There are several important differences between English and Scottish laws on access and rights of way. For full information refer to ‘Public Access to the Countryside – A Guide to the Law, Practice and Procedure in Scotland’ (Scottish Natural Heritage, 1993).
Trespass
Any person entering onto land without the owner’s permission is trespassing. In Scotland simple trespass is neither a civil nor a criminal act, but an aggrieved owner may take action in the courts by interdict if he can prove damage is being caused. In such instances the courts need to be satisfied that the trespass will be repeated by the same offender and that there has been some appreciable loss or inconvenience.
Public rights of way
There is no Scottish equivalent to the 1949 legislation of England and Wales. Public rights of way in Scotland, be they footpaths or bridleways, are of two types. These are common law rights of way, and statutory rights of way.
A common law right of way is one whose existence can be established in common law by meeting the following four requirements:
- It must have been used by the general public for a continuous period of not less than 20 years.
- The use must be as of right, and not attributable to tolerance on the part of the proprietor.
- It must connect two places to which the public habitually and legitimately resort.
- It must follow a route more or less defined.
A common law right of way can be lost if it is shown that the public have not used the path for 20 years. This disuse must be by choice, and not because the owner takes action to discourage use.
These requirements are in many ways similar to the common law criteria adopted by National Parks and Access to the Countryside Act 1949, for identifying public rights of way for inclusion on Definitive maps in England and Wales. In Scotland, common law is still the basis of law on public rights of way, and there are no statutory requirements on local authorities to prepare such maps.
Statutory rights of way are those created by an agreement or an order. Agreements with landowners can be made by District or Regional Councils, or if agreement is impracticable, an order can be made. Orders for creations or diversions do not take effect until they are confirmed by the Secretary of State, and there is a procedure for objections to be heard.
Statutory rights of way are either footpaths or bridleways. Bridleways are defined in similar terms to those of England and Wales, but footpaths can be used on foot and on a bicycle.
Maps
In 1981, the countryside (Scotland) Act 1967 was amended to provide that duties connected with public rights of way in Scotland should be the responsibility of the general or district planning authority for any particular area. As already mentioned, these responsibilities do not extend to preparing Definitive maps, but many councils have prepared their own maps of claimed public rights of way in their areas, often with the assistance of community councils. The only statutory requirement on authorities is that they must have maps which the public can consult showing land subject to access agreements or orders acquired under Section 24 or 25 of the 1967 Act. The Scottish Rights of Way Society maintain maps of the more major public rights of way at a scale of 1:50, 000 and Scottish Natural Heritage have made these maps available to all planning authorities in Scotland.
Maintenance
Local authorities must carry out sufficient work to bring a statutory right of way into fit condition for public use, and maintain it in that condition. Their responsibility for common law rights of way are not so positively stated, and extend only to ‘asserting, protecting, keeping open and free from obstruction or encroachment’. As in England and Wales, many rights of way are not maintained, although in Scotland this is not always a breach of statutory duty as it is in England and Wales.
Obstructions and bulls
A member of the public may, without prior notice or protest, remove as much of an obstruction as is necessary in order to restore free passage. The owner may plough a public right of way, unless excluded from doing so by the terms of an agreement or order. The local authority must be informed by the owner of his action within the seven days following ploughing, and the owner must reinstate the surface as soon as possible.
The ruling on bulls is similar to that in English law.
Other access
There are similar provisions to those in England and Wales for the making of access agreements to open land, and the establishment of country parks.
Voluntary action
As claimed public rights of way under Common law can be closed if not used for 20 years, their use and maintenance is of importance to walkers. Limited clearance, sufficient to restore reasonable passage, can be done by members of the public without informing either landowner or local authority, but it is obviously best for any work to be done with the approval of both landowner and local authority. Care needs to be taken to ensure that such work is limited to this end, to avoid giving rise to charges of damage from a landowner or occupier. In these circumstances, it is obviously important to liaise with the planning authority and the owner and occupier of any land in question before doing anything more than this. If difficulty is encountered in identifying who to approach other than the planning authority, contact should be made with the local representatives of the National Farmers’ Union of Scotland and Scottish Land and Estates.
