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NFUS current position on

Draft Scottish Outdoor Access Code

NFUS News Release 21st January 2004

Filed 22 January 2004


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 SNH’s 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 autumn.

“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.”


The reference to drafting errors covers the following subjects.

1. requirement by dog owners to remove dog faeces from farmland

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 Act 1990.

This is an important animal welfare and food safety issue.

These contradictions must be addressed.

2. advice on taking access where there are farm animals

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 yards”.

Given the status of the eventual document, such matters must be corrected.


Contact : Scott Walker
Telephone : 0131 472 4018
Email : scott.walker@nfus.org.uk