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Back to Scottish Outdoor
Access Code
Response to SNH Draft Scottish Outdoor Access Code
From the perspective of a livestock/arable farm
next to an urban settlement
Dr James Irvine
FRSE DSc FInstBiol FRCPath FRCPEd FInst Directors
Cultybraggan Farm, Comrie, Perthshire
Teviot Scientific Consultancy, Edinburgh
Editor, LandCare Scotland and www.land-care.org.uk
(Filed 28 June 2003)
www.land-care.org.uk
Background
This response to Scottish Natural
Heritage’s Draft Scottish Outdoor Access Code (Code) (1)
is written from the perspective of farming at Cultybraggan (2)
for the past 15 years.
Cultybraggan Farm is some 540
acres (increasing to 730 acres with let summer grazings) and is
situated next to the large village of Comrie, which is a popular
residential and tourist area but which over the years has become
substantially urbanised.
The farm carries some 125 suckler
cows consisting of a pedigree Aberdeen Angus herd, a pedigree Limousin
herd and a mixed commercial herd of mainly Aberdeen Angus and Limousin
crosses (3). The herd is “closed” which
means that all replacements are home produced with substantial health
benefits to the herd. As a consequence the farm has to carry a range
of bulls to avoid interbreeding and to maintain the pedigree herds.
The objective is to produce breeding and beef cattle that are optimum
for today’s market and to be able to adapt to perceived future
markets for quality cattle.
In addition the farm carries some
440 breeding ewes (Scotch Mules) using suffolk tups as terminal
sires to produce finished lambs that are sold through Caledonian
Mart, Stirling. Breeding ewe replacements (about 100 hogs) are bought
in at under a year old through United Auctions, Stirling from a
small range of Scottish breeders in the effort to maximise animal
health and to maintain the genuine Scottish label.
There are some 130 acres of spring
barley that largely goes for malting and the straw used for winter
bedding for livestock. The remainder of the farm is for grazing
and silage production (for winter feeding).
Cultybraggan Farm has miles of rights
of ways for the public to take walks, with styles or kissing gates
as appropriate. There have been difficulties with the local and
district Councils in relation to the modern need to avoid paths
going through the farm steading and agreeing a route where parallel
paths have developed that compromise the functioning of the farm.
There have also been problems with the Council over their inflexibility
over notices warning people that substantial numbers of cattle plus
calves will be being herded in the interests of the safety of the
public and farm staff.
For the proper management of the
farm so close to this substantial urban settlement, it has been
a time-consuming task to try and persuade walkers to keep to the
paths and not to enter fields with livestock, especially when accompanied
by dogs. The same applies to the conservation of wildlife where
dogs and people taking access to off-path conservation areas can
do much damage.
A further problem the farm has experienced
to date is through people taking off-path access to the enclosed
fields by climbing fences, dykes and gates. When gates were interfered
with by persons taking off-path access, the cattle breeding programme
was severely disrupted at substantial cost to the farm.
Against this background, I have
serious concerns over a number of aspects of the Draft Code as they
relate to a mixed livestock/arable farm next an urban settlement.
Introduction
The public are asked to respond
to the draft Scottish Outdoor Access Code (Code) which is dependent
on the Land Reform (Scotland) Act. While it is understood that those
aspects of access that are embedded in the Act cannot be changed
at the present time, it needs to be said that the Act has many flaws
and has been poorly drafted. It is clear that the Act has been drawn
up without a competent understanding of how a farm such as Cultybraggan
works. It is also clear that, following SNH’s previous advice
to government on access to the countryside in 1998 (4),
fundamental problems that have been since repeatedly highlighted
(5, 6, 7, 8,
9) have been ignored, preference being given to
the political ideology of open access to virtually all land in Scotland
both day and night.
There is no acknowledgment that
the problems that face land managers whose businesses are next urban
settlements differ in nature and extent from the problems of land
managers who are looking after remote wide-open spaces far from
centres of human habitation. It is well established fact that over
90% of access to the countryside is taken within a short distance
of urban settlements, yet the draft Code attempts to make general
recommendations that would fit both these very different situations.
As a consequence the Code fails to be practical or sensible, and
thereby does not display responsibility in its drafting.
Major problems have arisen with
both the Act and the draft Code on account of the fact that Scottish
Natural Heritage, and the Access Forum that it set up, do not reflect
a balanced approach to the management of the countryside. SNH is
essentially a mono-focus organisation concerned predominantly with
conservation/biodiversity with little competent experience in relation
to the wider aspects of land management. This has been manifest
by the number of times SNH has been required to explain itself to
the Petitions Committee of the Scottish Parliament (10,
11, 12, 13)
and through accounts of its actions elsewhere (14,
15).
Furthermore, SNH does not appear
to have a competent understanding of the economics of land management.
While it is fine in principle to have an idealist view of open access,
unless it is compatible with the realism of economics such an ideal
will not be “economically sustainable” in the terms of
modern jargon.
Not only was the make-up of the
Access Forum unbalanced with its predominance of access takers over
access providers, but the manner in which SNH handled the matter
in press meetings (7) and its major conference
on the subject (8) were unsatisfactory.
Throughout the Act and the draft
Code there is a lack of appreciation of how much land managers in
Scotland have and continue to contribute to the care of the countryside
in all its aspects, including its economic viability and in encouraging
people to take access in the sensible and controlled manner that
is necessary when a livestock/arable farm abuts to an urban settlement.
