In Scotland, the public enjoy a general right of responsible access to much of Scotland's land and inland waters for activities including walking, horse-riding, cycling and wild camping. This 'right to roam' is a statutory right, introduced by the Land Reform (Scotland) Act 2003 ("the 2003 Act").
Landowners have an obligation under the 2003 Act to use and manage their land in a way which is 'responsible' in respect of access rights. They may not take action, or fail to take action, where the main purpose is to prevent or deter people from exercising rights of access.
There are times, however, when exercise of access rights by the public could be problematic or dangerous – for example when carrying out certain estate activities such as forestry operations, and particularly at this time of year muirburn or shooting. In such situations, landowners may take precautions which restrict or deter access so that the activities may be carried out safely and in compliance with health and safety legislation. The Health and Safety at Work etc. Act 1974 requires landowners to act in a way in which 'so far as reasonably practicable', the public are not exposed to risks to their health and safety.
When carrying out estate activities, careful consideration should be given to the competing obligations to manage access responsibly and to comply with health and safety duties. The Outdoor Access Code ("the Code") gives practical advice on what may be appropriate when considering restricting or deterring access. The Code emphasises that any restrictions must be reasonable and practicable, and suitable for the level of risk. For example, high risk activities near a popular walking route will require greater precautions than if the activity was more low risk and in a remote location.
For high risk activities (for example tree felling), actions such as providing an alternative route and restricting access only within certain time frames are suggested in the Code to minimise the interruption of access rights. For activities such as shooting, the Code suggests providing signage and information boards on walking routes and at car parks giving on the day information and alternative routes; signage is also recommended by the Muirburn Code if burning is taking place in an area popular with the public.
The key consideration in determining if a restriction on access is legitimate or not, is whether the 'main purpose' of the restriction is to deter access. For example, in the case of Tuley v Highland Council, a landowner had concerns that horse riding on his path was damaging the terrain, and so the path was closed to horse riders, with an alternative path made available to them. It was held that the landowner had acted responsibly by taking preventative action to minimise damage to his path. This case shows that if a restriction of access is a genuine land management decision, the main purpose of which was not to prevent access, it is acceptable.
Overall, when carrying out estate activities, to do so safely and effectively, it is accepted that landowners may need to restrict or deter access. Restrictions should be implemented in a way which will minimise interruption to public rights of access, and the appropriate action to be taken will vary depending on the activity and the associated risk. Actions where the main purpose is to deter access are not permitted.
