Scottish Rights of Way and Access Society

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About Access Rights

33
  • #RespectProtectEnjoy
  • Rights of Way FAQ
  • What are Outdoor Access Rights?
  • Rights of Way
    • Development Proposals and Outdoor Access
    • Moving and Closing Paths
    • Path Maintenance
    • Private Signs, Private Roads, Public Roads, What’s the difference?
    • Rights of Access to Land
    • Rights of Way and Motor Vehicles
  • Statutory Access Rights
    • A Brief History of Access Rights
    • A local landowner has fenced off a path that is well used by local people, and has put up a sign saying No trespassers’. What can I do about it?
    • Are access rights different in Scotland from those in England and Wales?
    • Can I go wild camping in Scotland?
    • Horse riders are using a local path and churning it up so that it is difficult for walkers to use. What can be done?
    • Moving and Closing Paths
    • No Right of Access to Land in Scotland through the Scottish Outdoor Access Code
    • Path Maintenance
    • Private Signs, Private Roads, Public Roads, What’s the difference?
    • Right to Roam Timeline
    • Rights of Access to Land
    • Rights of Way and Motor Vehicles
    • Snares and traps in the Countryside
    • The Coming of Statutory Access Rights
    • The Scottish Outdoor Access Code, A Replacement for the Country Code
    • What activities are covered by rights of access?
    • What activities are not covered by rights of access?
    • What are core paths?
    • What does behaving responsibly mean?
    • What happens when there is a dispute about whether, or how, the rights of access apply?
    • What is a Local Access forum?
    • What is the National Access Forum?
    • Where do access rights not apply?
    • Who should I contact if I have a problem about access rights?

The Bookshelf

9
  • About The Bookshelf
  • Guidance on Legislation
  • Legislation
  • Responsible Access
  • Surveys of Rights of Way, Outdoor Access and Procedures
  • Rights of Way and Outdoor Access Management
    • Land Management
    • Path Management
    • People Management
    • Signposting and Interpretation