It is well recognised that there
is an increasing urban/rural divide in attitudes with the urban
dwellers having less and less understanding of rural matters. As
mentioned above, within the membership of the Access Forum there
were more access takers than access providers, so that a consensus
view was always going to favour the access takers. The same is true
- but to an even greater extent - within the Scottish Parliament
where the coalition in power had - and continues to have - very
few members with any significant experience in land management.
The result is a flawed Act and a
flawed draft Code.
Concern about how Responses to the draft Code will be assessed
At numerous meetings on the subject
of the draft Code it has been stressed that the assessment of the
responses from the public is to be largely on a numbers basis (16),
with perhaps little attention being paid to logical content. Since
landmanagers will necessarily always be in a small minority compared
to potential urban access takers, credence is given to the notion
that yet another “consultation” amounts to little more
than a charade.
The situation whereby SNH, in the
absence of competent knowledge of land management, acts as a promoter
of the Code and also its judge (as to whether or not its is recommended
to the Scottish Parliament) is not satisfactory. The situation is
compounded by the fact that SNH appears to be the main if not the
sole body advising Government on this issue.
A further concern must be over the
excessive influence, either direct or indirect, that SNH has over
the activities of a number of important organisations in terms of
their funding, whereby it is inadvisable for them to be seen to
be criticising the body that has influence over their financial
viability. There is therefore likely to be an absence of response
to the draft Code from such organisations, or their responses may
be somewhat diluted in their content. Others may be complimentary
in the hope of currying favour through expediency rather than sincerity.
Too many organisations with interests in land management appear
to have taken “the Kings’s shilling” from SNH as
being the more pragmatic course to take, rather than to criticise
(17). This does not reflect a healthy democracy.
Comments on the Draft Code
General Issues
SNH should itself act Responsibly
Central to the Code is the
statement that both access takers and land managers should act responsibly.
Indeed, that those taking access should be responsible for their
own actions.
However, SNH itself should
also act responsibly. According to Bridget Dales, speaking at a
meeting organised by Perth & Kinross Council (18),
SNH intend to present the Code to the Scottish Parliament in the
Spring of 2004, after SNH have considered the responses from the
public and made such adjustments as they think necessary. However,
as yet SNH have not even started any significant education process
informing the adult public what responsible behaviour in the countryside
is.
Such is the current gap in
attitudes between urban and rural communities that the vast majority
of potential access takers have little idea as to how the countryside
works: i.e. what is and what is not responsible behaviour and the
Code fails to provide it in the context of farms next urban settlements.
SNH in producing the draft
Code should have acted more responsibly by taking into consideration
the numerous other Codes that land managers are required to follow
with regard to livestock biosecurity, health and welfare - and indeed
with regard to wildlife conservation - as stipulated in the conditions
for agricultural subsidies (IACS) and stewardship schemes, as well
as in the requirements to comply with quality assurance schemes.
SNH is fully aware that, even
once an adequate education programme had been completed as to what
responsible behaviour is in the countryside, there will be a significant
minority who will not be interested in following such guidance.
SNH has not made it clear that there must be an efficient mechanism
to ensure that responsible behaviour is enforced. Talk of an access
forum per district Council is not an effective way of enforcing
responsible behaviour. The likely funding as outlined by SNH at
the SCANET conference, Battleby (19) is clearly
grossly inadequate for the purpose. The stated 20% percent increase
in the number of rangers by 2006 would mean that the 3 rangers that
Perth & Kinross currently have would increase by 2006 to 3.5.
However, the rangers themselves do not see their job as enforcing
the Code as a form of policing.
SNH has a habit of likening
the draft Code to the Highway Code, as expressed yet again by Bridget
Dales at the meeting organised by Perth & Kinross Council, Dewar
Centre 27 April (18). In doing so SNH is behaving
irresponsibly as it knows full well that the Highway Code is backed
by an effective police force, so that breaches of the Highway Code
can very effectively be used as evidence in major convictions for
road traffic offences. It is disingenuous to suggest that any such
enforcement mechanism is envisaged for irresponsible behaviour regarding
access to the countryside. With extraordinary naivety the Code gets
round the problem by stating that the members of the public who
take access to farmland are responsible for their own actions with
no credible method of control. This can hardly be regarded as satisfactory
when access is being taken to places of work in relation to businesses
that have to meet severe economic realities.
SNH has also acted irresponsibly
in not acknowledging that the Code as drafted will create an increased
burden on landmanagers in the furtherance of their legitimate businesses,
especially next urban settlements. It is well established that farm
incomes are low - if not negative - and that staffing on farms is
down to the bare minimum as a consequence. How can SNH expect farm
standards to be maintained by imposing additional burdens on farms
in the absence of education of the urban public about the countryside
and in the absence of any meaningful support to ensure that the
Code is followed?
The behaviour of SNH has been
disingenuous in that its spokepersons suggested at various meetings
on the draft Code that they do not expect a great increase in the
usage of the countryside by the public following the acceptance
of the Code, especially near urban settlements. Why otherwise have
an Act and a Code? Why otherwise budget for significant expense
to advertise the Code (19)? Why otherwise state
that the purpose was to encourage the public to get out into the
countryside to take more exercise - laudable in itself, but disingenuous
when at the same time pretending that this is not the case when
talking to land managers in the vicinity of urban settlements (16).
