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PART 1 continued CHAPTER 5 continued
(1) Where it appears to the local authority to be necessary or expedient for the purpose of enabling or facilitating the exercise of access rights in respect of any land to which this section applies that the land be acquired by them, the authority may—
(a) acquire it by agreement (whether by purchase, feu, lease or excambion); or
(b) with the consent of Ministers, acquire it compulsorily.
(2) The land to which this section applies is land other than—
(a) land in respect of which access rights do not extend by virtue of section 6(1)(a)(ii), (d), (e) or (f) above;
(b) land which has been exempted by order made by the local authority under section 11(1) of this Act.
(3) A local authority shall hold and manage any land acquired by them under this section so as best to facilitate the exercise of access rights.
(4) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) shall apply in relation to a compulsory purchase under this section as if this section had been in force immediately before that Act.
(1) It is the duty of the local authority, not later than 3 years after the coming into force of this section, to draw up a plan for a system of paths (“core paths”) sufficient for the purpose of giving the public reasonable access throughout their area.
(2) Such a system of paths may include—
(a) rights of way by foot, horseback, pedal cycle or any combination of those, being rights which are or may be established by or under any enactment or rule of law;
(b) paths, footways, footpaths, cycle tracks or other means of access (however described but not falling within paragraph (a) above) which are or may be provided by or under any enactment other than this Act;
(c) paths which are or may be delineated by a path agreement under section 21 or a path order under section 22 below;
(d) other routes, waterways or other means by which persons may cross land.
(3) In drawing up the plan, the local authority shall have regard to—
(a) the likelihood that persons exercising rights of way and access rights will do so by using core paths;
(b) the desirability of encouraging such persons to use core paths; and
(c) the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable.
(4) The plan may consist of or include maps showing core paths and, where it does not, shall refer to such maps.
(1) The local authority shall—
(a) give public notice of the plan drawn up by them under section 17 above and any maps it refers to;
(b) make the plan and any such maps available thereafter for public inspection for a period of not less than 12 weeks; and
(c) consult—
(i) the local access forum for their area;
(ii) persons representative of those who live, work, carry on business or engage (or would be likely to engage) in recreational activities on the land on which it is proposed that there be core paths;
(iii) Scottish Natural Heritage; and
(iv) such other persons as the local authority think fit,
in each case inviting objections and representations to be made to them within such period as they specify.
(2) If no objections are made or any made are withdrawn, the local authority shall adopt the plan.
(3) If an objection is made and not withdrawn, the local authority shall not adopt the plan unless Ministers direct them to do so.
(4) Where an objection remains unwithdrawn, Ministers shall not make such a direction without first causing a local inquiry to be held into whether the plan will, if adopted, fulfil the purpose mentioned in section 17(1) above.
(5) Ministers may, in any other case, cause such an inquiry to be held.
(6) Subsections (2) to (13) of section 265 (local inquiries) of the Town and Country Planning (Scotland) Act 1997 (c. 8) apply to an inquiry held under subsection (4) or (5) above as they apply to one held under that section.
(7) Following the publication of the report by the person appointed to hold the inquiry, Ministers may (but need not) direct the local authority to adopt the plan either as drawn up under section 17 above or with such modification as Ministers specify in the direction.
(8) On adopting the plan, the local authority shall—
(a) give public notice of its adoption;
(b) compile a list of core paths;
(c) keep the plan, any maps it refers to and the list available for public inspection and for sale at a reasonable price; and
(d) send a copy of each of those documents to Ministers.
(9) Where Ministers decline to make a direction under subsection (3) or (7) above, the local authority shall draw up a revised plan and shall do so in accordance with such procedure and within such time limits as Ministers specify.
(10) Such specification shall include provision under which Ministers may (but need not) direct the local authority to confirm the revised plan.
The local authority may do anything which they consider appropriate for the purposes of—
(a) maintaining a core path;
(b) keeping a core path free from obstruction or encroachment;
(c) providing the public with directions to, or with an indication of the extent of, a core path.
(1) The local authority shall—
(a) at such times as they consider appropriate; and
(b) on Ministers requiring them to do so,
review the plan adopted under section 18 above (or that plan as amended under this section).
