The right to roam: where access ends and liability begins

The ‘right to roam’ is firmly embedded in Scottish history and tradition but where does access end and liability begin for landowners? James Cuthbertson of Lycetts highlights how landowners can support public access while managing their legal responsibilities.
In legal terms, the right to roam is a statutory framework created by the Land Reform (Scotland) Act 2003, supported by the Scottish Outdoor Access Code. In everyday, layman’s terms, it gives everyone the right to access and enjoy most of Scotland’s stunning landscape and inland waters.

The impact of this public access for rural estates can be considerable, particularly given that NatureScot’s Scotland’s People and Nature Survey 2023/24 reports that 61% of adults typically visit the outdoors at least once a week, with walking accounting for 93% of visits .
That’s a lot of walking boots and wellies regularly making their way across land that remains privately owned and fully operational.
Access all areas

Public access rights in Scotland apply only when exercised responsibly and do not extend to certain types of conduct or land. The 2003 Act excludes activities such as motorised access, hunting, shooting or fishing and behaviour such as failing to keep a dog under control around livestock. Access rights also do not apply to houses and private gardens, farmyards and land with growing crops.
In reality, many disputes over public access simply come down to confusion about where rights begin and end. Walkers can sometimes assume that ‘right to roam’ gives them complete freedom, while landowners may feel they retain absolute control over their property.
The reality is that Scotland’s legal system actually sits somewhere in the middle of these misconceptions.
It protects responsible public access, but it also recognises that estates are working environments with legitimate operational needs and that landowners have a right to privacy.

The law of the land
The legal pressure point for estates lies in the Occupiers’ Liability (Scotland) Act 1960. Under this legislation, landowners must ensure that a person entering their premises does not suffer injury or damage due to dangers arising from the state of the land or from activities being carried out there. The law does not require estates to eliminate every natural hazard across thousands of acres. It does, however, expect proportionate policies in place where a risk is foreseeable and avoidable.
Importantly, this duty in Scotland is not limited to invited visitors. The same law applies whether a person has permission to be on the land or not.

Where liability is likely to arise
High-traffic areas such as gates, stiles, bridges, car parks and popular viewpoints create natural pinch points. Wear and tear of materials and deterioration of structures are inevitable over time but must be managed and maintained.
Where footfall is consistent, inspection and maintenance must be equally consistent. A damaged bridge on a frequently used path must be maintained more frequently than a remote feature that’s rarely visited.
Water, weirs and quarry edges also present significant risks but the law does not require fencing around every loch or ravine. However, where erosion, instability or structural modification increases risk to members of the public, the moral and lawful duty to assess and manage these risks become more pressing.

Landmarks and livestock risks
Old structures and derelict structures will also attract legal scrutiny. Disused buildings and unstable walls can attract unwanted attention, particularly from adventurous children. Where such features are near established walking routes, the question of accountability becomes harder to ignore.

Meanwhile, livestock management, forestry operations, deer stalking, estate vehicles and machinery all form legitimate parts of rural business. However, when these activities interact with public access routes, the need for due diligence heightens. Incidents involving cattle with calves, felling works near paths or vehicle incidents are among the more common scenarios leading to claims or disputes.
Even where legal liability is denied, reputational consequences can still be significant. In an era of social media scrutiny, incidents involving public access and safety can quickly become public debates for the world to see.
Warning signs

The Land Reform (Scotland) Act 2003 makes it unlawful to put up signs or take other action for the purpose of deterring people from exercising their access rights.

This means that standard ‘Keep Out’ notices on access land is not enough. Signage must be accurate, specific and time-limited where appropriate. Warning of tree felling in progress, advising on cattle with calves or directing users to a temporary diversion would all support responsible access. The tone should be informative rather than prohibitive so that it aligns with the principles of the Scottish Outdoor Access Code.

Maintenance matters
Estates should be able to demonstrate that high-use features and land are identified and assessed regularly, and that repairs are addressed within a reasonable timeframe and documented with traceable paperwork.
Prevention is almost always less costly than post-incident defence.
However, where a genuine safety requirement justifies a temporary restriction, local authorities can grant temporary exemption orders from access rights for particular purposes and specific time periods.
Contractor management is another key consideration for estate owners. Whenever third parties undertake forestry, construction or maintenance works, setting clear allocation of roles and responsibilities and appropriate risk assessments are essential.

Ensuring insurance is fit for purpose
Insurance should reflect the reality of ever-evolving estate business. Diversification into holiday accommodation, events or visitor attractions can alter the risk profile of people’s right to roam considerably.
Insurance and H&S procedures should be reviewed regularly by an experienced rural broker and risk manager who can ensure that policies are aligned with current operational risks and legislation.

The right way to roam
The debate around Scotland’s ‘right to roam’ is often seen as a battle between public access and private rights. In practice, it is a matter of risk management. Although the law does not expect estates to make the countryside risk-free, it does expect reasonable care to be taken to mitigate those risks. This means focusing attention on the most popular tourist hot-spots, understanding the boundaries of access rights and managing hazards in a sensible and legally compliant way.
The right to roam is all about ensuring the coexistence of public enjoyment and private land management so that everyone can enjoy Scotland’s Highlands and Lowlands, castles and cairns for generations to come.

IMPORTANT NOTE: This information sheet has been prepared for Scottish Land & Estates by Lycetts and reflects information reviewed by Lycetts at the time of its publication.
Accordingly, account must always be taken of any relevant changes in law, policy or other circumstances since that time. It is for general information only and must never be relied upon as any substitute for appropriate professional advice, which should always be taken in any situation in which financial or other interests may be at stake.
No liability can be accepted by Scottish Land & Estates or Lycetts or their respective employees for any misstatement in it or omission from it.