SNH acts irresponsibly when
it suggests that there will be sufficient monies available to enable
the Act and the Code to be put into competent effect, when the such
monies are necessarily going to be severely limited on account of
Scotland’s poor economy and the fact that such monies are not
to be “ring fenced”. Councils could siphon off such funds
for what might well be more urgent and deserving purposes - such
as education, housing, health etc. It does not appear that core
path networks or rangers will be adequately funded.
It is also disingenuous of
SNH to indicate that there is no change in farmer’s liability
on the basis that the same duty of care remains with regard to the
public. By way of promoting much greater access both by day and
by night the magnitude of that liability clearly increases. If SNH
cannot be seen to behave responsibly on this issue it is difficult
to see how SNH can expect the public to do so.
Hazard is the recognition
of a danger, while risk is the probability of that danger taking
effect. If the number of people exposed to a hazard is increased,
the risk of that danger taking effect is increased.
By waiting to see if insurance
premiums on farms next urban settlements rise is to put the burden
of proving their point onto the farmers. Insurance Companies are
much more likely to take a realistic assessment of the risk and
be unimpressed by assertions that are politically convenient.
Jim Wallace, previously Minister
for Justice, when launching the Land Reform (Scotland) Bill many
years ago gave the reassurance from the Scottish Executive that
good land managers have nothing to fear from the proposed increased
access by the public to the countryside. Sadly the draft Code that
is presently under consultation does not bear this out.
Does the Code provide an acceptable
reference point on access rights and the responsibilities of users
and land managers?
While it is necessary to have a Code in
keeping with the Act, for the Code to be useful it needs to be
better constructed. At present access takers and access providers
are likely to interpret it differently, giving rise to more strife
than harmony. As it stands the draft Code is not an acceptable
reference point.
Does the Code provide clear,
sensible and helpful practical guidance on access rights and responsibilities
that you can use to make informed decisions about everyday situations
in the outdoors?
From the perspective of a livestock/arable
farmer next a popular urban settlement with many rights of ways
already available, the Code does not make practical sense. It
does not comply with the stated general aim that access taking
must not interfere with the proper and competent pursuit of such
a farming business.
Does the Code provide clear,
sensible and helpful practical guidance on access rights and responsibilities
that you can use to make informed decisions about everyday situations
in the outdoors?
From the perspective of a
livestock/arable farmer next a popular urban settlement with many
rights of ways already available, the draft Code if implemented
as it stands would cause serious management problems for the farm.
In such a situation the advice is not clear, practical or sensible
- although it may be in the wide open spaces of the Highlands. A
major criticism of the draft Code is that it does not distinguish
between the very different circumstances of enclosed lowland land
next urban settlements (where there is an intensity of both access
and farming) and the much less intense access and farming activities
characteristic of the wide open spaces of upland moorland.
Is the Code written in a way
which reflects the spirit of the legislation?
Section 2 of Part 1 of the Act states
that Access rights are to be exercised responsibly. Specifically
it states that “The presumption is that a person will be
exercising access rights responsibly if they are not interfering
unreasonably with the rights of others” (20). Unfortunately
the draft Code is written in such a manner that it is apparent
that SNH do not understand the rights of livestock/arable farmers
next urban settlements which are integral to the conduct of their
legitimate businesses in a competent manner.
Specific Points
People and livestock
In the context of livestock
farms next urban settlements it is essential that people and livestock
are kept separate. This is in the interests of health and safety
for the public, biosecurity and animal welfare for the livestock,
and liability for the farmer. The guidelines as to how the public
should behave in relation to livestock is not practical and therefore
not sensible. Because of the nature of the terrain of many Scottish
farms next urban settlements members of the public may not be aware
whether or not there are livestock in any particular field - or
what type of livestock they are. Because of the nature of Cultybraggan
Farm which is following best practice in running a “closed
herd” and concentrating on optimum breeding programmes it has
numerus bulls of various ages. Their distribution about the farm
depends on breeding programmes and the availability of grass for
grazing. Also following “best practice” the bulling season
is extensive, so that not all calves are born over a short interval.
There is no practical way this farm could maintain an ongoing information
service for the public as to where bulls are in case a member of
the public wanted to deviate from the numerous rights of way presently
available.
On page 19 of the Code under
the heading “Key Principles” the word “livestock”
should be added in relation to bullet point 3. Extra care should
not be confined to wildlife and historic places.
The Code underestimates the
risks to access takers from livestock in addition to cows with calves.
A group of heifers or bullocks can come charging out of curiosity
at someone they are not familiar with, whether or not that person
is accompanied by a dog.
The advice given in the Code
(p 48) that an access taker recognising that there are or may be
livestock in a field should go through a neighbouring field is not
acceptable when rights of way are generously available. To do so
implies climbing fences , gates or dykes as the gates on a livestock
farm have by necessity to be firmly secured.
It is simplistic to suggest
that access takers will necessarily recognise that cows have young
calves in a particular field. Young calves have a frequent habit
of finding hiding places which even the stockman may have difficulty
in seeing - yet the calf’s mother (dam) is likely to become
highly aggressive if somebody appears, and potentially lethal if
that somebody has a dog (21).
With regard to livestock/arable
farms next urban settlements it is only responsible to insist that
the public keep to the paths provided and do not enter enclosed
land. Where adequate paths do not exist the authorities should provide
and maintain them with the agreement of the farmer/landowner so
that people and livestock do not mix.
In the context of livestock/arable
farms next urban settlements, taking access to enclosed land should
be deemed irresponsible. Where an adequate network of paths is
not available outwith enclosed land they should be urgently provided
through mutual agreement of the Council and the farmer/owner.
