Land Reform (Scotland) Act 2003

• (3C) Nothing in subsection (3A) or (3B) obliges an applicant crofting community body, or empowers Ministers to require such a body, to submit to Ministers any information or document within subsection (3B).

• (4) Any person who, under this Part of this Act, provides a document or other information, or makes a decision, which or a copy of which is to be registered in the crofting register shall, forthwith on providing the document or other information or, as the case may be, making the decision, give it or a copy of it to the Crofters Commission for the purpose of allowing it to be so registered.

• (5) The Crofters Commission shall ensure—

• (a) that the crofting register is, at all reasonable times, available for public inspection free of charge;

• (b) that members of the public are given facilities for getting copies of entries in the crofting register on payment of reasonable charges;

• (c) that any person requesting it is, on payment of such a charge, supplied with an extract entry certified to be a true copy of the original.

• (6) An extract so certified shall be sufficient evidence of the original.

Avoidance of disposal other than to crofting community body

95

• (1) It is not competent for the owner of the land, or as the case may be the tenant or the person entitled to the sporting interests, to which an application under section 73 above relates—

• (a) to dispose of the land or sporting interests; or

• (b) to assign the tenant's interest,

after the consent date to any person other than the crofting community body which made the application.

• (2) Subsection (1) above has no effect where the crofting community body has withdrawn the application or has otherwise decided not to proceed to exercise its right to buy the land , tenant's interest or sporting interests.

• (3) In subsection (1) above, “consent date” has the same meaning as in section 87 above.

Limitation on effect of this Part

96

Nothing in this Part of this Act—

• (a) affects any rights given by or under the 1993 Act or prevents a crofting community body from being a landlord for the purposes of that Act; or

• (b) prevents a crofting community body from having and exercising power to acquire land (or an interest created over land) or other property otherwise than under it.

Scottish Land Court

97

• (1) Subject to sections 79 and 91 above, the Land Court shall have jurisdiction to hear and determine all matters, whether of law or fact, which arise under this Part of this Act and, subject to section 1(7) of the Scottish Land Court Act 1993 (c. 45) (referral of question of law to Inner House of the Court of Session), the decision of the Land Court in any case shall be final.

• (2) In section 1(7) of that Act of 1993, after the word “enactment” there is inserted “, or under Part 3 of the Land Reform (Scotland) Act 2003 (asp 2),”.

• (3) Paragraph 6(2) of Schedule 1 to that Act of 1993 (appeal against order or determination arrived at under a delegation of Land Court’s powers) does not apply in relation to any order made, or determination arrived at, in pursuance of a matter which arises under this Part of this Act.

Part 4 — General and supplementary

General and supplementary provisions

98

• (1) In this Act—

• “Land Court” means the Scottish Land Court;

• “Lands Tribunal” means the Lands Tribunal for Scotland;

• “Ministers” means the Scottish Ministers;

• “prescribed” means prescribed by regulations made by Ministers.

• (2) Any power of Ministers under this Act to make an order or regulations shall be exercisable by statutory instrument.

• (3) Any such power includes power to make—

• (a) such incidental, supplementary, consequential, saving or transitional provision as Ministers think necessary or expedient;

• (b) different provision for different cases and for different classes of case.

• (4) Subject to subsection (5) below, a statutory instrument containing an order (other than an order made under section 100 below) or regulations made under this Act shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

• (5) A statutory instrument containing an order made under section 4, 8, ...35(4), 36, 42, 72(4), 78, 94 or 97E(4) above or regulations made under section 34(A1)(b), (4A) or (4B), 38(2B), 71(A1)(b), (4A) or (4B), 97C(4), (5) or (6), 97D(1)(b), (7) or (8), 97F(9), 97H(6) or 97N(1) or (3) above shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the Scottish Parliament.

• (5A) In making a decision under section 38(1), 44(3), 51(1)(b), 73(2) or 97G(2), Ministers are to have regard to the International Covenant on Economic, Social and Cultural Rights adopted and opened for signature, ratification and accession by General Assembly resolution 2200A ( XXI ) of 16 December 1966 subject to—

• (a) any amendments in force in relation to the United Kingdom for the time being, and

• (b) any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.

