The Land Reform Act 2003 in Scotland. Free legal information available

1. Land Reform (Scotland) Act 2003
2. Freedom of Information (Scotland) Act 2002
3. Adults with incapacity (Scotland) Act 2000
4. Mortgage Rights (Scotland) 2001
5. Hosing Act 2006

Part 1: Access rights

Chapter 1Nature and extent of access rights

1.      Access rights

(1)         Everyone has the statutory rights establishedby this Part of this Act.

(2)         Those rights (in this Part of this Act called “access rights”) are—

(a)      the right to be, for any of the purposes set out in subsection (3) below, on land; and

(b)      the right to cross land.

(3)    The right set out in subsection (2)(a) above may be exercised only—

(a)      for recreational purposes;

(b)      for the purposes of carrying on a relevant educational activity; or

(c)      for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

(4)    The reference—

(a)    in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to—

(i)           going into, passing over and remaining on it for any of those purposes and then leaving it; or

(ii)         any combination of those;

(b)    in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.

(5)    A “relevant educational activity” is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of—

(a)      furthering the person’s understanding of natural or cultural heritage; or

(b)      enabling or assisting other persons to further their understanding of natural or cultural heritage.

(6)    Access rights are exercisable above and below (as well as on) the surface of the land.

(7)    The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.

2.      Access rights to be exercised responsibly

(1)         A person has access rights only if they are exercised responsibly.

(2)         In determining whether access rights are exercised responsibly a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person, but—

(a)    a person purporting to exercise access rights who, at the same time—

(i)           engages in any of the conduct within section 9 below or within any byelaw made under section 12(1)(a)(i) below; or

(ii)         does anything which undoes anything done by Scottish Natural Heritage under section 29 below,

is to be taken as not exercising those rightsresponsibly; and

(b)    regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time—

(i)           disregarding the guidance on responsible conduct set out in the Access Code and incumbent on persons exercising access rights; or

(ii)         disregarding any request included or which might reasonably be implied in anything done by Scottish Natural Heritage under section 29 below.

(3)    In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised.

3.      Reciprocal obligations of owners

(1)    It is the duty of every owner of land in respect of which access rights are exercisable—

(a)      to use and manage the land; and

(b)      otherwise to conduct the ownership of it,

in a way which, as respects those rights, is responsible.

(2)    In determining whether the way in which land is used, managed or the ownership of it is conducted is responsible an owner is to be presumed to be using, managing and conducting the ownership of land in a way which is responsible if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them, but—

(a)      an owner who contravenes section 14(1) or (3) or 23(2) of this Act or any byelaw made under section 12(1)(a)(ii) below is to be taken as not using, managing or conducting the ownership of the land in a responsible way;

(b)      regard is to be had to whether any act or omission occurring in the use,management or conduct of the ownership of the land disregards the guidance on responsible conduct set out in the Access Code and incumbent on the owners of land.

(3)    In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights.

4.      Modification of sections 9, 14 and 23

(1)         Ministers may by order modify, for the purposes of section 2 and 3 above, any of the provisions of sections 9, 14 and 23 below.

(2)         They may do so generally (that is to say in terms similar to those in sections 2 and 3 above as enacted) or by making provision which relates to particular areas, locations or classes of land or to particular access rights or particular activities which may take place in the exercise of access rights or to particular ways of using, managing or conducting the ownership of land or any combination of those.

(3)         Before doing so, they shall consult such persons whom they consider to have a particular interest in the effect of the proposed modification (or associations representing such persons) and such other persons as they think fit.

5.      Access rights, reciprocal obligations and other rules and rights

(1)         The exercise of access rights does not of itself constitute trespass.

(2)         The extent of the duty of care owed by an occupier of land to another person present on the land is not, subject to section 22(4) below, affected by this Part of this Act or by its operation.

(3)         The existence or exercise of access rights does not diminish or displace any other rights (whether public or private) of entry, way, passage or access.

(4)         The existence or exercise of access rights does not diminish or displace any public rights under the guardianship of the Crown in relation to the foreshore.

(5)         The exercise of access rights does not of itself amount to the exercise or possession of any right for the purpose of any enactment or rule of law relating to the circumstances in which a right of way or servitude or right of public navigation may be constituted.

(6)         Access rights do not constitute a public right of passage for the purposes of the definition of “road” in section 151(1) (interpretation) of the Roads (Scotland) Act 1984 (c. 54).

(7)         A person exercising access rights is to be regarded as being in a public place for the purposes of section 53 (obstruction by pedestrians) of the Civic Government (Scotland) Act 1982 (c. 45).

