Rural Law

Following the UK and Scottish Governments’ announcements of restrictions to our normal freedoms, there have been reports in the media about large numbers of people travelling to rural areas, often by car. Initially this caused certain areas to become overcrowded and has increased stress on land managers during what is already a busy time of year. Although this has reduced following more stringent restrictions, it has also raised questions about rights of access to rural land and how these may be impacted, if at all, by the latest COVID-19 guidance.

Restrictions on Movement

The new, emergency Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (the Regulations) have been passed through the Scottish Parliament. The Regulations, which took effect from 27 March 2020 and must be reviewed every 21 days, set out restrictions and requirements that are imposed on businesses and the public to combat the COVID-19 outbreak.

Regulation 5(1) sets out the restrictions on movement which now apply:

Except to the extent that a defence would be available under regulation 8(4), during the emergency period, no person may leave the place where they are living. 

This effectively means that you may not leave your home, unless it is for one of the reasons accepted by the Regulations.

Regulation 8(5) lists ‘reasonable excuses’ – these include (so the list is presumably not exhaustive) obtaining basic necessities and taking exercise.

Existing Rights of Access

When it comes to taking exercise, The Land Reform (Scotland) Act 2003 (the 2003 Act) gives rights to the public to access most land in Scotland, provided this right is exercised responsibly. The 2003 Act is supplemented by The Scottish Outdoor Access Code (the Code), which gives more detailed guidance on the responsibilities of those accessing land.  These rights of access under the 2003 Act and the Code have not been suspended or altered by the coronavirus Regulations.

One of the key responsibilities in the Code is that the rights of access must be exercised responsibly, which in normal circumstances broadly means, subject to the 2003 Act and the Code, so as not to interfere with the rights of others.  However, in present circumstances, access taken in breach of the Regulations is a criminal offence so could not be deemed “responsible”. The Regulations are clear that taking exercise alone or with household members is a reasonable excuse for leaving home.  There is no further specification; no requirement that this occur only once per day (as widely reported) nor any detail as to the means or method of exercise.

Additional guidance

The Scottish Government advice notes that exercise permitted by the Regulations should be taken once a day and Scottish Natural Heritage has stated that longer journeys for recreational purposes should be avoided.  The general advice is that exercise should start and finish at home, whether that means walking, running or cycling.  This approach is consistent with the Regulations’ purpose and the blanket ban on leaving home without a reasonable excuse strongly indicates that any act relying on such an excuse must be exercised only when necessary. On that basis it is difficult to see how driving to a location to exercise could be presented as a reasonable excuse for leaving home.

Many land managers and farmers remain concerned about the welfare of their family and employees. In the circumstances, it may be appropriate to erect signage to advise visitors when they are entering an area that may contain workers and to ask that caution is exercised in obeying social distancing guidance. Despite land owners’ inability to prevent the public accessing land, data from the Government suggests that travel to areas for leisure purposes is decreasing. It can only be hoped that the public takes a responsible approach to the movement restrictions which have been imposed and exercise their rights of access responsibly.

Eilidh Paterson