Fences, walls and gates
It is not acceptable - nor
is it responsible for SNH to recommend - that the public be encouraged
to climb over fences, walls or gates when a path with styles or
appropriate gates is provided for access in the area. Neither fences,
walls or gates are built with the primary purpose of people climbing
over them. The main purpose of these structures is to keep livestock
in or keep neighbours’ livestock and vermin out. They are essential
to basic farm management - especially livestock management - and
are very expensive to maintain. They are also an essential part
of biosecurity on farms.
The public in general are
not aware, or choose not to care, about the importance of gates
being securely fastened. Securing the gate by a simple bolt is not
generally enough for livestock that can rub against it and release
the bolt. Experience has shown that securing the gate with a chain
and catch or some other simple device to prevent cattle from opening
it may lead to frustration among members of the public who are unwilling
to keep to the extensive rights of way on a farm such as Cultybraggan.
They dismantle the device and fail to restore it. The result was
may thousands of pounds of loss to the farm on account of disruption
of the farm’s livestock breeding programme. It only takes one
careless access taker to do the damage - yet through ignorance that
access taker may consider they are acting responsibly.
Fences are readily damaged
by persons climbing over them, quite unnecessarily when rights of
way are extensively available and have been available for years.
Rather many of the public prefer to walk in the fields and make
new paths either for variety or because they find the right of way
is not so attractive to them under foot as a well kept field of
expensive grass. This despite the fact that the paths are signposted.
In areas next urban settlements
where there are no recognised rights of way or no core path network,
such facilities should be developed with the agreement of the land
managers involved. It should not be used as a reason for all enclosed
land next urban settlements to be open for public access.
The Code should state that it is
irresponsible not to use paths when they are provided in the context
of livestock/arable farms next urban settlements; and that it
is irresponsible to climb fences, gates or dykes when styles or
kissing gates are provided to service the rights of way.
Field Margins
On a livestock/arable farm
next an urban settlement and where rights of way are amply provided,
it should be deemed irresponsible to take access to field margins
of cereal crops as these are conservation areas for wildlife that
are well recognised in government policy on farm management. It
is disingenuous and irresponsible of SNH to attempt to argue otherwise.
For such a farm to function
properly it needs to coordinate the needs of its livestock and cereal
production with providing access for the adjacent public to take
access, and yet still maintain good facilities for wildlife, This
can only be done next urban settlements by exerting commonsense
controls on how each of these functions is managed and ensuring
that these controls are enforced. That necessarily means controls
on where people can take access while still giving them plenty opportunity
to enjoy the countryside in the spirit of the Act.
The Code should state that it is
irresponsible to take access to field margins on livestock/arable
farms next urban settlements when an ample path network (such
as a right of way or core path network) is available.
Riverbanks
Riverbanks are important wildlife
conservation areas. On this farm there are paths that go along the
river bank. It has long been a custom that the public keep away
from the river banks except in certain agreed areas. As a result
conservation of the wildlife has been achieved for the enjoyment
of all.
For the Code to state that
access is open to all along all river banks is seriously counter-productive
to wildlife conservation. It seems extraordinary that it appears
necessary to point this out to SNH. When this farm had a conservation
plan drawn up and sponsored by SNH, the conservation value of the
river bank was strongly emphasised and applauded. It is truly ironic
that SNH now apparently argues that such areas should be freely
accessible for the public and their dogs to rumage in.
Again, it is a matter of intensity
of usage - river banks next urban communities are likely to be much
more vulnerable to conservation damage than the occasional use by
an access taker in a remote area.
If farms are to be encouraged
to adopt environmental friendly schemes there must surely be some
adequate protection for their efforts which are likely to involve
taxpayers money as well as the farmer’s own. It is not sufficient
to naively rely on the access taker to determine what in his/her
view is responsible access. I have seldom come across an access
taker who did not think from a position of little knowledge that
they thought that their behaviour or that their dog/s was anything
other than responsible. - in spite of clear evidence to the contrary
such as photographs of their dogs rummaging in the undergrowth of
riverbanks at springtime.
In the interests of wildlife conservation
taking access to river banks in the proximity of urban settlements
should be regarded as irresponsible except where previously agreed
and indicated.
Grasslands
Grass is a livestock farm’s
greatest asset. It needs to be cared for so that it is not unnecessarily
damaged. The farmer will use a quad bike with wide low pressure
tyres to cross it, he will take his livestock off it when the climatic
conditions are such that the grass is likely to be damaged by the
pressure of their hoofs, he will roll it and harrow it, and he will
endeavour to keep some “clean” for sufficient periods
in order not to spread livestock diseases. He will reseed it at
substantial expense in order to keep it in good condition and productivity.
In general the public do not
appreciate that different kinds of grass are grown for different
purposes, some types of grass being much more liable to damage by
inappropriate use than others. There are grasses grown for hay or
for silage; there are grasses whose lifespan may be as short as
three years ,or for seven gears, as opposed to permanent grassland.
Also it is not generally appreciated
by the public that different soil and weather conditions greatly
influence how vulnerable grass may be to inappropriate use. Thus,
much of the land on this farm, as in many others in Scotland, is
waterlogged during the six months October to April. It is much more
liable to damage during these months, but few urban dwellers may
appreciate that,
Young grass is particularly
vulnerable to damage and must be excluded from public access. It
costs the farmer a very substantial sum to grow, and he may not
be able to replace it for another season with consequent disruption
to his livestock management.