Chapter 2Nature and extent of access rights: further provisions

6.      Land over which access rights not exercisable

(1)    The land in respect of which access rights are not exercisable is land—

(a)    to the extent that there is on it—

(i)      a building or other structure or works, plant or fixed machinery;

(ii)     a caravan, tent or other place affording a person privacy or shelter;

(b)    which—

(i)      forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

(ii)     forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

(iii)    consists of land contiguous to and used for the purposes of a school; or

(iv)    comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

(c)     to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden;

(d)    to which public access is, by or under any enactment other than this Act,prohibited, excluded or restricted;

(e)    which has been developed or set out—

(i)      as a sports or playing field; or

(ii)     for a particular recreational purpose;

(f)      to which—

(i)      for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

(ii)     after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted;

(g)    on which—

(i)      building, civil engineering or demolition works; or

(ii)     works being carried out by a statutory undertaker for the purposes of the undertaking,

are being carried out;

(h)     which is used for the working of minerals by surface workings (including quarrying);

(i)      in which crops have been sown or are growing;

(j)      which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.

(2)    For the purposes of subsection (1)(a)(i) above, a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure.

7.      Provisions supplementing and qualifying section 6

(1)         Section 6 above does not prevent or restrict the exercise of access rights over any land which is a core path.

(2)         Land which bears to be within section 6 above by virtue of a development or change of use for which planning permission was or is required under the Town and Country Planning (Scotland) Act1997(c.8) shall, if—

(a)    such planning permission has not been granted; or

(b)    such permission was granted subject to a condition which has not been complied with,

be regarded, for the purposes of that section, as if that development or change of use had not occurred.

(3)    Where planning permission for such a development or change of use of land has been granted, the land shall, for the purposes of section 6 above, be regarded, while that development or change of use is taking place in accordance with the permission, as having been developed or having had its use changed accordingly.

(4)    In section 6(1)(b)(iii) above, “school” means not only a school within the meaning of section 135(1) of the Education (Scotland) Act 1980 (c. 44) but also any other institution which provides education for children below school age within the meaning of that provision.

(5)    There are included among the factors which go to determine what extent of land is sufficient for the purposes mentioned in section 6(1)(b)(iv) above, the location and other characteristics of the house or other place.

(6)    For the purposes of section 6(1)(d) above, access rights do not extend to the land to which public access is prohibited, excluded or restricted only to the extent of the prohibition, exclusion or restriction.

(7)    Section 6(1)(e) above prevents the exercise of access rights over land to which it applies only if—

(a)    the land is being used for the purpose for which it has been developed or set out and, in the case of land which is not a sports or playing field, the exercise of those rights would interfere with the recreational use to which the land is being put;

(b)    the land is a golf green, bowling green, cricket square, lawn tennis court or other similar area on which grass is grown and prepared for a particular recreational purpose; or

(c)     in the case of land which is a sports or playing field, the surface of the land is comprised of synthetic grass, acrylic, resin or rubber granule.

(8)    For the purposes of section 6(1)(e) above, land which has been developed or set outfor a particular recreational purpose does not include land on which groynes have been constructed, deepening of pools has been undertaken, fishing platforms have been erected, or where other works for the purposes of fishing have taken place.

(9)    Section 6(1)(f) above does not prevent or restrict the exercise of access rights over land to which it applies by any person who forms part of a class of persons who are not, on the days taken into account for the purposes of determining whether that provision applies in relation to the land, required to pay to gain admittance to the land.

(10)  For the purposes of section 6(1)(i) above land on which crops are growing—

(a)    includes land on which grass is being grown for hay and silage which is at such a late stage of growth that it is likely to be damaged by the exercise of access rights in respect of the land in which it is growing, but otherwise does not include grassland;

(b)    does not include headrigs, endrigs or other margins of fields in which crops are growing,

and “crops” means plants which are cultivated for agricultural, forestry or commercial purposes.

8.      Adjustment of land excluded from access rights

(1)         Ministers may by order modify any of the provisions of section 6 and 7 above.

(2)         They may do so generally (that is to say, in terms similar to those in sections 6 and 7 above as enacted) or by making provision which relates to particular areas, locations or classes of land.

(3)         Before doing so, they shall consult such persons whom they consider to have a particular interest in the effect of the proposed modification (or associations representing such persons) and such other persons as they think fit.