Court Cases

146
  • An outline of the Scottish Courts System
  • The Authority of Case Law
  • The complexity of the law
  • Cases under the Land Reform (Scotland) Act 2003
    • Aviemore Highland Resort v Cairngorms National Park Authority
    • Caledonian Heritable Ltd v East Lothian Council
    • Creelman v Argyll & Bute Council
    • Forbes v Fife Council
    • Gloag v Perth & Kinross Council and the Rambler’s Association
    • Judicial Review: Petition of GREGORY BROWN for review of a decision by GLASGOW CITY COUNCIL (Cathkin Park, Glasgow)
    • Law Society of Scotland v Scottish Legal Complaints Commission
    • Renyana Stahl Anstalt v Loch Lomond and The Trossachs National Park Authority Appeal Decision
    • Snowie v Stirling Council and Ramblers Association Lindsay and Barbara Ross v Stirling Council
    • Tuley v Highland Council
    • Williamson v Highland Activities Limited
  • Public rights of way and private servitude rights of way
    • Creation of public rights of way – need for public place end points
      • Cuthbertson v Young
      • Darrie v Drummond
      • Duncan v Lees
      • Jenkins v Murray
      • Lauder v MacColl
      • Leith-Buchanan v Hogg
      • Magistrates of Dunblane v Arnold-McCulloch
      • Marquis of Bute v McKirdy & McMillan
      • Melfort Pier Holidays Ltd v The Melfort Club and Others
      • Midlothian Council v Crolla
      • Oswald v Lawrie
      • Scott v Drummond
      • Smith v Saxton
      • Wood v North British Railway
    • Creation of public rights of way – use as of right by the public for the prescriptive period
      • Aberdeen City Council v Wanchoo and Neumann v Hutchison
      • Ayr Burgh Council v British Transport Commission
      • Burt v Barclay
      • Cadell v Stevenson
      • Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd
      • Duffield Morgan v Lord Advocate
      • Kinloch’s Trustees v Young
      • Magistrates of Elgin v Robertson
      • McGregor v Crieff Co-operative Society Ltd
      • McInroy v Duke of Athole
      • Norrie v Magistrates of Kirriemuir
      • Rhins District Committee of the County Council of Wigtownshire v Cunninghame
      • Richardson v Cromarty Petroleum Co Ltd
      • Rome v Hope Johnstone
      • Scottish Rights of Way & Recreation Society Ltd v Macpherson
      • Strathclyde (Hyndland) Housing Society Ltd v Cowie
      • Wills Trustees v Cairngorm Canoeing and Sailing School Ltd
      • Wilson v Jamieson
    • Creation of rights of way – interruption of the prescriptive period
      • Mann v Brodie
    • Different kinds of use of rights of way
      • Aberdeenshire Council v Lord Glentanar
      • Carstairs v Spence
      • Crawford v Lumsden
      • Macfarlane v Morrison & Others (Robertson’s Trustees)
      • Mackenzie v Bankes
      • Malcolm v Lloyd
    • Need for a particular line for public rights of way
      • Home Drummond & Another (Petitioners)
      • Hozier v Hawthorne
      • Mackintosh v Moir
    • Obstruction of rights of way
      • Aitchison v India Tyre & Rubber Co.
      • Anderson v Earl of Morton
      • Drury v McGarvie
      • Earl of Morton v Anderson
      • Fife Council v Nisbet
      • Geils v Thomson
      • Glasgow and Carlisle Road Trustees v Tennant
      • Glasgow and Carlisle Road Trustees v Whyte
      • Graham v Sharpe
      • Hay v Earl of Morton’s Trustees
      • Kirkpatrick v Murray
      • Lanarkshire Water Board v Gilchrist
      • Lord Donington v Mair
      • Macdonald v Watson
      • Midlothian District Council v MacKenzie
      • Rodgers v Harvie
      • Soriani v Cluckie
      • Stewart, Pott & Co. v Brown Brothers & Co
      • Sutherland v Thomson
    • Procedural issues
      • Alexander v Picken
      • Alston v Ross
      • Hope v Landward District Committee of the Parish Council of Inveresk
      • Macfie v Scottish Rights of Way and Recreation Society Limited
      • Nairn v Speedie
      • Potter v Hamilton
      • Torrie v Duke of Atholl
    • Public and private rights of way – ancillary rights and burdens
      • Allan v McLachlan
      • Lord Burton v Mackay
      • McRobert v Reid
      • Milne v Inveresk Parish Council
      • Moncrieff v Jamieson
      • Preston’s Trustees v Preston
    • Relationship of public rights of way with private servitude rights of way and with ‘roads’ under the Roads (Scotland) Act 1984
      • Public rights of way and ‘roads’ under the Roads (Scotland) Act 1984
        • Davidson v Earl of Fife
        • Hamilton v Dumfries & Galloway Council
        • Hamilton v Nairn
      • Relationship of public rights of way with private servitude rights of way
        • Alvis v Harrison
        • McGavin v McIntyre
        • Thomson v Murdoch
    • Rights of way – land owned by statutory undertakers or the Crown
      • Ayr Harbour Trustees v Oswald
      • British Transport v Westmoreland County Council
      • Edinburgh Corporation v North British Railway Co.
      • Ellice’s Trustees v Commissioners for the Caledonian Canal
      • Kinross County Council v Archibald
      • Lord Advocate v Strathclyde Regional Council and Lord Advocate v Dumbarton District Council
      • Oban Town Council v Callander & Oban Railway
      • The Ramblers Association v The Secretary of State for Environment, Food and Rural Affairs (and Others)
  • Navigation rights and rights in relation to the foreshore
    • Navigation rights
      • Campbell’s Trustees v Sweeney
      • Colquhoun’s Trustees v Orr Ewing & Co
      • Crown Estate Commissioners v Fairlie Yacht Slip Ltd.
      • Denaby and Cadeby Main Collieries Ltd v Anson
      • Ellerman Lines Ltd v Clyde Navigation Trustees
      • Kames Bay Case – Petition of the Crown Estate Commissioners
      • Walford v David
      • Wills Trustees v Cairngorm Canoeing and Sailing School Ltd
    • Rights in relation to the foreshore
      • Leith-Buchanan v Hogg
      • Marquis of Bute v McKirdy & McMillan
      • Officers of State v Smith
  • Liability
    • Cases relating to contributory negligence
      • Smith v Finch
    • Liability of recreational users to one another
      • Anthony Phee v James Gordon & Niddry Castle Golf Club 4 November 2011
      • Milne v Duguid
      • Pearson v Lightning
    • Occupiers’ liability: Cases involving ‘hazards’ in the outdoors
      • Anderson v The Scottish Ministers
      • Brown v South Lanarkshire Council
      • Duff v East Dunbartonshire Council
      • Fegan v Highland Regional Council
      • Graham v East of Scotland Water
      • Johnstone v Sweeney
      • Lang v Kerr Anderson & Co.
      • Marshall v North Ayrshire Council
      • McCluskey v Lord Advocate
      • Michael Leonard v The Loch Lomond and The Trossachs National Park Authority
      • Prosecution by the Health & Safety Executive Dunoon Sheriff Court, 18th August 2010
      • Strachan v Highland Council
      • Tomlinson v Congleton Borough Council
      • Trueman v Aberdeenshire Council
      • Wright v Nevis Range Development Company
    • Occupiers’ liability: Cases involving children
      • Dawson v Scottish Power
      • Glasgow Corporation v Taylor
      • Jolley v Sutton London Borough Council
      • Stevenson v Glasgow Corporation
    • Occupiers’ liability: Cases involving facilities/indoor premises
      • McCondichie v Mains Medical Centre
      • Poppleton v Peter Ashley Activities Centre
      • Porter v Borders Council
    • Cases involving animals
      • Gardiner v Miller
      • Shirley McKaskie v John Cameron
      • Welsh v Brady
  • Other cases of interest
    • Carol Rohan Beyts v Trump International Golf Club Scotland Limited
    • Law Society of Scotland v Scottish Legal Complaints Commission
    • Neizer v Rhodes
    • R v Howard

