Acts of the Scottish Parliament

Section 19:     Power to maintain core paths etc.

85.     This section allows local authorities to do anything which they consider appropriate for the purposes of maintaining a core path, keeping a core path free from obstruction or encroachment and providing the public with directions to, or with an indication of the extent of, a core path.

Section 20:     Review and amendment of core paths plan

86.     Subsection (1) requires a local authority to review the adopted core path plan when they consider appropriate and when required to do so by Ministers.

87.     Subsection (2) allows a local authority to amend their core path plan where they consider that a core path should be closed or diverted. Subsection (3) provides that a plan cannot be so amended unless the local authority, having had regard to the extent to which persons would, but for the amendment, be likely to exercise access rights using the core path and the effect which the amendment of the plan would have with regard to land served by that core path, consider it expedient to make the amendment.

88.     Subsection (4) provides that, where a core path is stopped up or diverted by order under section 208 the Town and Country Planning (Scotland) Act 1997 (c.8), the local authority must amend their plan accordingly.

89.     Subsection (5) requires a local authority on amending their core paths plan, to give public notice of the plan as amended and to compile an amended list of core paths. The amended list, plan and maps to which it refers must be made available for public inspection; copies are to be made available for sale at a reasonable price, and copies are to be provided to Ministers.

90.     Subsections (6) and (7) provide that where a local authority proposes to add a new path to the core path plan then they must draw up an amended plan. When preparing this they must apply the provisions detailed in section 17(3) and (4) of this Act and carry out the consultation procedures set out in section 18 of this Act in respect of the amended plan.

Section 21: Delineation by agreement of paths in land over which access rights are exercisable

91.     This section makes provision for a local authority to enter into an agreement for the delineation and maintenance (and, if necessary, creation) of a path over land in respect of which access rights are exercisable. Such an agreement will be on the terms and conditions agreed between the local authority and the person with whom they enter into the agreement. Those terms and conditions may, amongst other things, provide for the making of payments. Section 17(2) provides that a path which is delineated in such an agreement may form part of the local authority's core paths plan.

Section 22: Compulsory powers to delineate paths in land over which access rights are exercisable

92.     This section gives a local authority, where they consider it impracticable to delineate a path by agreement under section 21, to make an order (a "path order") delineating it. The local authority may make a path order only if they consider, having regard to the rights and interests of the owner of the land over which the proposed path passes and persons likely to exercise access rights on or over the land, it appropriate to do so.

93.     Where a path order is made, subsection (3) places a duty on a local authority which made the order to maintain the path delineated in the order and, if necessary, to create it. Section 17(2) provides that a path delineated in a path order may form part of the local authority's core paths plan.

94.     The Occupiers' Liability (Scotland) Act 1960 (c.30) makes provision as to the duty of care which an occupier or person in control of land must show to persons on the land. Subsection (4) provides that regard may be had a local authority's duties to create or maintain a core path in determining whether they are in control of the path and therefore owe the duties set out in the Act of 1960.

95.     Subsection (5) allows local authorities to revoke any path order.

96.     Subsection (6) provides that a path order must be in the form prescribed in regulations made by Ministers, but requires in any case that it contain a map showing the delineation of the path.

97.     Subsection (7) provides that where access rights become exercisable at a time after the coming into force of this Part on or over a path on land in respect of which access rights were not previously exercisable the agreement or order made under sections 30 to 36 of the Countryside (Scotland) Act 1967 (c.86) which created the path is to be treated as a path agreement or, as the case may be, a path order.

98.     Subsection (8) subjects the making of a path order to the procedures set out in schedule 1.

99.     Subsection (9) amends the definition of "overriding interest" in section 28 of the Land Registration (Scotland) Act 1979 (c.30) to provide that the right of a member of the public in respect of the exercise of access rights by way of a path delineated in a path order is to be regarded as an "overriding interest" for the purposes of that Act. Section 3 of that Act provides that an interest in land which is registered in the Land Register is subject to any overriding interest in the land (whether or not the overriding interest is noted on the title sheet to the land) Section 6(4) of that Act sets out circumstances in which an overriding interest must or may be entered on the title sheet of land to which it relates.

Section 23: Ploughing etc.

100.     Subsection (1) allows an owner to plough, or to carry out other land management practices, on land incorporating a core path or a right of way. However, where core paths or rights of way are disturbed this way, subsection (2) places a duty on the owner to reinstate the path or right of way within 14 days beginning on the day the path was first disturbed or within such longer period as the local authority may allow.

