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:
david.boyce@networkrail.co.uk – Communications Manager
roddy.macdougall@networkrail.co.uk – Head of Legal (Scotland)
innis.keith@networkrail.co.uk - 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

Hybrid meeting: 18th September 2024

Present:

*Observing only

Item 1. Welcome, introductions and apologies

1. Don Milton opened the meeting.
    
2. Apologies: Andrew Hopetoun (Historic Houses Scotland, Lois Bayne-Jardine replacement), Eileen Stuart (NatureScot, Pete Rawcliffe replacement), Willie White (Scottish Advisory Panel for Outdoor Education), Simon Ovenden (Scottish Land and Estates, Stephen Young replacement), Pete Creech (Wild Scotland), Roy Barlow (Woodland Trust), Stuart Chalmers (FLS, Fiona Murray replacement), Richard Barron (Convenor nominee)

Item 2. Minutes of previous meetings, action points and matters arising

3. The minutes of the 63rd meeting were confirmed by the forum as a true and accurate record of the meeting.

AP 62/2: NatureScot to look into better ways of sharing access related knowledge and experience at a local level – discharged

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, initial contact has been made between NatureScot and HES.

AP 63/4: NAFSec to distribute BHS training dates when available – discharged

AP63/5: 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

Closed Session – Chair: Pete Rawcliffe

Item 3. Convenor Election

4. The Forum elected a new Convenor commencing January 2025. Richard Barron was proposed by Sue Hilder (National Parks rep) and there was consensus within the forum to elect him as the incoming Convenor. Richard was unable to attend in person and instead provided a short video introducing himself, his background and skills and experience in outdoor access.

Open Session – Chair: Don Milton

Item 4. SOAC at 20 Years

5. Bridget Jones presented ideas for recognising the SOAC at twenty-years in 2025 (Code published in 2005). NatureScot plan to celebrate twenty years of the Code, noting there may be limitations to the extent due to budget constraints. The aim is to have a celebration and awareness raising campaign which also looks at the progress made over the 20 years and using a partnership approach. The target audiences will include those who are new to the outdoors, but also those who have an existing relationship with the outdoor environment. NatureScot is not re-branding SOAC but instead looking to develop a strapline and communications toolkit that other organisations can use. BHS previously ran an online photography competition during Covid, to generate content with photos relating to access. Helene would be happy to help NatureScot facilitate something similar.
    
6. It was also noted that there are some who feel disappointed by the Code, so producing a balanced, proactive campaign is important recognising that there are still challenges. Also making sure that campaign material works well on phones. Several members also highlighted opportunities to focus on new activities such as e-bikes, SUPs etc.

AP 64/1: NAF members to send suggestions for SOAC at twenty years to NAFSec.

7. NatureScot will be producing a communications toolkit, and progressing social media, influencer work and some events activity (budget dependent). There is also opportunity for the NAF to do something to highlight the SOAC at twenty years.
    
8. NatureScot has been checking, and where required updating, all the SOAC related guidance and materials with approximately 60 pieces of guidance identified (see paper from Caroline Fyfe). Bridget asked NAF members to highlight any gaps in supporting guidance that they are aware of. She also raised the need to develop the process for NAF endorsement of guidance. The immediate priorities are the fire guidance (joint visitor management/NAF guidance) and the LAF guidance.

AP 64/2: NAF members to highlight any gaps in the current SOAC related supporting guidance to NAFSec.

9. The SOAC website was discussed and the need for a refresh, NAF members are asked to send any thoughts to Ali. NatureScot has already identified improvements to be made to its structure, including clearer sections on advice for the public and advice for land and access managers. There are limitations due to the need to work within the current website design and needing to be ready for early 2025. Members of the forum expressed support for improving the website and refreshing guidance.

AP 64/3: NAF members to send any suggestions about updates that could be made to the SOAC website to NAFSec.

AP 64/4: NatureScot to bring further plans for SOAC at twenty years to Feb 2025 NAF meeting.

10. Don thanked Caroline for the work done on the guidance so far, particularly for seeking input from LAF members. On a technical note, it was suggested that each guidance document should have a review date in the preface.

