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Justice 2 Committee, 25 Sep 2002

25 Sep 2002 · S1 · Justice 2 Committee

Item of business

Land Reform (Scotland) Bill: Stage 2

Wilson, Allan Lab Cunninghame North Watch on SPTV

You make an important point. The debate is getting quite complex because of yesterday's deletion of section 11. I say to Sylvia Jackson that, under section 13, we impose a duty on local authorities to uphold access rights. That duty is superimposed on any action by any landowner or any other person to seek to deny those rights. The problem is that, under section 11, we gave local authorities powers, which are no longer in the bill.The way in which I envisage section 14 operating is that, where any action is taken—or any action not taken—with the purpose or main purpose of denying access rights, the local authorities would have the power to restore said access rights. The problem with amendment 262 is that, if we delete purpose and intent from section 14, any land management practice could be construed as being practised with the intent or effect of denying access rights, which would clearly be nonsense in a number of the examples that George Lyon and Murdo Fraser gave. Including the purpose of denying access rights is critical to section 14; to remove it would have a detrimental effect. Ultimately, whether a landowner acted with such purpose would be a matter for the courts to determine.Ultimately, I concur with Stewart Stevenson's point. The extension of curtilage to which he referred was not the best example that he might have chosen. If triplets were born to a family and that family wished to extend its curtilage to accommodate a play area for those triplets, the purpose of extending the curtilage would arguably be to accommodate the new family, rather than to deny access. Where the purpose of the action is to deny access, it is caught by section 14 and the extension and widening of powers that we propose.I nodded at Stewart Stevenson's point that the series of circumstances that he described would be caught by our new extended definition. That new definition is extension enough. Sylvia Jackson's amendment 262 is an extension too far—a bridge too far, if you like.Amendment 173 makes specific reference throughout to routes. As Stewart Stevenson knows—and, I presume, accepts—access is not restricted to routes. The purpose of conferring a new right of responsible access is not to restrict that right to paths, routes and tracks but to let people roam freely within the confines of the law.Perversely—this is where the situation gets complicated—as a result of yesterday's decision, the bill no longer excludes angling from access rights, whether that is right or wrong. Therefore, section 14, without any amending, covers the example that has been given. If angling is not excluded for the purpose of exercising access rights, nor would be the right of anglers to cross land to get to the place where they want to fish. The erection of any sign or notice to prohibit them so doing would be covered by the provision in the bill.

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Justice 2 Committee, 25 Sep 2002

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