It is a matter of serious
concern that the Code advocates access for a wide range of activities
by the public on silage grass up to 8” in height. It must be
very doubtful if the consensus reaching such a recommendation could
have experienced first hand management and financial responsibility
for the care of such grass. Again the onus is put on the access
taker/s to assess what is responsible behaviour on the basis of
little knowledge, leaving the farmer to assess and to bear the damage
after the event.
In relation to livestock/arable farms
next urban settlements taking access to enclosed grassland should
be deemed to be irresponsible where an adequate and recognised
path network exists.
Horses
For land next urban communities
it is quite unreasonable for persons, at their own discretion as
to what they think is responsible, to take their horses over any
part of the farm they fancy that conforms with the proposed widespread
access rights. Horses hoofs can be very damaging to land that is
essential to the business of land management (e.g. farming). Horses
can severely damage paths that are there as rights of way for walkers
and were never intended as bridal paths. Furthermore it is a basic
contradiction for a farm that is trying to achieve high standards
of biosecurity by creating a “closed herd” or a “closed
flock” to have other domestic animals such as horses having
access across farmland from one farm to another.
Open access of most farmland
to horses implies that they have access through farm gates that
are secured to keep livestock in fields, styles for walkers being
provided on rights of way. Horses, possibly accompanied by the riders’
dogs, are liable to damage ground nesting birds and other forms
of wildlife in field margins. They can leave substantial pieces
of metal in the form of horse shows on the land that may subsequently
seriously damage farm equipment. They can spread disease on their
hoofs from one farm to another.
Horse riders may fancy going
on farmland without fully knowing the condition of the land along
the whole route they intend to take, thereby causing even greater
damage.
Horses eat grass so why should
the farmer provide free meals for someone else’s horses?
Horse riders may well spook
farm livestock.
It is extraordinary that SNH
through its predominately non-farming membership should consider
that a farmer next an urban settlement should be obliged to play
unpaid host to any horse rider or groups of horse riders who take
a fancy to use his farm business for their pleasure.
In relation to farms next urban settlements,
it should be considered irresponsible for people and their horses
to entered enclosed farmland without the permission of the landmanager.
This farm has miles of rights of way in the form of footpaths,
but these are not suitable for horses. If a community wishes to
have tracks suitable for horses (bridle paths) these would have
to be negotiated with the land manager, and the tracks constructed
to an appropriate standard, which is likely to involve considerable
expense.
The use of paths
Paths vary greatly in their
ability to withstand a range of possible uses. Many of the paths
on Cultybraggan Farm are suitable for walkers only. These paths
are not suitable for bicycles or horses by the nature of the terrain.
Yet the Code indicates that all kinds of activity can take place
where access rights apply. The Code unrealistically leaves it to
the individual to assess whether the activity that the individual
wants to pursue is appropriate for a given path. Sadly, experience
with human nature is such that the individual’s idea of what
is responsible is all too often coloured by what he wants to do.
On this unsatisfactory basis
many delightful footpaths could rapidly deteriorate to the detriment
of both access takers and the access providers. Furthermore, multi-use
of paths raises serious problems of safety. Up until now the landmanger
has had a major influence on how paths constituting rights of ways
on his land should be used, the basic premise being that the right
of way is to allow persons to get from one place to another when
the mode of getting there was by foot and the persons using the
rights of way were very familiar with the ways of the countryside
and zealously protected it. Everybody knew everybody else in the
small community and what everybody else was doing. Now things are
very different and the amenity of the countryside is at much greater
risk. It now needs to be protected.
The way paths may be used next urban
settlements needs to be appropriately designated.
Woods
Woods on farms are often there
for wildlife rather than any commercial enterprise. Such woods may
indeed have paths. In relation to woods near urban settlements,
dogs should be kept on leach and persons and dogs should keep to
the paths if the wildlife purpose is to be maintained
If local communities and community
councils wish to have unfettered access to woods in their area they
should seek to purchase such woods on the open market, and find
the funds not only for the purchase but also for the maintenance
of such woods. They should also deal with any pressures that may
arise from bodies who might consider that they are not taking sufficient
care of the environment and the conservation of wildlife that goes
with it.
As the Code stands at present
there is a strong disincentive for landmanagers to do further conservation
work as it could be so readily be undone by access takers acting
irresponsibly and who are unlikely to be traced. This was the response
of a leading member of the Farming and Wildlife Advisory Group (FWAG)
when asked what effect the proposed open access to the countryside
policy would have on such activities in the future in areas next
urban settlements (22).
Group Activities
The clauses contained in the
Code with reference to group activities may be applicable to remote
areas but they are not sensible, or indeed responsible, in relation
to livestock/arable farms in lowland Scotland situated next urban
settlements.
The reasons why it is inappropriate
for individuals to take access to enclosed farmland next urban settlements
have been given above. These reasons are all the more cogent when
it comes to the activities of groups of people. Farms next urban
communities cannot be expected to take on the burden of acting essentially
as uncontrolled public parks. Traditionally farmers have been co-operative
in facilitating group activities when it was feasible to do so,
but the way the Code is written indicates that group leaders do
not necessarily even need to ask, but just to inform that they are
going to carry on such and such an activity and the preference in
the event of any difference of view as to what is responsible being
with the access takers.
It is a matter of concern
as to the competence of the drafters of the Code that such a recommendation
is included in 2003 after so much previous consultation and debate.
