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Back to Land Reform Homepage

26 February 2003

Land Reform and the Access Code:
Problems and Unanswered Questions

Andrew Mylius FRBS

St Fort Home Farm, Newport-on-Tay, Fife, Scotland

(Filed 26th Feb 2003)

An opportunity to reassess the impact of the Land Reform Bill & Access,
and to consider outstanding issues in the forthcoming
consultation on the Access Code

The period allowed for public consultation regarding the Access Code
commences at end of March 2003 and continues for 12 weeks.

Comments on Conservation & the newly launched
Scottish Executive Bio-diversity Strategy

 

Introduction

Now that the Land Reform (Scotland) Bill has been passed by the Scottish Parliament, SNH has supplied a number of briefing papers to almost every person or organisation who has an interest in the Bill. Their most recent publication is Update 19. This can be obtained from SNH by contacting Ashleigh Tooth (ashleigh.tooth@snh.gov.uk). It is also on the Land-Care website (1).

The Scottish Farmer recently published a letter from C R Connell of Charles Connell & Co, also published on Land-Care on 6th February 2003 (2), in which he rightly castigates the MSPs and Scottish Executive for putting the Bill before the Access Code, and for not having the Access Code ready in time to be discussed as part of the Bill itself. Now we have the extraordinary situation where SNH is about to start a consultation period of 12 weeks starting at the end of March, but as yet SNH have not said on which date the period commences.

I shall attempt to analyse what the outstanding issues are from a land management perspective, identify the most relevant questions and offer some solutions which can be incorporated into the Access Code.

In 2000 I wrote an article entitled “Access: the Reality for Farmers, Landowners, Foresters and all Rural Residents”, now published on the Land-Care web site (3). Some of concerns of Farmers and those who manage land were put to the Access Forum by both NFUS and the SLF and were accounted for in the drafts of the Bill. However, on publication it is clear that final Bill has not taken heed of earlier responses from the access forum and landmanagers. It will now almost certainly have a detrimental effect on those farm businesses and farm communities, as well as on conservation, particularly livestock farms in lowland Scotland and those near urban settlements.

SNH intends to start consultation on the Access Code by the end of March. After the consultation closes, SNH will consider the responses and seek advice from the Access Forum. SNH says it should be noted that elements of the code which directly reflect the contents of the Bill cannot be changed through the consultation process.

From a land management perspective the key questions are:

  1. Can the Access Code be drafted in a way to address the concerns of those likely to be affected?
  2. Can the Access Forum draft the Code to reflect or comply with the Land Reform Bill?
  3. Can the Access Forum be persuaded of the concerns of Farmers and adopt these into the Access Code?

At this stage it is vital to address Question 1, so that the Access Forum can renew their acquaintance with the concerns of lowland arable and livestock farmers. These concerns will be the subject of the consultations with farmers as individuals as well as their representatives, the NFUS and the SLF.

It is fundamental to the future of Scotland’s farming and rural prosperity that the following points are addressed in the Access Code:

  • Safeguarding the privacy and security of Farms and their Communities
  • Allow livestock to be undisturbed by the public at all times when out at grass on enclosed land
  • Allow farmers to comply with new Biosecurity measures and comply with a variety of rules and regulations governing official schemes without threat of penalty.
  • Address the problems of liability
  • Deal with the problems of night time access on farms, especially those near Urban settlements
  • Allow temporary exemptions for a variety of reasons.
  • Re-address the controversial issue of commercial activity by Access takers using privately funded and/or created facilities.
  • Explain how landmanagers can deal with irresponsible access.
  • Safeguard the many conservation areas that most of Scotland’s farmers have created but which are either too small or unclassified to have any designation.

By addressing these key points, the Access Code would deliver to the public a clear and easily understood set of rules and guidelines, and to those that derive their livelihood from the land a mechanism which provides sustainable policies and enables them to cope with increased access. The Code, like any law, will only be accepted by both access takers and access providers if it is reasonable and fair.

During the forthcoming consultation period it is essential that we respond as individuals as well as through the NFUS, the SLF and other organisations. The NFUS has now rejoined the Access Forum, albeit with only one seat as opposed to the promised two, and will be part of the discussions on the details and precise wording of the Access Code.

Having attended a recent NFUS monitors meeting in Perth, I can report that the NFUS have taken on board most of the issues already highlighted (but not all) and as a member of the NFUS I am now confident that they will inform SNH through the Access Forum of the outstanding concerns.

What is not clear, at the time of writing, is what position the NFUS will take with regard to their Members, should the Access Code NOT deliver a sensible solution to any of the main points.