(2) Where, following a review of a plan under subsection (1) above, the local authority consider that—
(a) a core path should be removed from the plan; or
(b) the line of a core path, or part of that line, should be diverted,
the authority may amend the plan by removing the core path from the plan or, as the case may be, by diverting the line of the core path on the plan.
(3) The local authority may not amend the plan under subsection (2) above unless they are satisfied that it is expedient so to do having regard to—
(a) the extent to which it appears to them that persons would, but for the amendment, be likely to exercise access rights using the core path; and
(b) the effect which the amendment of the plan would have as respects land served by the core path.
(4) Where the local authority stop up, or divert, a core path by order under section 208 of the Town and Country Planning (Scotland) Act 1997 (c. 8) they shall amend their plan accordingly.
(5) Subsection (8) of section 18 above applies in relation to the amendment of a plan under subsection (2) or (4) above as it applies in relation to the adoption of a plan under that section.
(6) Where, following a review of a plan under subsection (1) above, the local authority consider that the plan should be amended so as to include a further path, waterway or other means of crossing land such as is mentioned in section 17(2) above, the authority shall draw up an amended plan.
(7) Sections 17(3) and (4) and 18 above apply in relation to a plan drawn up under subsection (6) above as they apply to a plan drawn up under section 17(1) above.
(1) The local authority may enter an agreement (a “path agreement”) with a person having the necessary power for the delineation and maintenance or, as the case may be, for the delineation, creation and maintenance of a path within land in respect of which access rights are exercisable.
(2) A path agreement shall be on such terms and conditions as to payment or otherwise as may be specified in it.
(1) Where, in the circumstances set out in subsection (2) below, it appears to the local authority that, having regard to the rights and interests of the owner of land in respect of which access rights are exercisable and persons likely to exercise these rights, it is expedient to delineate a path within that land, the authority may, by order (a “path order”), do so.
(2) These circumstances are that it appears to the local authority to be impracticable to delineate the path by means of a path agreement.
(3) Where the local authority make a path order—
(a) delineating an existing path, they have the duty of maintaining it;
(b) delineating a new path, they have the duty of creating and maintaining it.
(4) Regard may be had, in determining whether a local authority has control of a path for the purposes of the Occupiers' Liability (Scotland) Act 1960 (c. 30), to the duties imposed by subsection (3) above.
(5) A path order may be revoked by the local authority.
(6) A path order shall be in such form as is prescribed but shall contain a map showing the delineation of the path.
(7) Where access rights—
(a) have, by virtue of any provision of this Part of this Act, not been exercisable over any land consisting of a public path created under sections 30 to 36 of the Countryside (Scotland) Act 1967 (c. 86); but
(b) become exercisable over that land,
the public path creation agreement or the public path creation order or public path diversion order by which the public path was created shall, for the purposes of the exercise of access rights, be treated as a path agreement or, as the case may be, a path order.
(8) Schedule 1 to this Act has effect for the purposes of providing further as to path orders.
(9) In section 28 (interpretation) of the Land Registration (Scotland) Act 1979 (c. 33) in paragraph (g) of the definition of “overriding interest” (which paragraph provides that public rights of way etc. are overriding interests) there is inserted at the end “or in respect of the exercise of access rights within the meaning of the Land Reform (Scotland) Act 2003 (asp 2) by way of a path delineated in a path order made under section 22 of that Act”.
(1) Where land is, in accordance with good husbandry, being ploughed or having its surface otherwise disturbed and it is convenient to plough, or otherwise disturb the surface of, a core path or a right of way which forms part of the land, nothing in this Part of this Act prevents that path or, as the case may be, right of way from being ploughed or from having its surface otherwise disturbed.
(2) The owner of land being a path or, as the case may be, right of way which has been ploughed or which has had its surface otherwise disturbed in accordance with subsection (1) above shall, however, within the period of 14 days beginning on the day on which the path or, as the case may be, right of way is ploughed or has its surface otherwise disturbed or such longer period as the local authority may allow, reinstate the path or, as the case may be, right of way.
(3) An owner who fails to comply with subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) If the owner fails to comply with subsection (2) above, the local authority may, after giving the owner 14 days' notice of their intention to do so—
(a) take all necessary steps to reinstate the path or, as the case may be, right of way; and
(b) recover from the owner their reasonable expenses in doing so.
(5) Nothing in this section prejudices any limitation or condition having effect otherwise.
