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Update on the Land
Reform Bill
by John Taylor
This piece by John Taylor of CTC (Scotland)
was published in the Rough Stuff Fellowship journal.
It will certainly be of interest to SBC members and John has
given permission for this to be put on the SBC website.
The amended bill is a definite improvement on the first draft
and much of this is due to John. He deserves a massive round
of applause for the large amount of effort he has put into
this. .
Crispin
It occurred to me that you may like to have an update on
the progress of the Scottish "Access Bill". Access
is actually one of the three parts of the Land Reform Bill,
the other two being "Cummunity Right to Buy" (land),
and "Crofters' Right to Buy". I will refer simply
to "the Bill".
The stages are First Draft (voted on purely to confirm that
it is potentially competent legislation), Committee Stage,
Second Draft (Stage 2) (voted on to confirm that parliament
still likes it), another Committee stage to deal with competency
of submitted amendments, and (at last!) the final debate and
final vote (but no House of Lords!)
The excellent news is that , after a first draft which was
pretty abysmal in parts, it was encouragingly cleared up and
it passed its stage 2 vote in March. In the first committee
stage a lot of evidence was taken, to which CTC Scotland contributed
directly and through umbrella bodies such as Scottish Sports
Association. Such bodies have a much greater resource in time
and money than we can muster, so we have to rely on and cooperate
with them. That does not prevent us from developing our own
views and marshalling friendly MSPs (we have a Cross Party
Cycling Group [CPCG]) to follow up points that we feel that
are not being addressed sufficiently by anyone else.
Having passed the Stage 2 vote (with a large majority), it
can virtually be assumed that the Bill will become law. Timescales
ever lengthen, so it now looks as though it will be enacted
just before or just after the summer recess. But, hold on!
You won't notice it for some time after that. The Bill states
things simply (well, as simply as lawyers can put it!). There
will also be a Scottish Countryside Access Code (Code), which
interprets and broadens the clauses and will have the status
of the Highway Code. That cannot be finalised until after
the Act is passed. Also, the detail of implementation to guide
Local Authorities (LAs) has to be finalised. So, the enforcement
cannot be expected before summer next year.
Even after that, LAs are given up to two years to draw up
Core Path Networks (CPNs)., and longer to implement them.
Path signs (erected under the new law) cannot be erected before
that because the process allows for objections to be heard.
CPNs are networks of the paths which the LAs, after public
consultation, believe are required to give adequate assured
access to all path users (the great majority of whom in earlier
consultations wanted signposts they could follow) to all types
of countryside.
It is paths that most cyclists are interested in, and we have
to realise that, although most of the cyclists we activists
mix with can find their own way about, they still want the
obstructions removed, and most of the cyclists we don't normally
mix with want signs to give them assurance. Much preparatory
work is a;ready being done behind the scenes by many LAs,
but there will be some tardy ones.
Nevertheless, there WILL be Rights, responsibly used, to be
on land for recreation and passage from the time of enforcement
(2003). So, how soon will the "private" and "Keep
Out" signs come down and the locks be removed? It is
the writer's fear that LAs may be swamped by, on the one hand,
stalling actions by landowners, and on the other, by users
demanding that action be taken to remove the offending signs
and locks.
All that does not detract from the expectation that the Act
will provide Scotland with the most advanced Access law. I
will finish by addressing a few of the principles and our
remaining doubts. We would be very grateful if readers would
write to MSPs or to Scottish Parliament about these at an
early date. The views of non-Scottish readers are just as
important, because a major objective is to encourage visitors,
thereby enhancing the rural economy.
The Rights are exercisable at users' own risk and taking "proper
account of the interests of others". Owners are exercising
their right of management if they do not "cause unreasonable
interference with the access rights of people exercising......them".
There are, of course, the expected exclusions in regard (mainly)
to curtilage, land statutorily excluded (railways, mines,
MOD, Queen,etc), playing fields whilst in use, and crops (grass
where it is for hay and silage).
You are not "trespassing" by exercising your Rights,
but the notion of trespass is not denied. This offends Ramblers
and Scottish Rghts of Way who contend that there never was
a law of trespass in Scotland until the 1967 Countryside Act
appeared to introduce it. In my view, that shouldn't worry
those of us who don't intend to offend (incidentally, no new
offences are created).
An item of conduct that is currently excluded from the Rights
is access for profit. This is held to be too restrictive in
regard to profit in small ways, say, by paid guidance of a
party, and will probably be amended accordingly.
LAs have the duty to "assert, protect and keep open and
free from any obstruction" any route. Cycling is a minority
usage, as is horse riding, and wheel-chair usage. It is hardest
to get all minority users' concerns addressed, so we have
cooperated with others, principally with BHS since they are
also very active in the cause. We identify the probable obstructiveness
of locked gates, stiles, ploughing and farmyards as not being
properly addressed in the Bill's spirit of undifferentiated
access. At the moment farmyards (and other curtilage through
which an existing path passes) are excluded from the rights.
There should be a continued right of passage (but not of recreation)
or a choice on the landowner of diverting the path.
The Bill commendably undifferentiates between the users (such
a thing as surfaces we shouldn't cycle on are dealt with in
the Code). However, we have our doubts when it comes to translation
onto the ground e.g.there seems to be a threat in section
18.9 where it states "The list of core paths. shall......indicate
the extent of the public rights in each of the core paths
listed"., and the Code seems to reinforce our doubt.
We read the rights to extend to all users, basically everywhere,
including all paths. Clearly, most cyclists will wish to know
which paths are the more passable for cycling. This can be
simply accommodated by the inclusion of a cycle symbol on
the "path" signpost, i.e. POSITIVE SIGNAGE. We do
not want paths designated as footpaths, bridlepaths, or cycle
paths (unless the latter fall into another strategic category
which is separate from the scope of this Bill), since that
smacks of exclusion.
I believe that this last matter is of particular importance
to RSF members. Unfortunately, the crucial matter of signage
is outwith the scope of the Bill OR the Code. Therefore we
need adequate consultation on the guidance to LAs. Nevertheless,
that should not prevent us from hammering it home whenever
we can.
Lastly, may I draw attention to the formation of "Local
Access Forums" (has Latin died? [fora?]), of which every
LA must have at least one. Some are in place. These afford
a particular opportunity for Scottish RSF members to play
their part. CTC has its Right to Ride network, but not comprehensive
enough, particularly in the off-road interest. Therefore I
would be very pleased to hear of RSF members who could fill
the bill (nearly wrote Bill).
That is, I am sure, all that the editor has space for. I would
be pleased to field any queries and suggestions.
John Taylor, johnwtaylor@care4free.net
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