Clearly from a practical point of view, Landmanagers and Farmers must comply with the Bill and its Code. Or put it another way, most of them would prefer to comply with the provisions on the basis that the provisions were reasonable.

This means that the details of the Access Code must reflect the very genuine concerns of farmers of enclosed land in particular. The details of the Code must address the issues highlighted above; so that farmers can manage their land, crops and livestock and conservation areas without any risk of financial loss because of access takers, and must ensure the farmer can comply with all and every legal obligation that governs the system/project/scheme that is a part of farming today.

On reading various documents and listening to representatives from SNH, it is not clear if these simple objectives can be met. At a recent meeting of Fife Council Access Forum, the SNH representative said that the Access Code cannot contradict the Bill, and logic would support such a view. In other words you cannot put the cart before the horse, but in their haste to pass the Bill in this parliament the MSPs have done exactly that.

It will therefore need some very committed and straight talking on behalf of those reviewing the Code to knock it into a shape, so that it meets the requirements of the farming industry, complies with the Bill but is also is acceptable to the public.

At a first glance this may seem to be unattainable, but it is clear from many sources that bye and large the Public are :-

  • Sympathetic to farming in general.
  • Aware of the problems of Bio-security on farms, especially those with livestock.
  • Do not wish to intrude on rural dwellings and farming/forestry operations.
  • Are aware of their impact on different types of land, such as enclosed farmland, enclosed Woodlands and open woodland, hill or heath land.

The Access Code will be the mechanism by which the Access Bill will be delivered and understood by everybody. It is therefore crucial that the status of the Code is strong enough to deal with problems arising from its interpretation. In particular, definitions must be in place and phrases unambiguous so that the guidelines are guidelines only, and rules are rules.

For both Access takers and Access providers, the Bill’s fundamental theme lies in the definition of responsible. Presumably this also means defining what is irresponsible, doesn’t it ?

The Laws on Access will be no different from any other law in that the respect shown for it by everybody will depend on how sensibly the Code is now drafted, and if it meets the aspirations of both providers and takers.

Because the Access Bill never differentiated between upland and lowland land, the provisions in it do not meet the rather different circumstances that exist in these widely differing places. It is therefore left to the Access Code to try and accommodate these discrepancies and differences, especially between enclosed farms/woodland and un-enclosed land.

To be fair to Access Forum and SNH, some of these problems were recognised so that one of the main provisions of the Bill is to deliver a core-path network throughout Scotland. Some Local Authorities have already commenced to identify this network, and some Authorities have created their own Access Forum to help coordinate and operate the provisions of the Bill.

As a member of Fife Councils Access Forum representing the SLF, it is becoming clear to me that the success of this enormous project will only happen if the following issues are addressed:-

  • There is sufficient funding for infrastructure and maintenance to meet the aspirations of the public, whose interest has been awakened and also promoted by politicians.
  • That the Scottish Executive must understand that by accepting COSLA’s request NOT to have their access funds “ring-fenced”, which had previously been the case for this project, that Councils may not be in a position to meet their obligations.
  • The concerns of Access providers (which I have already highlighted) can be met.
  • The Access Code has sufficient legitimacy ( i.e. clearly defined rules and definitions) to deal with all scenarios.
  • A method of dealing with irresponsible access is in place.
  • An acceptance by the public that access will not be encouraged in certain situations. And also an acceptance that all types of access use are not suitable for all situations, and that restrictions or separations may be required; so that different user types do not adversely effect each other, and that small local habitats for wildlife are not disturbed.
  • A wide and continuous process of education is in operation.

The Regional Councils Access Forum’s job will be simple if these bullet points are addressed. In fact I would anticipate that unless these points are addressed and taken on board the local Access Forums ability to operate without extreme acrimony, divisions within communities and a degradation of trust will be the result. Anything less will not do.

It is now clear that the Code itself is a the key to the smooth running and actual delivery of the Access part of the Land Reform Bill.

 

Summarising the above

The forthcoming consultation must result in the Code’s final draft being acceptable to access users and those that provide it.

The Scottish Executive must also deliver a satisfactory way of resolving issues and differences.

The Code must allow farmers to operate with full and complete compliance with agri-environmental schemes, with SEERAD rules, with bio-diversity and animal health issues.

The Code must introduce an obligation (under the definition of responsible) to use a footpath or core footpath where provided.

The Code must recognise the security, health status, disturbance factors in making it irresponsible to enter enclosed grassland whenever livestock are present at all times of year.

The Code (or its guidelines to those setting up the Core-Path Networks) must stress the desirability of re-routing rights of way and new paths around farm steadings and their associated outbuildings and cottages (for reasons already stated).