Heritage Paths

18
  • Heritage Paths Introduction
  • Historic Footpaths
  • The Launch of the Heritage Paths website
  • About Types of Heritage Paths
    • Coffin Roads
    • Drove Roads
    • Fish Roads
    • Heritage Paths Introduction
    • Leisure Paths
    • Medieval Roads
    • Military Roads
    • Pilgrimage Routes
    • Postie Paths
    • Public works and private enterprise: moving towards the modern transport system
    • Religious Routes
    • Roman Roads
    • Salters’ Roads
    • Trade Routes
    • Traveller Routes

History

36
  • Historic Footpaths
  • The Launch of the Heritage Paths website
  • History of Access
    • A Brief History of Access Rights
    • Boardwalks, the oldest types of constructed path
    • Right to Roam Timeline
    • The Bedford Memorial Bridge
    • The Coming of Statutory Access Rights
    • The Scottish Outdoor Access Code, A Replacement for the Country Code
    • What is the National Access Forum?
  • History of ScotWays
    • 175th Anniversary
    • 1844 The beginning of ScotWays
    • Scottish Hill Tracks – the 100+ year story
    • The Association for the Protection of Public Rights of Roadway in and Around Edinburgh
    • The Bedford Memorial Bridge
    • The History of ScotWays
    • Welcome the Scottish Rights of Way and Recreation Society Limited
    • What’s in a name?
    • You are invited to the opening of the Rev A. E. Robertson Memorial Bridge
  • Important People of Scottish Access
    • Adam Black (1784-1874)
    • Archibald Eneas Robertson (1870-1958)
    • Arthur W Russell (1873-1967)
    • Donald Bennet (1928-2013)
    • Donald Grant Moir  (1902-1986)
    • John George Bartholomew (1860-1920)
    • John Hutton Balfour (1808-1884)
    • Professor Sir Robert (Bob) Grieve (1910 -1995)
    • Rennie McOwan (1933-2018)
    • Tom Weir (1914-2006)
    • Viscount James Bryce (1838-1922)
    • Walter Arthur Smith (1852-1934)
    • William Ferris (1894-1963)
  • Signposting
    • 1964 When figure 740 changed the face of path signs
    • A Signposting Tour of the Cairngorms
    • ScotWays’s Oldest Standing Signpost
    • The Changing Face of ScotWays Signs
    • The First ScotWays Signposts

