Some challenges for public access to land in Scotland: daunering with drones or dugs

The Scottish right of responsible access (aka the right to roam) is something that is now suitably nestled in Scots law. That notwithstanding, as noted on this blog before disputes occasionally flare up, although generally it seems fair to say that the legislation and the accompanying Scottish Outdoor Access Code seem to work well and are well-accepted in most circles.

Note the “generally” in the previous sentence. Two points have cropped up with increasing regularity recently. I say this based on some press coverage and a recent law reform proposal (both discussed below), and also in terms of questions I have been asked by legal practitioners and interested parties at talks on the topic that I have provided in recent months. What is at issue is what constitutes responsible (and accordingly permissible) access. Or perhaps more accurately, this concerns what is responsible regarding two things that access takers can take with them and then, shall we say, deploy on someone else’s land.

This post is about drones and dogs.

Naturally, it is okay – even encouraged at times – to take moveable property with you when you are using your right of responsible access: for example, no-one is expecting you to disrobe when you roam free, and to do that might engage other legal rules, as the Naked Rambler discovered. To return to more conventional matters, taking a frisbee with you, perhaps even throwing that frisbee to a friend, would normally be perfectly responsible recreation, provided you did not disrupt a local football match or something like that. Transporting yourself on pedal bike or a kayak is normally fine. Pitching a tent for a couple of nights will often be fine too.

What about taking an animal with you? All animals are caught by the legislation in similar terms: section 9(d) provides access with a dog or other animal will not be okay if the animal is “not under proper control”.

Responsible equestrian access has generally been viewed as non-problematic in case law on the issue, meaning horse riding is okay. With horses, the issues have more been to do with potential damage to paths or interaction with other access takers (owing to the size of the animal), rather than horses roaming free, but what does the legislation mean for dogs? A dog, like a frisbee, will often be let loose by its owner. Is this okay?

As with much in the legislation, this will very much depend on the circumstances. The Access Code dedicates several paragraphs to access with dogs (see, for example, 3.53 – 3.56). General guidance is online here. All of this is provided because, as the Access Code rightly notes, walking a dog can be “the main opportunity for many people to enjoy the outdoors, to feelsecure in doing so and to add to their health and well-being”. Dogwalking has implications for others though, and so the Access Code goes on to explain how to take access with a dog responsibly in general and, in some specific situations, in detail. The general advice is to: (i) not take your dog into a field where there are young animals; (ii) not take your dog into a field of vegetables or fruit (unless you are on a clear path); (iii) keep your dog on a short lead or (where appropriate) under close control; and (iv) remove any faeces left by your dog in a public open place.

Despite the Access Code’s clear instruction about not taking a dog into a field where there are young animals, and unlike the situation regarding growing crops (in section 6(1)(i)), there is no general legal exclusion of fields with livestock from access rights. Dogs in fields with livestock can nevertheless be problematic. Worrying of livestock (which includes a dog simply being at large in a field of sheep) might give rise to civil damages for any injuries caused to livestock and is a crime under the Dogs (Protection of Livestock) Act 1953.

There are other things that could be written about the regulation of dogs (such as in relation to “dangerous dogs” and dog fouling legislation), but sticking with the issue at hand it is worth noting that a private member’s bill is now being considered on the matter, and this is linked to an online #takealead campaign. If passed, the bill “would increase penalties and provide additional powers to investigate and enforce the offence of livestock worrying”. As a non-dog owner and non-livestock owner, I hold no particular torch in this debate, but I can report the “vibe” I am getting from conversations, both on and offline, is that maybe the law does need to be clarified a bit in Scotland. And, for information, in New Zealand large tracts of (sensitive) ground are not accessible with dogs at all, never mind with any responsible test, and this system seems to be accepted, with reform to it being resisted. It would be quite a change if Scotland were to move to such a system, but it is something to keep in mind for anyone who thinks the rules in Scotland might be becoming too harsh on dog owners.

From dogs that are off the leash, to other objects that will be decidedly unleashed: drones. Can the right to roam apply in a way that allows drones to be used for photography? As noted, this is something I have been asked about a few times, and now some press coverage of the issue has emerged.

A few points to note at the outset. Motorised travel is not normally allowed in terms of access rights (per section 9(f)), but before immediately ruling out drones I suppose the analogy might be made here that a child could play with a remote control car on a beach, so why not a drone? Secondly, please note that none of what I am about to write should be seen as condoning possible wildlife crimes (see this report about animals being disturbed by drones) or invasions of privacy. Finally, none of this is going to touch on the wider regulation and possible licensing of drones, which might well be a better legal means to deal with the matter than shoehorning drones in the access regime, but that is for someone else to consider.

Returning to the issue at hand and why this has come to a head, drones have been used to capture photos and footage and, it seems, landowners wish to be able to either monetise this or at least ensure droning is done safely. It will be recalled that the legislation allows for recreational, educational and even some commercial purposes. There is an (as yet untested in court) argument that photography could come within these terms. Before rushing off to start taking photos, it should be noted that it is true that the Access Code is not wholly enthusiatic about photography being taken without first obtaining permission from the relevant land owner(s) (see 3.63), but in an article in the Scots Law Times (News) Douglas Cusine makes the point that the legislation is not as narrow on the point as the Access Code suggests (‘Access for photography’ 2017 SLT (News) 21).

To try to bring this all together, what can be said with a degree of certainty is that drones do present novel problems, not least in terms of how remote they can be from an operator. It seems fair to say the Access Code could be refreshed to try to explain how drone use squares with responsible access, and that is even before you get into the separate aviation-type queries that can arise with drones.

All of this makes for a rather unsatisfactory conclusion. I suspect I will keep getting asked about the issue, and at least now I will be able to point to this blog post. Feel free to comment below if you have any insights or experiences of your own.

ScotWays Guide

On a related note, I was happy to receive the ScotWays Spring 2019 Newsletter this week, with this wee snipper from the AGM where the Guide was launched. And yes, I was asked about drones at that AGM. Other than hedging my bets about drones, I hope the book does serve as a useful resource to most access issues.

ScotWays Spring 2019 Newsletter

Photo credit – Richard Barron

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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4 Responses to Some challenges for public access to land in Scotland: daunering with drones or dugs

  1. paulmartin42 says:

    There was a question at FM about the issue of access to fish(ing) in NE Scotland. Frgus Ewing has declined to meet the complainants so I wonder does he above apply to sub surface

    • basedrones says:

      Access rights can apply below land as well as the airspace above it (subject to the usual qualifications about some sensitive areas being excluded and the need for conduct to be responsible).

      • paulmartin42 says:

        Does “responsible conduct” include fracking, extraction of minerals, …
        I have re-read what you wrote and would venture, via your dog thread, that if damage were to ensue that would lead to a civil claim then presumably the law would follow the court case precedent.

        Indeed in Aberdeen low flying helicopters have never been stopped from buzzing the locals as far as I know

  2. basedrones says:

    Fracking would be excluded from responsible access as it is a commercial activity.

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