The Code must find a way for landmanagers to mitigate the problems of temporary closure, signage, liability and night time access especially on livestock farms and those near settlements.

 

Conservation

The Code must also be strong on conservation and must safeguard wildlife habitats. To expand on this it is worth pointing out that, despite years of consultation and input from government funded environmental organisations including SNH itself, conservation has been scarcely mentioned.

Conservation areas can be categorised as either public or private, recorded or unrecorded. It is likely that areas within an officially recorded (designated) or funded place will have special protection.

It is to the thousands of small privately managed wildlife habitats that the Access Code must acknowledge and give protection to.

These may be part of a farm stewardship scheme or simply an area of scrub or woodland which has so far been given no recognition and no protection. I am certain the public are willing to be part of ensuring that Scotland’s rich wildlife heritage is not reduced or lost altogether.

 

****** New Legislation on Conservation

It is timely that yesterday 25th February, the Scottish Executive unveiled its Bio-diversity Strategy for Scotland. The report commissioned by the Scottish Executive from organisations such RSPB and SNH, says that raising awareness of the issue could boost the tourist industry.

However, the report has no targets for the environment, but the Executive says it will eventually pave the way for new legislation on conservation. It also says that “It still has a lot to do in identifying specific actions but supporting documents suggest that this will be done”. The Executive’s draft Nature Conservation Bill, due to be published in March, will legislate on as yet unspecified areas relating to Bio-diversity.

 

Comment

Adding together the advice to Farmers from the RSPB (A Management Guide to Birds of Scottish Farmland. Ref SEERAD 78/1002/96) the advice from FWAG (Farming & Wildlife Group - who work on the principal of partnership with Government and conservation bodies to bridge the gap between commercial farming and conservation interests) along with further advice from the Game Conservancy, it is clear that there is now a need for the Scottish Executive’s new initiative on Bio Diversity to reflect the need to conserve and not disturb wildlife Habitats. The Access Code could be the mechanism that delivers the means of achieving the objectives of this new and most welcome initiative.

 

How can the Access Code help?

The code can define irresponsible activities in relation to disturbance of wildlife, and be specific about where and when this might be likely to effect habitats. It can protect habitats on open farmland as well as areas between 0.25 hectares up to small private woodlands/non IACS land of say 25 hectares by defining them in some detail, and it can be specific about dogs being on leads when near these small sanctuaries, for that is what they are.

 

Other outstanding matters.

There are other points that need consideration. These are -

  • Wild camping,
  • Commercial access,
  • The method of implementation of the core- path network.

Without going into precise detail in this paper, it is clear that these three activities need careful thought. Hopefully wild camping can be dealt with without too much controversy, so that camping could be excluded from enclosed land and woodland without permission. It makes sense to adopt this approach from both a bio -diversity and safety point of view.

Commercial activity presents some difficulties in relationship to the Bill, but I would have thought that a person’s assets and their commercial viability should not be put at risk by other parties. A mechanism needs to be in place to deal with such matters. The Local Authority Access Forums should not have to, or rather cannot deal with, issues which may need arbitration.

Planning and setting out the core-path network has already begun in some Regions, but in fact most Local Authority regions will develop their plans over the next year or so. The key point for Local Authorities to take on board is that friendly cooperation with landowners is likely to lead to a consensual conclusion. It looks as if funding may well be less than anticipated for this enormous project, and it is therefore vital that Local Authorities proceed on the basis that completion of any part of the network is preferable before promoting an uncompleted network of paths.

In my earlier document (3) I stated that the core-path network should be distributed as fairly as possible on landowners. What this means in practice is that new paths could follow march bounders, switching from side to side or property to property in a reasonable way, thus spreading the burden on any one place. The code must deal with maintenance and litter and dog fouling . It will not do if these two items are simply classified as irresponsible, there has to be a more robust scheme in place; after all towns already have the powers to deal with these unwanted activities. There may be scope for farmers to incorporate this where they are willing into a stewardship scheme, and there may also be scope for farmers or their employees to take part in the Ranger programme.

As Urban areas increase the number of places where restrictions and laws on behaviour are in operation, (e.g. no dogs on many beaches or parks) and as the number of sporting facilities in Schools continues to be sold off at an alarming rate, the Public are already turning to nearby countryside for recreation. It is imperative that a measure of equal fairness is built into the Access Code. To put it simply, it is not fair that Farmer near a village or town should have to put up with activities that would attract a fine in a town.

Local Authorities will have to change their spots as they too are guilty of not maintaining the paths and facilities they already administer. However, looking on the positive side I am hopeful that a coordinated and well funded effort on behalf of Local Authorities can achieve the aims of the Land Reform Bill.