101.     Subsection (3) provides that an owner who fails to reinstate the path within the required period is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

102.     Subsection (4) provides that if an owner fails to reinstate a path within the period set, the local authority may, after giving the owner 14 days notice of their intention, take all steps necessary to reinstate the path or right of way and recover their reasonable expenses from the owner.

Section 24: Rangers

103.     This section gives local authorities the power to appoint rangers in relation to any land in respect of which access rights are exercisable. Rangers functions are to provide advice and assistance on matters relating to access rights and to perform such other duties in relation to those rights as the local authority appointing them may specify.

104.     Subsection (3) provides rangers with power to enter any land in respect of which access rights are exercisable to carry out their functions.

Section 25: Local access forums

105.     This section provides for the establishment of at least one local access forum by each local authority.

106.     This section places a duty on each local authority to establish a local access forum consisting of a reasonable balance of persons and bodies representing the interests of persons with an interest in public access on and over land and owners of land over which access rights are exercisable.

107.     The functions of a forum are to provide advisory and dispute resolution services in relation to the exercise of access rights, the existence of rights of way and the drawing up and adoption of core paths plans.

108.     Subsection (5) allows a local authority to appoint one or more of its own members to a forum, and subsection (6) allows a local authority to establish more than one forum for its area.

109.     Subsection (7) enables a local authority to pay expenses and allowances to the members of the local access forum.

Section 26: Power of entry

110.     This section confers power on persons authorised by local authorities to enter any land for a purpose connected with the exercise or proposed exercise of any of the authorising authority's functions under Part 1. Such a person may however enter land under this power only at a reasonable time and on having given reasonable notice to the owner of the land unless entry is needed in case of emergency or for the purpose of warning the public of and protecting the public from danger, taking measures to facilitate the exercise if access rights or fulfilling certain duties relating to core paths.

111.     Subsection (4) permits persons authorised to enter land to take onto land any machinery, other equipment or materials required for the purpose for which they are entering the land.

Section 27: Guidance

112.     Section 27 permits Ministers to give guidance to local authorities on the performance of any of their functions under Part 1. This guidance may be given generally or to a particular local authority and local authorities are required to have regard to it. Ministers are required to consult with each local authority to which they propose to give guidance and also to lay a draft of the proposed guidance before the Scottish Parliament. The guidance cannot be given until 40 days from the date of laying, and during this time the Parliament may direct that the guidance may not be given.

Section 28: Judicial determination of existence and extent of access rights and rights of way.

113.     Subsection (1) allows persons to apply to the sheriff for a determination of whether access rights are exercisable over particular land, of whether persons exercising those rights are doing so responsibly or of whether the owner of land in respect of which access rights are exercisable is using, managing or conducting ownership in a responsible way.

114.     Subsection (2) allows persons to apply to the sheriff for determination of whether any path or bridleway or other means of crossing land is or is not a right of way by foot, horseback, cycle or any combination of these.

115.     In either case, the proceedings are those for an action of declarator initiated by summary application to the sheriff. The local authority must receive notice of an application and are entitled to be a party to the proceedings.

116.     The procedures which govern such proceedings are to be supplemented by Rules of Court made in pursuance of subsection (8).

117.     Subsection (9) makes clear that the remedies provided by this section do not preclude a person who may seek to use those remedies from pursuing any other judicial remedy which may be available to them in respect of rights and duties under Part 1.

Section 29: Powers to protect natural heritage and cultural heritage etc.

118.     Subsection (1) confers a power to Scottish Natural Heritage to put up and maintain notices to protect the natural heritage of land in respect of which access rights are exercisable. Section 32 provides that the "natural heritage" of land includes its flora and fauna, its geological and physiographical features and its natural beauty and amenity.

119.     Subsection (2) confers a power on Ministers similar to that in subsection (1) for the purposes of protecting the cultural heritage of land on which access rights are exercisable. Section 32 provides that "cultural heritage" includes structures and other remains resulting from human activity, traditions, ways of life and the historic, artistic and literary associations of people, places and landscapes. Historic Scotland may perform this function on behalf of Ministers.

120.     Subsection (3) provides that any notice put up under subsection (1) or (2) may warn the public about any adverse effect their presence on that land might have on the natural or cultural heritage which the notice seeks to protect.

Section 30: Existing bylaws providing for public access to land

121.     This section requires that all bylaws relating to public access to land must be reviewed by the person that made them within 2 years of the coming into force of this section and, if necessary, modified to ensure consistency with the provisions of this Act.

Section 31: Application of section 15 to rights of way

122.     This section provides that the provisions in sections 14 and 15 (which impose duties on local authorities and owners of land in respect of which access rights are exercisable) apply in respect of non-vehicular rights of way over land in respect of which access rights are not exercisable as they apply in relation to access rights.