9.      Conduct excluded from access rights

The conduct which is within this section is—

(a)    being on or crossing land in breach of an interdict or other order of a court;

(b)    being on or crossing land for the purpose of doing anything which is an offence or a breach of an interdict or other order of a court;

(c)     hunting, shooting or fishing;

(d)    being on or crossing land while responsible for a dog or other animal which is not under proper control;

(e)    being on or crossing land for the purpose of taking away, for commercial purposes orfor profit, anything in or on the land;

(f)      being on or crossing land in or with a motorised vehicle or vessel (other than a vehicle or vessel which has been constructed or adapted for use by a person who has a disability and which is being used by such a person);

(g)    being, for any of the purposes set out in section 1(3) above, on land which is a golf course.

Chapter 3The ScottishOutdoor Access Code

10.    The Scottish Outdoor Access Code

(1)    It is the duty of Scottish Natural Heritage to draw up and issue a code, to be known as the Scottish Outdoor Access Code, setting out, in relation to access rights, guidance as to the circumstances in which—

(a)    those exercising these rights are to be regarded as doing so in a way which is or is not responsible;

(b)    persons are to be regarded as carrying on activities, otherwise than in the course of exercising access rights, in a way which is likely to affect the exercise of these rights by other persons;

(c)     owners of land in respect of which these rights are exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is or is not responsible;

(d)    owners of land in respect of which these rights are not exercisable are to beregarded as using and managing, or otherwise conducting the ownership of it, in a way which is likely to affect the exercise of these rights on land which is contiguous to that land.

(2)    Scottish Natural Heritage shall consult local authorities and such other persons or bodies as they think appropriate about the proposed Access Code and then submit it (with or without modifications) to Ministers together with copies of any objections or representations made in response to that consultation.

(3)    On receiving a proposed Access Code, Ministers may—

(a)    approve it, with or without modifications; or

(b)    reject it.

(4)    Where Ministers reject a proposed Access Code under subsection (3)(b) above they may either instruct Scottish Natural Heritage to submit a new Code or they may substitute a Code of their own devising.

(5)    Where Ministers approve an Access Code with or without modification under subsection (3)(a) above or devise a Code themselves under subsection (4) above, they shall lay the proposed Code before the Scottish Parliament and Scottish Natural Heritage shall not issue the Code unless it has been approved by resolution of the Parliament.

(6)    The Access Code comes into operation on such date as Ministers fix.

(7)    It is the duty of—

(a)    Scottish Natural Heritage and local authorities to publicise the Access Code;

(b)    Scottish Natural Heritage to promote understanding of it.

(8)    Scottish Natural Heritage shall keep the Access Code under review and may modify it from time to time.

(9)    In reviewing the Access Code, Scottish Natural Heritage shall consult such persons or bodies as they think appropriate about the operation of the Code.

(10)  Subsections (2) to (6) above apply to modifications of the Access Code as they apply to the Code.

Chapter 4Regulation and protection of access rights

11.    Power to exempt particular land from access rights

(1)         The local authority may (whether on application made to them or not) by order under this section made in respect of a particular area of land specified in the order exempt it for a particular purpose specified in the order from the access rights which would otherwise be exercisable in respect of it during such times as may be specified in the order.

(2)         Before making an order under this section which would have effect for a period of six or more days, the local authority shall—

(a)    consult the owner of the land to which it would relate, the local access forum established by them and such other persons as they think appropriate; and

(b)    give public notice of the intended purpose and effect of the proposed order,

inviting objections to be sent to them within such reasonable time as is specified in the notice; and shall consider any such objections and any other representations made to them.

(3)    An order under this section which would have effect for such a period requires confirmation by Ministers.

(4)    It is the duty of the local authorityto send to Ministers—

(a)    copies of any objections made in response to the invitation under subsection (2) above; and

(b)    any other representations made to them,

in relation to an order requiring such confirmation.

(5)   Ministers—

(a)    shall not confirm such an order without considering any objections or representations sent to them under subsection (4) above; and

(b)    may cause an inquiry to be held for the purposes of enabling them to decide whether to confirm the order.

(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 (5)(b) above as they apply to one held under that section.

(7)   Ministers may—

(a)    confirm the order, with or without modifications; or

(b)    refuse to confirm it.

(8)    An order under this section takes effect—

(a)    where the order does not require to be confirmed by Ministers, from the date onwhich it is made or such other date as may be specified in it for the purpose; or

(b)    where the order requires to be so confirmed, from such date as is specified in it for the purpose or such other date as Ministers may direct when confirming it.

(9)    The local authority shall give public notice of their making an order under this section as soon as practicable after it is made or, where the order requires to be confirmed by Ministers, the authority receive notice of such confirmation.

(10)  The power of a local authority to make an order under this section includes power to revoke, amend or re-enact any such order.

