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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