Item 5. Resources for Access Update

11. The Resources sub-group met in August. During that meeting, discussion was had about refreshing the purpose and aims of the sub-group and Gavin Corbett agreed to chair this sub-group going forward.
     
12. Gavin reflected that the ask in terms of resources for access is relatively small when compared with other asks of Scottish Government, but it is important to keep the ask streamlined – asks/messages in a ministerial visit should align with the letter being sent by Don on behalf of the NAF to the CabSec (with the understanding that members have agendas specific to their organisations, but a shared interest overall). With regards to a ministerial visit, Don re-iterated his advice about keeping it to a small number of members.
     
13. Phil highlighted a change to the calculation of how access funding is currently calculated for Local Authorities. The £8.1million allocated to Local Authorities from Scottish government annually, has not been increased since 2008.

AP 64/5: NAFSec to share updated aims of Resources for Access sub-group with NAF members for feedback/approval/agreement

Item 6. Fires Sub-Group Update

14. The fires guidance sub-group has corresponded around contents and linked pieces of guidance. The sub-group has agreed structure, which Bridget has started to populate.
     
15. The guidance will be presented in a web-based format with downloadable accessibility version in PDF. The guidance will be aimed at access/visitor managers, land-managers and rangers and will incorporate the fires messaging framework.

AP 64/6: NAFSec to set up meeting of fires sub-group end of November 2024 to look at the first draft.

AP 64/7: NAF members to send any good images relating to recreational fires/BBQs to NAFSec.

Item 7. Forthcoming Meetings and Agenda Items

• NAF meeting - 5th Feb 2025, Teams/Battleby
• NAF meeting - 11th June 2025, Teams/Battleby (provisionally)
• NAF meeting - 17th September 2025, Teams/Battleby (provisionally)
• Agenda item - NAF/LAF meeting 2025

Item 8. Private Level Crossings and Core Paths

16. Don welcomed Lisa McCann (SG), David Boyce (Network Rail), Roddy Macdougall (Network Rail) and Rachel Elliott (NatureScot, Observer).
     
17. Don introduced the agenda item – Scottish Government has required, via 2 letters, that Access Authorities review their Core Paths Plans if they include core paths that cross private level crossings (PLC). There are concerns about the letter and implications on effective core paths planning, access to large rural areas of Scotland and risks that access-users will be penalised for use of PLCs.
     
18. Don was encouraged to see in the NAF paper provided by Scottish Government that the last two paragraphs commit to further engagement and discussion and to making access as available as possible.
     
19. Phil Waite gave some background information – he raised this issue at the June NAF meeting, following a meeting in April between THC and SG. Following this meeting, SG sent out letter to all Access Authorities stating that SG believes that core paths established under the Land Reform (Scotland) Act 2003 cannot be designated over PLCs. As a result, SG is directing any affected access authorities to review their CPPs and take legal advice. The Highland Council (THC) and Cairngorms National Park Authority (CNPA) have consulted their solicitor dealing with Ben Alder level crossing and received updated legal advice. THC Chief Exec has sent a letter to SG advising that the legal advice received by THC concluded that the SG decision is flawed. Phil highlighted that the legal definition of trespass in Scotland differs from that in England, whereby no offence is made by using any authorised crossing. THC is happy to share legal advice with SG if SG were to do likewise. It feels that there is greater need for legal clarity on which crossings are categorised as private, public etc. as some appear to have changed. Phil has met with nine other Access Officers, all of whom are concerned about this situation. THC received direction from SG (the week before the NAF meeting) not to include core paths which cross over PLCs in the Caithness and Sutherland Core Paths Plan. The reporter had previously recommended that these core paths could be included. There are 248 crossings in Highland; 16 of the 50 public crossings are footpaths, 12 of the 198 private crossings are needed as core paths. Phil was encouraged by SG wanting to engage and discuss, and he would also like a specific meeting with SG and NR on the Dalwhinnie/Ben Alder case.
     