(1) The local authority may appoint persons to act as rangers in relation to any land in respect of which access rights are exercisable.
(2) The purposes for which such rangers may be so appointed are—
(a) to advise and assist the owner of the land and other members of the public as to any matter relating to the exercise of access rights in respect of the land; and
(b) to perform such other duties in relation to the exercise of those rights in respect of that land as the local authority determine.
(3) A person appointed under this section as a ranger may, for the purpose of exercising any function conferred by or under subsection (2) above, enter any land in respect of which access rights are exercisable.
(1) Each local authority shall establish for its area a body, to be known as the “local access forum”, to carry out the functions set out in subsection (2) below.
(2) Those functions are—
(a) to advise the local authority and any other person or body consulting the forum on matters having to do with the exercise of access rights, the existence and delineation of rights of way or the drawing up and adoption of a plan for a system of core paths under sections 17 and 18 above;
(b) to offer and, where the offer is accepted, to give assistance to the parties to any dispute about—
(i) the exercise of access rights;
(ii) the existence and delineation of rights of way;
(iii) the drawing up and adoption of the plan referred to in paragraph (a) above; or
(iv) the use of core paths,
towards the resolution of the dispute.
(3) A local access forum consists of such persons as are appointed to it by the local authority.
(4) The matters to which the local authority have regard when making appointments to the local access forum shall include—
(a) ensuring reasonable representation in the forum of—
(i) bodies representative of persons with an interest in any of the matters mentioned in subsection (2)(b)(i) to (iv) above;
(ii) persons having such an interest;
(iii) bodies representative of the owners of land in respect of which access rights are exercisable or in which there is a core path; and
(iv) owners of such land, and
(b) ensuring a reasonable balance among those mentioned in sub-paragraphs (i) to (iv) of paragraph (a) above.
(5) The local authority may appoint one or more of its own members to a local access forum.
(6) More than one local access forum may be established for the area of a local authority.
(7) The local authority may pay to members of the local access forum such expenses and allowances as the local authority determine.
(8) Ministers may give guidance to local authorities to assist them in the performance of their functions under this section.
(1) Any person authorised by the local authority to do so may enter any land for a purpose connected with the exercise or proposed exercise of any of the authority’s functions under this Part of this Act.
(2) A person so authorised may, subject to subsection (3) below, enter land only—
(a) at a reasonable time; and
(b) on giving reasonable notice to the owner of the land.
(3) Subsection (2) above does not apply—
(a) in case of emergency; or
(b) in relation to the exercise by a local authority of any of their powers under sections 15(1)(a) and (4) and 19 above in relation to land which is a core path.
(4) A person may, on entering any land by virtue of subsection (1) above, take onto the land any machinery, other equipment or materials required for the purpose for which the power of entry is being exercised.
(1) Ministers may give guidance to local authorities on the performance of any of their functions under this Part of this Act.
(2) Such guidance may be given generally or to a particular local authority.
(3) A local authority to which such guidance is given shall have regard to it.
(4) Before giving such guidance, Ministers shall—
(a) consult each (or the) local authority to whom they propose to give it; and
(b) lay a draft of the proposed guidance before the Scottish Parliament;
and the guidance shall not be given until after a period of 40 days beginning with the day on which the draft was so laid.
(5) If, within that period, the Parliament resolves that the guidance proposed should not be given, Ministers shall not give it.
(6) In calculating any period of 40 days for the purposes of subsection (4) or (5) above, no account is to be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days.
(1) It is competent, on summary application made to the sheriff, for the sheriff—
(a) to declare that the land specified in the application is or, as the case may be, is not land in respect of which access rights are exercisable;
(b) to declare—
(i) whether a person who has exercised or purported to exercise access rights has exercised those rights responsibly for the purposes of section 2 above;
(ii) whether the owner of land in respect of which access rights are exercisable is using, managing or conducting the ownership of the land in a way which is, for the purposes of section 3 above, responsible.
(2) It is competent, on summary application made to the sheriff, for the sheriff to declare whether a path, bridleway or other means of crossing land specified in the application is, or is not, a right of way by foot, horseback, pedal cycle or any combination of those.
(3) The proceedings for a declaration under subsection (1) or (2) above are those for an action of declarator initiated by summary application to the sheriff.
(4) A summary application for a declaration shall be served on the local authority.
(5) The local authority are entitled to be a party to proceedings for a declaration.
