PET(3)-AIW-SWE-006

Petitions Committee

Inquiry into Access along Inland Water

Response from Scottish Rural Property and Business Association (dated 25 February 2009)

‘The Welsh Assembly Government is urged to consider and implement a Bill to benefit Wales that would enshrine access rights and responsibilities for the public to and along natural resources in the same way that the Scottish Land Reform Act encourages co-operative use of the outdoors for healthy, low impact recreation.

This bill must provide and permit access to and along non-tidal water in the face of the massive lack of legal clarity and restrictions that exist at present, which act as a barrier to sport and recreation and the promotion of Wales as a place to visit for Adventure Tourism.’

SRPBA Responses:

In considering the petition being put to the Welsh Assembly by the Welsh Canoe Association (now Canoe Wales), the Scottish Rural Property and Business Association would wish to specifically comment on:-

• The legal clarity sought through the implementation of the proposed Bill; and  

• the extent to which the Land Reform (Scotland) Act 2003 (the Act) has resolved conflicts between riparian owners/managers and water users and between different recreational water users with potentially competing interests.

1. Legal clarity

Prior to the introduction of Part 1 of  the Act, access had been taken on most land and inland water in Scotland on the basis of tolerance by the landowner or after permission had been obtained or by utilizing common law rights of way or navigation rights.  For many access-takers, that situation probably did not cause undue concern.  However, in situations where access was challenged or where the access-taker wished to be on land not frequented by others, it is possible to see that they would have felt unsure of their legal position.  How this compares with the situation in Wales is not known.

The legal position has obviously now fundamentally altered in Scotland.  However, the legislation in Scotland has not created a nationally prescriptive set of rules that are instantly easy to follow, but rather offers scope for the local pragmatic management of access.  The right relies heavily on the reasonable behaviour of individuals and the ability of access-users to recognize and react appropriately to various land management and environmental situations.  SRPBA in general support the approach taken by the legislation in so far as it provides a flexible approach, however interpretation of reasonable and responsible behaviour varies a great deal, as does the knowledge of access-takers about their surroundings.  We would have to say that as a result there is still dispute over some of the circumstances where access rights might apply.

2. Conflict Resolution

The petition to the Welsh Assembly uses the term “low-impact recreation” in relation to the Scottish Act.  In the Scottish context much of the activity undertaken utilising access rights is indeed low impact and by its very nature this activity when conducted responsibly poses few problems to land and riparian owners.  However, the Act in Scotland covers being on land or inland water for recreational or educational activity and commercial use where the activity could be carried on non-commercially; it draws no distinction between what might be termed low impact or high impact recreation, nor does it in fact define recreational activity.  

While we wouldn’t wish to overstate the incidence of these activities, there are a few places in Scotland where recreational activities occur fairly intensively.  In these places there can be an impact on existing land use or between competing recreational activities.  Specifically in terms of inland water the issue that tends to be reported is conflict situations between anglers and paddlesports enthusiasts, including commercial rafting activity.

These clashes occurred prior to the introduction of the Act and it could not be said that the Act itself has resolved these conflicts; some riparian owners would argue the situation has become more difficult for them to manage as a result.  The Act has however put in place an infrastructure to assist with finding the local pragmatic management solutions the approach advocates.  It has placed a statutory duty on local authorities to “uphold access rights” and to create an advisory body, a local access forum, which can assist in dispute resolution.  It also requires Scottish Natural Heritage to publish and promote the Scottish Outdoor Access Code to provide guidance on what constitute responsible behaviour for both access-takers and land managers.  As well as this, membership organizations such as SRPBA, the Scottish Canoe Association, Ramblers Scotland and so on have been funded to produce their own guidance leaflets and have worked collaboratively to produce joint guidance.  SRPBA, the Scottish Canoe Association, Scottish Natural Heritage and the Paths for All Partnership are currently working on a collaborative guidance document “Using Inland Water Responsibly: Guidance for All Users”.  Further, the Scottish Rural Development Programme includes funding measures to assist land managers with managing access on their landholding.  These support mechanisms are essential to the Scottish approach and we feel it would be inadvisable to bring in access legislation of the Scottish type which did not also include a similar level of publicly-funded support.  

As an example of the “management” rather than “prescription” approach, the aim of the joint guidance document currently being developed is to raise awareness of the needs of all waters users, to highlight the sort of actions every water user should take to ensure they are behaving in a way that could be considered responsible and to offer some suggested strategies for sharing intensively used stretches of water.  Strategies highlighted in the document include:-

• Fostering a culture of mutual respect,

• Pro-active communication such as regularly arranged formal and informal meetings,

• Sharing facilities such as car parking,

• Use of local voluntary agreements,

• Setting up users’ groups.

For these strategies to work there needs to be a willingness on both sides to make them work.  This can be the case and these strategies can work where a willingness exists.  It would be fair to say that for some owners managing fishing interests on stretches of rivers where intensive recreational use is common, and where they do not encounter this willingness, they are left feeling somewhat powerless.  

The Act does give local authorities the power to regulate activities by byelaws.  In practice local authorities have been reluctant to go down this route and in fact where common law navigation rights exist byelaws cannot supersede them anyway.  Regulatory powers in general though become difficult to implement because identification of an access-user who is felt to be behaving irresponsibly is difficult so the local authority cannot take follow-up action and there is no body which can assert control over any particular class of access-user.  

As above, we wouldn’t want to overstate the occurrence of problematic incidents, but we could not say that the Act has in itself resolved conflict situations.