/3: NAFSec to send Cameron copy of Helen Todd’s NAF response to the Agriculture Bill – discharged

AP 63/4: NAFSec to distribute BHS training dates when available – on-going

AP 63/5: NAF members to get in touch with NAFSec if they wish to be part of the Resources for Access sub-group – discharged

AP 63/6: NAF members to send any specific topics to Don to include in letter to CabSec/Ministers – discharged

AP 63/7: NAFSec to send to education pack to NAF members – discharged

AP 63/8: NAF members to disseminate info on SOAC education pack and any ideas/feedback send back to Elli via NAFSec – discharged

3. Convenor election – Pete Rawcliffe – 10:55 – 11:55
    
4. SOAC 20th anniversary – Bridget Jones – 11:55 – 12:05

Comfort break – 12:05 – 12:15

5. Resources for access update – Ali Tait – 12:15 – 12:25
    
6. Fires sub-group update – Bridget Jones – 12:25 – 12:35
    
7. Forthcoming meetings and agenda items – Don Milton – 12:35 – 12:45

• NAF meeting – 5th Feb 2025 – Venue TBC
• NAF meeting – 11th June 2025 – Venue TBC
• NAF meeting – 17th September 2025 – Venue TBC
• Agenda item – NAF/LAF meeting 2025
   

8. Private level crossings – Phil Waite – 12:45 – 13:25
    
9. A.O.B. – 13:25 – 13:35

Close – 13:35
 

To:

National Access Forum Review of Issues

As Convenor of the National Access Forum (NAF) I have been asked by members to provide you with visibility of the key issues believed to be currently challenging the best use of Access rights conferred by the world leading Land Reform (Scotland) Act 2003, Part 1 (LRSA). As you are aware, the NAF brings together recreation, land management, public and other bodies to advise on matters linked to access rights and the Scottish Outdoor Access Code.

Access rights in Scotland have many facets including the physical and mental benefits of being able to access the vast majority of the Scottish outdoors, supporting the Government’s aim for a healthier Nation. Visitors to the outdoors bring financial benefits to rural communities and come not only from within Scotland but also from the other UK Nations and around the world. Attracting a large number of non-Scots to our country to make use of our magnificent landscape assists all regions and the wider economy and the access experience must be of the highest standards. The NAF appreciates the significant financial challenges that face the Scottish Government and Access Authorities but also believes that the multiple benefits that pleasurable access to the outdoors brings must be recognised against the cost of maintaining high access standards.

The Covid pandemic and lockdowns were followed by a very significant increase in the numbers exploring the outdoors. Some were resuming a previous lifestyle and understood how to maximise the benefits for themselves and others. The majority of visitors exercised their access rights responsibly. Some were not aware of the responsibilities that come with access rights but, when provided with the necessary information from multiple media channels and by Rangers and other frontline personnel, showed the appropriate consideration for others, nature and the environment. A relatively small number were resistant to guidance and advice, undertaking actions that included antisocial behaviour and activities that were addressed under existing legislation other than the LRSA.  

Numbers remain high and, with the reduction of international travel restrictions, have been bolstered by overseas visitors who, again, may not be aware of the Scottish access rights and responsibilities. The NAF recognises the interaction of access and the Visitor Management Strategy (VMS) and supports the view that access remains an integral part of the VMS.

Challenges

Several issues interact:

Education and Communication

The provision of knowledge and understanding of how best to make use of the outdoors without impinging on the enjoyment of others or impacting the environment, through guidance in schools and outdoor education centres, has not regained pre-pandemic levels for a number of reasons, including loss of outdoor education centres, pressures on the education system and constrained financial resource. Immediately post-pandemic, much of the guidance and education was provided by the likes of Rangers, the “boots on the ground”, who were there to assist people for the benefit of all and safeguarding of the environment. While some entities have permanent Rangers and outdoor advisers, the peak summer period has been helped massively by “seasonal” Rangers. A significant percentage of the cost of training and employing the seasonal staff was provided by the Scottish Government through direct grant aid. This is now largely unavailable, although the number of summer visitors remains high and appears likely to continue to increase.  

