Land Reform (Scotland) Act 2003

Part 1 — Access rights

Chapter 1 — Nature and extent of access rights

Notification of Ministers' decision on application

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• (1) Everyone has the statutory rights established by this Part of this Act.

• (2) Those rights (in this Part of this Act called “access rights”) are—

• (a) the right to be, for any of the purposes set out in subsection (3) below, on land; and

• (b) the right to cross land.

• (3) The right set out in subsection (2)(a) above may be exercised only—

• (a) for recreational purposes;

• (b) for the purposes of carrying on a relevant educational activity; or

• (c) for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

• (4) The reference—

• (a) in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to—

• (i) going into, passing over and remaining on it for any of those purposes and then leaving it; or

• (ii) any combination of those;

• (b) in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.

• (5) A “relevant educational activity” is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of—

• (a) furthering the person’s understanding of natural or cultural heritage; or

• (b) enabling or assisting other persons to further their understanding of natural or cultural heritage.

• (6) Access rights are exercisable above and below (as well as on) the surface of the land.

• (7) The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.

Access rights to be exercised responsibly

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• (1) A person has access rights only if they are exercised responsibly.

• (2) In determining whether access rights are exercised responsibly a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person, but—

• (a) a person purporting to exercise access rights who, at the same time—

• (i) engages in any of the conduct within section 9 below or within any byelaw made under section 12(1)(a)(i) below; or

• (ii) does anything which undoes anything done by Scottish Natural Heritage under section 29 below,

is to be taken as not exercising those rights responsibly; and

• (b) regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time—

• (i) disregarding the guidance on responsible conduct set out in the Access Code and incumbent on persons exercising access rights; or

• (ii) disregarding any request included or which might reasonably be implied in anything done by Scottish Natural Heritage under section 29 below.

• (3) In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised.

Countryside (Scotland) Act 1967 (c. 86)

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• (1) It is the duty of every owner of land in respect of which access rights are exercisable—

• (a) to use and manage the land; and

• (b) otherwise to conduct the ownership of it,

in a way which, as respects those rights, is responsible.

• (2) In determining whether the way in which land is used, managed or the ownership of it is conducted is responsible an owner is to be presumed to be using, managing and conducting the ownership of land in a way which is responsible if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them, but—

• (a) an owner who contravenes section 14(1) or (3) or 23(2) of this Act or any byelaw made under section 12(1)(a)(ii) below is to be taken as not using, managing or conducting the ownership of the land in a responsible way;

• (b) regard is to be had to whether any act or omission occurring in the use, management or conduct of the ownership of the land disregards the guidance on responsible conduct set out in the Access Code and incumbent on the owners of land.

• (3) In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights.

Modification of sections 9, 14 and 23

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• (1) Ministers may by order modify, for the purposes of section 2 and 3 above, any of the provisions of sections 9, 14 and 23 below.

• (2) They may do so generally (that is to say in terms similar to those in sections 2 and 3 above as enacted) or by making provision which relates to particular areas, locations or classes of land or to particular access rights or particular activities which may take place in the exercise of access rights or to particular ways of using, managing or conducting the ownership of land or any combination of those.

• (3) Before doing so, they shall consult such persons whom they consider to have a particular interest in the effect of the proposed modification (or associations representing such persons) and such other persons as they think fit.

Access rights, reciprocal obligations and other rules and rights

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• (1) The exercise of access rights does not of itself constitute trespass.

• (2) The extent of the duty of care owed by an occupier of land to another person present on the land is not, subject to section 22(4) below, affected by this Part of this Act or by its operation.

• (3) The existence or exercise of access rights does not diminish or displace any other rights (whether public or private) of entry, way, passage or access.

• (4) The existence or exercise of access rights does not diminish or displace any public rights under the guardianship of the Crown in relation to the foreshore.

• (5) The exercise of access rights does not of itself amount to the exercise or possession of any right for the purpose of any enactment or rule of law relating to the circumstances in which a right of way or servitude or right of public navigation may be constituted.