• (6) Any requirement or other provision in this Act for or about the sending or making of any application, invitation, response, confirmation, notice or other document, or any copy of such a document, shall be taken to have been complied with if the document was posted by recorded delivery post or such other postal service as is referred to in paragraph 3 of Schedule 8 to the Postal Services Act 2000 (c. 26).

• (7) Subject to subsection (8) below, the effective date of any application, invitation, response, confirmation, notice or other such document sent by such post shall be—

• (a) the day after the date it was posted; or

• (b) where any period in this Act is to be calculated from or with reference to the date of making or sending the application, invitation, response, confirmation, notice or document, that date.

• (8) Nothing in subsection (7) above affects the requirements in sections 37(9), 49(4), 52(3), 97G(7) and (9) and 97J(4) above by which the responses there referred to are to be received by Ministers within a certain time.

Amendments, repeals and savings

99

The enactments specified in schedule 2 to this Act have effect subject to the modifications there specified and the repeals there specified have effect subject to the savings there specified.

Short title, Crown application and commencement

100

• (1) This Act may be cited as the Land Reform (Scotland) Act 2003.

• (2) This Act binds the Crown.

• (3) This Act (except this section and section 98 above) comes into force on such day as Ministers may by order appoint.

• (4) Different days may be so appointed for different purposes.

SCHEDULE 1

Procedure

1

Before making a path order, the local authority shall give notice of their intention to do so, together with a copy of the proposed order, to the owner of the land within which is the path proposed for delineation by the order (the “owner”).

2

That notice shall specify—

• (a) a time, being not later than 28 days after the giving of the notice, within which; and

• (b) the manner in which,

objections to the proposed order may be made by the owner to the local authority.

3

If no such objections are made or any made are withdrawn, and the local authority make the order, it shall have effect.

4

If, however, an objection is made and not withdrawn, the order if made shall not have effect unless confirmed by Ministers.

5

Ministers—

• (a) may; and

• (b) if any objection made is not withdrawn, shall,

afford the owner an opportunity of being heard by a person appointed by Ministers for the purpose.

6

Ministers shall, after considering the report of that person, either confirm or decline to confirm the order and, where they confirm it, may do so with modifications.

7

On its confirmation, the path order shall have effect.

8

As soon as a path order has effect, the local authority shall give notice of that fact to the owner together with a copy of the order.

Statutory undertakings

9

No path order shall be made which would delineate a path over land in or over which there is apparatus belonging to or used by any statutory undertaker for the purpose of the undertaking unless the undertaker has consented to the making of the order.

10

Such consent shall not be unreasonably withheld and any question whether it is so withheld shall be determined by Ministers.

11

The operator of any electronic communications code network for the purposes of which apparatus was kept installed in, under or over a path immediately before the path creation order which delineated the path was revoked retains after that revocation the same powers as before it; but the owner is entitled to require the alteration of the apparatus.

12

Paragraph 108(2) of Schedule 3A to the Communications Act 2003 (the electronic communications code) (alteration of apparatus to include moving, removal or replacement of apparatus) applies for the purposes of paragraph 11 above as it applies for the purposes of the code.

13

Part 6 of the electronic communications code (rights to require removal of apparatus) applies in relation to any entitlement conferred by paragraphs 11 and 12 above to require the alteration, moving or replacement of any electronic communications apparatus as it applies in relation to an entitlement to require the removal of any such apparatus.

SCHEDULE 2

Trespass (Scotland) Act 1865 (c. 56)

1

Section 3 (which creates the offence of occupying or camping on land without the consent of its owner or occupier) of the Trespass (Scotland) Act 1865 is renumbered as subsection (1) of that section and after that subsection there is added—

(2) Subsection (1) above does not extend to anything done by a person in the exercise of the access rights created by the Land Reform (Scotland) Act 2003 (asp 2).

Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42)

2

In section 1(1) of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, after paragraph (d) there is inserted—

(e) by the Scottish Ministers under section 35 or 72 of the Land Reform (Scotland) Act 2003 (asp 2);

.

Countryside (Scotland) Act 1967 (c. 86)

3

The Countryside (Scotland) Act 1967 is amended as follows.