Scottish Hill Tracks

2
  • Scottish Hill Tracks – the 100+ year story
  • Scottish Hill Tracks Updates
  • Home
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  • About Access Rights
  • Rights of Way
  • Moving and Closing Paths
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Moving and Closing Paths

A yellow arrow on a piece of A$ paper points upwards with the words "West Highland Way Diversion" above it and "Straight on along Station Road" below it. The paper is on a lamp post to the left of the picture with a road on th right heading into the distance.

You’re out enjoying a wander down your favourite path when you come across a sign saying diversion. Is it legitimate? Can a path actually be closed or diverted? Yes, it can, but there are processes to follow.

Before exploring how a path might be closed or moved, it’s important to note that doing so does not necessarily mean that people will be excluded from that area. If access rights are exercisable over the land which the path crosses, then the public might still be able to use the route legally by non-motorised means, even if the actual path has been moved or closed.

Why might paths need to be closed or diverted? #

A path may need to be changed to allow some type of development or work to be carried out, to improve the use of, or properly manage, the land, or to move the path to a better location. The reason for the change governs the processes that need to be used. The change may be permanent or temporary.

Temporary diversions and closures

A short-term change to a path that may last hours, days, weeks or months in some cases. In the case of mining, it may last years!

Permanent diversions and closures

A permanent change to a path. For example, where a building is to be erected across the line of an existing path.

Formal or informal #

There are formal processes to follow for permanent and many longer-term temporary closures/diversions, but it may be that an informal process could be used for short-term, temporary closures/diversions, such as asking people to stop walking along a path whilst a tree is cut down or maintenance work is being undertaken.

Your starting point is always to discuss any proposed change to a path with the local authority access team for your area.

Informal Processes #

Where an informal process is appropriate, a good pragmatic process for the temporary closure or diversion of paths – albeit one without the same legal standing as a formal process – involves:

⁃ the publication of a notice in the local press or Council website, setting out those paths that will be closed/diverted for a temporary period, the estimated duration of, and rationale for, the closure/diversion, as well as confirming that the path/s will be re-opened along their original alignment on completion of associated works. The notice should also describe any recommended alternative route;
⁃ the posting of (1) site notices in similar terms at either end of the affected sections of the path/s and (2) signs directing users along any recommended alternative route;
⁃ notifying the relevant community council/s, local ward councillors and any other relevant body (including the Local Access Forum and, if appropriate, ScotWays), in advance, of the closures and their effect.

Such a process ensures the public, particularly the local community and those who normally use the path/s or might be affected by their closure or diversion, is aware of the situation in advance.

For closures/diversions of short-term duration required to address urgent land management issues that have arisen unexpectedly, such as fallen trees or escaped livestock, it may be sufficient for land managers to post site warning notices and sign alternative routes.

Formal processes #

Formal processes should be followed whenever possible for longer-term closures/diversions, as they allow for consultation, public comment and, in some instances, independent scrutiny.

There are a range of laws that include provisions for the diversion and closure of paths, and which piece of legislation is used depends upon the reasons why the paths are to be closed or moved.

However, not every reason for wanting a path closed or moved is supported by law. For example, when people suffer from anti-social behaviour they can want a path closed or moved. It is seen as the quick and obvious solution, but no law in Scotland recognises antisocial behaviour as a reason to close or divert a path. Instead, the existing laws and powers for combating anti-social behaviour should be used.

Legislation allowing paths to be diverted or closed #

The following acts all include provisions to move or close paths. Which one should be used in any particular case will depend upon the reason for the moving or closure of the path and moving or closing the path may not change the access rights that apply to the land it crosses.

Countryside (Scotland) Act 1967.
Roads (Scotland) Act 1984.
Town and Country Planning (Scotland) Act 1997, as amended.
Land Reform (Scotland) Act 2003.
Road Traffic Regulation Act 1984.
The Compulsory Purchase of Land (Scotland) Regulations 2003.