NatureScot and Visit Scotland, along with organisations such as Forestry and Land Scotland, Scottish Land and Estates and land owners/managers, do their best to provide the necessary information through both broad and targeted media channels, information centres and local signage. Reaching the targeted audiences can be difficult because of the reduced education programmes described above and the transient nature of visitors from the rest of the UK and abroad. For many organisations, this communication may be restricted by limited financial resource.

Resources/Financial/Statutory

Access is one part of the block grant funding of Local Authorities (LA). It is not ring fenced so it is up to the individual LAs to decide what the funding provided for access is actually spent on. In many cases, this funding is not allocated to access. As above, while it is appreciated that there are significant funding challenges for both the Scottish Government and LAs, the removal of funding for the support of access rights will have a significant, long-term impact upon revenue generation, especially in rural areas, and on the physical and mental health of the Nation.

The following issues demonstrate particular interactions:

In 2020, my predecessor as NAF Convenor wrote to the Scottish Government expressing the concerns of the NAF¹ relating to resource. The response² confirmed: 

• the use of the block grant for access funding and that delivery of local authority duties, such as access, should be delegated to a local level where possible;
• the importance of the service provided by Scotland’s access officers and countryside rangers in the delivery of a range of environmental, social and economic benefits,
  benefiting tourism, health and well-being, and local economy;
• the existence of a number of government and non-governmental funding opportunities;
• the resumption of a Scottish Government monitoring exercise of local authorities and National Park Authorities on their functions, duties, powers and expenditure under Part 1 of the Land Reform (Scotland) Act 2003 (LRSA) to take place in the year 2019-20. Data gathering for one financial year, once every three years. The exercise was to be delayed until the phased exit from Covid-19 lockdown.

There has been no further information about when the first monitoring exercise will take place.

In November 2020, the Scottish Outdoor Access Network (SOAN) reported³ that:

• “Six Access Authorities (AA) did not employ a single Access Officer; skilled professionals who find practical solutions to access challenges, and ensure the local authorities carry out their statutory duties.   The equivalent of just 36.5 full-time Access Officers were working across Scotland; down 27% from 2015/16 and 44% since 2005/6.”

The reduction in the number of full-time Access Officers appears to be continuing.  

• “A third of access authorities did not directly employ any full-time Countryside Rangers; frontline staff who welcome and educate visitors, and manage important sites on the ground.”  

The shortage of Rangers also impacts upon the availability of access professionals to assist with protection of the environment and support schools, and other organisations, in the development of the understanding by children and others of the requirements for responsible behaviour in the exercise of access rights.

• “Eight authorities held no meetings of their Local Access Forums (LAF), statutory bodies which advise the authorities on access matters.”  

LAFs are an essential element of access provision and it is a statutory requirement for AAs to establish a LAF⁴ and appoint suitable persons⁵.   There is also a statutory requirement⁶ for AAs to consult with the LAF before making an order⁷ to exempt land from access rights for a period of 6 or more days. Where AAs have no recognisably functioning LAF or where the AAs have LAFs that are moribund or have limited capacity and capability, the AA is unable to exercise its statutory requirements in these respects. While LAFs are independent of the AA, it is difficult for a LAF to function without support from the AA as they have no direct funding. Recruiting members can be difficult as in some areas LAFs have a low public profile with a related lack of understanding of what a LAF is and does.

• “During 2019/20 only one of the 34 authorities served any LRSA section 14 notices; the legal instrument that forces access obstructions to be removed. This highlights a lack of resources, rather than a lack of issues.”  

Access Authorities have concerns over the cost of legal action potentially following the serving of a section 14 notice and there have been relative few examples of legal action since enactment of the LRSA. The Opinion of the Court delivered by Lord Carloway in the “Drumlean” case⁸ provided precedent and clear advice to Sheriffs on the application of the LRSA making it, arguably, easier for AAs to exercise their statutory requirement to uphold access rights⁹ and minimise costs although some AAs have used other sections of the LRSA, such as s13(2) and (3), to avoid taking action.

Removal/reduction of direct grants for maintenance, repair and development of new paths along with the direct funding of Rangers and other front-line personnel causes considerable problems for those seeking to ensure that access rights and responsibilities are respected and opportunities for access improved. Direct grant funding alleviates some of the problems associated with AAs not using block grant funding allocated for access requirements. This impacts on the mental and physical benefits of outdoor activity and the attractiveness of Scotland to non-Scottish visitors leading to reduced income, particularly in rural areas.