One cannot help recalling the SNH conference held in September 2000
entitled “Enjoyment and Understanding of the Natural Heritage:
Finding the new balance between rights and responsibilities”
. The workshop at this conference called “Countryside around
towns” was nothing less that a visit to a Glasgow city park
(8). It would appear that SNH still views farms next urban settlements
as urban parks and continue to display as little knowledge of how
farms work as they did at that infamous workshop attended by no
less than the secretary of the SNH Access Forum.
Group activities on enclosed farmland
next urban settlements should be deemed irresponsible in the absence
of permission from the landmanger.
Access rights in the air above the land where access rights
pertain
In the vicinity of urban settlements
where livestock farms are likely to be relatively intensive because
of the quality of the land, this would be a matter of major concern
to land managers on account of noise and other disturbance to livestock,
as well as potential damage to the land caused by light unpowered
aircraft and the number of people that could be associated with
the activity.
Farmyards
The draft Code has failed
to adequately deal with the situation where traditional rights of
ways go through farm steadings or yards. There are major biosecurity
and health and safety problems with farm steadings (23).
This is recognised in that new paths are not permitted to go through
them. However, neither biosecurity or health and safety recognise
tradition. Traditional rights of way going through farmsteadings
are as hazardous as any proposed new one.
The draft Code should insist that
traditional rights of ways must no longer go through farm steadings
of functioning farms. If an alternative route is not feasible,
the right of way should be abandoned whatever the legal correctness.
Access for Commercial Use
If this section of the draft
Code was drawn up with the mountaineers in mind it would be understandable.
A person whose business it was to train mountaineers or to act as
a guide for them clearly does require access to the mountains and
there is unlikely to be any dispute over the matter. However, when
the same principle is applied to livestock/arable farms next urban
settlements such as Cultybraggan the situation is entirely different.
It is a matter of intensity of use in terms of the number of people,
the range of activities, as well as the nature of the land and the
nature of the farm business. This further emphasises the chief failing
of the draft Code in that it does not recognise the essential difference
between the proper and sensible management of farms next urban settlements
and the proper and sensible management of estates involving the
wide open spaces of remote areas
In relation to farms next
urban settlements why should other persons have the right to obtain
commercial gain from the use of the landmanager’s assets -
his land and his farm business?
Night Access
Here again the draft Code
falls down in being neither sensible nor responsible by failing
to recognise the reality of the difference between farms such as
Cultybraggan next an urban settlement and the mountains of the Highlands.
In remote areas involving trekking and camping clearly night access
is required. The situation is strikingly different in relation to
enclosed land next urban settlements where legitimate reasons for
persons wanting to take night access are more difficult to identify.
It should be a requirement for those wishing to take night access
on such farms to get the prior permission of the landmanager for
obvious security and health and safety reasons. The taking of night
access using rights of way that currently go through farmsteadings
should specifically be regarded as irresponsible.
One has heard the argument
that night access cannot be regarded as irresponsible in case someone
somewhere next an urban settlement finds themselves unable to get
back to base before nightfall. In relation to a farm such as Cultybraggan
this is unreasonable with well marked sign posts in the area indicating
pubic highways. Furthermore, it would be highly dangerous for a
members of the public to be entering fields where there may be livestock
after dark.
In relation to enclosed land next
urban settlements and rights of ways going through the steadings
of such farms it should be deemed irresponsible for access to
be taken at night without the prior consent of the landmanager.
Dogs
Stricter recommendations should
be included in the Code to safeguard farms next urban settlements
being used as convenient toilets for the urban dwellers numerous
dogs for biosecurity reasons. As regulations concerning dogs tighten
in the urban areas, the risk of adjacent farms being used as dog
toilets increases.
Stricter recommendations should
be included in the Code to safeguard wildlife from dogs in relation
to farms next urban settlements.
On livestock/arable farms next urban
settlements it should be deemed irresponsible for dogs as well
as for people to take access to enclosed farmland without the
permission of the landmanager when an adequate path network exists.
Limiting Public Access during Management Operations
The guidance to farm managers
in relation to limiting public access during management operations
is in some respects unrealistic, especially when a right of way
goes through the farm steading of livestock/arable farm adjacent
to an urban settlement. Sorting out cattle for tagging, veterinary
medication or inspection, ultrasound scanning for pregnancy assessment,
selection of cattle for sale, selection of cattle for appropriate
bulling by which bull, attention to their feet, etc, etc is all
part of the routine process of running a livestock farm such as
Cultybraggan. The duration of such operations is difficult to assess.
When such operations occur depends on the logistics of when staff
are available, if the weather is suitable, when external expertise
can come, the behaviour of the cattle, the availability of grass
for them to go to if going out to graze, and the availability of
transport to take them there, and numerous other operational factors.
In relation to a right of way that goes through the farm steading
it is not possible to warn the public who may start their walk form
several points some miles away.
Likewise at silage and harvest
times the right of way going through the farm steading will have
heavy traffic involving blind corners. It is quite unreasonable
to expect the landmanager to be responsible for members of the public
- who seem to have little respect for the dangers of farm machinery
- coming through the yard even although they may not recognise the
obvious danger until they are in the middle of it.
