Reports have been circulating in the Scottish media this week regarding individuals taking their exercise in the countryside and coming into conflict with farmers and others whilst doing so. At a time when we are all being encouraged to stay at home, go outside only when necessary and take care not to touch things (at least not without copious amounts of disinfectant and the ever popular alcohol hand gel), those reports have concluded that the law favours the access taker over the farmer.
But is that really true?
The Right to Roam
Under the Land Reform (Scotland) Act 2003, everyone has the right to be on or to cross land for recreational or educational purposes, whether or not for commercial reasons. The rights conferred under the Act are called "Access Rights", and are often referred to as "the Right to Roam". That right is qualified by the act in the following ways:-
- certain land is exempted from Access Rights under section 6; and
- Access Rights only exist if they are exercised "responsibly".
The question, then, is what does "responsible access" look like during the pandemic, and does that differ from what it would be otherwise?
Definition of Responsible Access
Section 2 of the Act sets out a number of principles relating to responsible access, which include the following:-
- as a starting point, the access taker is presumed to be acting responsibly if they are exercising the right so as not to cause unreasonable interference with the rights of any other person;
- regard is to be had to the guidance set out in the Scottish Outdoor Access Code ("SOAC"); and
- the exercise of Access Rights must be lawful and reasonable, and take proper account of the interests of others and the features of the land.
What this means is that what is meant by "responsible" access can change according to location and time. The SOAC specifies that events such as lambing, deer rutting and other seasonal changes may make it appropriate to restrict Access Rights.
If an individual wishes to take access over rural land for the purposes of exercising (their "one walk a day"), and in doing so they do not touch anything and practice good social distancing etiquette, then there is no obvious reason why this would not fall into the category of "responsible access".
But what if they come upon a gate or stile? Now they must touch the gate to open it, or the post adjacent to the stile for balance. COVID-19 can pass by touch, and we are being told to disinfect our mail and food packaging, as well as wash our hands as often as possible.
This is where the issue becomes a bit muddied. It seems reasonable enough to me that responsible access must, at present, mean taking access in a manner which is as safe as possible for others working or recreating in the area, so as not to contribute to the possible spread. That may mean that you should wear gloves if you need to touch anything, or that you should use disinfectant where it is provided and you are asked to do so.
Obligations on landowners
The Act provides that landowners must use and manage their land responsibly, in a way which is consistent with the proper exercise of access rights.
That does not mean that landowners need to, in these anxious times, throw open their gates to the masses. They can take reasonable precautions to protect themselves and their workers from the virus, which may include the putting up of signage, provision of disinfectants, and the formation of preferred walking routes to try to regulate the flow of foot traffic.
Ultimately, responsibility for enforcing access rights lies with local authorities. They have power under the Act to serve notices on landowners demanding that they remove barriers to access takers. That power requires that the purpose or main purpose (objectively assessed) is to prevent or deter access takers from taking access.
So can it really be said, if the landowner is having demonstrable trouble with ignorant individuals taking irresponsible access and causing enhanced risks for the landowner, his/her family and workers, that the purpose or main purpose of locking a gate was to prevent or deter access rather than safeguard against the risk of infection?
That is a question that would ultimately be for the courts to decide, if a notice was served and appealed by the landowner; an appeal that would be unlikely to be considered urgent or emergency proceedings, in the current climate.
If you are having issues regarding the exercise of statutory access rights, please do not hesitate to get in touch with our team.