National Access Forum - 21 September 2022

National Access Forum – 58^th meeting on Wednesday 21 September 2022,  10.30 – 12:00 (virtual via MS Teams)

1. Welcome, introductions, apologies – Don Milton – Convenor - 10:30 – 10:35
2. Minutes of previous meeting, & action points and matters arising – 10:35 – 10:50 - (Revised unconfirmed minutes from the hybrid meeting held 8 June 2022 attached)

• AP 56/3: Mark Wrightham to circulate a paper to the camping sub-group to look at the cumulative impacts of camping; potential actions could then be considered by the Forum. On- going: A paper has been circulated to the sub-group and a report will be made to the September NAF meeting.
• AP 56/4: Mark Wrightham to set up a small sub-group to revise the access and wildlife disturbance guidance and report to the Forum on any recommendations. On- Going: A first draft of revised guidance will be circulated to the sub-group and a report will be made to the September NAF meeting.
• AP 56/5: NatureScot to investigate the legal position on liability for third party promotion of paths. On- going.
• AP 57/1: Graeme McLean to work with Forum partners as plans to address the e-MTB study’s recommendations are developed.
• AP 57/2: Forum members wishing to be part of a working group to look at wild deer management and access should inform the NAFsec.  Discharged
• AP 57/3: Comments on the ‘Roads and access rights’ draft guidance note should be sent to Mark Wrightham by the end of June.  Discharged. See agenda item 3.
• AP 57/4: Forum members are requested to send comments to the Convenor and NAFsec on whether updated guidance on the publication of route information is required and how this should be taken forward.  Discharged.
• AP 57/5: Forum members wishing to join the access resources sub-group were invited to contact the NAFsec by the end of June.  Discharged. See agenda item 4.
• AP 57/6: Volunteers for a small working group and ideas for the NAF/LAF autumn meeting were invited and should be sent to the NAFsec.

3. Roads and Access Legislation  -  Guidance Note attached for info  -  10:50  -  11:00

4. Resources for Access -  Helen Todd, Ramblers Scotland  -  11:00 – 11:10

5. Membership Review Phase 2 – Alan Macpherson, NatureScot  – paper attached  -  11:10 - 11:20

6. Convenorship extension – Eileen Stuart, NatureScot  -  paper attached  -  11:20 – 11:30

7. Forthcoming meetings & agenda items - Don Milton - updated work programme attached 11:30 – 11:40

• NAF meeting – Wednesday 8 February 2023 – Battleby & online tbc
• NAF meeting - Wednesday 7 June 2023 – venue tbc
• NAF meeting - Wednesday 20 September 2023 – venue tbc

8. Any Other Business (please inform the secretary of any substantive items)  –  11:40 – 11:55

• Nick Cole - participation in and effectiveness of LAFs
• Nick Cole - a fencing issue – photo attached

Close – 11:55

Purpose

This brief guidance note summarises the interaction between the Roads (Scotland) Act 1984 and outdoor access rights under the Land Reform (Scotland) Act 2003. It is primarily intended for officers in roads, planning and access authorities, and Police Scotland. This note has been produced by the National Access Forum, which brings together all relevant interests to advise on access rights and access management in Scotland.

Access rights under the Land Reform (Scotland) Act 2003

The Land Reform (Scotland) Act 2003 has established statutory rights of access to most land for recreation and related purposes, subject to responsible behaviour as set out in the Scottish Outdoor Access Code.

• These access rights extend to all non-motorised users (NMUs), including walkers, cyclists, horse-riders and wheelchair users, and includes motorised vehicles “constructed or adapted” for users with disabilities[1]. These users all coexist on the basis of responsible and considerate shared use in line with the Scottish Outdoor Access Code.
• These rights apply to all land with some exceptions, such as buildings and associated land (including a garden or the curtilage of a commercial building), or land which is excluded from access by other legislation.
• Local and National Park authority access officers have key roles in supporting access and helping to manage any issues, with advice from local access forums.

These statutory access rights are important for a wide range of NMUs and are now the usual default expectation among these users in most outdoor settings, ranging from hill and coastal areas to urban paths, greenspace and the urban fringe.

