Over three weeks after Storm Arwen, a message about storm damaged paths still runs across the Cairngorms National Park Authority (CNPA) website. Click on the link Current path closures and you are taken to two headings, “Temporary path closures” and “Current path closures.”  This post takes a look at how the CNPA is ignoring the law on access and at the dangerous thinking that reduces access rights to access over paths which, as I explained last week (see here) has been incorporated as a policy in the CNPA’s  draft National Park Partnership Plan (NPPP).

Storm Arwen and Forestry and Land Scotland (FLS)

Immediately after the storm, which wreaked havoc in many forests across Scotland, FLS issued a news release (see here):

The news release drew attention to the risks of fallen and unstable trees and stated FLS didn’t want anyone to risk their personal safety by going into forests “until such time as we can declare them safe”.  But nowhere did this first news release claim that the land was closed.  A day later FLS repeated (see here) what it described as “its plea”.  Not an order, note, a request.  That was in accordance with access rights.  Just as no public authority has the right to close mountains because of the weather, so no-one has the right to close forests.

By the following Monday (see here), however, FLS had got it seriously wrong:

Note how this news release states that FLS claims it can open and close forests:  these are powers that FLS doesn’t have. What it should have said was that in its view some of its forests were now safe but it was advising against visiting others because of risks of falling trees.

While there is nothing on FLS’ main web page for visitors (see here) about Storm Arwen, drill down to particular forests and there are several variations on a notice claiming forests have been closed or recently re-opened.  For example, under Glen Doll in the Angus Glens:

This too is wrong and FLS certainly has no power to close trails until such time as it gets round to making a safety assessment.

The law on path closures

Under section 11 of the Land Reform (Scotland) Act 2003 (see here) access authorities, i.e. local authorities and our national park authorities not Forestry and Land Scotland, have the power to temporarily  close paths and exempt land from access rights for a period of up to six days, through what are known as Exemption Orders. For any period longer than that the access authority has to seek approval from Scottish Ministers. While many local authorities, including Highland Council (see here), issue guidance to the landowners on how to apply for an exemption order, there appears to be nothing on the CNPA website.

 

The CNPA’s response to FLS’ attempt to close its forests

The advice under this heading to stay away from forests is within the law, but the heading was wrong and totally inappropriate.  The CNPA had not closed any paths and in any case FLS had been advising people to keep away from forests not paths.  But that mistake becomes comprehensible when you understand that there are staff within the CNPA who ONLY see access rights in terms of paths – like Rights of Way in England – and don’t believe they extend elsewhere.

As proof that the CNPA was acting ultra vires, beyond its powers, here is the same notice as it appeared on 19th December:

Under the law on exemption orders, any closure of more than 6 days has to be approved by Scottish Ministers.  The CNPA has not done that and this notice subverts the law on access.  Instead of challenging FLS about its claims that forests within the National Park were closed, the CNPA compounded the mistake.

Not only that, but while FLS has at least updated its website to say when it has checked forests and believes it is safe to visit again, the CNPA is still claiming those forests are “closed”:

On 15th December FLS declared Glenmore is safe but on the 19th the CNPA was still claiming it was “closed”.  A very good reason why the Land Reform Act only allows access authorities to exempt land from access rights for up to six days is to pre-empt this sort of bureaucratic bungling.

The section on the CNPA webpage below the Temporary path closures continues the muddle:

Three of the bullet points, on Glenlivet, Glen Tanar and Glen Doll, repeat the ultra vires claim that paths are closed.  There was no need for this.  What the CNPA could have done was to advise where paths were blocked or dangerous because of fallen trees and suggested potential alternative routes.  There is a significant difference legally between stating a place or path is closed and advising people to avoid a place or path for a specific reason.  In the bullets on Glen Tanar and Glenlivet, the CNPA manage to say both!

The message for the Queen’s Drive path at Braemar is better, it helpfully requests people to follow a diversion.  The message from Atholl Estate Rangers is better still, asking people to exercise caution and vigilance – exactly right – and without any mention of closures.  That the CNPA thought it appropriate to treat the Atholl Rangers advice as a  “current path closure” is astonishing.

Conclusion and what needs to happen

FLS has engaged with recreational organisations for 20 years now on forestry signage.  It should have known better than to try and close whole forests but I can understanding them panicking after Storm Arwen given the potential for accidents and legal claims.  In such circumstances, the job of our access authorities should have been to remind FLS of the law, including the fact that the right means of dealing with the issues is through section 15 of the Land Reform (Scotland) Act (see here) which allows signs or fences to be erected to warn or protect the public from danger.

Had FLS needed time to check the position on the ground and put up the necessary warning signs, they could have requested –  or the CNPA could have suggested –  a section 11 Exemption Order to cover the first five days. But that didn’t happen and after that both FLS and the CNPA have acted unlawfully in claiming land and paths are closed without seeking ministerial consent.

This is a serious misunderstanding of access rights and a number of things now need to happen:

• the CNPA Board and the Cairngorms Local Outdoor Access Forum need to review what has gone wrong and take steps to ensure such mistakes don’t happen in future;
• more specifically the CNPA Board needs to ensure that in future its staff clearly distinguish between advice and measures that, under the Land Reform (Scotland) Act are governed by legal processes, such as path closures;
• the CNPA then needs to create a clear process, as local authorities have done, for landowners to apply for Exemption Orders and set up a public register for any such orders that are made in future;
• the National Access Forum, which includes representatives of recreational organisations, must conduct an inquiry into what has gone wrong and the lessons for the future;
• and, most importantly, the CNPA needs to revise the policy in its draft Partnership Plan which attempts to reduce access rights to a matter of access along promoted paths.