Scottish Rights of Way & Access Society

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I’m Ken, the ScotWays Knowledge Base

Ask Me Your Outdoor Access Question

Important People of Scottish Access

  • Important People of Scottish Access – Adam Black (1784-1874)
  • Important People of Scottish Access – Archibald Eneas Robertson (1870-1958)
  • Important People of Scottish Access – Arthur W Russell (1873-1967)
  • Important People of Scottish Access – Donald Bennet (1928-2013)
  • Important People of Scottish Access – Donald Grant Moir  (1902-1986)
  • Important People of Scottish Access – John George Bartholomew (1860-1920)
  • Important People of Scottish Access – John Hutton Balfour (1808-1884)
  • Important People of Scottish Access – Professor Sir Robert (Bob) Grieve (1910 -1995)
  • Important People of Scottish Access – Rennie McOwan (1933-2018)
  • Important People of Scottish Access – Viscount James Bryce (1838-1922)
  • Important People of Scottish Access – Walter Arthur Smith (1852-1934)
  • Important People of Scottish Access – William Ferris (1894-1963)

Introducing Ken

  • Hello, my name is Ken.

Court Cases

  • An outline of the Scottish Courts System
  • The Authority of Case 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
  • 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

The Bookshelf

  • Welcome to The Bookshelf
Legislation
  • Legislation 1960-1969
  • Legislation 1970-1979
  • Legislation 1980-1989
  • Legislation 1990-1999
  • Legislation 2000-2009
  • Legislation 2010-2019
  • Legislation 2020-2029
Guidance on Legislation
  • Guidance on Legislation 1990-1999
  • Guidance on Legislation 2000-2009
  • Guidance on Legislation 2010-2019
  • Guidance on Legislation 2020-2029
Responsible Access
  • Publications on Responsible Access 1990-1999
  • Publications on Responsible Access 2000-2009
  • Publications on Responsible Access 2010-2019
Rights of Way and Outdoor Access Management
    Land Management
    • Managing Land for Outdoor Access 2000-2009
    Path Management
    • Path Management 1980-1989
    • Path Management 1990-1999
    • Path Management 2000-2009
    • Path Management 2010-2019
    • Path Management 2020-2029
    People Management
    • Managing the Public 2000-2009
    • Managing the Public 2010-2019
    Signposting
    • Signposting and Interpretation 1990-1999
    • Signposting and Interpretation 2010-2019
    • Signposting and Interpretation 2020-2029
Surveys of Rights of Way, Access and Procedures
  • Surveys of Rights of Way, Outdoor Access and Procedures 1980-1989
  • Surveys of Rights of Way, Outdoor Access and Procedures 1990-1999
  • Surveys of Rights of Way, Outdoor Access and Procedures 2000-2009
  • Surveys of Rights of Way, Outdoor Access and Procedures 2010-2019

About Access Rights

  • What are Outdoor Access Rights?
Rights of Way
  • 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?
  • Can I ride my motorbike on a right of way or take it off road?
  • Development Proposals and Outdoor Access
  • Do public rights of way exist 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?
  • How does a route become a right of way?
  • Is there any need for rights of way, now that there is freedom of access?
  • Is there any record of rights of way in Scotland?
  • My neighbour says he has a right to go along the path at the back of my house. Could this be a public right of way?
  • Private Signs, Private Roads, Public Roads, What’s the difference?
  • Rights of access to land
  • 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?
  • There is a proposal for a windfarm development that will be close to a well-used right of way. What can be done?
  • Where can I cycle?
  • Where Can I Ride or Drive my Horse?
  • Who’s responsible for path maintenance?
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?
  • Can I ride my motorbike on a right of way or take it off road?
  • Horse riders are using a local path and churning it up so that it is difficult for walkers to use. What can be done?
  • Is there any need for rights of way, now that there is freedom of access?
  • Private Signs, Private Roads, Public Roads, What’s the difference?
  • Right to Roam Timeline
  • Rights of access to land
  • The Coming of 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?
  • Where can I cycle?
  • Where Can I Ride or Drive my Horse?
  • Where do access rights not apply?
  • Who should I contact if I have a problem about access rights?
  • Who’s responsible for path maintenance?