20. Eleisha Fahy reported that Scotways saw the SG letter to AAs the day after it was sent. SORA then wrote to SG and UKGov and were pleased to hear back from both. With regards to the SG letter, there are concerns about the issue of legal incompetence referred to in the letter. ScotWays did not take external legal advice on the letter from SG but did source experienced and legally informed input. Eleisha also highlighted that it could be difficult for AAs to remove CPs whilst still meeting their statutory duty to provide sufficiency of access/routes. There also needs to be clear legal clarity around any process for dealing with “de-designation” of CPs in these circumstances as it is not covered by the statute as it stands. Any retrospective reviewing of CPPs would be resource intensive – it seems there must be a better way. This situation is a result of legal advice rather than a policy decision. Would like discussion going forward about solutions. Eleisha also highlighted that CPs seem to have been seen as a burden with respect to PLCs. They are a useful management tool – managing risk and public safety on railways while maximising access use. NR is saying positive things to SG about engagement with communities and Eleisha reminded everyone that we are all on the same side. Sharing of legal advice would be a good step forward, at a future meeting/time.
     
21. Lisa McCann thanked the NAF for the meeting invite. She explained that there is a long-standing convention within Scottish Government to neither confirm nor deny whether they or ministers have taken legal advice. Lisa confirmed that the letter from THC had been received but couldn’t comment on it as only just received. Lisa highlighted that it is not the SG aim to restrict access; this is an issue of differing interpretation of legislation. A number of levers are available, where SG can help facilitate discussions with NR.
     
22. Roddy Macdougall agreed that no one wants to restrict access. NR wants to facilitate access where possible. There has been no change on the ground following the SG letter. The NR position is that PLCs have been used by the public for decades, NR is comfortable with that, and this is taken into account in risk assessments. There is no intention of removing access where risk is manageable. If public is using a crossing safely, NR is happy to facilitate. There is no general intention to restrict access at PLCs unless problems with safety at individual PLCs have been identified or reported. Roddy recognised that the Office of Rail and Road (ORR) is the Regulator for the UK and that the laws relating to access in Scotland are different to those of England and Wales. However, he did not believe that there was any regulatory pressure to broadly restrict access over PLCs in Scotland. With regards to the case at Dunrobin Castle (which Phil was not aware of), Roddy reported that cyclists had been using the PLC dangerously, and NR was working with the community to facilitate safe access.
     
23. Nick Cole highlighted that the issue of PLCs is a broader issue than just CPs, e.g. rights of way etc. Don agreed, but in solving CPs and PLCs it may solve the issue with other paths that are not so designated.
     
24. Steve Jenkinson asked for a point of clarification – is it the whole core path that is to be removed, or just the part on the crossing? Phil responded that this is not clear and the subject of some debate. Lisa responded that only the crossing itself is not to be included as a core path. Also within SG, they will try to tell AAs how to maintain sufficient path coverage.  SG doesn’t wish to be too prescriptive in solutions.
     
25. Gavin Corbett gave feedback that for decades/centuries, there has been a need to cross railways. Appropriate infrastructure manages public safety and the needs of the railway. Phil has made offer to share legal advice given to THC. Without this, it will be difficult to understand why SG has had a change of stance. On policy, Gavin hears what Roddy has said about no change on the ground, but this is hard to square with the line in the SG letter about access-users committing acts of trespass. The signage used at some crossings is also a concern with use of “authorised users” not being clear to the public i.e. who is authorised? He is encouraged that NR want to engage positively but reminds everyone that affected communities on the ground are understandably concerned.
     
26. Don highlighted that meetings like this are not good for covering the detail, but there seems to be consensus that maintaining access over PLC’s is the priority.
     
27. Roddy added that Network Rail doesn’t consider the public use of a private level crossing as an act of trespass and will not prosecute. This can be put in writing.
     
28. Don suggested that SG, NR and NAF to form a working group in as timely a manner as possible to discuss further and develop workable and practical solutions. NAF agreed. Lisa was happy to be involved (or another SG colleague) and Roddy was happy to be involved. Don also highlighted that it is also worth considering new technological solutions that could be of use for minimising risk and facilitating access over the railways including PLCs.
     
29. Discussion was had about whether this was to be a NAF sub-group or not. It was agreed NatureScot would undertake the Secretariat role and being formed as a NAF sub-group would simplify the creation and operation of the group.

AP 64/8: NAF members who wish to be involved in the PLCs/CPs sub-group to send suitable dates for a meeting to NAFSec.

AP 64/9: NAFSec to set up first meeting of PLCs/CPs sub-group.