Purpose

This paper briefly outlines action taken since the NAF meeting on 8 June to progress the second phase of the membership review covering representation within the ‘Public bodies’ and ‘Others’ groupings.

Action

Members are invited to note the progress with the second phase of the membership review, with the process to be concluded at the NAF meeting in February 2023, when the outcome of the member consultation will be presented and decisions sought, if required, on membership.

Background

The first phase of the membership review looked at the representation of ‘Recreation Bodies’ and ‘Land Management’ bodies on the Forum. For the ‘Recreation Bodies’ grouping this concluded with the Forum agreeing to Scottish Cycling (represented by Developing Mountain Biking in Scotland) taking up the vacancy arising from Scottish Sports Association’s desire to move from full member to corresponding membership status. The review resulted in no changes within the ‘Land Management’ grouping although the Forum encouraged the development of a close working relationship between the National Sheep Association (Scotland) and the SLE and NFUS representatives.

Progress with Phase 2

All current full and corresponding members within the ‘Public bodies’ and ‘Others’ groupings, totalling some 65 organisations, were contacted by email in August to ascertain if they wished their status to remain the same. Responses were requested by 9 September (Others) and 15 September (Public bodies).

1. ‘Public bodies’ grouping

The outcome of the 2018 membership review resulted in the Forum having seven public body full members. Three are permanent members – Scottish Local Authorities, the National Park Authorities (one joint seat), and NatureScot (which is non-voting) with the other four seats held by Local Access Forums, sportscotland, Police Scotland and Forestry Commission Scotland (FCS).

Some change in representation within this grouping is inevitable given that the intervening years have seen significant reform of the public forestry sector, with the creation in 2019 of Scottish Forestry and Forestry and Land Scotland as separate executive agencies of the Scottish Government. Prior to this FCS was the full member, supported and assisted by Forest Enterprise which attended relevant meetings and engaged with relevant working groups.

Responses have been received from ten of the nineteen organisations in this grouping.  sportscotland has indicated that it would like to continue its involvement with the Forum, but as a corresponding rather than a full member.  Scottish Forestry (SF) and Forestry and Land Scotland (FLS) have both requested full membership of the Forum. Within this grouping, Scottish Enterprise has indicated that it no longer wishes to be a corresponding member.

Since their establishment, both SF and FLS have, in practice, engaged actively with the NAF and attended Forum meetings and working groups, continuing the involvement of their predecessor bodies. However, the current membership review provides the first opportunity for the Forum to formally consider their membership status. The requests from SF and FLS will need to be considered, within the confines of the Forum’s operating principles, when responses have been received from all the organisations in the public sector grouping.

2. ‘Other bodies’ grouping

The outcome of the 2018 membership review resulted in the Forum having six full members representing ‘other bodies’. In accordance with the operating principles, these include at least one representative of education interests within access rights; commercial interests within access rights, and; conservation interests. Since 2018, these three roles have been fulfilled by the Scottish Advisory Panel for Outdoor Education, Wild Scotland and Woodland Trust Scotland respectively. The remaining three seats (for bodies which do not fall into any of the above categories) have been occupied by Kennel Club/Scottish Kennel Club, Scotways and Paths for All Partnership.

Responses have been received from 16 of the 46 organisations within this grouping, including four of the six current full members – SAPOE, Woodland Trust Scotland, Kennel Club/Scottish Kennel Club and ScotWays.

Next steps

Replies from full and corresponding members in these two groupings are still being received. Organisations that have not yet responded will be further chased - delays are often the result of the timeline for organisations’ internal approval procedures or named contacts for corresponding members having left or changed roles in the organisation, with the need to firstly identify a replacement contact.  The intention is, therefore, to present the results of this phase of the review and seek decisions on membership at the NAF meeting in February 2023.

Pending the conclusion of the membership review, the current list of NAF members (full and corresponding) is provided in Annex A. This has been updated to reflect organisational name changes confirmed during the review process:  Public Health Scotland; Office of Rail and Road; Disability Equality Scotland; and The Outward Bound Trust.  Moray House - Outdoor & Environmental Education Group has been added as a new corresponding member and Scottish Enterprise deleted as a corresponding member.