History

  • 175th Anniversary
  • 1844 The beginning of ScotWays
  • 1964 When figure 740 changed the face of path signs
  • A Brief History of Access Rights
  • Boardwalks, the oldest types of constructed path
  • Historic Footpaths
  • Right to Roam Timeline
  • ScotWays’s Oldest Standing Signpost
  • The Association for the Protection of Public Rights of Roadway in and Around Edinburgh
  • The Bedford Memorial Bridge
  • The Changing Face of ScotWays Signs
  • The Coming of Access Rights
  • The First ScotWays Signposts
  • The History of ScotWays
  • The Launch of the Heritage Paths website
  • Welcome the Scottish Rights of Way and Recreation Society Limited
  • What’s in a name?

Scottish Hill Tracks

  • Scottish Hill Tracks ~ Overview
  • SECTION 11: Glen Coe & Appin
  • SECTION 13: Loch Leven to Glen Spean
  • SECTION 14: Ardgour, Moidart & Morven
  • SECTION 15: West Mounth & Sidlaw Hills
  • SECTION 17: Cairngorms
  • SECTION 19: Monadh Liath
  • SECTION 2: Central & South-West Borders
  • SECTION 20: Loch Eil to Glen Shiel
  • SECTION 21: Glen Affric, Kintail & Strathfarrar
  • SECTION 22: Mull & Skye
  • SECTION 23: Wester Ross
  • SECTION 24: Caithness, Sutherland & Easter Ross
  • SECTION 3: Lammermuir & Moorfoot Hills
  • SECTION 4: Pentland Hills
  • SECTION 5: Clydesdale & Lowther Hills
  • SECTION 6: Galloway & South Ayrshire
  • SECTION 7: Arran, Inverclyde & North Ayrshire
  • SECTION 9: Southern Highlands

Heritage Paths

  • 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

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

#RespectProtectEnjoy

  • A different way to get there or doing something different.
  • Different Ways
  • Places to Visit
  • Home
  • Ask Ken
  • About Access Rights
  • Rights of Way
  • Development Proposals and Outdoor Access

Development Proposals and Outdoor Access

Table of Contents
  • Does every development need planning permission?
  • Does a development need to consider outdoor access rights?
  • Is there good practice guidance on managing public access?
  • A development is proposed for my local area. What can be done to preserve access through the site?
  • Can access routes through the development site be moved?
  • How do I know if a proposed diversion is acceptable?
Grey buildings behind, a building site in front with a big yellow digger.  The foreground has blue hoarding across the site

The term development can have a multitude of meanings, but, in this context, it’s the meaning of the term as defined in the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) that is important.

““development” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land”.

Under Section 26(1) of the 1997 Act,

When somebody wants to develop a piece of land or inland water, more often than not, permission will need to be obtained, prior to carrying out the development, by means of the approval of a suitably documented planning application.

Where a development proposal is considered acceptable following assessment of an application, permission, known as planning permission, will be granted by the local planning authority for the area; either the council or the national park authority, dependent upon the location of the development.

Does every development need planning permission? #

No. Some operations, such as works for the maintenance or improvement of the inside of buildings or which do not materially affect their external appearance, or the use of land and associated buildings for agriculture or forestry, are not considered to be development, so they don’t need planning permission. Also, some forms of development enjoy the benefit of deemed planning permission, so do not need to be the subject of planning applications. To discover if the development proposed needs permission, you should talk to the local planning authority.

Does a development need to consider outdoor access rights? #

Yes. Statutory access rights apply to the majority of land and inland water in Scotland and public rights of way, public roads, core paths, heritage paths, Scottish Hill Tracks, Scotland’s Great Trails and desire lines may run through an area where a development is proposed.

As part of the process of planning to develop a site, it is advisable for the developer or his agent to review the current amount and type of public access across it and present this as an access statement (for small-scale proposals) or access management plan (for larger scale proposals). This should include identifying existing rights of way, core paths, other paths and tracks through and adjacent to the site, and take account of how the statutory right of access currently affects the site. The outdoor access statement/plan should set out how existing routes and access rights will be affected by the proposed development, what the developer proposes to do to minimise any adverse effects on them and what opportunities it proposes to take to enhance public access through the site.

How will the current level of public access be affected by the proposals? Will it make it worse, keep it the same or make it better? It’s not just the effects post-development that should be considered. How will public access be affected during the construction phase of the project? What needs to be done to maintain the continuity of public access across the site whilst allowing the development to take place?

