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NFUS current position on
Draft Scottish Outdoor Access Code
NFUS News Release 21st January 2004
Filed 22 January 2004
DRAFT ACCESS CODE AN IMPROVEMENT
NFU Scotland expects some redrafting of elements
of proposals from Scottish Natural Heritage (SNH) for the text of
the Scottish Outdoor Access Code will be required. The Code sent
to Scottish Ministers is a marked improvement on previous versions
but still contains a number of problems which NFU Scotland believe
can be resolved.
The Code, when approved by Parliament, will define
what the word responsible means in the context of the
new right of responsible access that was permitted by Part One of
the Land Reform Act and has yet to be put into effect by implementing
legislation. It is expected to have evidential status in the event
of a dispute that is tested in court.
NFUS President, John Kinnaird said:
NFU Scotland wants a workable Code that serves the legitimate
interests of both access takers and access providers. Scottish
Ministers will have to take a view on that and I expect that they
will want some changes to SNHs proposed text.
A first reading has revealed a number of problems that
must be resolved in the interest of safety for people visiting
the countryside and for the sake of our members who will be access
providers. Despite this, I am pleased to acknowledge that SNH
have taken some trouble to address our concerns about previous
drafts of the text and outstanding issues that we have should
be capable of resolution. Of course, if they are not, we will
take those outstanding matters to the Scottish parliament for
resolution by MSPs.
As well as the contentious elements where we think that
improvements are possible of greater concern are drafting errors
and inconsistencies that must be corrected.
Firstly, the Code proposals are inconsistent on the subject
of access to enclosed fields with farm animals. The casual reader
may only read paragraph 2.2 of the introduction where it says
that it is responsible to access fields where there are horses,
cattle and other farm animals. However, if they were to struggle
on by reading all 63 pages they would learn that they should take
responsibility for their own personal safety and that there are
a number of situations where accessing land with farm animals
should be avoided.
Secondly, the proposed Code says, at paragraph 3.36 (and
other places) that while in general people should not take access
in fields with growing crops, they may do so on unsown ground.
How are they to know what areas are unsown? This is especially
an issue in the early part of the growing season in spring and
Thirdly, this version of the proposed Code still has not
properly tackled the difficulties that must be resolved to make
access by cyclists and horse riders compatible with the safety
of other access takers and with non-damaging use of land. On the
one hand, paragraph 3.37 tells cyclists and horse riders that
it is best to keep to paths and tracks when within fields. Also,
paragraph 3.9 tells them that it is responsible to take care of
others. On the other hand, section 5 only has weak references
to avoiding certain classes of land when any land would be damaged
by repeated use of cycles and horses at certain times of year.
Avoidance of land poaching is very important. This is an important
environmental issue as well as a land management issue.
We support change. However, there is a great deal of confusion
about where it is safe to go. The potential benefit of responsible
access is that the majority of visitors should be provided with
path facilities from which to enjoy our countryside at little
or no risk to their personal safety.
NOTES TO EDITORS
The reference to drafting errors covers the following
1. requirement by dog owners to remove dog faeces
On page 28, the draft Code advises that it is
not an existing legal requirement that dog walkers remove their
pets faeces from farmland because it is not a public place.
At other places, in the draft the requirement to remove is referred
to in terms of public places. However, this is contradicted, correctly,
at page 61 where it is pointed out that farmland to which the public
have access is a public place, defined by the Environmental Protection
This is an important animal welfare and food
These contradictions must be addressed.
2. advice on taking access where there are
Paragraph 3.29 says: you need to be aware
that animals may react different to your presence.
This text is not sensible. It may be a typographical error. We suggest
that the meaning should be to the effect that the general public
cannot be expected to know how farms animals in general behave.
Also, particular animals and particular situations may cause unexpected
behaviour. Therefore, regard for personal safety is best served
by use of paths where available.
3. access to farmyards
The text is contradictory. Paragraph 3.41 says:
if it is not reasonably practicable to get around the farmyard
and buildings (an unlikely scenario), then it might be possible
on the basis of customary access to go through the farmyard.
Paragraph 2.11 says the opposite. Referring to places where access
rights do not apply, examples include: farm buildings and
Given the status of the eventual document, such
matters must be corrected.
Contact : Scott Walker
Telephone : 0131 472 4018
Email : firstname.lastname@example.org