September 2022

(NB - reported information correct at 14 September)

Annex 1 - National Access Forum - Current Members (September 2022)

Full members are indicated in bold, and attend meetings; the other bodies are the Corresponding Member organisations who are emailed all meeting details and can submit comments for meetings/discussions.

Virtual meeting: 21 September 2022

Present:

Item 1 – Welcome & introductions

The Convenor opened the virtual meeting welcoming everyone to the Forum. He specifically welcomed Richard Armstrong as Paths for All’s representative at this meeting in place of Rona Gibb, Alasdair McNab for NFUS in place of Gordon McKilligan, and Fiona Murray who took over from Stuart Chalmers for the 2^nd half of the meeting.

Apologies:  Colin Shedden (BASC), Paul Timms (Cycling UK Scotland), Andrew Hopetoun (Historic Houses Association), Rona Gibb (Paths for All), Hugh McNish (Scottish Forestry), Simon Ovenden (SLE), Angus Duncan (Scottish Local Authorities), Roy Barlow (Woodland Trust)

Item 2 – Minutes, action points and matters arising from previous meeting

1. Minutes: - the revised unconfirmed minutes of 8 June 2022 previously circulated were approved with no further amendments.
    
2. Action points: –

AP 56/3: Mark Wrightham to circulate a paper to the camping sub-group to look at the cumulative impacts of camping; potential actions could then be considered by the Forum. On- going: No further progress since paper circulated to the sub-group for comment earlier in the summer but report from Scottish Government and NatureScot presenting behavioural research on promoting responsible camping to be published early October and associated webinar - Full report;  Summary.

AP 56/4: Mark Wrightham to set up a small sub-group to revise the access and wildlife disturbance guidance and report to the Forum on any recommendations. On- Going: The sub-group met 20 June and further revisions to the draft revised guidance will be made before the group reconvenes, with the aim of completing the guidance by March 2023. The current guidance is still available and relevant.

AP 56/5: NatureScot to investigate the legal position on liability for third party promotion of paths. On- going: Bridget Jones from NatureScot is considering how best to take forward.

AP 57/1: Graeme McLean to work with Forum partners as plans to address the e-MTB study’s recommendations are developed. The GB partners met 15 September and agreed to launch the study on 4 October at the Scottish Mountain Biking conference. The report will be published on the British Cycling website, and DMBinS will liaise with partners in Scotland to discuss its findings.

AP 57/2: Forum members wishing to be part of a working group to look at wild deer management and access should inform the NAFsec.  Discharged. There are 10 members of the working group which will meet before Christmas with ADMG in the Chair and assisting with administering the work of the group. Any other volunteers wishing to join the group should contact NAFsec.

AP 57/3: Comments on the ‘Roads and access rights’ draft guidance note should be sent to Mark Wrightham by the end of June.  Discharged.  See agenda item 3.

AP 57/4: Forum members are requested to send comments to the Convenor and NAFsec on whether updated guidance on the publication of route information is required and how this should be taken forward.  Discharged. No further action at this time.

AP 57/5: Forum members wishing to join the access resources sub-group were invited to contact the NAFsec by the end of June.  Discharged.  See agenda item 4.

AP 57/6: Volunteers for a small working group and ideas for the NAF/LAF autumn meeting were invited and should be sent to the NAFsec.  On-going:  In the absence of a planning group and ideas on content, the Convenor proposed that the event is re-scheduled to Spring 2023. Volunteers and ideas to be sent to the NAFsec.

3. Matters arising: -

Ben Alder level crossing, previously discussed at the September 2021 NAF meeting (Network Rail attendance). The Convenor outlined the verbal report provided to him by Simon Ovenden of a site meeting at Dalwhinnie with SLE member Network Rail’s Managing Director and Health & Safety Director. At the Ben Alder crossing, it took 4 or 5 seconds between hearing a south bound train that hadn’t stopped at Dalwhinnie and it reaching the crossing. In discussing alternatives to directing people to the underpass, the use of the station bridge between platforms was considered, with the provision of a gate out to the west side and a new path approx. 300m to the crossing.  It was acknowledged that this would likely be suitable for most pedestrians and some cyclists, but not other users including people with disabilities and horse riders. It was agreed that a note of the site meeting would be circulated to NAF members and that it’s appropriate for NAF to maintain a watching brief on this local issue. CNPA remains concerned about the situation and the time that it is taking to be resolved.

