What are they?
The Land Reform (Scotland) Act 2003 ("the Act") created a new, and conditional, right of access to land (commonly and inaccurately called the "the right to roam"). The Act also created the concept of Core Paths.
The Act created a statutory duty on Scotland's 32 Local Authorities and two National Park Authorities ("the Authorities") to draw up for its area a plan for a network of paths, to be known as Core Paths, which should provide the basic framework of routes "sufficient for the purpose of giving the public reasonable access throughout the area"(1).
Although deemed "Core Paths" it is better to think of core routes as a Core Path may not be a surfaced pathway. The access rights apply to inland water so a Core Path can be a route designated along a river or across a loch. Even where Core Paths are on land, they can comprise a variety of types from a trodden grass or earth to a pavement.
(1) The Land Reform (Scotland) Act 2005 Section 17
The process
The Paths for All Partnership and Scottish National Heritage produced Core Path Plans - a Guide to Good Practice , which most Authorities have used for a template for the process. This involves two rounds of informal consultations prior to the Authority preparing the draft Core Path Plan and carrying out formal consultation. After the formal consultation, the Authority analyses the representations and objections and thereafter tries to resolve them. Where the Authority does resolve objections they can adopt the plan. If they cannot be resolved, the draft plan goes to a public inquiry and can only be adopted after the outcome of such inquiry.
Local Access Forum
An important partner of the Authorities in the process is the Local Access Forum, which the Authorities are duty bound by the Act to establish. These forums have two statutory functions:-
- To advise on access rights, rights of way and the development of a core path plan; and
- To offer assistance in disputes about access rights, rights of way, core path planning and the use of core paths.
Although the Act required such forums to be established they have been developing since 1998. Each Authority area has a forum. Scottish National Heritage and Paths for all Partnership has produced a Local Access Forum Guide to Good Practice .
Usually, each forum should include representatives from public agencies (such as local enterprise companies and the local authority); land managers, land users (such as cyclists, walkers, people with disabilities and horse riders); and community interests (such as community councils and residents association). Their general purpose is to facilitate those different groups to reach agreement on how to develop and manage access together.
Consequences of Core Path status
The use of the term "adopted" has led to a misconception that a Core Path is "adopted" for maintenance in the same way as a public highway is "adopted".
The Authorities are to use their powers for the effective management of the Core Path network. However, that does not necessarily mean taking over maintenance of such a path.
It is the Core Path Plan the Authority adopts and has duties in relation to, not the paths themselves. There is specifically no obligation on the Authorities to maintain the Core Paths although they do have the power to do anything they consider appropriate to maintain Core Paths. The physical maintenance of path infrastructure is a matter of discretion - no single party is charged by the Act with full responsibility of its maintenance and duties. Without any specific arrangement put in place between the land owner and the Authority the position and legal liabilities relating to maintenance are broadly unchanged whether a path is a Core Path, a right of way or whether access is taken under the statutory access right.
There is also nothing in the legislation or guidance to prevent essential temporary closures for land management operations. However, the Authority would want to be kept aware of closures so that they can keep the information regarding Core Paths they provide to the public up-to-date.
The Authorities have the power to enter into Path Agreements
with a landowner dealing with the delineation, maintenance and, if
necessary, creation of a path within the land, but these are not
mandatory. The Authorities also have the power to invoke a Path
Order where it appears to be impractical to enter into a path
agreement. In such circumstance the Authority has a duty to
maintain the path regardless of whether the Order delineates an
existing Path or creates a new one. Cairngorm National Park
Authority is the first authority to invoke a Path Order. It relates
to an extension of the Speyside Way. The Park Authority reported
that their negotiations to secure agreements with land managers
along the route had progressed well with the exception of one
estate to the South of Aviemore. The owners of the estate believe
the proposed route would interfere with conservation efforts as
well as affect the value of their property. If the owners object to
the Order being made, the final decision rests with the Scottish
Ministers.
There are additional powers for the Authority to put up signage,
require remedial action from landowners and acquire land by
agreement or compulsorily. The Core Paths will be clearly shown on
the official Core Path maps and also on commercial maps produced.
It is intended that Core Paths will be well sign posted on the
ground so the public can use them confidently.
Core Paths are additional to and do not detract from the general statutory access right on and across any land which has not been excluded from the right. Core Path can consist of existing rights of way as well as new routes and pathways. A Core Path can be across land that would otherwise be excluded from the general statutory access right.
Responsible Access
The Act is accompanied by The Scottish Outdoor Access Code which details how the access rights afforded by the Act should be exercised as well as providing guidance for landowners.
Despite the creation of access rights and Core Paths, the extent of the duty of care owed by an occupier of land to another person on the land is not increased or diminished by these access rights. Therefore the existing legal position under the Occupiers Liability (Scotland) Act 1960 applies to people taking access to the land in terms of the statutory right or by use of a Core Path.
To briefly summarise, the liability of an occupier is to show a duty of care towards people on their land at the level which it is reasonable to foresee will be needed so that people do not suffer injury or damage. The occupier needs to consider injury or damage which may be caused as a result of any dangers due to the condition of the property, or of anything done or omitted to be done by the occupier which is his legal responsibility. What is reasonable will depend on the circumstances of each case.
Also, the Health and Safety at Work etc. Act 1974 imposes duties on employers to persons other than employees, which would include members of the public taking access to the countryside. The basic requirement applies for an employer to ensure that risks are not created to any person's health and safety in the way the undertaking is run, subject to reasonable practicability.
One of the core principles of the Act is that the people taking access should take responsibility for their own actions. The nature of the dangers such as the obviousness of the condition of the ground would be taken into account in questions of liability.
Current Status of Core Path Plans
Although by now all authorities should have adopted Core Path plans as at May 2010 only 15 authorities have adopted plans in place.
Once a plan is adopted, unlike local plans there is no set period for review. Authorities should review their plan when they consider it appropriate. Scottish Ministers may also direct and authority to review their plans. This might be due to a perceived failure to confirm whether statutory duties in terms of the act with regard Core Paths.
Although there is no set time frame, it is expected the Core Paths Plan will be incorporated into the local plan and they can then be reviewed simultaneously.
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