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22 May 2003

NFUS Access Meeting Perth 20th May 2003

The impression and thoughts of one person who attended

James Irvine

Cultybraggan Farm, Comrie, Perthshire
Teviot Scientific Consultancy, Edinburgh

(Filed 22 May 2003)
© Teviot Scientific Consultancy

This article consists of the comments of an individual, and should not be regarded as being in anyway sanctioned by any organisation.

The article makes reference to many of the points raised at the meeting which was convened to discuss what scope for further negotiation remained regarding the draft Scottish Outdoor Access Code (SOAC, 1).

Any criticisms of the SNH Access Forum or of the members of that forum are the author’s, and were not part of the Perth meeting.

Its purpose is to stimulate readers of the Land-Care website to think about the very important issue of Access to the Countryside next to urban settlements in Scotland. The Land Reform (Scotland) Act (2) can only come into force after the Access Code has been agreed by the Scottish Parliament. It is important to argue for any changes in the draft code before it gets to the Parliament. You have only got to the 30th June to do that.

Remember the new Scottish Parliament is essentially the same as the last one, although the coalition has a smaller majority (3). It was the previous Scottish Parliament who steam-rollered the bill through with all its obvious faults. They were in the business of bad law-making based on dogmatic idealistic aspirations, rather than commonsense. The reinstated Minister for SEERAD proclaimed that he was pleased with it, which must be a cause for concern as to whether or not any significant modifications will be adopted before the SOAC is finalised. But it is important that the effort be made.

On the evening of Tuesday 20th May the NFU Scotland (NFUS) held a meeting at the Dewar Centre, Perth to give its members an opportunity to discuss the draft Scottish Outdoor Access Code (SOAC). The period for consultation closes on 30th June.

Craig Campbell, senior policy advisor for NFUS, addressed the gathering, outlining the current position of the Union. This was followed by an address by Richard Davison, Scottish Natural Heritage and secretary to the SNH Access Forum. Thereafter, the meeting was open to discussion from the floor.

The position of the NFUS was certainly more clearly stated than hitherto (4). The executive of the Union now appears to have taken on board the major anxieties among farmers, especially those around urban settlements, in relation to the SOAC in its present form. While the NFUS may have been making the same points during the negotiations leading up to the publication of the draft SOAC, these points had not found their way into the SOAC document nor into the perceptions of many NFUS members. This meeting, therefore, was a good opportunity for the NFUS to make its present position clear. This it did.

It was good to hear Craig Campbell clearly state that it is indeed farms next to urban settlements that are worst affected by the contents of the draft Code, be they livestock or cereal farmers or a mixture of both. He referred to operational, biosecurity, animal welfare, health and safety and conservation problems, as well as making it clear that in the view of the NFUS all paths for public access going through farmsteads should be diverted. This would include those paths that are presently rights of way. He also stated that the process whereby the draft SOAC had been created had been “flawed”. Although he did not give any specific details as to the “flaw”, there can be little doubt that he was referring to the fact that the NFUS had felt compelled to walk out of the Access Forum because the concerns expressed by the NFUS representatives were being ignored and not transmitted up the line by the Forum.

At this point it is as well to recall (although not discussed at the meeting) that the recommendations of the Access Forum were described by the Forum itself as being a consensus. That of course was a meaningless deceit as the majority of members on the Access Forum represented access takers (with everything to gain and nothing to lose), while the farmers are of course the access providers with plenty to lose in terms of being able to operate their legitimate businesses properly. In other words the Access Forum failed in giving their recommendations to report the major concerns expressed by the access providers, even as a minority view.

In his address Richard Davison emphasised that Part 1 of the Land Reform (Scotland) Act had been passed and that there was nothing that could now be done about it. While the meeting did in fact concentrate on what leeway was left for negotiation within the scope of the draft SOAC and Part 1 of the Act, it is to be remembered that it was SNH through its Access Forum that gave the advice to the Scottish Parliament that lead to the Act. There can be no doubt whatsoever that such advice was seriously flawed in terms of access to the countryside. It was not based on rationale but on a perceived political agenda. The role of SNH is to give advice based on a competent rational assessment of the situation - not to ignore legitimate concerns because they do not seem to fit with the political agenda of their masters. Otherwise there is no point in having an SNH. There is now an alarming accumulation of evidence that SNH is not a competent body in terms of either science or land management (5, 6, 7, 8). Their central role in the creation of bad Scottish law is the most serious evidence of that to date.