Legislative Inconsistency

On behalf of the NAF, I have written previously to the Minister for Transport and the Minister for Environment and Land Reform¹⁰ over concerns relating to inconsistencies between the LRSA and the Roads (Scotland) Act 1984. The response¹¹ from the Minister for Environment and Land Reform was that “There are no plans to undertake a change to primary legislation at present. We are looking at the interaction between Part 1 of the Land Reform (Scotland) Act 2003 (“the 2003 Act”) and the Roads (Scotland) Act 1984 (“the 1984 Act”) and will take any issues arising into account in any future review.” and “There are no plans to undertake a change to primary legislation at present. We are looking at the interaction between Part 1 of the Land Reform (Scotland) Act 2003 (“the 2003 Act”) and the Roads (Scotland) Act 1984 (“the 1984 Act”) and will take any issues arising into account in any future review.” plus “…one of the key issues here is rights of access for equestrian users. Whether or not riding on horseback falls within a way over which there is a public right of passage for the purposes of the definition of “road” in section 151(1) of the 1984 Act is something on which stakeholders would have to take their own legal advice.”

The NAF remains concerned about the safety of individuals where these inconsistencies exist and the application of the two Acts in practice.

There has been considerable discussion over many years in the NAF about access rights and private level crossings. The NAF does not discount potential safety issues but prohibiting public access over private level crossings has a significant impact on general access rights. This was addressed previously in a NAF letter¹² to the Minister for Environment and Climate Change and the Minister for Community Safety and Legal Affairs in 2014. The Ministerial response¹³ concluded: “I am well aware of the extensive discussions that have taken place at the Forum over the years regarding access over level crossings and I am grateful for the Forum's detailed consideration of the Report's findings. If and when the Commissions' recommendations are taken forward, then this will be subject to the Parliamentary process, including consultation with stakeholders and interested parties. There would therefore be an opportunity to engage with the process and to raise issues at that stage.” No consultation or engagement appears to have taken place prior to the Government’s recent requirement for AAs to amend Core Path Plans by removing those which utilise a private level crossing. Recent NAF debate has highlighted the fact that not being able to use private level crossings, particularly in remoter areas, will preclude access to many of the most beautiful parts of Scotland and the instruction to AAs to remove Core Paths which require use of a private level crossing has raised concern in many areas.  

National Access Forum Advice and Recommendations

While the NAF recognises the financial challenges facing the Scottish Government and AAs, it presents the following conclusions:

• AAs should be reminded of, and required to meet, the statutory requirements of the LRSA and the importance of allocation of funds to support these requirements to best achieve the multiple benefits provided by the support of access rights.
• Regular reviews of AA performance against access criteria should be (re)instituted.
• Access related funding should be increased to previous levels, or higher, as soon as possible to achieve the maximum societal benefits.
• Direct grant funding of key access requirements should be reinstated where this has stopped.
• Legislative inconsistencies should be addressed at the earliest opportunity.
• Engagement between access bodies and the VMS should continue.
• In relation to private level crossings, the attendance of an appropriately briefed Scottish Government representative at the September meeting of the NAF will aid wider understanding of this issue and the reasoning behind the Government position.

Yours faithfully,

George J G Milton OBE
BSc(Eng) PGN CEng FIEE FIET

¹NAF Letter to Cabinet Secretary for Environment, Climate Change and Land Reform dated 23 June 2020.

²Cabinet Secretary for Environment, Climate Change and Land Reform 2020000052293 dated 09 July 2020.

³SOAN Survey Posted 21/11/2020.

⁴LRSA s25(1)

⁵LRSA s25(3) and (4)

⁶LRSA s11(2)(a)

⁷LRSA s11

⁸OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD PRESIDENT, in the Appeal by RENYANA STAHL ANSTALT Pursuers and Appellants against LOCH LOMOND AND THE TROSSACHS NATIONAL PARK AUTHORITY Defenders and Respondents (2018).

⁹LRSA s13(1)

¹⁰National Access Forum letter dated 27 October 2022.

¹¹Minister for Environment and Land Reform 202200328207 dated 6 February 2023.