Dangers to the public can generally
be handled outwith the farm steading if the public are keeping to
rights of way that separate them from enclosed land by suitable
fencing. If livestock handling involves a right of way it is imperative
in the interests of health and safety of the public and for the
farm staff that members of the public keep well clear and do not
enter adjacent fields by climbing gates, fences or dykes. They should
either patiently wait or retrace their tracks. Part of the price
of enjoying the countryside is to be tolerant of essential farm
procedures and not demand “rights of access” under such
circumstances. Sadly, efforts to collaborate with Perth & Kinross
Council in relation to essential farm procedures affecting rights
of ways has lead to an appalling obstructive attitude involving
a threatening letter from the Council’s solicitors.
The Code speaks glibly about
co-operating with the local Council, but the success of that entirely
depends on the attitude of the Council. In the case of Perth &
Kinross Council that attitude leaves much to be desired. In view
of the severe limitation of time available to the Cultybraggan farm
manager (myself) there is simply not the time to refer the matter
to the local government ombudsman.
It is all very well to exhort
farm mangers to liaise positively with their local government Councils,
but then it is also incumbent on the Councils to behave sensibly
and responsibly.
That is why the actual wording
of the Code is so important. Certain Councils will take their cue
from the exact wording of the Code. As it stands the Code is so
vague that it gives powers to Councils to be obstructive if “one’s
face does not fit” for whatever perceived reason.
In this regard the Code implies
that it trusts access takers that are frequently ignorant of country
matters to be responsible for their own actions, but it does not
trust landmangers to manage their operations without producing unreasonable
obstructions to public access to their business work place.
Litter
The litter problem in relation
to enclosed land used for livestock or growing cereals or fodder
is a serious one in terms of animal welfare and damage to machinery,
as well as biosecurity. It is extremely difficult to police and
is a further reason why access to enclosed land on livestock/arable
farms next urban settlements should be deemed irresponsible. The
leaving of litter on, or otherwise soiling, rights of ways would
be easier to police and for penalties to be imposed under existing
law.
Locally, the problem of litter
and the public not acting responsibly has been highlighted as it
affects the shore of Loch Earn (24).
Curtilage
The recommendations in the
Code are too vague leaving discretion as to what is reasonable to
the access taker. The Code pays only lip service to the anxieties
of people living in farm houses or cottages in the vicinity of urban
settlements, particularly in relation to access at night. Those
who drafted the Code failed to realise that many farms and farm
cottages keep farm dogs. It is the nature of theses dogs to raise
the alarm if they sense strangers in the vicinity. Although the
night time access taker may be some considerable distance form the
house, once the alarm is raised much concern about a possible intruder
will be caused, thus denying the farm personnel reasonable peace
and quiet.
In relation to farms next urban settlements
it should be deemed irresponsible to take night time access to
enclosed farmland or to paths, right of ways etc in the vicinity
of farm dwellings without the prior permission of the landmanager
and occupiers of houses and cottages on the farm.
Enforcement
A great weakness of the Code
is that it is based on the premise that those wishing to take access
to farmland are responsible for their own actions, and in large
measure also deciding what is responsible and what is not within
the broad and often vague guidelines of the Code. This against a
background of little knowledge of rural matters and virtually zero
means of enforcement of what is laid out in the Code.
The Code has clearly been
written by access takers for access takers, giving themselves what
amounts to a blank cheque with the assurance that they will spend
it responsibly. Unfortunately it has been proven over the centuries
that much of human nature does not act in that manner - if given
a blank cheque too many would not spend it as responsibly as the
donor of the cheque would like. Most would think that it would be
irresponsible to issue such a blank cheque in the first place. That
is indeed the case with regard to the current draft Code - in many
respects it is an irresponsible document.
Education
The irresponsible nature of
the Code is further demonstrated by the virtual complete absence
of any significant education programme for adults in rural matters
(13). This is the presence of an every widening divide between urban
and rural communities, with the urban dwellers having less and less
understanding or indeed interest in how the countryside works.
It is irresponsible of SNH
to use the Code as a way of bringing the two communities together,
in the full knowledge that it will be the access providers who suffer
the pain and financial loss to their businesses, especially those
whose farms are next to urban settlements.
It is irresponsibly naive
of SNH to suggest that once the Code has been accepted that they
will mount a “major education campaign with vast numbers of
leaflets” and other techniques with a view to getting the Code
accepted by the Scottish Parliament and implemented by Spring 2004
(16, 18).
Since SNH is wont to make the
analogy between the Highway Code and the Access Code, it would be
highly irresponsible to let would-be drivers loose on the highway
with the handout of a leaflet before they set out and no effective
control to see that they adhered to what the leaflet said. In essence
that is just what the Code is proposing for access to farmland next
urban settlements.
Summary and Recommendations
In producing the draft Code
SNH have tried to do so in the spirit of the Land Reform (Scotland)
Act. However, they have failed to come up with a Code that is fair
to the access providers that have their landmangement business (farms)
close to urban settlements. This has no doubt arisen from the unbalanced
constitution of the Access Forum that was primarily responsible
for drafting the Code, The Forum contained more access takers than
providers and it was the consensus view that ruled the day. While
some might claim that this is democracy at work, it surely is not
when the genuine interests of the minority whose assets are being
used are overlooked.
The Code also fails in its
attempt to implement the spirit of the Act on account of SNH not
having competent knowledge in land management and therefore a realistic
understanding of the problems involved. There must be a realisation
that the management of farms next urban settlements have significantly
different problems form those in remote areas.
What also does not make sense
is that, even in the area of conservation/biodiversity which is
central to the rather mono-focal outlook of SNH, the Code as presently
drafted is liable to lead to much harm.