But to return to the meeting in Perth, the purpose of the meeting was to discuss what could be done about the current draft SOAC. Richard Davison kept referring to the views of the many access takers and that these views had to be taken into account. The warning signs were there that SNH through its Access Forum were likely to continue with the same grossly unfair tactic that it is the majority view that matters. However, in a democracy the legitimate interests of minorities have to be protected, and not usurped by a self-seeking majority. There is a difference between a majority of voters deciding on how certain public services are to be provided, and a majority deciding that they want to use the assets of a minority for their own gain in such a way that the livelihoods of that minority are severely compromised.

There was a pronounced element of deja vu about the SNH Access Forum’s presentation. Yet again, some 4 years on, the then equivalent of SOAC was likened to the highway code. True, in so far that both in themselves have no legal standing but may be quoted in evidence in court: but seriously false with regard to enforcement on a charge of careless driving compared to behaving irresponsibly while taking access on farmland. Farms are dangerous places and the consequences of not following a code (even one that has been properly constructed) may be comparable (9), but in the case of farms enforcement is and will continue to be virtually non-existent.

The discussion during the meeting was excellent, with many questions and points expressing serious concern being mainly addressed to Richard Davison. There was no doubt that Craig Campbell’s performance at this meeting was well thought of. What the NFUS needs to do is to get that message across to the rest of its members and to the public. This particular meeting was a good if late beginning to that essential process.

It was a concern at the meeting that the members of the Access Forum (most of whom are access takers) simply do not know how farms operate, especially livestock farms. During its many years of existence the Access Forum has not seen to it that its members have a competent understanding of how farms work. At this late stage an elementary course of instruction is essential - a truly remarkable situation after all this time and after bad law has been passed with their recommendation.


Some of the main concerns expressed by NFUS members
attending the meeting


Farmers are entitled to be able to carry out their legitimate farming businesses without undue interference from others who wish to use the assets of farms for their own purposes. Farmers must not be placed in a situation, resulting from conflicting external pressures, whereby they cannot properly comply with legislation that was in effect before the Land Reform (Scotland) Act was created and with future directives that no doubt will come from Brussels. Furthermore, the farmer must not be placed in a situation whereby there is conflict between the recommendations of the SOAC and the various quality assurance schemes that exist.

The statement by the then Justice Minister, Jim Wallace, that “good land managers have nothing to fear from Land Reform” must be honoured. It does not appear to be the case. But then he has now quickly stepped aside to become Minister for Enterprise, so he wont be in the direct firing line for not keeping his word and being so obviously insincere.

It was stressed at the Perth meeting that the anticipated increased number of access must not place additional burdens on farm staff - who have already been reduced to the bare minimum, on account of the lack of profitability of farms and the shortage of experienced staff that are now available for such employment.


Threat of vandalism

It is well recognised that there is, and will continue to be, a significant minority of the public who will not listen to advice from SNH or anyone else as to what constitutes responsible behaviour. There is no effective method of controlling such persons, whether it be local access forums, the police or attempts at peer pressure. Such is the magnitude of this problem that many farmers fear for major vandalism should they try to tackle such miscreants. There is concern that the draft SOAC facilitates access to virtually anywhere on the farm day and night. SNH on drawing up the code did not seem to be interested in meeting their responsibilities arising from their facilitating increased crime on farms.


Education of the public

SNH has not even started an adult education programme on access to farmland. Indeed it has been shown that some of the rangers employed by Councils to guide people on tours are seriously ignorant of livestock management. The time required to educate the public on rural matters is years, decades or indeed a generation. So far SNH has done virtually nothing in relation to educating adults regarding responsible behaviour in the countryside, while the urban/rural divide widens.

What we are heading for is the public being given legal rights to access to the countryside (probably next Spring) with no effective education in place and no realistic method of enforcement. A stack of leaflets and an advert or two on prime-time TV will not be enough.

SNH through their advice to government stand charged of raising the expectations of the public while down-playing the problems that will inevitably arise as a consequence.


