Right to roam: Scotland's landowners and walkers need to know the law – Jenny Dickson

One of the impacts of lockdown that we have become acclimatised to is spending more time in the great outdoors.

Scotland's 'right to roam' law was designed to formalise the right for people to be able to enjoy great outdoors without fear of prosecution (Picture: Andrew Milligan/PA Wire)

Many of us enjoy this time exploring our surroundings through a Scottish law known as “right to roam”, which allows us to enjoy Scotland’s land without trespassing.

But more time outdoors creates increased risk, from minor injuries to full-on rescues, which can be troublesome for landowners. Many of our outdoor spaces are owned by public sector organisations and it is important for these organisations to consider this increased risk. It is also important for the public using outdoors spaces to take heed of signage and warnings to protect their personal safety.

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Any landowner with property that could be enjoyed by members of the public should conduct a risk assessment of their land. If they do not, the public may unknowingly be at risk and the landowner more vulnerable to legal action as a result.

The first element of the risk assessment typically should examine the actual property. Paths should be checked, gates functional, and any potential hazards noted with signage. Additional hazards also need to be considered, like livestock, which has been responsible for a variety of cases over the past year where a member of the public has found themselves in danger.

A recent example of this was in summer last year when a cow charged at a walker in the Pentland Hills.

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This need is heightened since we are now a year into this pandemic, and outdoor access has been one of the few consistent things we have been able to enjoy during lockdown. Paths and various outdoor spaces are therefore likely to be seeing greater wear and tear than normal.

There also needs to be consideration for the type of individual who will access the land. As many other gathering places remain closed, are different demographics using the land for social interactions, that they would otherwise be meeting elsewhere for? Are there circumstances in which this use could become unsafe – for example, when consuming alcohol?

For public sector organisations, these assessments can be particularly challenging to progress simply due to the pandemic’s impact on resources.

The individuals who may conduct seasonal risk assessments may be vulnerable and shielding or may have been redeployed due to fluctuations in different organisational needs. However, it is crucial for organisations to allocate resources to these checks – ignorance is not bliss.

While much of the responsibility to mitigate risk in outdoor spaces sits with the landowner, it is also worth noting that the public needs to heed guidance.

If a familiar path is closed, it is important not to question the closure and take the risk assessment into their own hands. If signage is in place, land users should respect what it requests – it is there to protect public safety. Even parking in non-designated spaces or littering can create risk for future users.

We all know and love Scotland’s beautiful outdoor spaces and natural landscapes, but it’s important these spaces are used safely. Crucially, landowners must look at what potential risks may lie in their property and take steps to mitigate these, as individuals use their right to roam.

Jenny Dickson is a partner and solicitor advocate in the public sector team at independent Scottish law firm, Morton Fraser

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