How does a route become a right of way? #
To be a right of way, a route must meet all the following conditions:
- It must join two public places (e.g. public roads or other rights of way); and
- It must follow a more or less defined route; and
- It must have been used, openly and peaceably, by the general public, as a matter of right, i.e. not just with the permission of the landowner; and
- It must have been used without substantial interruption for at least 20 years.
Originally just part of the Common Law of Scotland, the last two conditions above are now included in the Prescription and Limitation (Scotland) Act 1973.
ScotWays works with local authorities and local communities to determine whether routes meet the above conditions, as the interpretation of the law can be contentious. Ultimately, if it is not agreed that a route meets the necessary conditions to be a right of way, it is up to the courts to decide whether the criteria are met.
Scots law does not require a right of way to be recorded in a specific document. Any route that meets the following criteria will be a right of way.
Who can use rights of way? #
That depends upon how a route has been used over the 20 years that lead to the route becoming a right of way.
If it was only used by people walking then it is a right of way for pedestrians. If it was used by horses then it is a right of way for horses and pedestrians. If it was used by vehicles, including carts, then it is a right of way for vehicles and horses and pedestrians.
This means you can always assume a right of way can be walked, but you can’t always assume a right of way can be used on horseback or by motorised vehicles.