The impact of a proposed development on access rights, rights of way, core paths and other routes by which access rights might reasonably be exercised should be taken into consideration by the local planning authority when assessing the planning application for the development. However, the fact a development might adversely affect access rights does not necessarily mean planning permission for it will be refused.

Is there good practice guidance on managing public access? #

There is no single source, but guidance can be found by industry, such as windfarm construction with NatureScot’s “Good Practice during Wind Farm Construction, Part 8 Recreation and Access” and “Siting and Designing Wind Farms in the Landscape”. General guidance is also contained in local development and core paths plans and at the national level, in documents such as the Scottish Government’s “National Planning Framework 4” (2022) and “Part 1 Land Reform (Scotland) Act 2003: Guidance for Local Authorities and National Park Authorities” (2005); NatureScot’s “A Brief Guide to Preparing an Outdoor Access Plan” (2010); and the National Access Forum’s, “Managing Public Access in Areas of Wildlife Sensitivity in Scotland” (2023).

During the construction phase of the development, health and safety legislation requires people to think about how their work will impact others. In that regard, the Construction (Design and Management) Regulations 2015 have an important role to play. The Construction Phase Plan for the proposed development will need to show how public access will be managed. Although access rights are not legitimately exercisable over land on which building, civil engineering or demolition works are taking place unless, on a recognised right of way, it is not enough to simply say people will be excluded from the site, as people may ignore any signage and appear on site anyway. The Access Management/Construction Phase Plan needs to set out how such situations will be dealt with.

A development is proposed for my local area. What can be done to preserve access through the site? #

You need to examine the planning application and see exactly what is proposed. You should be able to view the application and associated documents on the relevant local authority’s online planning portal and see what they say about access. Will existing outdoor access be affected and if so, does the application recognise it and say how it will be managed? Will it make public access better or worse?

Where you have concerns about how the proposal will affect existing public access, you need to make your views known by commenting on the application. It is just as important to say how it might make things better as it is to say how it might make things worse.

Local planning authorities must make a decision on an application within a set time period. Thus, there is a set period of time for you to make your views known. Miss it and they are unlikely to be taken into account! The planning application portal will tell you the deadline for comments on a particular planning application.

Can access routes through the development site be moved? #

Yes, but not until planning permission has been granted and any relevant conditions fulfilled. Even then, a separate application process may need to be followed to move or close a public road, right of way or core path. This will normally involve the developer in applying for an order under section 207 or 208 of the 1997 Act. The public has the right of objection to such orders.

In terms of the public right of access under the Land Reform (Scotland) Act 2003, as soon as planning permission has been granted and development is taking place in accordance with the terms of that permission, the land to which it applies is treated as if the development has been completed and relevant post-development access rights are exercisable over it.

How do I know if a proposed diversion is acceptable? #

It is not always easy to see if a proposed diversion route will be better or no worse than what is there now. Currently, the Scottish Government policy (NPF4 Policy 13) is to “encourage, promote and facilitate developments that prioritise, walking, wheeling, cycling and public transport for everyday travel and reduce the need to travel unsustainably” and “Adequately mitigate any impact on local public access routes”.
Whilst a proposal may be considered against how it affects the sufficiency and integrity of the overall green/blue network (green network – greenspaces such as parks and open spaces, blue network – wetlands, rivers and water courses), it is also important to consider the characteristics of the individual route. For example, its historic, cultural, amenity, convenience or transport value e.g. an informal/unsurfaced 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.
Particularly in cities, towns and villages, the grey space (lanes, vennels private roads, vacant & derelict land) routes are not always included when looking at public access, yet they are a vital component of the access network.

The criteria ScotWays uses to determine whether a proposed diversion is acceptable include:

  • the diversion should be of at least an equivalent standard, e,g, in terms of surface material and width,
  • it should not be significantly longer,
  • it should be no less convenient,
  • it should be accessible to at least the same categories of access taker as the existing route, and
  • it should be available for use before the present route becomes unavailable.
planning, Rights of Way, Statutory Access Rights
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Updated on 12 June 2023
Can I ride my motorbike on a right of way or take it off road?Do public rights of way exist in Scotland?

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Table of Contents
  • Does every development need planning permission?
  • Does a development need to consider outdoor access rights?
  • Is there good practice guidance on managing public access?
  • A development is proposed for my local area. What can be done to preserve access through the site?
  • Can access routes through the development site be moved?
  • How do I know if a proposed diversion is acceptable?
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