(6) Where the person seeking a declaration is the owner of the land, it is not necessary to serve the application on any person but the local authority.
(7) In any other case, the person seeking the declaration shall serve the application on the owner of the land.
(8) Rules of court shall provide—
(a) for the circumstances in which (including any time periods within which) a summary application may be made for the purposes of this section;
(b) for public notice of the making of summary applications for the purposes of this section;
(c) for enabling persons interested in the exercise of access rights over specific land or, as the case may be, in the existence of a right of way over specific land and persons or bodies representative of such persons to be parties to the proceedings;
(d) for limiting the number of persons and bodies who may be such parties.
(9) This section is without prejudice to any remedy otherwise available in respect of rights conferred and duties imposed by or under this Part of this Act.
(1) Scottish Natural Heritage may put up and maintain notices for the purposes of protecting the natural heritage of land in respect of which access rights are exercisable.
(2) The Scottish Ministers may put up and maintain notices for the purposes of protecting the cultural heritage of land in respect of which access rights are exercisable.
(3) Any notice put up under subsection (1) or (2) above may warn persons of any adverse effect that their presence on the land or any activities they might conduct there might have on the natural or, as the case may be, cultural heritage sought to be protected.
It is the duty of every person, body or authority having power under any enactment to make byelaws which may provide for or relate to public access to land in respect of which access rights are exercisable and which is owned or managed by that person, body or authority—
(a) within 2 years of the coming into force of this section, to review those of its byelaws which so provide or relate and are in force at the time of the review; and
(b) to modify any of those byelaws which are inconsistent with the provisions of this Act (including any made under it) as they apply to that land so as to make them consistent.
Sections 14 and 15 above apply in relation to rights of way by foot, horseback, pedal cycle or any combination of those as they apply in relation to access rights.
In this Part of this Act—
“Access Code” means the Scottish Outdoor Access Code issued by Scottish Natural Heritage under section 10 above;
“canals” means inland waterways within the meaning of section 92 (interpretation) of the Transport Act 1962 (c. 46);
“core path” means a path, waterway or any other means of crossing land such as is mentioned in section 17(2) above which is set out in a plan adopted under section 18 above or, as the case may be, such a plan as amended under section 20 above;
“cultural heritage” includes structures and other remains resulting from human activity of all periods, traditions, ways of life and the historic, artistic and literary associations of people, places and landscapes;
“inland waters” means any inland, non-tidal loch, river (to the extent that it is non-tidal), lake or reservoir, whether natural or artificial and whether navigable or not, and includes the bed and the shores or banks thereof;
“land” includes—
bridges and other structures built on or over land;
inland waters;
canals; and
the foreshore, that is to say, the land between the high and low water marks of ordinary spring tides;
“local authority” in relation to specific land in respect of which access rights are or would, but for a provision of or order made under this Act, be exercisable means—
where the land is, on the day on which this section comes into force, within an area designated as a National Park under the National Parks (Scotland) Act 2000 (asp 10), the National Park authority for that National Park; and
in any other case, the council (being a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39)) whose area includes that land;
“natural heritage” includes the flora and fauna of land, its geological and physiographical features and its natural beauty and amenity;
“owner”, in relation to land, means—
the owner of the land; and
where the owner is not in natural possession of the land, the person who is entitled to such natural possession;
“statutory undertaker” means—
a person authorised by any enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of hydraulic power;
the operator of a telecommunications code system;
an airport operator (within the meaning of the Airports Act 1986 (c. 31)) operating an airport to which Part V of that Act applies;
a gas transporter, within the meaning of Part I of the Gas Act 1986 (c. 44);
Scottish Water;
a holder of a licence under section 6(1) of the Electricity Act 1989 (c. 29);
the Civil Aviation Authority or a holder of a licence under Chapter I of Part I of the Transport Act 2000 (c. 38) (to the extent that the person holding the licence is carrying out activities authorised by it);
the Scottish Environment Protection Agency; or
a universal postal service provider within the meaning of the Postal Services Act 2000 (c. 26);
and “undertaking” means the undertaking of such a statutory undertaker; and
“telecommunications code system” and “operator”, in relation to such a system, have the same meanings in this Part of this Act as they have in the Telecommunications Act 1984 (c. 12).
Land Reform (Scotland) Act 2003