A peculiar sight has been seen throughout Scotland during the past week (and no, I don’t mean the sunshine). Children enjoying their school holidays have arisen from their computers and ventured, blinking and dazed, into the great Scottish outdoors. Fully grown adults have arrived late for dinner dates or business meetings because they have taken a long cut through a local park instead of taking the bus. Has a great passion for exercise suddenly overcome the population? Not quite; this is Pokémon Go.
For those readers who don’t know their Charmanders from their Pikachus, I will explain.
Pokémon began life in the early nineties as a computer game in which players were tasked with catching and training a variety of little monsters named Pokémon. As technology evolved the world of Pokémon evolved with it. Now instead of catching the little critters on their computer screens from the comfort of their own home, Pokémon Go lets players find Pokémon in the real world through the use of GPS and virtual reality technology; all you need is a mobile phone and the chutzpah not to be embarrassed to be caught shouting “Yes! I caught a Jigglypuff!” in public.
In order to find Pokémon, players must go out in the great outdoors and hunt for them while picking up supplies from various “Pokéstops” situated at notable landmarks. When a Pokémon appears you try and catch it. So far, so harmless.
However, a potential problem may arise if a Pokémon appears in an area of land in which you are unsure of your access rights. That’s where the Scots law on access rights comes in.
Under the Land Reform (Scotland) Act 2003, there is a general right of responsible non-motorised access to the majority of land and inland water in Scotland. However, there are exceptions to this general access right.
The key areas of land over which access rights do not apply are as follows:
- Buildings, including construction works;
- Gardens and land adjacent to houses. The 2003 Act defines “adjacent land” in this context as the amount of land required to allow residents to have reasonable measures of privacy and a level of enjoyment that is not unreasonably disturbed. The extent of the land that should not be accessed may vary depending on the nature and character of the house, for example, walkers may have to avoid quite a large area of land around a castle but only a small amount of land around a caravan;
- Sports playing fields while they are being used;
- Crop fields if the crop is being harvested, fertilised or is at a stage of growth that it likely to be damaged by people accessing the land;
- Farm yards unless there is a right of way, core path or you receive permission from the farmer;
- Land where a local authority byelaw is in place that prevents access, e.g. to protect natural heritage; and
- Buildings and cultural heritage sites that charge an entry fee.
The concept of “responsible access” is fleshed out in the principles of the Scottish Outdoor Access Code. These principles are to: (1) Respect the interests of other people; (2) Care for the environment; and (3) Take responsibility for your own actions. Practical tips for following these principles are to stick to paths if they exist, don’t leave anything on the land and don’t take anything from the land (with the exception of the Pokémon you have successfully snagged).