Paths designed for walkers may not be suitable for bikers or horses

Misuse of paths (that can apparently only be restricted in their use by appealing to the local council after damage has happened) will lead to their severe damage. The public will then simply intrude further into hitherto productive farmland, thereby creating new paths and so on its goes. Not only that but it would be a very quick way of losing much of the amenity that currently exists and which is currently available for public access.


Livestock Farms: gates, fences and grass.

The draft SOAC shows a serious lack of understanding of livestock behaviour, what fences and gates are for and why they are constructed and secured the way they are. The very real problem of gates being left open even once, or fences damaged, on a livestock farm operating a “closed” system is not appreciated by the Access Forum. If cattle are not kept strictly where they should be the breeding system for the farm can be very seriously disrupted with major financial consequences resulting from loss of pedigree credibility and status, and the loss of control over breeding the farm’s own pedigree and commercial replacements. That is what running a closed herd system is all about. That is why running risks consequent upon encouraging totally unknown persons to come onto livestock farms and expect all such persons to behave “responsibly” is frankly absurd.

Apparently the Access Forum in its keenness to promote open access to farms next urban settlements, did not take the trouble to understand why gates may be securely fastened, with a padlock if necessary. Cattle have the habit of rubbing on gates and fences. When they rub at a gate bolt that bolt is likely to come loose unless there is a device to prevent it from doing so. Time and again it can be seen that the public on encountering such a gate either do not take the trouble to understand the simple cattle-proof mechanism; they then tend to regard it as an obstruction and proceed to destructively dismantle it and leave the gate insecure. There is no other type of business enterprise that would tolerate such a lack in the basic security of its assets.

Gates also need to be secure because a bull can weigh in the order of a tonne and a suckler cow some 3/4 of a tonne. Gates can get some rough treatment from such beasts during handling, such as shedding (separating off one or more of them from the herd for management purposes). It is not reasonable for gates on a livestock farm to be kept as though the place was a public park in a city or some rural tourist attraction paid for by the National Trust for Scotland or similar organisation. Where there is an agreed right of way a style or kissing gate will be provided, but asking for public access through gates on a livestock farm in areas where no such agreed access exists is to be unreasonable and thoughtless.

It should not be recommended in the SOAC that gates, fences and dykes can be climbed over. These structures are not primarily designed to be climbed over and can be damaged by such an act, especially dykes. As already mentioned these structures have an essential function on livestock farms and their maintenance is expensive and time consuming.

The draft SOAC recommends that barbed wire and electric fences should not be used next to paths. On a livestock farm barbed wire and electric fences are used to keep cattle off the fence. No fence can tolerate a one tonne bull, or indeed the slightly smaller members of its harem (possibly some 30 of them), leaning against it or stretching over it to graze on the other side of it. How come that after years of debate the Access Forum apparently has not been able to appreciate such basic facts?

It is insufficiently appreciated by the Access Forum that grass on a livestock farm is its most precious asset. Nor is it appreciated that different types of grass vary in their vulnerability to damage by access takers. Or that different weather conditions can severely affect the vulnerability of grass to damage by access takers - thus grass in sodden soil is highly vulnerable. Much of the grassland of Scotland is sodden wet from November to April, and is one of the reasons why farmers take their stock off vulnerable grass during these months. A group of people deciding to have a football match on it, or to run mountain bikes over it, or worse have a troupe of horses on it, could cause serious damage. It is frankly unreasonable of the Access Forum to take on trust that access takers will necessarily all behave responsibly. The track record is that a very significant minority will not and probably never will.



Major concerns were justifiably expressed about the proposed right for horses to go anywhere as long as they and their owners behaved themselves responsibly. However, there was little evidence that responsible behaviour from horse owners could be relied upon, but much to the contrary. Frankly it is a nonsense that a body such as the Access Forum component of SNH could come up with such a proposal in relation to farms next urban settlements. It could only be based on a profound lack of knowledge of land management, or a willful neglect of the issue.

The strong recommendation from the floor at the meeting was that access for horses in relation to farms next urban settlements must be limited to tracks specially prepared for the purpose - which are very expensive to create and maintain. The recommendation was that the “must” in this context must mean “must” and not “should”.

