The Land Reform (Scotland) Act 2003 (the Act) grants everyone statutory access rights over all land and inland water (including the areas directly above and below the same) in Scotland, subject to certain exceptions and restrictions. The Act grants both the right to be on land (for certain specified purposes) and the right to cross land.
The right to be on land can only be exercised for limited purposes (recreational; educational; and carrying on commercially, or for profit, an activity which could be carried out otherwise than commercially, or for profit), but the right to cross land can be exercised for any purpose (subject to specific exceptions). The right to cross land in terms of the Act is the right to go into land or inland water, pass over it, and leave it for the purpose of getting from one place to another.
How the rights must be exercised
The access rights must be exercised responsibly and are presumed to be so exercised provided: "they are exercised so as not to cause unreasonable interference with any of the rights of any other person".
The owners of land over which access rights under the Act are exercisable have a duty to use and manage the land, and conduct the ownership of it, responsibly. They are presumed to be so doing provided they: "do not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them".
The access rights cannot be exercised over certain excluded areas of land. Without listing all of the excluded areas, some of the most pertinent include: areas on which houses, tents or caravans have been erected (including sufficient adjacent land to ensure those living there have sufficient privacy, and that the enjoyment of their structure is not unreasonably disturbed); areas on which structures are located; land in which crops have been sown or are growing; grass sports or playing fields while in use; land adjoining and used by a school; land being used for the working of minerals; and land on which building, demolition, or civil engineering works are being carried out (including works being carried out by a statutory undertaker).
In determining the extent of land adjacent to a house, tent or caravan excluded from the exercise of access rights in order to ensure the privacy of their occupants, regard shall be had to the location and characteristics of the house, tent or caravan in question.
The access rights must not be exercised in breach of a court order or to carry out unlawful activities, but in addition, the following conduct is excluded in the exercise of the rights (and, therefore, requires the consent of the owner of the land): hunting, shooting or fishing; being on or crossing land with a dog (or other animal) that is not under control; being on or crossing land in order to take away (for commercial purposes or for profit) anything in or on the land; and being on or crossing land in or with a motorised vehicle or vessel.
Local authorities have the power to make orders exempting land from the exercise of the access rights for a certain specified period of time, and they are only required to provide notice of such an order to the public if the exemption is to last for six days or more. In addition, local authorities have the power to make byelaws in respect of land over which access rights are exercisable.
The Scottish Outdoor Access Code
The access rights under the Act must also be exercised in accordance with the Scottish Outdoor Access Code (available here), which also provides valuable information on both the responsible exercise of the access rights under the Act and the responsible management of land over which access rights under the Act are exercisable.
The access rights granted under the Act are fairly extensive and have implications for both developers and landowners. In addition to a landowner's duty to manage land over which access rights are exercisable responsibly, the Act entitles members of the public to be on and cross over land, albeit subject to certain exceptions and limitations, without having to obtain the landowner's consent. The implications for developers are also twofold in that the access rights may benefit developers, in that in certain limited and restricted instances, it may allow them access to privately owned land without having to obtain the consent of the landowner. Conversely, land being developed by a developer may be subject to these access rights, although the exclusion of the exercise of the rights on land on which building, demolition, or civil engineering works are being carried out (including works being carried out by a statutory undertaker) may limit the impact of the rights in such an instance.
In summary, statutory access rights allow the public, in certain circumstances and subject to certain exemptions and limitations, to access private land without first obtaining the consent of the landowner. The Act also places an obligation on owners of all land over which such access rights are exercisable to use and manage their land responsibly. However, given the numerous exemptions to, and restrictions in the exercise of, the rights, anyone seeking to rely on them would be wise to familiarise themselves with the Scottish Outdoor Access Code and both the land over which the rights cannot be exercised and the conduct excluded in the exercise of the rights.
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