4

Subject to paragraphs 6 and 7 below, the following provisions—

• (a) Part II (access to open country);

• (b) sections 30 to 38 (creation, closure and diversion of public paths);

• (c) section 43 (ploughing of rights of way);

• (d) in section 54 (byelaws), in subsection (6), the words “or the next and succeeding section”;

• (e) section 55 (default powers); and

• (f) in Schedule 3 (which includes provision for making and confirming access orders under Part II), in sub-paragraph (1) of paragraph 1, the words “an access order”, in sub-paragraph (3) of that paragraph the words “an access order or” and in sub-paragraph (1A) of paragraph 2, the words from “as” to “order”, where thirdly occurring,

are repealed.

5

In section 47 (interpretation of Part III which deals with paths, routes and rights of way) there is inserted at the end “and references to a right of way do not include references to access rights within the meaning of section 1 of the Land Reform (Scotland) Act 2003 (asp 2)”.

6

The coming into force of the repeal of Part II does not—

• (a) prevent compensation thereafter being claimed or becoming payable under section 21 of the Act (compensation for depreciation or disturbance as a result of access order to be assessed only after five years' operation of order); or

• (b) otherwise affect the operation thereafter of sections 21 to 23 and 70 of that Act in relation to claims for or payment of compensation.

7

Notwithstanding the repeal of section 30 to 38, those sections continue to have effect—

• (a) to the extent that the rights and facilities afforded to the public under those sections are not secured by section 1 above;

• (b) in relation to land in respect of which access rights are, under section 6 above, not exercisable; and

• (c) in relation to rights of way.

Civic Government (Scotland) 1982 (c. 45)

8

The Civic Government (Scotland) Act 1982 is amended as follows—

• (a) in section 120 (savings for Crown and other rights), the words from “and, with respect” to the end are repealed;

• (b) in section 121 (control of the seashore, adjacent waters and inland waters)—

• (i) subsection (4); and

• (ii) in subsection (5), paragraph (iii),

are repealed;

• (c) in section 121, in subsection (11), for the words from “adjacent” to the end there is substituted “and adjacent waters.”; and

• (d) in section 123 (interpretation), the words from “ “inland waters”” to “banks thereof;” are repealed.

Public Order Act 1986 (c. 64)

9

In section 14A (prohibiting trespassory assemblies) of the Public Order Act 1986, after subsection (9) there is inserted—

(9A) In relation to Scotland, the references in this section to the public’s rights (or limited right) of access do not include any right which the public or any member of the public may have by way of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2).

.

Criminal Justice and Public Order Act 1994 (c. 33)

10

The Criminal Justice and Public Order Act 1994 is amended as follows.

11

After section 61(4) (circumstances in which persons who, although not originally trespassers on land, have become such may be directed by police to leave) there is inserted—

(4A) Where, as respects Scotland, the reason why these persons have become trespassers is that they have ceased to be entitled to exercise access rights by virtue of— (a) their having formed the common purpose mentioned in subsection (1) above; or (b) one or more of the conditions specified in paragraphs (a) and (b) of that subsection having been satisfied, the circumstances constituting that reason shall be treated, for the purposes of subsection (4) above, as having also occurred after these persons became trespassers. (4B) In subsection (4A) above “access rights” has the meaning given by the Land Reform (Scotland) Act 2003 (asp 2).

.

12

In section 64 (which, amongst other things, confers powers on the police to seize and remove sound equipment brought or brought back on to land after a removal direction under section 63) there is inserted after subsection (5)—

(5A) Entering land in Scotland with sound equipment in the circumstances mentioned in subsection (4)(b) above is not an exercise of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2).

.

13

In section 68 (offence of aggravated trespass) after subsection (1) there is inserted—

(1A) The reference in subsection (1) above to trespassing includes, in Scotland, the exercise of access rights (within the meaning of the Land Reform (Scotland) Act 2003 (asp 2)) up to the point when they cease to be exercisable by virtue of the commission of the offence under that subsection.

.

The Conservation (Natural Habitats, Etc.) Regulations 1994 (S.I. 1994/2716)

14

The Conservation (Natural Habitats, Etc.) Regulations 1994 are amended as follows.

