The purpose of a bothy is to provide a safe environment for the weary and weather-beaten outdoor lover. It is somewhat ironic then that these rural ‘safe havens’ have recently been the subject of antisocial behaviour and fire-raising. In light of this misuse, it is timely to recap on the extent of the public’s right of access to the Scottish countryside and, in particular, to bothies.
The Land Reform (Scotland) Act 2003 (“the 2003 Act”) grants the public:
- a right of pedestrian access over land; and
- a right to occupy land for the purposes of carrying out activities involving recreational, educational and commercial use.
These rights do not give a person or a group of people free rein to do whatever they would like to do – the rights must be “exercised responsibly”.
What does ‘exercised responsibly’ mean within the terms of the 2003 Act?
Section 2(2) of the 2003 Act provides that ‘a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person’.
Further guidance as to how to exercise such rights responsibly is set out in the Scottish Outdoor Access Code.
Is any land excluded from the right of access granted under the 2003 Act?
Section 6 of the 2003 Act sets out instances where access cannot be taken over land by the general public. The most relevant of these for the present topic are:-
- Land where there is ‘a building or other structure or works, plant or fixed machinery’ on it;
- Land where there is ‘a caravan, tent or other place affording a person privacy or shelter’ on it;
Does access to bothies fall within the ambit of the 2003 Act?
While members of the public may think that they have unrestricted access to bothies, this is not the case, as land with a bothy – being both a building and a place affording shelter – falls squarely into the exclusions noted above.
As the majority of bothies sit on privately owned land, it is entirely at the landowner’s discretion as to whether they are willing to allow the general public to use such a facility. A landowner may also decide to restrict use at certain times of the year, perhaps to coincide with periods of lambing, deer stalking or forestry works being carried out.
How is the use of bothies regulated in Scotland?
There is no legislation in place specifically regulating the use of bothies. Criminal charges may be faced if a person causes damage or acts in a disorderly manner at a bothy.
The Mountain Bothies Association (“MBA”) is a charitable organisation which helps to restore, and manage the use of, bothies within the UK, with the prior agreement of the relevant landowners. The MBA has established its own ‘Bothy Code’ which encourages the public to act with respect, for the bothy itself, other users, the surroundings and the landowner.
Use of bothies is a privilege rather than a right and can be taken away by landowners at any time if abused.