Other pieces of legislation may control how a path is used and thus may effectively close a path to some or all types of users, such as provisions relating to defence considerations.

Each of these pieces of legislation may have associated schedules or regulations that set out the exact procedure that needs to be followed such as The Road Traffic (Temporary Restrictions) Procedure Regulations 1992 and The Road Traffic (Temporary Restrictions) Procedure Amendment (Scotland) Regulations 2005. Read more about Temporary Restrictions on the Cycling UK website.

Who applies the legislation will depend on why the path in question is to be closed or diverted. In most cases, it will be a department of the local authority, but in some cases, it may be Transport Scotland or the Secretary of State. Land managers cannot themselves apply the legislation.

Path closures/diversions proposed under these different pieces of legislation are known as ‘orders’. They will be made (promoted) by the responsible authority and they may be approved by the same authority or may need to be referred to Scottish Ministers.

I need to close the path for safety reasons #

An assessment may be made of a path under other legislation such as the Health and Safety at Work Act 1974 and its subsidiary legislation. The outcome of that may be that a path is recommended for closure. However, there are no provisions within any health and safety legislation to close a path, so once the need to close it has been established, one of the above pieces of legislation would need to be applied to actually make the closure.

Can paths be moved to allow a development to happen? #

Yes, but not until the relevant planning application has been approved and a diversion order has been made and confirmed under the Town and Country Planning (Scotland) Act 1997. Ken can tell you more.

Is a diversion or closure acceptable? #

Possibly. Each case needs to be looked at on its own merits. What may be acceptable in one case may not be acceptable in another. The key consideration is to try to ensure that outdoor access provision is no worse off after the diversion or closure than it was before. In the case of proposed developments requiring the benefit of planning permission, this will be a material consideration in the determination of the relevant planning application.

Things to consider include how the proposed change will affect the overall path network. Does the path itself have any special characteristics such as its historical, cultural or transport associations or special landscape value that should be considered? Is it an informal/unsurfaced, but important, shortcut through to a bus stop or an established recreational route offering a longer but more scenic alternative to a more direct, low-level route?
The criteria ScotWays uses to determine whether a proposed diversion is considered acceptable include:
• the diversion should be of at least an equivalent standard,
• it should not be significantly longer,
• it should be no less convenient,
• it should be accessible to at least the same categories of access users as use it at present,
• it should be available for use before the present route becomes unavailable.

Don’t forget access rights. #

Whilst it is possible to move a right of way, core path or even a public road, it is quite possible that access rights will still apply to the underlying piece of ground. This means that while the path may go people may still have the right to be on the land or to cross it legally by non-motorised means.

There is a path close to my house which local people say is a right of way. Can I divert the route so as to protect my privacy? #

No: landowners/managers cannot themselves divert rights of way unless it is urgently necessary to do so in the very short term to address a land management issue that has arisen suddenly and unexpectedly, e.g. a fallen tree or flooding. You would need to ask the local authority – and it would need to agree – to make and confirm a diversion order before the right of way could be diverted. Privacy is not a reason given in any legislation that justifies moving or closing a path. You would need to demonstrate that there is another acceptable reasoned justification for the diversion to happen, such as to make more efficient use of the land the path crosses or provide a shorter or more convenient path across the land.

Core Paths, Diversion, Footpath, Path Design, Rights of Way
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Updated on 13 April 2024

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Table of Contents
  • Why might paths need to be closed or diverted?
  • Formal or informal
  • Informal Processes
  • Formal processes
  • Legislation allowing paths to be diverted or closed
  • I need to close the path for safety reasons
  • Can paths be moved to allow a development to happen?
  • Is a diversion or closure acceptable?
  • Don’t forget access rights.
  • There is a path close to my house which local people say is a right of way. Can I divert the route so as to protect my privacy?
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The Scottish Rights of Way & Access Society. Upholding Public Access.
Registered Office: 24 Annandale Street, Edinburgh, EH7 4AN. Tel: 0131 558 1222.
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