Section 32: Interpretation of Part 1

123.     This section defines certain terms used in Part 1.

124.     Land is defined to include land covered by non-tidal waters. The definition of owner provides that, where the owner is not in natural possession of the land, the person entitled to that possession (being the owner or a tenant) is to be treated as the owner.

PART 2 THE COMMUNITY RIGHT TO BUY

Section 33: Registrable land

125.     This section describes the land in which a community body may register an interest as being any land other than land which is excluded by order made by Ministers. Ministers must, in determining which land is excluded, secure that land which appears to them to be non-rural is excluded. Section 98(5) provides that an order excluding land may not be made unless a draft of it has been approved by a resolution of the Scottish Parliament.

126.     Subsection (4) requires an order excluding land from being registrable land to either include a map showing the boundaries of the land excluded or to refer to a map which shows those boundaries. If the order follows the latter course Ministers under subsection (5), are required to make copies of the map which the order refers to available for public inspection whenever and wherever they think fit.

127.     Subsections (6) and (7) confirm that a community interest may be registered in salmon fishings or mineral rights (but not in rights to oil, gas, gold or silver) which are owned separately from the land to which they relate (unless they relate to excluded land).

Section 34: Community bodies

128.     Subsection (1) prescribes that a community body must be a company limited by guarantee and lists the requirements which must be included in its memorandum and articles of association.

129.     Subsection (2) allows Ministers discretion over the minimum number of members a community body must have.

130.     Subsection (3) defines a "company limited by guarantee", by reference to the Companies Act 1985 (c.6), as meaning a company having the liability of its members limited by the memorandum to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up.

131.     Subsection (4) provides that a community body cannot be recognised as such until Ministers are satisfied that its main purpose is consistent with furthering the achievement of sustainable development.

132.     Subsection (5)(a) provides that the memorandum and articles of association of a community body must define the community to which it relates by reference to postcode units. Subsection (5)(b) sets down criteria for determining which persons comprise a community. However, Ministers may direct that a community body is to define the community to which it relates by reference to different criteria. They may also direct that criteria other than that set out in subsection (5)(b) be used to determine which persons comprise a community.

133.     Subsection (7) states, for the avoidance of doubt, that the memorandum and articles of association of a community body may prevent its assets from passing, on a winding up of the body, to any body which is not a charity. Subsection (8) defines "charity", for the purposes of this section, as being a body which is entitled to describe itself as a Scottish charity.

Section 35: Provisions Supplementary to Section 34

134.     Subsection (1) prohibits any community body, which has either registered an interest in land or acquired land under Part 2, from amending its memorandum or articles of association without Ministers' written consent.

135.     Subsection (2) allows Ministers to instruct the deletion from the Register of a registered interest in land where they are satisfied that the community body which registered it no longer satisfies the required criteria (set out in section 34) for being a community body.

136.     Subsection (3) provides Ministers with a right of compulsory purchase over land acquired under Part 2. The right arises where Ministers are satisfied that the body which bought the land would, were it seeking to buy the land at a later date, not be entitled to buy it under Part 2. Any such acquisition will, by virtue of the amendment made to the Acquisition of Land (Authorisation of Procedure)(Scotland) Act 1947 (c.42) by paragraph 2 of Schedule 2 to this Act, be carried out in accordance with the procedures set out in that Act.

Section 36: Register of Community Interests in Land

137.     Section 36 requires the Keeper of the Registers of Scotland, or such other person as may be designated by Ministers, to set up and maintain a Register of Community Interests in Land.

138.     Subsection (2) sets out in detail the information and documents which the Register must contain. It also specifies that the Register shall be maintained in such a manner as to be suitable for public inspection.

139.     Subsections (3) and (4) allow the community body to request that information or documents relating to fundraising proposals in connection with land be withheld from public inspection. Any information or document which is the subject of such a request must be kept separately from the Register.

140.     Subsection (5) makes clear that there is no compulsion on the community body to supply Ministers with any documentation or information relating to its fundraising arrangements. However, the community body is free to do so if it wishes, for example as part of its plan.

141.     Subsection (6) gives Ministers power to modify, by order, provisions contained in subsections (2), (3) and (4). Section 98(5) provides that no such order may be made unless a draft of it is approved by a resolution of the Scottish Parliament.

142.     Subsection (7) sets out requirements for public access and retrieval of information from the Register.

143.     Subsection (8) provides that a certified extract of an entry from the Register carries the same weight of evidence as an original.

144.     Subsection (10) allows Ministers to appoint different persons to carry out different functions in relation to the Register.