AP 58/1 – NAFsec to circulate the note of the Ben Alder level-crossing site meeting between SLE and Network Rail (an SLE member) to NAF members when available.

Item 3 – Roads and Access Legislation

4. Alan Macpherson explained that following the discussion at the June NAF meeting the comments received from members had been used to produce an updated draft of the guidance note. The changes were primarily to sharpen and improve wording and the revised note had been reviewed and approved at a meeting of the working group which included Transport Scotland. The group agreed with a BHSS suggestion that the issue of vulnerable road users was given more prominence and place-holder text was included in the paper to NAF with the working group to agree the final version. A range of methods have been identified to distribute the published guidance note to the target audience and wider interests and NAF members’ help was requested.
    
5. As outlined in the guidance note, legislative change in the longer term would help to clarify the relationship between the two Acts, resulting in improved understanding and greater safety for vulnerable users. In advocating the case for change, the distinction between actions NAF might take compared to campaigning activity by individual member bodies was noted. In promoting awareness of the guidance, working group discussion had noted Transport Scotland’s intention to use the guidance as the basis for internal briefings. The possibility to include this issue in the scope of the current NAF ‘Resources for access’ sub-group was also suggested, including opportunities associated with the parliamentary process for the proposed Land Reform Bill. To officially log the issue, it was also recommended that the NAF Convenor write to relevant  Ministers, providing a copy of the guidance note and summarising NAF’s recommendations. This would open the door for any follow-up campaigning action by individual members in support of the recommendation. If further collective work around legislative change is required through the NAF the recommendation is that this involves a different mix of organisations and the current working group is therefore wound up.

AP 58/2 – NAFsec to publish the NAF Guidance Note on Roads and Access Legislation on the SOAC website, and enlist NAF members’ support in disseminating it to the target audiences.

AP 58/3 – NAF Convenor to write to Scottish Ministers, providing the Guidance Note on Roads and Access Legislation and recommending future legislative change.

Item 4 – Resources for Access

6. Helen Todd introduced this item, summarising the range of issues discussed by the new sub-group which had met in early September to explore what the NAF might helpfully do. There was recognition that current budgets are very tight, and that the extra funding provided for visitor management in 2021 and 2022 had been very useful especially in supporting on-the-ground staff. Through the visitor management strategy governance groups a letter had been submitted to Scottish Ministers recommending further funding but no reply has been received to-date.
    
7. The valuable contribution outdoor access makes to various policy agendas including economy and health is recognised across the NAF membership, as is the need for continued resourcing. A range of public sector sources of funds had been identified including block grant to local authorities, IPA, specific grant schemes related to tourism and active travel. The sub-group is creating a list of funding sources which is hoped will be helpful for NAF members as part of re-stating the issues and benefits around the provision and management of outdoor access.
    
8. The sub-group had discussed the ways in which the case for funding could be re-stated including: within responses to the consultation processes for forthcoming land reform and agriculture legislation; individual NAF members could respond to opportunities / lobby; the NAF could write to Scottish Ministers – Land Reform plus other portfolios; a push by NAF members in 2023 (the 20^th anniversary of 2003 access legislation) to raise the issue; NAF member organisations could invite Ministers to site meetings to discuss the value of access on the ground; the Land Reform Minister could be invited to a NAF meeting / event.
    
9. The discussion that followed began by exploring the potential of engaging a Minister in a NAF event. Malcolm Duce emphasised that careful planning would be needed to make a case that would be attractive including questions around what, where, role for Minister, media / photo opportunity etc. If a Minister is invited to an event, Alasdair McNab noted the importance of accurate briefing citing a recent event where ‘right to roam’ had been quoted. He also noted the proposal for 10% of the government’s transport budget in 2024/25 to be allocated to active travel and suggested outdoor access could benefit from a proportion of this. Nick Cole raised the issue of the resourcing of LAFs by local authorities and recommended ring-fenced budgets to support their operation and the Convenor suggested that statistical evidence of diminished support for LAFs would be helpful.
    