Farmers have gone through several years of consultation, often to little avail, but now the Bill is law we all have an opportunity to deliver the aims of the project to the Public. As Farmers, Tenants and Landowners we will find this task easier if the Access Forum take on board the issues addressed here.

The issues are complex and may need more discussion than previously thought, but getting it right is crucial because the Access Code is fundamental to the success or failure of the Bill. If it addresses all the points outlined here and the Core-path network is designed with cooperation of both providers and takers, and takes into account the future viability of Scottish Farming, Forestry and Land Management than we can look forward to the same harmonious situation that existed throughout most of Scotland prior to the Bill.


Andrew Mylius.
26/02/03
St Fort Farm. Newport on Tay. Fife

 

References

1. Land Reform (Scotland) Bill. SNH Recreation and Access Update: Access Legislation Bulletin: News Letter No.19.
(Filed 21 February 2003, www.land-care.org.uk, click here to view).

2. Connell, Charles (2003). Responses to Land Reform (Scotland) Bill: NFUS, SLF and Charles Connell.
(Filed 6 February 2003, www.land-care.org.uk, click here to view).

3. Mylius, Andrew. Access: the Reality for Farmers, Landowners, Foresters and all Rural Residents.
(Filed 11 November 2002, www.land-care.org.uk, click here to view).

 

Further Reading Recommended by Land-Care

Editorial Comment. Land Reform (Scotland) Bill - SNH Recreation and Access Update: Access Legislation Bulletin: News Letter No.19.
(Filed 21 February 2003, www.land-care.org.uk, click here to view).

Connell, Charles (2003). Responses to Land Reform (Scotland) Bill: NFUS, SLF and Charles Connell.
(Filed 6 February 2003, www.land-care.org.uk, click here to view).

Linklater, Magnus (2003). Land law with head in the clouds. Scotland on Sunday, 26 January 2003.
(Filed 28 January 2003, www.land-care.org.uk, click here to view).

Irvine, James (2003). Update 2003 on SNH Conference September 2000: Enjoyment and Understanding of the Natural Heritage: Finding the New Balance between Rights and Responsibilities. A Review of the Proceedings.
(Filed 22 January 2003, www.land-care.org.uk, click here to view).

Linklater, Magnus (2003). Fair play on land reform swept away in a torrent of prejudice. Scotland on Sunday, 19 January 2003.
(Filed 20 January 2003, www.land-care.org.uk, click here to view).

Smith, Michael (2003). Uncalled for unwarranted ideological legislation. Dundee Courier, Letters, 7 January 2003.
(Filed 9 January 2003, www.land-care.org.uk, click here to view).

Douglas Miller, Robbie (2002). Justice 2's legal expertise in doubt. Scotland on Sunday, Letters, 22 December 2002. Note: Robbie Douglas Miller is Vice-chairman, Highlands and Islands Rivers Association.
(Filed 9 January 2003, www.land-care.org.uk, click here to view).

Irvine, James (2003). Scottish Natural Heritage’s Policy on Access: Is it being mis-sold in relation to enclosed Farmland next to Urban Communities? LandCare Scotland, 1: 19-23.
(Filed 7 January 2003, www.land-care.org.uk, click here to view).

McNeill, Pauline (2002). No Corners Cut on Land Reform Bill. Scotland on Sunday, Letters, 15 December 2002. Note: Pauline McNeill is an MSP and Convenor of the Justice 2 Committee.
(Filed 23 December 2002, www.land-care.org.uk, click here to view).

Watson, Jeremy (2002). Scotland's first 'land grab' victim. Scotland on Sunday, 8th December 2002.
(Filed 23 December 2002, www.land-care.org.uk, Click here to view).

Linklater, Magnus. Land Reform Falls Foul of Scotland’s own Kangaroo Committee. Scotland on Sunday, 1 December 2002. (Includes editorial comment from Land-Care).
(Filed 2 December 2002, www.land-care.org.uk, Click here to view).

Mylius, A. (2001). Access: the Reality for Farmers, Landowners, Foresters and all Rural Residents. LandCare Scotland, 1: 3-18.
(Filed 15 November 2002, www.land-care.org.uk, click here to view).

Raeside, T. (2001). Veterinary Hazards to Open Access to Enclosed Agrciultural Land. LandCare Scotland, 1: 33-34.
(Filed 15 November 2002, www.land-care.org.uk, click here to view).

Results of Oban Times Poll on Land Reform
(Filed 24 February 2003, www.land-care.org.uk, click here to view).