A peculiar sight has been witnessed throughout Scotland during the past few weeks (and no, I don’t mean the occasional glimpse of sunshine). adv Children enjoying their school holidays have emerged from darkened rooms, where they are usually to be found glued to their PCs, and ventured, blinking and dazed, into the great Scottish outdoors.
Adults, meanwhile, have arrived late for dinner dates or business meetings because they have taken a long cut through a local park instead of taking the bus. So has a great passion for exercise suddenly overcome the population? Not quite; this phenomenon is the result of Pokemon Go.
For those readers who don’t know their Charmanders from their Pikachus, I will explain. Pokemon began life in the early 1990s as a computer game in which players were tasked with catching and training a variety of little monsters, or Pokemon. As technology evolved, the world of Pokemon evolved with it.
Now, instead of catching the little critters on their computer screens from the comfort of their own homes, Pokemon Go lets players find Pokemon in the real world through the use of GPS and virtual reality technology; all you need is a mobile phone.
In order to find Pokemon, players must go out into the great outdoors and hunt for them while picking up supplies from various ‘Pokéstops’ situated at notable landmarks. When a Pokemon appears you try and catch it. So far, so harmless. However, potential problems can arise when a Pokemon appears in an area of land where you are unsure of your access rights.
That’s where the Scots law on access rights comes in. Under the Land Reform (Scotland) Act 2003, there is a general right of responsible non-motorised access to most land and inland water in Scotland.
These rights apply to everyone and are commonly regarded as the ‘right to roam’. However, there are exceptions to this general access right. Firstly, access rights do not apply to buildings, including construction works. Furthermore, some categories of buildings, such as houses, receive additional levels of protection. The 2003 Act prohibits access both to gardens and to the land adjacent to houses. The Act defines “adjacent land” in this context as the amount of land required to allow residents to have reasonable measures of privacy and a level of enjoyment that is not unreasonably disturbed.
There are a number of exceptions to the general access right concerning farm land. Access should not be taken over crop fields if the crop is being harvested, fertilised or is at a stage of growth that it likely to be damaged. Furthermore, walkers are prohibited from entering farmyards unless there is a right of way or they have received permission from the farmer. A further category of land to watch out for is sport playing fields. The general rule is that access should not be taken over a playing field if it is in use. Specific rules also apply to golf courses. Members of the public have a right to cross golf courses so long as they keep away from greens and take care not to interrupt ongoing games.
The final main Scotland-wide exception to the general access right is buildings and cultural heritage sites that charge an entry fee. Other exceptions to the general access right may apply at a local level as local authorities have the authority to introduce byelaws that prevent access.
The concept of “responsible access” is fleshed out in the principles of the Scottish Outdoor Access Code. These principles are to: (1) Respect the interests of other people; (2) Care for the environment; and (3) Take responsibility for your own actions. Practical tips for following these principles are to stick to paths, not to leave anything on the land (such as litter) and not to take anything from the land (with the exception of the Pokemon you have snagged). More information can be found on the Scottish Outdoor Access Code website (www.outdooraccess- scotland.com/). Happy Pokemon hunting!
• Sally Pugh is a solicitor in the commercial property team at Brodies LLP