Legal constraints

The legislation surrounding paths and outdoor access has changed over the years, so it's easy for people to get confused. But it's important that you understand what the legislation means, so that you can lobby people to support your path work. Here's a summary of the main legal issues and what they mean for community path groups.

Land Reform (Scotland) Act 2003

From a paths and outdoor access perspective, this act is one of the most important pieces of legislation in Scotland.  It gives everyone the right to take responsible access on almost all land in Scotland.  So you don't have to stick to particular paths and you can take access to the wider countryside – provided you do it responsibly.

The Scottish Outdoor Access Code gives clear pointers on what's considered responsible and what's not – so for a full picture you should read the code.  Some of the most important things in that code are:

• Take responsibility for your own actions – take care of yourself and others with you, including your dog.
• Respect the needs of other people and follow any reasonable advice from land managers
• Treat the environment with care – don't disturb or damage wildlife or historic places.
• The access rights don't cover buildings and their immediate surroundings, houses and gardens and most land where crops are growing.
• The access rights apply to all types of non-motorised transport, so you have the same access right on a bicycle, a horse or a canoe.
• Access rights do not apply to any motorised vehicles, eg, quad bikes, (unless it has been adapted for your own needs as a disabled person).

Rights of Way

Rights of way are paths which have been used by the public for at least 20 years and which link two public places.  Although they are still important (and many of our historic drove roads are rights of way, providing access to some truly stunning places), their legal significance isn't as important now that we have the Land Reform (Scotland) Act.  Because we have the right to roam (responsibly!) enshrined in law, a path doesn't need to be a right of way for us to be able to use it.  But if a path that you want to maintain or improve is already recognised as a right of way, it will certainly strengthen your case.  The Scotways website provides more information about the national catalogue of rights of way (sometimes called the CROW database), which you may want to check.

Liabilities

One of the most common arguments against developing paths is that the landowner or the group managing the path will be sued if someone hurts themselves on the path. Again, it's worth knowing what the law really says so you can correct this view if necessary.

Anyone who owns or 'occupies' land ( including path managers, which might be a path group) has occupier's liability whereby they have a 'reasonable' duty of care towards people on that land.  The Land Reform (Scotland) Act specifically states that this reasonable duty of care is not affected by the Act.  So, if the path manager digs a big hole on the path, which someone falls down; or if the path manager leaves a pile of barbed wire to rot on the path and someone trips on it, then the path manager could be liable for the injury because it resulted directly from their action or negligence.  But if the path is appropriately maintained, and someone trips or slips on a natural or obvious hazard, the path manager wouldn't be liable – that's part of the accepted risk that we take when we choose to do any activities in the outdoors.

If you're a community group who want to develop or promote a path, you may find that the person who owns the land will argue that although you develop the path, they will be liable for any problems. But as you can see, the landowner already has a 'duty of care' to avoid making any part of their land dangerous.

You can read more about legal liabilities and public access in this SNH publication.

Risk assessment

As a path group who are promoting, developing or maintaining a path, you also have a reasonable 'duty of care' to make sure the path (and any other structures like bridges installed as part of the path project), does not contain unreasonable risks, which may harm path builders, maintainers or users.  You also need to inform the maintainers and users of any hidden risks associated with a structure.

The best way to make sure you have recorded and minimised any risks is to do a risk assessment.   Many people will have come across risk assessments in their workplaces and the same principles apply to path projects.  The risk assessment process helps you to spot and address any risks.  It also provides evidence that you have taken a reasonable approach to minimising risks wherever possible.

There are a lot of guides to risk assessment available on the internet and you may find your path group has members who already trained in risk assessment through their day jobs.  The Health and Safety executive provide a basic guide to risk assessment, which you can download here.