Farm land, as part of a farm business, should not be commandeered for the purpose by opportunistic access takers who contribute nothing to the farm (but pose a major threat to it) just because access takers formed the majority over access providers on the Access Forum, the majority of whose members appear to have been incredibly ignorant (or chose to be) over basic matters of land management.

Although not specifically raised at the meeting, farmers have found that horses that have lost a shoe while taking access over farmland can cause serious problems. A horse shoe is a substantial piece of metal as far as farm machinery is concerned and can do major damage, incurring much expense and disruption of operations. In some areas I am reliably informed that it has been necessary for farmers to fit metal detectors to vulnerable equipment.


Camping and Fires

The view was expressed that the largely permissive comments regarding camping and lighting fires that are mentioned in the draft SOAC were unsatisfactory, posing a serious risk to grass and other vegetation being set alight in dry weather. There is also the problem of the litter campers tend to leave behind. Furthermore, campers using farmland for free will take legitimate business away from local campsites - even from a farmer who is attempting to diversify into providing camping facilities (10).


Health and Safety

A number of those present spoke about their concern for the health and safety, not only of the public taking access but for their own staff consequent upon the increased public access that is clearly the purpose of the Land Reform (Scotland) Act. Here we were treated to the same old disingenuous story from Richard Davison; “there is no change in the law regarding duty of care to be taken by the farmer” while the Access Forum creates increased risk on account of the increased number of access takers. Worse still is the fact that the SNH Access Forum is heightening the expectations of the public that it is safe to take access where it is clearly not. Furthermore, the draft SOAC clearly puts the burden on farmers (with minimal staff) to fly around putting notices up whenever they are going to perform basic management operations - such as moving cattle - apparently anywhere on the farm that a member of the public might possibly go to and which might be involved in the operation. Taking the cattle off the hill and back to the steading could involve an awful lot of notices - the time involved would out it out of the question.


Field Margins

As the draft SOAC stands, a 2 metre field margin is to be available for general public access - horses, dogs, mountain bikes and all. It makes a mockery of wildlife conservation. There was concern expressed as to how this 2 metres was to be measured - from what point - possibly resulting in much more than 2 metres being involved.

It is indeed extraordinary that SNH with its obsession for wildlife biodiversity should be advocating such a practice. Apparently their hierarchy of what is important changes with what is politically convenient at the time.


Private ponds and reservoirs for farm irrigation

As the draft SOAC stands any inland waterways are to be open for public access. This makes a nonsense of wildlife conservation schemes, and of farm irrigation programmes where a pond has been constructed so that food crops can be watered. It is not acceptable for persons to urinate and defeacate in such ponds, the water from which is to be sprayed over crops for human (or indeed animal) consumption.


Dog Dirt

It was felt that the Code was sadly lacking in making it clear as to how dog dirt was to be removed. The current experience is that it is all too frequently deposited on farms next urban settlements. A national Animal Health Programme is under consideration - recommending that dog dirt be deposited on farms is unlikely to be part of it. Nor that it be put in plastic bags and thrown into the river or left in some field. We are informed that the banks of the Thames are strewn with such objects. The meeting advocated that the Code should say that in relation to farms next to urban settlements dog dirt should be taken home by the dog’s owner and disposed of there.


Commercial use of farmland by others

Those attending the meeting were clear that the free use of a farm’s assets for the commercial advantage of others was unacceptable. Indeed it is strange that this manifestly unfair clause ever got introduced into the draft SOAC. The fact that it did raises serious worries as to the basic ethics and integrity of those involved in producing this draft SOAC and indeed the Act.


Control of the public taking access

Here Richard Davison was again as disingenuous as ever (11). There is no effective control of access takers, nor is there ever likely to be. That is why Craig Campbell, with the agreement of the meeting, stated that with regard to many clauses within the draft SOAC the world MUST has to replace the word SHOULD.

Richard Davison up to this point had been playing down the increase in public assess that was anticipated as the result of the new legislation, which is anticipated to come into effect as early as next Spring. However, he was reminded (or just possibly informed) of what other members of SNH had been saying at the SCANET meeting held at Battleby just along the road a few days previously. This meeting was primarily for Local Government Council Employees and those in the access industry. The meeting was announced to be relevant for all those involved in access, including landowners and farmers - but of course very few landowners or farmers were invited. Instead it was the big sell to access takers - a very different approach from that of Richard Davison talking to farmers. Some of the data presented at that meeting was relayed to him - such as the proposed 20% increase in the budget for rangers aimed for the year 2006. Well, I understand Perth & Kinross Council has 3 rangers. That would mean we could look forward to 3.5 rangers by the year 2006. How disingenuous can one get?