Section 37: Registration of interest in land

145.     Section 37 sets out the process for registering an interest in land and sets out the roles of the community body, Ministers, the owner and any heritable creditor in relation to any such registration.

146.     Subsection (1) provides that a community interest may be registered only on the application of a community body. The form and contents of an application, and details of information which must accompany an application, will be prescribed by regulations made by Ministers.

147.     In terms of subsection (2), a community body applying to register an interest in land must notify Ministers of the existence of any standard security over the land in question. The notice must be in the form prescribed by regulations made by Ministers.

148.     Subsections (3) and (4) provide that, where the owner of land to which an application relates or, as the case may be, a creditor in a standard security over an interest in the land is unknown or cannot be found, Ministers are relieved of certain of their duties under this section in relation to that person.

149.     Subsections (5) to (12) set out the procedure to be followed by Ministers on receipt of an application from a community body. They must seek and consider the views of the owner of the land to which the application relates (and the views of the applicant on the owner's views). Subsection (5)(c) requires Ministers to ascertain whether a creditor with an interest in land to which an application relates has taken steps to enforce the security in terms of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c.35) and, if so, to involve that creditor in the process

150.     In terms of subsection (5)(e), Ministers must, by notice, prohibit the owner of land to which an application relates and any creditor in a standard security over the land from transferring or taking any action to transfer the land (other than by way of a transfer to which section 40(1) does not apply) whilst Ministers are in the process of determining the application. In terms of subsection (8), a transfer in breach of such a prohibition is of no effect.

151.     Subsection (13) provides that more than one community body may register an interest in the same area of land.

152.     Subsections (14) to (16) allow a community body to register an interest in more than one holding of land, but a separate application is required for each holding. Subsections (17) to (19) set out the timescale and the procedure for Ministers to notify the community body, the owner of the land and any creditor with a right to sell of their decision whether or not to register the community interest. Subsection (20) requires Ministers to direct the entry of an interest in the Register with effect from the date of their decision that is should be entered.

Section 38: Criteria for registration

153.     This section sets out matters on which Ministers must be satisfied before approving the registration of a community interest.

154.     Subsection (2) specifies the necessary level of support which is required within a community to justify registration by Ministers and allows for Ministerial discretion when the level of support is less than that specified.

Section 39: Procedure for late applications

155.     This section applies in relation to applications which are made after the owner of land to which the application relates has taken an action to transfer the land but before missives are concluded, or an option to acquire is granted, in pursuance of that action ("late applications").

156.     Sections 37 and 38 apply in relation to late applications but subsection (2) requires the owner of land to which a late application relates to notify Ministers of that fact and thereby shorten the period for Ministers to make their decision.

157.     Subsection (3) sets out matters on which Ministers must be satisfied, in addition to the matters set out in section 38, before approving a late registration.

158.     Subsection (4) provides that, where Ministers decide on a late application that a community interest is to be registered, the community body's right to buy the land under this Part is to be treated as having been activated under section 47 and the community body is to be treated as having confirmed its intention to proceed to buy the land.

159.     Subsection (5) provides that Ministers must decline the application if it is received after the date of conclusion of missives or after an option to acquire the land has been conferred but before the transfer in pursuance of those missives or that option.

Sections 40 and 41: Effect of Registration

160.     Section 40 prohibits an owner or, as the case may be, any creditor in a standard security with a right to sell the land, from transferring land which is subject to a registered interest (or any land which forms part of such land) other than in accordance with Part 2. Owners and heritable creditors are similarly prohibited from taking any action with a view to transferring such land.

161.     Subsection (2) makes clear that a transfer in breach of the prohibition in terms of section 40(1) shall not constitute a legal transfer of title to the land.

162.     Subsection (3) provides that a prohibition under subsection (1) prevents the transfer, and actions to transfer, land in which there is no registered interest if the transfer, or such action, also relates to registered land.

163.     Subsection (4) lists types of transfer which are not prohibited by this section. Such a transfer would not activate a right to buy under Part 2.

164.     Subsection (5) narrates what constitutes action taken with a view to a transfer of land.

165.     Subsection (6) amends section 25 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c.35) to provide that the right of a creditor in a standard security to sell land in respect of which an interest is registered (or an application for such an interest has been made) is subject to a prohibition on transfer imposed by sections 37(5)(e) or 40(1) of the Act.

Section 42: Power to modify sections 40(4) and (5) and 41

166.     This section allows Ministers to modify by order the provisions of Section 40(4) and (5) and 41, which respectively describe what constitutes an excluded transfer and what constitutes action with a view to a transfer. Section 98(5) provides that no such order may be made unless a draft of it has been approved by a resolution of the Scottish Parliament.