19th November 2020

Exercising access rights in Scotland’s forests and woodlands

Activities such as walking, running, cycling or horse riding in forests and woodlands have become an important part of lockdown routines. A recent survey managed by NatureScot found that Scots are taking more daily and weekly outdoor exercise and expect this to continue.

Regular exercise in greenspace is great for physical and mental well-being and has positive effects on family life and productivity in the workplace/home office. The diverse range of benefits that Scotland’s forests and woodlands bring to the populace is recognised in the Scottish Government’s Forestry Strategy 2019-2029 which was introduced by the Forestry and Land Management (Scotland) Act 2018. Objectives include increasing the use of Scotland’s forest resources for health and life chances and the realisation of the social benefits of forestry.

18.5% of Scottish land is currently covered by forests and the Strategy aims to increase forest and woodland cover to 21% by 2032. Forestry in Scotland contributes £1 billion per annum to the economy through wood production, tourism and recreation and supports 25,000 full time equivalent jobs.

As well as being wonderful places for recreation, forests and woodlands are workplaces – and the sector is also dealing with the effects of Covid-19. Forestry works are required to maintain all forests and woodlands, large and small, and owners range from private individuals with sometimes very limited resources to investment funds. Timber harvesting and haulage operations have been increasing over recent years as timber crops reach maturity so a balance of interests is required to ensure that those who are accessing forests and woodlands for recreation and work can do so safely.

The law of access to land in Scotland is multi-layered in that access rights can be public such as statutory access rights and public rights of way (which can be designated as core paths) or private such as servitude rights which are enforceable only by the proprietor of land that benefits from the servitude.

The Land Reform (Scotland) Act 2003, as amended, introduced the statutory right of responsible access (the popular term ‘right to roam’ does not reflect the key element of ‘responsible access’) and extended the public’s rights to access Scotland’s land and inland waters subject to certain exceptions and guidance set out in the Scottish Outdoor Access Code as to what is responsible conduct for access takers and land managers. Whether or not an access takers conduct is responsible will depend on the circumstances but lawfulness, reasonableness, proper account of the interests of others and the features of the land in question are important considerations.

The access rights must be exercised in ways that are lawful and reasonable and the Access Code lists some of the behavioural statutory offences such as poaching, vandalism, not clearing up after your dog has fouled in a public place, being responsible for a dog worrying livestock, dropping litter, polluting water, and disturbing wild birds, animals and plants. The 2003 Act excludes further conduct such as being on or crossing land or water for the purpose of taking away, for commercial purposes or for profit, anything in or on the land or water (for example, mushrooms or berries picked for commercial use, or gravel and stones) – any harvesting of non-timber forest products (NTFPs) must also be carried out in a lawful manner. The access rights under the 2003 Act do not permit you to park your car on a landowner’s land without permission.

Landowners and managers are presumed to be acting responsibly in relation to access rights if their actions do not unreasonably interfere with the access rights of any person, in accordance with the Access Code. The Access Code sets out indicators of responsible behaviour in forests and woods and forests and woods with ongoing forest operations for both the public and land managers.

The Access Code is incorporated into both the UK Forestry Standard which sets out the requirements and supporting guidelines which forest managers in the UK must meet and the UK Woodland Assurance Standard (UKWAS) which is an independent certification standard verifying that timber products are from responsibly managed forests. Occupiers of land, which includes landowners and managers, have a duty under the Occupiers Liability (Scotland) Act 1960 to take reasonable care for the safety of people coming onto their land.

Scotland’s forests and woodlands are an incredible natural resource and we should all behave responsibly to make the most of the wide-ranging benefits they deliver.

At Blackadders, our rural property lawyers have considerable experience in forestry law matters. For further information about this or any other rural property matters, please contact our Rural Land & Business team.

Phil Buchan, Director
Rural Land & Business
Blackadders LLP

www.blackadders.co.uk

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