A Fragile Right To Roam
Cameron McNeish ponders the future of Scots access laws
IT was one of those chance encounters that make you realise how lucky we outdoorsy folk are in Scotland. A woman, obviously on holiday from England, stopped me in our village and asked for some advice on where she could go for a walk. I suggested she walked up the road into our local glen and follow the river for a bit.
“Oh,” she said, “I’ve been up there but it looks like private land. I wasn’t sure if I could walk there.”
I assured here we have a right to roam in Scotland and she could walk freely. I explained she wasn’t breaking any laws and that she wouldn’t be trespassing.
I’m not sure I convinced her but off she went anyway, if a little tentatively. Meanwhile, I couldn’t help but enjoy a small glow of pride that we have such rights in Scotland, one of few countries in the world where a right to roam is legal – if carried out responsibly.
However, I’ve also been reminded recently that such “rights” are fragile and there are those in power who would be happy to see them revoked.
The recent actions of a west Highland landowner show that, despite the access provisions of the Land Reform (Scotland) Act 2003, there are still those who own land in Scotland that seem eager to deny us such legal rights.
Such individuals are few and far between, and the vast majority of Scotland’s land managers are supportive of our access provisions. However, it only takes one individual to set a bad example and create a precedent which others might follow.
I believe one notable example is the situation in the Loch Lomond and Trossachs National Park. The supreme irony, of course, is that in this case it wasn’t a landowner taking a cavalier attitude to our access rights, but the management of our very first national park.
Who would have thought it? The famous shores of Loch Lomond between Balmaha and Rowardennan have always attracted the crowds, especially on holiday weekends in spring and summer. It’s traditionally one of those popular spots where families from Glasgow would go to escape the city for a few hours. Unfortunately, the area also attracted some who have little respect for the countryside, who we now refer to as “dirty campers”.
In the past, the police dealt with such lawbreakers, but the National Park has stepped in and created camping permits and bylaws to prevent people wild camping on parts of the east shore of Loch Lomond – and, in doing so, eroding the legal rights of innocent backpackers.
This includes many West Highland Way walkers
“He warned us the fight had just begun, it” and that people would try to oppose
and all those who for generations have camped by Loch Lomond without causing any problems.
Last summer – the first holiday season after Covid-19 restrictions – encouraged by the Loch Lomond example, local councillors and community groups across Scotland called for similar bylaws as people were freed from lockdown and gathered in popular countryside hot spots.
Thankfully the Scottish Government decided bans and bylaws were not the way forward.
There were claims of campervanners dumping waste, blocking access and leaving laybys in a mess – but there was little photographic evidence to back up these claims.
Despite calls for “no-camping zones” and campervan bans, the Scottish Government has instead funded local councils through their Rural Tourism Infrastructure Fund to help create better parking areas and overnight pitches for campervans and motorhomes.
Going back a few years, it wasn’t unusual for some landowners to try to curb access. The access provisions of the Land Reform (Scotland) Act 2003 enshrined the right to roam in legislation if done so responsibly.
The Act was seen as progressive and among the best in the world, and the legislation was accompanied by a Scottish Outdoor Access Code, which laid out the responsibilities of both the public and land managers.
I remember with fondness the celebrations that followed. I had just served three years as president of Ramblers Scotland and had been working with Dave Morris, the Ramblers’ director, campaigning for the new legislation.
Yet, in the years since, we have seen a small but steady flow of attempts to counter the access provisions with fences, padlocked gates and “no entry” signs.
I’ll always remember what Dave Morris said on the eve of the publication of the legislation – he warned us the fight had just begun, and that there would be those who would try to oppose it.
His words were prophetic. In 2007, businesswoman Ann Gloag, co-founder of the Stagecoach bus company, built a six-foot high fence around a 12-acre enclosure which included her home, Kinfauns Castle in Perthshire.
She argued the enclosure fell within an exception to the Act’s right of access – Section 6 provides that access rights are not exercisable over land which “comprises, in relation to a house... sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house... and to ensure that their enjoyment of that house... is not unreasonably disturbed”.
