Rights of Way in Scotland

Rights of Way in Scotland - a primer

Note that RoW law and practice in Scotland is very different from England & Wales

Andrew Kay says ..

The Scottish Rights of Way and Access Society have a membership that is mainly walker based. Andrew Ralton is based at their offices in Edinburgh - 24 Annandale Street Edinburgh, EH7 4AN. I have had an exchange of Emails with him and he tries to be helpful ( This e-mail address is being protected from spam bots, you need JavaScript enabled to view it ).

Their web site is at: http://www.scotways.com
Their FAQ is worth reading http://www.scotways.com/help/faqs.php3
If you do decide to call in on Scotways - please let me know the outcome or post anything relevant to the GLASS forum.

The Scotways National Catalogue of Rights Of Way (they call it CROW) has less than 8000 public RoW recorded (of all types) for the whole of Scotland. Almost 85% of these are just 'claimed' rather than proven by any legal process. CROW contains only 140 vehicular RoW and nearly all of them are just "claimed" - and they are all very short. Effectively there are just about zero proven, accepted unsealed vehicular RoW in the whole of Scotland.

I contacted a few of the Highway Authorities (inc Highlands which was of the most interest to me at the time) to ask about unsealed vehicular rights of way and also about their "List of Roads" which is the list of public roads that they have a responsibility to maintain. I discovered a few interesting things:
a) Scottish HAs know zip about vehicular unsealed RoW. Their responses were generally either that they had none at all or alternatively they might have some but kept no records. As you will be aware, there is no public register of RoW in Scotland that is similar to Definitive Maps in England & Wales.
b) Unlike in England & Wales, Scottish HAs appear to have no responsibility for maintaining unsurfaced vehicular roads - so any that do exist are not recorded in their List of Roads. Private roads have to be brought up to an adoptable standard before they are adopted by the HA to be publicly maintained. As I understand it, this generally requires tarmac!

The Scottish Natural Heritage site is worth a look http://www.snh.org.uk

* If you want to get seriously depressed: http://john.rushworth.com/Motorcycle_Co_UK_archive/articles/ is worth a read. It's written by a trail rider - it puts the "green lane" situation in Scotland into a pretty fair context. It is a *must* read. Unless and until I'm persuaded otherwise (please try!!!), I think I've come to the conclusion that there are very few (if any) "green lanes" in Scotland that can be legally driven. I suspect that any that are driven are either driven illegally or alternatively with the explicit permission of landowners.

This e-mail address is being protected from spam bots, you need JavaScript enabled to view it 9/2002

And more ...

Hi Folks, I received this a month or so back from Scotways. It is a copy of the contents of their RoW leaflet. As there has been some discussion on the forum about RoW in Scotland, I thought it might be of interest to some members:

Cheers, Andrew 3/2003

WHAT IS A PUBLIC RIGHT OF WAY?

A public right of way allows members of the public to use all or part of it at all times to progress freely between any two points along its length.
The fact that it is a public right of way does not allow the route to be used for any purpose other than passage; e.g. it may not be assumed that it is permissible to light fires or to camp
A public right of way may be established for pedestrian, cycle, equestrian or vehicular use but most rights of way may be used only by pedestrians.
The type of use is determined by evidence of use by these categories over a period of 20 years or more.
The decision as to whether or not a route has right of way status is not within the power of the Society, although the Society will normally have a view and communicate that view to the relevant local authorities. The Society will also list all routes in the National Catalogue.
['Society' refers to Scotways]
The Common Law lays down four main criteria for rights of way (see 8) and if these are satisfied, then a route may be claimed as a right of way. Statutory powers in connection with rights of way are given to local authorities and they may, if so desired, add claimed rights of way to a list of asserted rights of way. This simply means that they are prepared to support their status, if challenged.
If the status of a claimed right of way is challenged in court and its status is upheld then its status is vindicated and is not subject to further challenge.
The four main criteria are:
[i] It must join two public places, usually but not necessarily roads.
[ii] It must follow a more or less defined route but it does not have to be visible on the ground as a path or track in open country.
[iii] It must have been used openly and peaceably by the public, As of Right, without the permission, express or implied of the Landowner.
[iv] It must have been used without substantial or effective interruption for 20 years or more.
A right of way may be maintained by the local authority or the Landowner but they have no duty to do so. Those using the route, provided they do no damage to the adjacent property, may also maintain it.
People using rights of way should realise that they do so at their own risk. This does not, of course, free anyone from possible liability for reckless or negligent actions, such as pasturing a bull on a right of way or digging a hole and leaving it uncovered or unmarked.
If you encounter an Obstruction on a right of way, such as a locked gate or a misleading notice, please advise the Society who will take the matter up with the relevant local authority, if appropriate.
Under the present law, rights of way (by definition) may not be closed at any time or for any purpose. However, recreational and other users would be expected to exercise reasonable discretion and vary their route, where possible, in order to avoid interfering with legitimate countryside pursuits or where directed, for safety reasons, to follow a temporary alternative, as during timber felling operations. [Note: A Bill regarding access to the countryside is expected during the course of 2001 from the Scottish Parliament but its contents are at present unknown, particularly as regards its effect on rights of way]
If you require any further information or assistance, you can obtain this free of charge as a member of the Society or otherwise for a small fee.
It should be noted that the Society does not deal with private rights of way, those being more usually called "rights of access" which are normally regulated by title deeds. The first port of call in such circumstances should be your solicitor.
The Society's membership categories and current subscription rates are appended. The Society has acted on behalf of the public for 155 years and has a countrywide network of local representatives.

This leaflet aims to do no more than present some facts about rights of way in very general terms. It is not a detailed statement of the law, which can be complex, the solution to problems often depending on individual circumstances. If you have a difficult problem, the Society will do its best to assist.

The objects of the Society are: the preservation, defence, restoration and acquisition for the public benefit of public rights of access over land in Scotland, including public rights of way

Last Updated ( Sunday, 03 December 2006 )

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