Information from the SCANET meeting that the SNH budget for promoting public access was £700,000 in the first year - with most of that to be spent on hugely expensive adverts promoting access which are to be slotted in during TV soap operas. Disingenuous Davison turned that round by saying that these adverts were probably going to detail what responsible access was - how can you do that in the middle of a soap opera at vast sums per second? No, Mr Davison, it was clearly and authoritatively stated at the SCANT meeting that the adverts will be to encourage the public to take access. We all know that most of that increased access will be on farms next urban settlements.

It was put to Richard Davison in discussion after the close of formal business, that SNH was fully aware of a hard-core of the public who were unwilling to behave responsibly. Indeed this had been one of the topics at the SCANET conference that was chaired by the chairman of the SNH Access Forum. Davison simply dodged the issue. In my view that constitutes behaving irresponsibly in so far that Davison was advocating a scheme that he knows fine well is going to cause major problems: his actions (and that of the Access Forum that he represents) are irresponsible because of their lack of concern as to how to control the problems his organisation was in the business of creating



The NFUS has long been strong on the issue of liability in relation to the Act and the SOAC, even to the possible previous neglect of other important issues that I have tried to describe above. Nevertheless, liability issues can be regarded as key to what the balance of responsibility is between access taker and access provider when problems inevitably arise. Disingenuous Davison tries to avoid the issue by saying that the courts, or some yet unestablished theoretical ombudsman, will decide. But the court or the ombudsman must know what the guidance is supposed to be - they are not supposed to make it up on the hoof as it were. That was what all these years of Access Forum debate was supposed to be all about.

Reading the draft SOAC it would appear that preference is given to the access taker rather than to farm livestock, especially where rights of way exist. These rights of way have been previously established through good will and trust in relation to local communities that were highly familiar with rural matters and to enable the local people to go to work, church, school, social meetings or whatever.

It could be claimed with some justification that the previous arrangement that worked admirably is being abused. The local rural community is now urbanised and there are much more convenient ways of getting from A to B for most purposes than using rights of ways. Rights of ways are now largely used for recreation, but those using them have not kept up with an understanding of the needs of the farm on whose ground many of these rights of way exist. The trust gets broken. A Land Reform (Scotland) Act comes in to enforce largely unfettered access, with so far no tangible attempt at safeguarding the legitimate needs of the farm.

So if the tragic accident that happened in Cumbria (9) had occurred in Scotland with the present Land Reform (Scotland) Act in place with the present SOAC, how would the liability be apportioned?

According to the Code the lady should not have been walking her dog in a field with cattle plus calves. But then she may not have been aware when she started that there were cattle with calves in that field. Furthermore I understand the Code to say that farmers should keep cattle away from fields where there are rights of way, but how can he do that when the fields are an essential part of his enterprise that he has operated for years? Previously the locals would know by simple bush telegraph that “Bob” has got his cows and calves in whatever field. Not so today, when the farmhouse has been converted into an expensive dwelling for successful urban commuters.

It is truly regrettable that the Access Forum or the law makers have not been able to come up with clear examples of just what the share of liability is between access taker and access provider in relation to situations that can be confidently anticipated will occur.



NFUS is to be congratulated for making their stance much clearer than members had previously understood. Hopefully that stance - and preferably the whole of Craig Campbell’s presentation - will appear on the NFUS website. What the NFUS did say was that they would like comments from members into NFUS HQ by 12th June. The NFUS will then draw up their formal response to SNH and put it on their website before the deadline of 30th June.

There must be some concern, however, that Craig Campbell, who is one of the two persons negotiating on behalf of the NFUS, has I believe no significant experience in farming. By way of introducing himself to the Perth gathering of NFU members, he stated that his own interest was as an access taker, but that he ‘would write whatever his chairman told him to’.