The local authority and Ramblers Scotland appealed to have a section of the fence taken down, under the Land Reform (Scotland) Act 2003, so that the woodland – which formed part of the area enclosed by the fence – would continue to be open to the public.
The case went to court and Sheriff Michael Fletcher found in favour of Mrs Gloag.
A short time later, businessman Euan Snowie made a very similar case regarding his estate at Boquhan in Stirlingshire. It was also opposed by Ramblers Scotland but this time a different sheriff ruled in favour of the Ramblers and the provisions of the Land Reform Act.
Both of those cases fall into insignificance against the recent actions of the owner of a west Highland estate – he reported a retired couple to police for “aggravated trespass” for daring to walk through his woodlands.
The wealthy estate owner insisted the couple were trespassing – despite the fact they had walked the route regularly for more than 40 years.
Dr Michael Foxley, a former Highland councillor and a member of the Lochaber Access Forum, told me there were no less than 17 locked gates on the estate – breaching the provisions of the Land Reform (Scotland) Act and the Scottish Outdoor Access Code.
“The routes are in walks leaflets and on old maps,” he said. “I thought these days were gone, long gone.” Sadly, it would seem such days are still with us.
I still have many questions regarding this case and I wonder why the police charged the elderly couple with aggravated trespass. If anything it’s a civil case and not a criminal one. You’d have thought the police would know better. As it was, the procurator fiscal did know the difference and threw the case out.
Deer fencing is another issue that has returned to haunt those who cherish the notion of open access.
Red deer control at Creag Meagaidh, Glen Feshie, Alladale, Loch Ossian and other Highland estates clearly demonstrates the best way to protect new woodland from browsing deer is to reduce the deer to sustainable levels. However, some landowners are reluctant to reduce the deer count on their estates, fearing a lack of stags for their clients to shoot.
Instead of reducing deer numbers, fencing is used to protect areas of woodland and vegetation – leading to
“It only takes one individual landowner to precedent” set a bad example and create a
rich vegetation within the fenced area and a wet desert, bereft of vegetation, outside.
Such fences not only keep deer and sheep out, but humans, too – that’s why the Scottish Outdoor Access Code makes it clear that any deer fencing should have adequate access points for the public.
It seems to me that compliance with the code only lasted a few years. As part of its campaign against climate change, the Scottish Government’s Forestry Grant Scheme encourages landowners to plant more trees and funds the erection of hundreds of miles of new deer fencing throughout the country.
While it’s encouraging that the government is taking its climate change battle seriously, I find it demoralising to think that some landowners are using the grant aid to fund new timber production, with its associated carbon cost of road freight – not to mention the visually damaging aspects of clear fell and a lack of access entry points in the fencing in many areas for frustrated climbers and walkers.
Mind you, some folk have not been helping matters. Release of lockdown restrictions has been met with an influx of people heading for the countryside.
Some areas have been treated savagely – with trees cut down for firewood, copious amounts of litter, out-of-control barbecues causing fires and human excrement piling up in car parks and laybys.
Car parking at popular locations has been hazardous and, in some cases, local folk have been unable to go about their business because of inconsiderate drivers.
It would appear many people are completely unaware of the responsibilities that go along with Scotland’s liberal access laws and the more these responsibilities are ignored, the louder the call will be to repeal – or at least dilute – the access provisions of the Land Reform Act.
I believe education is the answer. People of my generation enjoyed the benefits of council-run outdoor centres where we learned how to behave in the great outdoors. Very few of those centres exist now.
Most folk knew the basics of the Countryside Code and, in the early years of the Land Reform Act, there were regular government-sponsored adverts on TV reminding us of our responsibilities. Maybe it’s time we had a good think about education and a rerun of those adverts, too.
If we don’t, a section of the public will continue to treat the countryside badly and there will be increasing calls for a repeal of the Land Reform (Scotland) Act 2003.
If that happens, we could be looking at the complete shutdown of Scotland’s countryside and a very unhappy future for all who love our wonderful wild places.