10. Steve Jenkinson noted the importance of support for outdoor access through training and capacity-building of staff especially access officers and rangers, and the role previously played by SNH in producing guidance and encouraging the sharing of good practice. He expressed the need to make better use of available resources and for more support to be provided to local authority staff, land managers and user groups involved in managing access.
     
11. Eileen Stuart, in response to Steve’s points on NatureScot resourcing, said that government budgets were under huge pressure and that in the context of economic recovery, climate change and other Programme for Government commitments, visitor management and access were seeking funds within a highly competitive financial environment. She noted that NatureScot’s ability to fund training programmes was much diminished compared to previous periods of support, but in referencing the possible deployment of the government’s transport budget she suggested Patrick Harvie, active travel minister, could be asked to sponsor a 20^th anniversary of LRSA event at the parliament.
     
12. Frank Spencer-Nairn noted that resources for access also relates to deer stalking, and posed the question of whether the 20^th anniversary of the 2003 LRSA could provide an opportunity to launch a challenge fund for access. Helen responded by emphasising that funds for staff training to enable local access management issues to be tackled was very important, as well as for path infrastructure (reference to the Ian Findlay Path Fund). She also noted that surveys by SOAN show that between 2005 and 2019/20, the number of local authority access officers dropped from 65.5 to 36.5.

AP 58/4 – Nick Cole to seek feedback from LAF Chairs on the issue of support / resourcing of LAFs by local authorities.

AP 58/5 – NAFsec to provide info on the Ian Findlay Path Fund

AP 58/6 – Helen Todd to invite reps from land management bodies to join the resources for access sub-group.

AP 58/7 – The resources for access sub-group to develop a work plan to include NAF responses to the current consultations on land reform and agriculture legislation.

Item 5 – Membership review phase 2

13. Alan Macpherson outlined progress on the second phase of the review of NAF membership which covers the ‘Public bodies’ and ‘Others’ groupings. The review was initiated  in August when the 65 bodies were emailed and asked to indicate whether they wished to remain on the NAF and if so, as a full or corresponding member. As of 16^th September, responses had been received from 10 of the 19 public bodies, and 16 of the 46 other bodies. The remaining responses will be chased by NAFsec, and the final position, which will complete the review of all NAF members, will be brought to the February 2023 NAF meeting.
     
14. In terms of responses of interest, following the re-organisation of public sector forestry organisations in 2019, both Scottish Forestry and Forestry and Land Scotland have requested full member status; sportscotland has decided to change from a full to a corresponding member.

Item 6: Convenorship extension

15. Don Milton temporarily passed the chair to NatureScot and left the meeting, and Alan Macpherson chaired this item. He began by explaining that the NAF operating principles allow for the convenor to be appointed for a period of 2 years with the option of an extension for a further 2 years. Don Milton will end his first 2 years at the end of December and had confirmed his willingness to continue the role. The meeting was asked whether it wished Don’s convenorship to be extended to cover 2023 and 2024 or to seek a change.
     
16. The 2 year extension was confirmed by the NAF membership which Don graciously accepted.

Item 7: Forthcoming meetings & agenda items –

• NAF meeting – Wednesday 8 February 2023 – Battleby and online
• NAF/LAF Joint meeting – late spring 2023 tbc
• NAF meeting – Wednesday 7 June 2023
• NAF meeting – Wednesday 20 September 2023

AP 58/8: Additional volunteers for the NAF/LAF event working group and ideas for the proposed late-spring meeting should be sent to the NAFsec who will convene the first meeting as soon as practicable.

Item 8: Any Other Business

1. Nick Cole provided his assessment of new fencing in the Blairgowrie area either side of a constructed path that appeared to have been badly installed with regard to securing the livestock and preventing injury to people. NatureScot’s Bridget Jones had reported that the path had been installed in 2019 under an IPA application which required a 5 year period of maintenance. In the discussion that followed, the importance of good guidance associated with funding schemes was stressed, as was the potential to look at cross compliance within the consultations on land reform and agriculture bills. Alasdair McNab undertook to raise the issue with NFUS’s Legal & Technical Committee and report back to the February 2023 NAF meeting.
    