In deciding where to compromise and where to stay firm, and to get the points across in the context of a consortium of self-interested bodies such as the Access Forum, needs the conviction of someone committed to the subject and with some fire in his belly. One got the impression that just maybe our NFUS negotiator was more interested in access-taking than arguing the points for farming. It is my belief that the same could be said for those who represent the SLF on the Access Forum (12) The subject is far too important for that, but it may account for the fact that farmers next urban settlements have come off very badly in this final, or possibly penultimate draft SOAC.

There must be major concerns as to the conduct of SNH’s Access Forum - past, present and future.

The stance expressed again by the secretary to the Access Forum at this meeting is nothing short of alarming in its unfairness and abuse of so-called democracy. Richard Davison, persists with the fallacy that democracy means on all occasions it is the will of the majority that matters, no matter how it affects a minority who are set to be deliberately disadvantaged. That is neither justice nor democracy. It simply reflects the unscrupulous pursuit of a political dogma that SNH has no business in conducting (13).

SNH should be there as an impartial advisory body, properly balancing the desire for open access on the one hand with the consequences which that would impose on the minority who are the access providers. It should not be simply a matter of who has the biggest shout. It should be based on a properly informed debate involving a body of people who are appropriately trained and who have a competent track record on a wide range of land management issues, Sadly, after many years of being responsible for the subject of access, SNH has simply not delivered credible advice to the Scottish Parliament regarding the Land Reform (Scotland) Act: nor has it provided credible advice regarding the draft SOAC.

Frankly, at this late stage it is simply not good enough that SNH (through its Access Forum) should still be displaying an appalling lack of basic knowledge as to how farms work. SNH were not created simply to be political puppets, but to advise on how best to look after Scotland’s natural heritage - much of which is based on farming.

Jack McConnell, recently reinstated as First Minister for Scotland’s second Parliament, stressed that it is important for the Government to restore trust. He could start with the government’s agency, SNH

© Teviot Scientific Consultancy



1. Scottish Outdoor Access Code. SNH Publishes Consultation Document - 27 March 2003
(Filed 27 March 2003, www.land-care.org.uk, click here to view).

2. Land Reform (Scotland) Act 2003).

3. Irvine, James (2003). Scottish Parliament Election Result.
(Filed 5 May 2003, www.land-care.org.uk, click here to view).

4. Draft Scottish Outdoor Access Code: Comments on the SNH Consultation Document,
(Filed 20 May 2003, www.land-care.org.uk, click here to view).

5. Irvine, James (2003). Conservation and the Misuse of Science. Hedgehogs, Bats and Badgers.
(Filed 15 April 2003, www.land-care.org.uk, click here to view).

6. Is SNH a Good Land Manager? Duich Moss, Islay.
(Filed 9 May 2003, www.land-care.org.uk, click here to view).

7. SNH hedgehog farce degenerates into expensive grotesque.
(Filed 21 May 2003, www.land-care.org.uk, click here to view).

8. Mitchell, Ian (2002). Scientific Objection to the Designation of the Sound of Barra as a possible Special Area of Conservation. LandCare Scotland, Vol. 2, pp. 3-49.

9. Woman in coma following an attack by beef cows.
(Filed 22 May 2003, www.land-care.org.uk, click here to view).

10. Williamson, Jamie (2003). Notes from talk given at Connecting Commuinities Conference, 8th April 2003. (Download PDF).

11. Irvine, James (2001). SNH Conference September 2000: Enjoyment and Understanding of the Natural Heritage: Finding the new Balance between Rights and Responsibilities. LandCare Scotland, Vol. 1, pp. 25-32.
(Reproduced, with update, on Land-Care, 22 January 2003, click here to view).

12. Arbuckle, Andrew (2003). SLF accused of lack of fight over access. The Courier, Friday 25 April 2003.
(Filed 25 April 2003, www.land-care.org.uk, click here to view).

13. Irvine, James (2003). Scottish Natural Heritage's Policy on Access: Is it being mis-sold in relation to enclosed farmland next to urban communitites? A report of the press conference held by SNH at the Royal Highland Show, Ingliston, Edinburgh, June 2000. LandCare Scotland, Vol. 1, pp. 12-23.
(Reproduced, with permission, on Land-Care, 7 January 2003, click here to view).