Thu 29 Oct 2020

Implications of The Land Reform (Scotland) Act 2003

When representing purchasers of land in Scotland (particularly so with purchasers from outwith the UK) it is essential to make them aware of the implications of The Land Reform (Scotland) Act 2003 (the 2003 Act) which, through Part 1, gives the public extensive public access rights over private land. 

For anyone purchasing land in Scotland they need to be made aware of the extent of these rights and their implications on landowners' use and enjoyment of their own land.

Part 1 of the 2003 Act extends to 32 sections and is amplified by the Scottish Outdoor Access Code. It is not my intention to review these.   However, in 2018 the then Chair of The Scottish Rights of Way and Access Society (ScotWays)  commented that Scotland has unique and progressive rights of access to land for the public. The use of the word progressive was prescient!

Section 9 of the 2003 Act excludes from public access motorised vehicles - with the exception of those which have been adapted for use by a person with a disability and which is being used by such a person. There is a current debate as to whether e-bikes are included in this exclusion? It is reported that around 60,000 e-bikes are sold each year in the UK and, during the pandemic, the numbers have increased significantly!

What is an e-bike?  SI 1983/1168 states that they are vehicles which (a) have two or more wheels; (b) are fitted with pedals by means of which they are capable of being propelled; and (c) are fitted with no motor other than an electric motor which (i) has a maximum continuous rated power which does not exceed 250 watts; (ii) cannot propel the vehicle when it is travelling at more than 25 km (15.5 miles) per hour; and (iii)  switches off when the speed reaches 25km per hour.

Under the Electrically Assisted Pedal Cycle (Amendment) Regulations 2015 e-bikes are not treated as motor vehicles within the meaning of the Road Traffic legislation although there are provisions that drivers must not be under 14 years of age.

Section 9 of the 2003 Act lists 7 instances which are excluded from the right of responsible access.   Instance 6 - (f) - reads being on or crossing land in or with a motorised vehicle or vessel.  In his hugely helpful book The Scot Ways Guide to The Law of Access to Land in Scotland at page 40 Malcolm M Combe states - Whilst it seems unlikely such bicycles were intended to be the target of section 9 (f), it is accordingly by no means clear that they are not motorised in terms of the 2003 Act.

In 2014 Scottish Natural Heritage (the Scottish equivalent of Natural England) sought an Opinion on this subject from Professor Robert Rennie (an Emeritus Professor at Glasgow University). The Professor, in his Opinion, debated the difference between motor vehicles and motorised vehicles and sought to interpret what was the intention of the Scottish Parliament. He believed that the general mischief which…the legislation [was] designed to tackle was the prevention of accidents arising from the use of such vehicles. This cannot be underestimated.   We have seen the results of Simon Cowell's accident whilst using a (very powerful) e-bike.   However, I suspect that, Professor Rennie's concern is more for the other users of access routes. My wife and I have often had to step aside briskly to allow mountain bikers on non e-bikes to pass.

Various commentators have expressed the view that the general mischief is not the prevention of accidents but the giving of access to the public on private land and its exercise in a responsible manner.

There is a wide range of views on the desirability of e-bikes on land. They do allow more people to take exercise in the fresh air and that is a good thing. They extend the range of access takers and that can lead into more remote and vulnerable areas. I do not know whether e-bikes are heavier than conventional bikes nor whether the motorised element of e-bikes might create more torque and thus more damage - perhaps not.

On a strict legal basis I believe that if the Scottish Parliament had intended regulated e-bikes to have access to private land then they would have added them as an exception to the section 9(f) vehicles - as they have done for vehicles adapted for disabled use. This however brings me back to the use of the word progressive! We only need to consider the questions raised by the use of drones and geo-caching to realise that this area of law is fluid. There is no doubt that clarity is required and this will come from either legislation or the courts.

The law differs between England and Scotland. In England, off-road, the public do not have similar access rights to most land and water.  

In Scotland the position on the use of e-bikes under the 2003 Act is unclear and requires clarification.

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