• (6) Access rights do not constitute a public right of passage for the purposes of the definition of “road” in section 151(1) (interpretation) of the Roads (Scotland) Act 1984 (c. 54).

• (7) A person exercising access rights is to be regarded as being in a public place for the purposes of section 53 (obstruction by pedestrians) of the Civic Government (Scotland) Act 1982 (c. 45).

Chapter 2 — Nature and extent of access rights: further provisions

Land over which access rights not exercisable

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• (1) The land in respect of which access rights are not exercisable is land—

• (a) to the extent that there is on it—

• (i) a building or other structure or works, plant or fixed machinery;

• (ii) a caravan, tent or other place affording a person privacy or shelter;

• (b) which—

• (i) forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

• (ii) forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

• (iii) consists of land contiguous to and used for the purposes of a school; or

• (iv) comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

• (c) to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden;

• (d) to which public access is, by or under any enactment other than this Act, prohibited, excluded or restricted;

• (e) which has been developed or set out—

• (i) as a sports or playing field; or

• (ii) for a particular recreational purpose;

• (f) to which—

• (i) for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

• (ii) after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted;

• (g) on which—

• (i) building, civil engineering or demolition works; or

• (ii) works being carried out by a statutory undertaker for the purposes of the undertaking,

are being carried out;

• (h) which is used for the working of minerals by surface workings (including quarrying);

• (i) in which crops have been sown or are growing;

• (j) which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.

• (2) For the purposes of subsection (1)(a)(i) above, a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure.

Provisions supplementing and qualifying section 6

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• (1) Section 6 above does not prevent or restrict the exercise of access rights over any land which is a core path unless it is land—.

• (a) to which public access is prohibited or restricted by or under any enactment in consequence of an outbreak of animal disease; or

• (b) in respect of which access rights are not exercisable, having been specified (whether as part of a larger area or not) in an order under section 11

• (2) Land which bears to be within section 6 above by virtue of a development or change of use for which planning permission was or is required under the Town and Country Planning (Scotland) Act 1997 (c. 8) shall, if—

• (a) such planning permission has not been granted; or

• (b) such permission was granted subject to a condition which has not been complied with,

be regarded, for the purposes of that section, as if that development or change of use had not occurred.

• (3) Where planning permission for such a development or change of use of land has been granted, the land shall, for the purposes of section 6 above, be regarded, while that development or change of use is taking place in accordance with the permission, as having been developed or having had its use changed accordingly.

• (4) In section 6(1)(b)(iii) above, “school” means not only a school within the meaning of section 135(1) of the Education (Scotland) Act 1980 (c. 44) but also any other institution which provides education for children below school age within the meaning of that provision.

• (5) There are included among the factors which go to determine what extent of land is sufficient for the purposes mentioned in section 6(1)(b)(iv) above, the location and other characteristics of the house or other place.

• (6) For the purposes of section 6(1)(d) above, access rights do not extend to the land to which public access is prohibited, excluded or restricted only to the extent of the prohibition, exclusion or restriction.

• (7) Section 6(1)(e) above prevents the exercise of access rights over land to which it applies only if—

• (a) the land is being used for the purpose for which it has been developed or set out and, in the case of land which is not a sports or playing field, the exercise of those rights would interfere with the recreational use to which the land is being put;

• (b) the land is a golf green, bowling green, cricket square, lawn tennis court or other similar area on which grass is grown and prepared for a particular recreational purpose; or

• (c) in the case of land which is a sports or playing field, the surface of the land is comprised of synthetic grass, acrylic, resin or rubber granule.

• (8) For the purposes of section 6(1)(e) above, land which has been developed or set out for a particular recreational purpose does not include land on which groynes have been constructed, deepening of pools has been undertaken, fishing platforms have been erected, or where other works for the purposes of fishing have taken place.

• (9) Section 6(1)(f) above does not prevent or restrict the exercise of access rights over land to which it applies by any person who forms part of a class of persons who are not, on the days taken into account for the purposes of determining whether that provision applies in relation to the land, required to pay to gain admittance to the land.