2. Graham Russell from the RYA Scotland had asked that the situation with regard to avian influenza, and implications for public access, was raised with the NAF. Eileen Stuart gave a brief overview, explaining that bird flu was primarily affecting seabird colonies, and that some restrictions to public access had been required. She expressed thanks to the NAF bodies which had helped manage the situation, and explained that action had been needed to reduce the risk of onward transmission of the virus via dropping and feathers. The Scottish Task Force on Avian Influenza in Wild Birds is holding an online stakeholder event on 27 October.

Close - The Convenor closed the meeting thanking the Forum for their contributions.

Action Points Summary

AP 58/1 – NAFsec to circulate the note of the Ben Alder level-crossing site meeting between SLE and Network Rail (an SLE member) to NAF members when available.

AP 58/2 – NAFsec to publish the NAF Guidance Note on Roads and Access Legislation on the SOAC website, and enlist NAF members’ support in disseminating it to the target audiences.

AP 58/3 – NAF Convenor to write to Scottish Ministers, providing the Guidance Note on Roads and Access Legislation and recommending future legislative change.

AP 58/4 – Nick Cole to seek feedback from LAF Chairs on the issue of support / resourcing of LAFs by local authorities.

AP 58/5 – NAFsec to provide info on the Ian Findlay Path Fund

AP 58/6 – Helen Todd to invite reps from land management bodies to join the resources for access sub-group.

AP 58/7 – The resources for access sub-group to develop a work plan to include NAF responses to the current consultations on land reform and agriculture legislation.

AP 58/8: Additional volunteers for the NAF/LAF event working group and ideas for the proposed late-spring meeting should be sent to the NAFsec who will convene the first meeting as soon as practicable.

Roads and Access Legislation -

NatureScot summarised actions undertaken by the working group since the discussion at the NAF meeting in June. The draft guidance note on the Roads (Scotland) Act 1984 and outdoor access rights under the Land Reform (Scotland) Act 2003 had been revised based on further comments received. No substantive changes were made but wording was tightened and a point added regarding vulnerable road users. The note will be published on the SOAC website and NAF members (full and corresponding) were asked help with dissemination. Following publication the Convenor will write to Scottish Ministers to ensure the issues raised in the guidance are on record and to  note  that legislative change to iron out discrepancies  between the two acts would provide the best long term solution.

Resources for Access –

A report was given on the early September meeting of the sub-group formed following the June NAF meeting. The group had discussed the value of outdoor recreation and access for a range of policy agendas and noted the key sources of current funding, some of which are time-limited. In considering what might usefully be done (by the NAF or by individual member organisations) to promote more stable funding in a period of constrained budgets, the following ideas had been noted: raise the issue of resources in consultation responses to forthcoming Land Reform and Agriculture legislation; use the 20th anniversary of the 2003 Land Reform (S) Act to promote the need for adequate resources; invite Ministers to site-meetings to discuss the issues; invite Minister to a NAF meeting. In the discussion that followed, NAF members noted that Local Access Forums and Access Officers are part of the resourcing issue, as is support for training and capacity building provided for example by NatureScot. It was agreed that the sub-group would develop some of the ideas and the topic would continue to be discussed by the NAF. The August launch of the Ian Findlay Path Fund was also noted.

Membership Review –

The second phase of the NAF membership review (a total of 65 organisations representing ‘Public Bodies’ and ‘Other’ bodies on the Forum) has been initiated by NAF Sec. Not all responses had been received to-date and the outcome of this final phase of the review will be discussed at the NAF meeting in February 2023.

Convenorship extension -

NatureScot chaired the agenda item which considered the proposed 2 year extension of Don Milton as Convenor of the NAF, as allowed in the NAF Operating Principles. The meeting agreed that Don should retain the convenorship for 2023 and 2024.

Ben Alder level-crossing -

Following-up on a discussion at the September 2021 NAF meeting, on behalf of SLE and CNPA (both absent from 21 September 2022 meeting), the Convenor updated Members on recent discussions with Network Rail seeking a solution to the Ben Alder crossing closure. A watching brief will continue.

Future NAF meetings -

The next Forum meetings are: NAF meeting Wednesday 8 February 2023 at Battleby & online and Wednesday 7 June 2023; and a NAF/LAF Joint meeting Spring 2023 (tbc).