30. With regards to the current SG directive to relevant AAs, Sue asked SG to be mindful about time needed to produce solutions. Lisa clarified that the directive is from Scottish Ministers, not SG so not in her power to rescind, but highlighted that there was no deadline in the SG letter.
     
31. Thanks were given to SG and NR reps for accepting the invitation to the NAF meeting and for engaging in the discussion in a positive way.

Item 9. A.O.B.

32. Sue Hilder highlighted the outcome of a challenge to a Local Authority in respect to its duty to uphold public access rights, which involved the Ombudsman. A member of the public has been trying to get Glasgow City Council to “keep open and free from obstruction or encroachment” the Kelvin/Allander Way. The outcome was that the Ombudsman agreed with the local authority that they did not have to keep open and free all paths. This highlights that in this situation an individual is then left with no further recourse unless they can fund legal action via the courts or judicial determination. Don raised the point that in previous cases where the complainant had some level of success the outcome has been more related to the Access Authority not following its own process for dealing with a complaint. Malcolm Coomb has recently written a piece on S.13. Scotways is going to publish a blog on this soon.

AP 64/10: Scotways to send blog to NAFSec, for NAFSec to add relevant links in minutes/make available to members.

33. Eleisha announced that the 6th edition of “Scottish Hill Tracks” by Scotways is now available to buy.
     
34. Fiona gave update on draft wording that has been developed for multiple over-night stays at a very limited number of FLS carparks – “Multi-day hill access? Whilst overnight parking is not permitted in most FLS car parks, overnight parking is permitted at [name] car park for mountain access. Remember, no camping or sleeping in vehicles at the car park. Please pay for each day. You can pay up to 72 hours later, when you pay by RingGo.”
     
35. Don gave the following statement: “It has been a rare privilege and honour to be NAF Convenor. I have tried my best not to bring discredit on the role and the forum. During my tenure, I have worked with many dedicated, knowledgeable, experienced people; my thanks for your work for the NAF and supporting me. The work of NatureScot supporting the NAF is not always fully recognised. Janice Winning provided the Secretariat function when I started and was extremely helpful but decided to retire after a relatively short time with me. Bridget Finton took over, a tremendous lady but also decided to retire after a short time. Mark Wrightham - a font of knowledge, prolific paper writer, massive experience - also retired. Can you see a link? I was convinced that I had forced early retirement. However, I am reassured that Janice wanted to spend more time with family, Bridget was off to kayak in the Antarctic, again, and Mark off to bag all Munros, again. Alan Macpherson valiantly took over much of the behind the scenes work and provided tremendous experience and knowledge. Ali took over the Secretariat role and has been invaluable in all respects. With a reorganisation of NatureScot portfolios bringing access and visitor management closer it has been a great pleasure for me to work once again with Bridget Jones. Professional, experienced and always worth listening to her sage advice. My sincere thanks to all.”
     
36. Pete thanked Don on behalf of NatureScot for his time and effort in chairing the forum. The success of the forum is tied to the chair and the forum has had success over the last four years. Don has guided the forum through the changing nature of the meetings and done so in a skilled, solution-oriented manner. Don has been an engaged and enthusiastic chair and has brought a wealth of knowledge to the forum.

AP 64/1: NAF members to send suggestions for SOAC at twenty years to NAFSec.

AP 64/2: NAF members to highlight any gaps in the current SOAC related supporting guidance to NAFSec.

AP 64/3: NAF members to send any suggestions about updates that could be made to the SOAC website to NAFSec.

AP 64/4: NatureScot to bring further plans for SOAC at twenty years to Feb 2025 NAF meeting.

AP 64/5: NAFSec to share updated aims of Resources for Access sub-group with NAF members for feedback/approval/agreement.

AP 64/6: NAFSec set up meeting of sub-group end of November 2024 to look at the first draft.

AP 64/7: NAF members to send any good images relating to recreational fires/BBQs to NAFSec.

AP 64/8: NAF members who wish to be involved in the PLCs/CPs sub-group to send suitable dates for a meeting to NAFSec

AP 64/9: NAFSec to set up first meeting of PLCs/CPs sub-group.

AP 64/10: Scotways to send blog to NAFSec, for NAFSec to add relevant links in minutes/make available to members.