It would be irresponsible
to introduce the Code as presently drafted. It does not “give
clear, sensible and helpful practical guidance on access rights
and responsibilities that you can use to make informed decisions
about everyday situations in the outdoors” in relation to farms
such as Cultybraggan next urban settlements.
The Code should be redrafted
before being presented to the Scottish Parliament.
In order to redraft the Code,
the Access Forum should be reconstituted with an equal representation
of access providers and access takers under a new and independent
chairman.
Before any Code is put into
effect an effective education programme concerning rural matters
for the better understanding by the majority urban population (who
are mainly based in the central belt) must be substantially underway.
Until the details of the revised Code are established the education
process can be founded on basic rural facts and practices.
The Act depends on there being
a competent and fair Code. Good law-making requires balanced and
responsible thinking. The Act is now a reality, but a Code to go
with it has yet to be produced that is both responsible and fair.
Dr James Irvine
LandCare Scotland and www.land-care.org.uk
Cultybraggan Farm, Comrie, Perthshire
References
1. Scottish
Natural Heritage (2003). Draft Scottish Outdoor Access Code: a document
for consultation.
(www.snh.org.uk/soac/)
2. See About
the Editor. www.land-care.org.uk (Click
here to view)
3. See
Cultybraggan Farm. www.land-care.org.uk (Click
here to view)
4. Scottish
Natural Heritage (1998). Access to the Countryside for open-air
recreation.
SNH’s Advice to Government. SNH, pp. 1-58.
5. Mylius,
Andrew (2001). Access: the reality for farmers, landowners, foresters
and all rural residents.
LandCare Scotland vol 1: p 3
(Filed 2002, www.land-care.org.uk, Click
here to view pdf)
6. Raeside,
Terry (2001). Land Reform - response to Scottish Executive proposals
for legislation.
Veterinary hazards to open access to enclosed agricultural land.
LandCare Scotland vol 1 p 33.
(Filed 2002, www.land-care.org.uk Click
here to view pdf)
7. Irvine,
James (2001). Scottish Natural Heritage’s Policy on Access:
Is it being mis-sold in relation to enclosed farmland next to urban
communities?
LandCare Scotland vol 1: p 19
(Filed 7 January 2003, www.land-care.org.uk, Click
here to view)
8. Irvine,
James (2001). SNH Conference September 2000: Enjoyment and understanding
of the natural heritage: finding the new balance between rights
and responsibilities, A review of the proceedings.
LandCare Scotland vol 1: p 25
(Filed 22 January 2003, www.land-care.org.uk,
Click here to view)
9. Mylius,
Andrew (2003). Land reform and the access code: problems and unanswered
questions.
LandCare Scotland vol 3 - in press.
(Filed 26 February 2003, www.land-care.org.uk, Click
here to view)
10. Editorial
(2003). Hedgehogs on Uist - SNH in More Trouble. Petition to the
Scottish Parliament.
(Filed 27 January 2003, www.land-care.org.uk, Click
here to view)
11. Mitchell,
Ian (on behalf of The Western Isles Fishermen’s Association
(2002).
Scientific objection to the designation
of the Sound of Barra as a possible Special Area of Conservation.
LandCare Scotland vol 2: p 3
12. Mitchell,
Ian (2003). Scientific Objection to the designation of the Arran
Moors as a proposed Site of Special Scientific Interest and proposed
Special Protection Area.
LandCare Scotland, vol 3: pp 1-118.
13. Scottish
Gamekeepers Association Petition to Scottish Parliament. The Impact
of Predatory Birds.
(Filed 25 March 2003, www.land-care.org.uk, Click
here to view)
14. Editorial
(2003). Is SNH a Good Land Manager? Duich Moss, Islay.
(Filed 9 May2003, www.land-care.org.uk, Click
here to view)
15. Mitchell,
Ian (1999). Isles of the West. Cannongate, Edinburgh.
16. Irvine,
James (2003). NFUS Access Meeting Perth 20th May 2003: The impression
and thoughts of one person who attended.
(Filed 22 May 2003, www.land-care.org.uk, click
here to view)
17. Irvine,
James (2003). Discussions and impressions - Royal Highland Agricultural
Show 2003.
LandCare Scotland vol 3 - in press.
(Filed 26 June 2003, www.land-care.org.uk, Click
here to view)
18. Meeting
on the Access Code held by Perth & Kinross Council - to be
reported shortly.
19. SCANET
conference, Battleby - to be reported shortly.
20. Explanatory
Notes to Land Reform (Scotland) Act 2003.
www.hmso.gov.uk/legislation/scotland/en/2003en02.htm
21. Editorial
(2003). Woman in coma following an attack by beef cows.
(Filed 22 May 2003, www.land-care.org.uk, Click
here to view)
22. Irvine,
James (2001). New enterprises - new beginnings. Farmers workshop,
Coupar Angus, June 2001.
LandCare Scotland vol 1: p 35
(Filed 16 January 2003, www.land-care.org.uk, Click
here to view)
23. Irvine,
James (2001). Zoonotic infections in livestock and the risk to public
health: a report of the proceedings of a conference held at the
Royal College of Physicians of Edinburgh, 28th June 2000.
LandCare Scotland vol 1 p 45
24. Editorial
(2003). Will Access to Scotland’s Countryside be taken Responsibly?
(Filed 7 April 2003, www.land-care.org.uk. Click
here to view)
Finis
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