In 2021, Alexander and Diana Darwall, Dartmoor’s sixth-largest landowners, brought a legal challenge against the Dartmoor National Park Authority over the right to wild camp on the moors. In 2023, the Dartmoor National Park Authority were successful in their appeal against the decision to ban wild camping on Dartmoor. However, in January 2024, the Darwalls further appealed to the Supreme Court.
Wild camping is the act of camping in an area that is not a designated camping site. In most of the United Kingdom, this requires the permission of the landowner. Dartmoor has historically been an exception to this rule. Elsewhere in the UK, Scotland enjoys far broader access rights which include wild camping.
As a result of the ongoing dispute between the Darwalls and the Dartmoor National Park Authority, there has been renewed debate over land rights in the UK, with calls for the introduction of access rights similar to those in Scotland.
Scotland has traditionally had a ‘right to roam’ over hill ground, but the Land Reform (Scotland) Act 2003 established new statutory access rights which came into effect in February 2005. The phrase ‘right to roam’ does not appear in the 2003 Act, however, the rights introduced by this legislation are those of ‘responsible access’.
There are also rights of way which exist under common law. A right of way is a defined route between two public places, which has been used openly and peaceably for twenty years. However, this type of access right is not as extensive as the statutory rights of access created by the 2003 Act.
The 2003 Act established new public access rights to most land and inland water, for outdoor recreation, crossing land, and some educational and commercial purposes. The 2003 Act does not further define these purposes. However, the Scottish Outdoor Access Code, which was introduced by the 2003 Act, provides examples of activities which are permissible under the 2003 Act. This includes walking, cycling, horse-riding, water sports, and wild camping – among others.
Although the rights of access established by the 2003 Act are rather broad, there are some restrictions. The 2003 Act sets out obligations on both access users and the managers of the land.
Some land is excluded from access rights, such as which is sufficiently adjacent to houses, caravans, tents, or other buildings; school grounds; sport or other playing fields; land to which access is prohibited by other legislation; land set out for a particular recreational purpose; land on which building is being carried out; and land on which crops have been sown or are growing.
In addition to this, the Scottish Outdoor Access Code sets out guidelines for responsible access. Access rights must be used responsibly. Access users must take personal responsibility for their actions; respect the privacy and peace of mind of others; care for the environment; and keep animals under control. This includes not littering, not starting fires, and causing no damage to trees, wildlife, or other elements of the environment.
Additionally, the access rights do not extend to some activities. The 2003 Act specifically excludes hunting, shooting, and fishing from the access rights – permission from the landowner is required for these activities. The access rights also do not extend to motorised activities; for example, camping in a campervan or caravan, or sleeping in your car, is not permitted.
There are also some byelaws in parts of Scotland which restrict access rights, for example – from March to September, a permit is required to wild camp in certain areas of the Loch Lomond and Trossachs National Park. This was introduced by the Loch Lomond and the Trossachs National Park Authority in 2017, following public consultation, to help reduce the pressure on some of the most popular areas of the park.
It has been nearly twenty years since the introduction of the 2003 Act. Although there appears to be a mostly positive attitude towards Scotland’s access rights, there have been some issues.
Concerns have been raised that the Outdoor Access Code is not always followed by access users. For example, in 2021 the National Farmers Union of Scotland surveyed its members on access rights post-pandemic. They noted problems with littering, gates being left open, dogs out of control and worrying sheep, fly-tipping, broken fences, and unauthorised access to farm buildings and gardens by members of the public.
Similarly, there have been concerns that increased numbers of wild campers in popular areas have resulted in overcrowding and environmental damage due to irresponsible behaviour from wild campers. For instance, the wildfire at Cannich in 2023, which burned through a 30 sq mile area of scrub and woodland in the Highlands, was believed to have been caused by fires started by wild campers.
Conversely, there have also been concerns over access rights being blocked by landowners with barbed wire, locked gates, electric fences, and no entry signs. The 2003 Act prohibits landowners from obstructing or discouraging others from exercising public access rights, and local authorities have a duty under the legislation to uphold access rights if they are being restricted. Although local authorities have the power to issue enforcement notices where it appears that a landowner has done something or failed to do something, for the purpose of deterring the responsible exercise of access rights, enforcing public access rights is not always straightforward. At Drumlean Estate, which is owned by entities based in Lichtenstein, there have been complaints of access rights being blocked since 2007. Despite a ruling against the landowner by the Court of Session in 2018, the Loch Lomond and The Trossachs National Park Authority have still not been able to enforce public access rights.
These issues have raised questions as to whether the current law is fit for purpose, and whether there are ways in which the law could be improved. As the dispute over Dartmoor continues, these are issues to be considered if Scottish style access rights were to be introduced throughout England and Wales – and also for the future of Scottish rights of access. It is important to remember that we have rights of responsible access, not simply a ‘right to roam’, and this is essential for everyone to be able to enjoy the landscape of Scotland.
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