LOAFPaper5_Public Access in and around Carrbridge

CAIRNGORMS LOC­AL OUT­DOOR ACCESS FOR­UM PAPER 5

CAIRNGORMS LOC­AL OUT­DOOR ACCESS FORUM

Title: Pub­lic Access in and Around Car­rbridge Pre­pared by: Adam Streeter-Smith, Out­door Access Officer

Pur­pose:

1. Update mem­bers on the ongo­ing work in Carrbridge
2. To see advice on the points of clarification
3. To sup­port the Access Author­it­ies pos­i­tion on sea­son­al sig­nage and gates.

Back­ground

1. The Car­rbridge Caper­cail­lie Group have erec­ted tem­por­ary sea­son­al signs at a num­ber of loc­a­tions in Car­rbridge in part­ner­ship with the Cairngorms Nation­al Park Author­ity (CNPA), Police Scot­land and land man­agers. The signs request that dog own­ers keep their dogs on a lead in sens­it­ive areas of nearby wood­land (see annex 1).

2. There has also been a num­ber of quer­ies from the pub­lic regard­ing gates in the wood­lands around Car­rbridge that are either locked, inop­er­able due to veget­a­tion growth and/​or locked with side gates or stiles.

3. In response to a num­ber of ques­tions that have been asked, the CNPA is would like to provide the fol­low­ing points of cla­ri­fic­a­tion as the des­ig­nated body respons­ible for imple­ment­a­tion of the Land Reform (Scot­land) Act 2003 to mem­bers of the public.

Sea­son­al Signs

QI: Are the signs in con­tra­ven­tion of sec­tion 14 of the Land Reform (Scot­land) Act 2003?

• No, the signs are not found to be an obstruc­tion to out­door access rights under sec­tion 14 of the Land Reform (Scot­land) Act 2003’

• The signs do not seek to pre­vent or deter the pub­lic from legit­im­ately access­ing an area.

• The signs are advis­ory in nature and the use of lan­guage is appropriate.

Q2: Are the signs com­pli­ant with the advice set out in the Scot­tish Out­door Access Code (SOAC)?

1 Land Reform (Scot­land) Act 2003 (legis​la​tion​.gov​.uk)

CAIRNGORMS LOC­AL OUT­DOOR ACCESS FOR­UM PAPER 5

• Yes, the signs are com­pli­ant with guid­ance set out in the Scot­tish Out­door Access Code

• The require­ment for sig­nage at this loc­a­tion is sup­por­ted by the Cairngorms Loc­al Out­door Access For­um ( Microsoft Word — 100229 Paper 2 SOAC Guid­ance on dogs in sens­it­ive sites.doc (cairngorms​.co​.uk).

• The sig­nage is con­sist­ent with the Nation­al Access For­ums guid­ance on ​“Man­aging access with dogs in pro­tec­ted areas to safe­guard breed­ing birds” (Microsoft Word — B995303.doc (outdooraccess-scotland.scot)) that cites 3.45 and 3.46 of the Code (Pub­lic­a­tion 2005 — Scot­tish Out­door Access Code.pdf (outdooraccess-scotland.scot)). This sec­tion of the code states that as a respons­ible access taker caring for the envir­on­ment you must ​“fol­low­ing any agreed inform­a­tion aimed at pre­vent­ing sig­ni­fic­ant dis­turb­ance to pro­tec­ted plants, birds or oth­er anim­als, or at pre­vent­ing the spread of erosion in more sens­it­ive areas”.

• Fur­ther­more page 106 of the Code, ​“Nature Reserves and oth­er Con­ser­va­tion Areas” states that ​“access rights extend to these places but remem­ber that they are care­fully man­aged for nature con­ser­va­tion and to safe­guard rare anim­als and plants. Take care to avoid dam­aging the site or dis­turb­ing its wild­life, or inter­fer­ing with its man­age­ment or enjoy­ment by oth­ers. Depend­ing on your activ­ity, you might be reques­ted to fol­low a spe­cif­ic route or to avoid exer­cising access rights in a spe­cif­ic area: fol­low­ing such loc­al guid­ance can help to safe­guard the nat­ur­al her­it­age of these areas.”

Gates

Q3: Are all locked gates classed as an obstruc­tion under the Land Reform (Scot­land) Act 2003?

• No, it is a com­mon mis­in­ter­pret­a­tion that the Land Reform (Scot­land) Act 2003 requires that all gates are kept unlocked at all times.

• There are situ­ations where a landown­er can law­fully main­tain a gate in a locked condition.

• In cer­tain situ­ations, there may be a require­ment to climb over a gate or use a stile in order to exer­cise access rights. See Sec­tion 3.38 P35 here: https://www.outdooraccess-scotland.scot/sites/default/files/2018-

CAIRNGORMS LOC­AL OUT­DOOR ACCESS FOR­UM PAPER 5 09/Scottish%20Outdoor%20Access%20Code%20- %20Part%203%20Exercising%20access%20rights%20responsibly.pdf

• In determ­in­ing wheth­er a gate is locked law­fully or not there are a vari­ety of factors to con­sider including

  • the main pur­pose of locking
  • wheth­er there is delib­er­ate intent
  • avail­able alternatives
  • the rel­at­ive import­ance of the route/​path affected
  • land man­age­ment oper­a­tions being under­taken in the vicin­ity of the gate etc

• Cer­tain gates may there­fore be locked or unlocked at any time (tem­por­ar­ily or oth­er­wise) and this is some­thing not wholly under the con­trol of the law nor the CNPA.

• Where a gate affects a des­ig­nated core path, pub­lic right of way or an estab­lished high use path, for example, there is an expect­a­tion that these gates would remain unlocked and thereby pas­sage by the pub­lic unhindered.

• Where a locked gate is raised with the Author­ity on the basis of appar­ent obstruc­tion to access rights (S14 com­pli­ance) the author­ity must fully con­sider the fore­go­ing factors in assess­ing wheth­er lock­ing is or is not law­ful. In doing so it may be determ­ined that lock­ing is law­ful and thereby accept­able and in such cir­cum­stances no action towards unlock­ing is pos­sible. In all cases the Author­ity is open to leg­al chal­lenge and must present a defens­ible basis for its decisions and actions.

CAIRNGORMS LOC­AL OUT­DOOR ACCESS FOR­UM PAPER 5

Annex I

[Image of Signage]