(11)  Where a revoked, amended or re-enacted order would—

(a)    but for the revocation or amendment; or, as the case may be

(b)    by virtue of the amendment or re-enactment,

have effect for a period of six or more days beginning on or after the date on which itis revoked, amended or re-enacted, subsections (2) to (9) above apply in relation to the revocation, amendment or, as the case may be, re-enactment.

(12)  An order under this section has effect, subject to subsection (13) below—

(a)    for the period of two years beginning on the day on which the order takes effect;

(b)    where the order specifies that it is to cease to have effect for such shorter period as may be specified in the order, for that shorter period; or

(c)     where the order is revoked with effect from a day which falls before the end of that period or, as the case may be, that shorter period, until that day.

(13)  If, at any time before an order under this section ceases to have effect, the local authority which made the order re-enacts it, the order continues to have effect—

(a)    for the period of two years beginning on the day on which the order would otherwise have ceased to have effect under subsection (12)(a) or (b) above (or, as the case may be, under this paragraph or paragraph (b) below);

(b)    where the order (as amended or re-enacted) specifies that it is to cease to have effect for such shorter period as may be specified in the order, for that shorter period; or

(c)     where the order is revoked with effect from a day which falls before the end of that period or, as the case may be, that shorter period, until that day.

12.    Byelaws in relation to land over which access rights are exercisable

(1)    The local authority may, in relation to land in respect of which access rights are exercisable, make byelaws—

(a)    making provision further or supplementary to that made—

(i)      by sections 2 and 9 and under section 4 above as to the responsible exercise of access rights; and

(ii)     by section 3(2) and under section 4 above as to the responsible use, management and conduct of the ownership of the land;

(b)    specifying land for the purposes of section 6(j) above;

(c)     providing for—

(i)      the preservation of public order and safety;

(ii)     the prevention of damage;

(iii)    the prevention of nuisance or danger;

(iv)    the conservation or enhancement of natural or cultural heritage.

(2)    Byelaws made under section (1)(c) above may, in particular—

(a)    prohibit, restrict or regulate the exercise of access rights;

(b)    facilitate their exercise;

(c)     so as to protect and further the interests of persons who are exercising or who might exercise access rights, prohibit or regulate—

(i)      the use of vehicles or vessels;

(ii)     the taking place of sporting and recreational activities;

(iii)    the conduct of any trade or business;

(iv)    the depositing or leaving of rubbishor litter; and

(v)     the lighting of fires and the doing of anything likely to cause a fire,

on the land.

(3)    Byelaws made under this section shall not interfere with the exercise of—

(a)    any public right of way or navigation; or

(b)    the functions of a statutory undertaker.

(4)    Sections 202 to 204 (byelaws) of the Local Government (Scotland) Act 1973 (c. 65) apply to byelaws made under this section as they apply to byelaws made under that Act, but with the following modifications and further provisions.

(5)    The references to one month in subsections (4), (5) and (7) of section 202 shall be read as references to such period of not less than 12 weeks as the local authority determine.

(6)    The local authority shall, at the same time as they first make the proposed byelaws open to public inspection, consult the persons and bodies mentioned in subsection (7) below on the proposed byelaws.

(7)    Those persons and bodies are—

(a)    every community council whose area includes an area to which the proposed byelaws would apply;

(b)    the owners of land to which the proposed byelaws would apply;

(c)     such persons as appear to them to be representative of the interests of those who live, work, carry on business or engage in recreational activities on any land affected by the proposed byelaws;

(d)    the local access forum established by them;

(e)    every statutory undertaker which carries on its undertaking on land to which the proposed byelaws would apply;

(f)      Scottish Natural Heritage;and

(g)    such other persons as they think fit.

(8)    The local authority are, for the purposes of subsection (6) above, to be taken as having consulted a person of whom or a body of which they have no knowledge or whom or which they cannot find if they have taken reasonable measures to ascertain whether the person or body exists or, as the case may be, the person’s or body’s whereabouts.

Chapter 5Local authority functions: access and other rights

13.    Duty of local authority to uphold access rights

(1)         It is the duty of the local authority to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised.

(2)         A local authority is not required to do anything in pursuance of the duty imposed by subsection (1) above which would be inconsistent with the carrying on of any of the authority’s other functions.

(3)         The local authority may, for the purposes set out in subsection (1) above, institute and defend legal proceedings and generally take such steps as they think expedient.

14.    Prohibition signs, obstructions, dangerous impediments etc.

(1)    The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so—

(a)    put up any sign or notice;

(b)    put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

(c)     position or leave at large any animal;

(d)    carry out any agricultural or other operation on the land; or

(e)    take, or fail to take, any other action. <