¹²National Access Forum Letter dated 25 February 2014

¹³Minister for Environment and Climate Change F/T: 0845 774 1741 dated 19 May 2014.
 

Scottish Government (Malcolm Duce) – Core Paths and Private Level
Crossings – Access Rights Do Not Exist Over the Railway Line

Background

The Scottish Government has recently looked again at the issues regarding the application of access rights, specifically core paths, over railways.

Scottish Government position

Having examined the issues involved, the Scottish Government believes that core paths established under the Land Reform (Scotland) Act 2003 (LRSA) cannot be designated over private level crossings. This is because the LRSA cannot be read as modifying legislation relating to trespass and rail safety, which is reserved to the UK Government.

The UK Department for Transport (under the previous UK Administration) advised that they have no immediate plans to take forward reform of legislation relating to PLCs. Accordingly, it is the Scottish Government’s current view that:

• existing core path designations that cross private level crossings at track level are not legitimate; and
• any person crossing the railway line at track level at a private level crossing without the permission of Network Rail is committing an offence of trespass.

In light of the above, the Scottish Government has directed access authorities under sections 20 and 20A of the LRSA to review their core path plans.

Next steps

The Scottish Government recognise that this may result in difficulties in certain areas and are keen to try and assist with finding workable solutions and ways forward to ensure people can cross the railway line safely.

We have spoken with Network Rail who have provided assurances that it is not their intention to restrict access over PLCs where they can be used safely. They have advised that they are currently actively discussing access arrangements with local communities and local outdoor access groups at some sites where they have identified inappropriate use of PLCs, which is resulting in potentially dangerous behaviour – such as at Dunrobin in Sutherland. Network Rail have advised they welcome dialogue with local access authorities and interested parties where issues of concern arise with respect to PLCs in order to find a workable way forward.
Contacts as follows:
[email protected] – Communications Manager
[email protected] – Head of Legal (Scotland)
[email protected] - Health Safety & Environment Director for Scotland.

Purpose

This paper updates the Forum on NatureScot’s review of guidance on the Outdoor Access Scotland website.

Action

The Forum is asked to note NatureScot’s plans to review and update guidance on the Outdoor Access Scotland website.  Forum members are asked to confirm if they are content with the plans for liaison with relevant organisations and with the National Access Forum.

Background

A significant amount of guidance has been produced and is included on the Outdoor Access Scotland website.  Much of this guidance has been produced by NatureScot, some has involved the National Access Forum and some has been produced by and/or with other organisations. The focus to date has largely been on developing guidance and promoting it to the key audiences. While some of the guidance has been updated, there has not been a systematic process for reviewing guidance and consequently a significant number of documents need updating. The 20th anniversary of the Scottish Outdoor Access Code in 2025, and proposals to refresh the Outdoor Access Scotland website, provide the impetus to ensure that the guidance material on the website is relevant and up to date.  This also links with the Forum’s discussions earlier this year about supporting Local Access Forums better.

Guidance review – progress to date and future plans

NatureScot has started the process of reviewing outdoor access-related guidance documents and material. Action so far has included:

• Compiling a list of all the guidance on the Outdoor Access Scotland website (see Annex)
   
• Asking British Horse Society and Mountaineering Scotland about their leaflets
   
• Asking NFUS, Scottish Land & Estates and Scottish Sheep Association about the guidance specifically aimed at land managers
   
• Working with the Forum to update the Fires guidance
   
• Producing an updated draft of the Local Access Forums guide to good practice and circulating to selected Access Officers and LAF contacts for feedback
   
• Starting to look at the following guidance
  • Commercial access to the outdoors in Scotland: guidance on local management
  • Outdoor events in Scotland: guidance for organisers and land managers
  • Using inland water responsibly: guidance for all water users
  • Deer stalking and public access: guidance on stalking communication
  • Upland Path manuals

In addition, Paths for All is currently reviewing the Signage guidance and Path Grading guide.

We propose to liaise with the organisations that were involved in producing each guidance document, circulating updated drafts for comment. We will also seek input and endorsement from NAF on the National Access Forum guidance documents and any others of relevance.

NatureScot, September 2024 

Annex 1. Guidance on Outdoor Access Scotland website