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

After regulation 69 there is inserted—

(69A) (1) Regulations 48 and 49 (requirement to consider effect on European site) apply in relation to a local authority’s proposal— (a) to draw up or change a plan for core paths under section 17 of the Land Reform (Scotland) Act 2003 (asp 2); (b) to enter a path agreement under section 21 of that Act; (c) to create or maintain a path delineated under such an agreement; (d) as to how any such path is to be created or maintained; (e) to make a path order under section 22 of that Act; (f) as to how any path delineated under such an order is to be created or maintained. (2) Regulations 50 and 51 (requirement to review certain decisions) apply to any decision by a local authority in relation to any of the things mentioned in paragraph (1).

.

Town and Country Planning (Scotland) Act 1997 (c. 8)

17

After subsection (3) of section 208 of the Town and Country Planning (Scotland) Act 1997 there is inserted—

(4) This section applies in relation to any land which is a core path (within the meaning of Part 1 of the Land Reform (Scotland) Act 2003 (asp 2)) as it applies in relation to footpaths and bridleways.

.

Prohibition signs, obstructions, dangerous impediments etc.

Community bodies

Community bodies

Construction of references to land in which community interest registered

Land which may be bought: salmon fishings and mineral rights

69A

• (1) This section applies where a tenancy which is neither—

• (a) a croft tenancy; nor

• (b) the tenancy of a dwelling-house,

has been created over land at least part of which is eligible croft land (the land over which the tenancy has been created being in this section referred to as the “tenanted land”).

• (2) Where this section applies, a crofting community body may apply, under section 73 below, to buy the interest mentioned in subsection (3) below—

• (a) where—

• (i) it is simultaneously applying; or

• (ii) it has made an application in respect of which Ministers have not made a decision,

to buy eligible croft land any part of which is part of the tenanted land (any such eligible croft land being in this section referred to as the “principal subjects”); or

• (b) if the conditions set out in subsection (4) below are met, during the relevant period.

• (3) The interest is the interest of the tenant over so much of the tenanted land as is comprised within the principal subjects.

• (4) The conditions are that the crofting community body—

• (a) has provided confirmation under section 85(1) below of its intention to proceed to buy the principal subjects; or

• (b) has bought and retained those subjects in accordance with the provisions of this Part of this Act.

• (5) In subsection (2) above, “relevant period” means the period beginning with the date on which Ministers consented to the application under section 73 to buy the principal subjects and ending—

• (a) where the crofting community body does not proceed to exercise its right to buy those subjects, on the date on which it withdraws, under section 85(2) below, its confirmation so to proceed; or

• (b) where the crofting community body has bought and retained those subjects, five years after the date on which the crofting community body bought those subjects.

88A

• (1) Where an application made by virtue of subsection (2) of section 69A above does not relate to the entire tenanted land (“tenanted land” being construed in accordance with subsection (1) of that section), any resultant question as to the allocation, as between the tenant and the crofting community body, of rents payable or receivable, or as to the allocation as between them of rights and obligations generally, is to be determined by the valuer when, in pursuance of an appointment under section 88(1) above, he assesses the value of the interest of the tenant.

• (2) Any determination under subsection (1) above is to be such as the valuer considers equitable in all the circumstances.

97A

In this Part, “tenant”, in any case where the reference is not to a tenant of a croft, includes sub-tenant (analogous expressions being construed accordingly).

Power to modify sections 40(4) and (5) and 41

Procedure

Statutory undertakings

Trespass (Scotland) Act 1865 (c. 56)

Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42)

Countryside (Scotland) Act 1967 (c. 86)

Construction of references to land in which community interest registered

Civic Government (Scotland) 1982 (c. 45)

Public Order Act 1986 (c. 64)

Criminal Justice and Public Order Act 1994 (c. 33)

The Conservation (Natural Habitats, Etc.) Regulations 1994 (S.I. 1994/2716)

The Conservation (Natural Habitats, Etc.) Regulations 1994 (S.I. 1994/2716)

Town and Country Planning (Scotland) Act 1997 (c. 8)

Editorial notes