• (10) For the purposes of section 6(1)(i) above land on which crops are growing—

• (a) includes land on which grass is being grown for hay and silage which is at such a late stage of growth that it is likely to be damaged by the exercise of access rights in respect of the land in which it is growing, but otherwise does not include grassland;

• (b) does not include headrigs, endrigs or other margins of fields in which crops are growing,

• (c) does not include land used wholly or mainly–

• (i) as woodland or an orchard, or

• (ii) for the growing of trees;

but does include land used wholly for the cultivation of tree seedlings in beds, and “crops” means plants which are cultivated for agricultural, ... or commercial purposes.

Adjustment of land excluded from access rights

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• (1) Ministers may by order modify any of the provisions of section 6 and 7 above.

• (2) They may do so generally (that is to say, in terms similar to those in sections 6 and 7 above as enacted) or by making provision which relates to particular areas, locations or classes of land.

• (3) Before doing so, they shall consult such persons whom they consider to have a particular interest in the effect of the proposed modification (or associations representing such persons) and such other persons as they think fit.

Conduct excluded from access rights

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The conduct which is within this section is—

• (a) being on or crossing land in breach of an interdict or other order of a court;

• (b) being on or crossing land for the purpose of doing anything which is an offence or a breach of an interdict or other order of a court;

• (c) hunting, shooting or fishing;

• (d) being on or crossing land while responsible for a dog or other animal which is not under proper control;

• (e) being on or crossing land for the purpose of taking away, for commercial purposes or for profit, anything in or on the land;

• (f) being on or crossing land in or with a motorised vehicle or vessel (other than a vehicle or vessel which has been constructed or adapted for use by a person who has a disability and which is being used by such a person);

• (g) being, for any of the purposes set out in section 1(3) above, on land which is a golf course.

Chapter 3 — The Scottish Outdoor Access Code

The Scottish Outdoor Access Code

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• (1) It is the duty of Scottish Natural Heritage to draw up and issue a code, to be known as the Scottish Outdoor Access Code, setting out, in relation to access rights, guidance as to the circumstances in which—

• (a) those exercising these rights are to be regarded as doing so in a way which is or is not responsible;

• (b) persons are to be regarded as carrying on activities, otherwise than in the course of exercising access rights, in a way which is likely to affect the exercise of these rights by other persons;

• (c) owners of land in respect of which these rights are exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is or is not responsible;

• (d) owners of land in respect of which these rights are not exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is likely to affect the exercise of these rights on land which is contiguous to that land.

• (2) Scottish Natural Heritage shall consult local authorities and such other persons or bodies as they think appropriate about the proposed Access Code and then submit it (with or without modifications) to Ministers together with copies of any objections or representations made in response to that consultation.

• (3) On receiving a proposed Access Code, Ministers may—

• (a) approve it, with or without modifications; or

• (b) reject it.

• (4) Where Ministers reject a proposed Access Code under subsection (3)(b) above they may either instruct Scottish Natural Heritage to submit a new Code or they may substitute a Code of their own devising.

• (5) Where Ministers approve an Access Code with or without modification under subsection (3)(a) above or devise a Code themselves under subsection (4) above, they shall lay the proposed Code before the Scottish Parliament and Scottish Natural Heritage shall not issue the Code unless it has been approved by resolution of the Parliament.

• (6) The Access Code comes into operation on such date as Ministers fix.

• (7) It is the duty of—

• (a) Scottish Natural Heritage and local authorities to publicise the Access Code;

• (b) Scottish Natural Heritage to promote understanding of it.

• (8) Scottish Natural Heritage shall keep the Access Code under review and may modify it from time to time.

• (9) In reviewing the Access Code, Scottish Natural Heritage shall consult such persons or bodies as they think appropriate about the operation of the Code.

• (10) Subsections (2) to (6) above apply to modifications of the Access Code as they apply to the Code.

Chapter 4 — Regulation and protection of access rights