You can still find private signs in place across Scotland and you might initially think these are all illegal given our rights of responsible access and, whilst some will be, this is not always the case.
Surely all private signs are wrong? #
All land in Scotland is owned by someone so a sign simply saying private could be interpreted as meaning that the land beyond it is in private ownership. Because we are used to seeing private signs in shops and trains indicating areas where only staff are allowed then we automatically feel we can’t go beyond that sign.
Whilst this may be correct in a shop, it is not necessarily correct in the outdoors. If the land beyond the sign is a core path, land to which the right of access applies, a right of way, a public road, or a private road then you will have the right to go there.
Can private signs be illegal? #
Yes. Whilst they may simply be stating a fact, if the purpose, or main purpose, of the sign, is to prevent or deter public access then sign would be illegal as it would contravene the Land Reform (Scotland) Act 2003. If you believe that the sign is deterring public access then you should report it to the relevant local authority outdoor access team for investigation.
Public roads and private roads? What’s the difference? #
When the Roads (Scotland) Act 1984 came into operation, it changed the historic terminology that was used to define roads in Scotland and this has led to confusion. It used to be that a road was either a “highway” or it wasn’t (Roads and Bridges (Scotland) Act 1878 Section 3). Now there are public roads and private roads. In neither case does this indicate anything to do with public rights of access. Instead, it’s all about who maintains a road.
“public road” means a road which a roads authority has a duty to maintain;
Roads (Scotland) Act 1984 Section 151
“private road” means any road other than a public road;
Public roads, sometimes called adopted roads, are those that sit on a roads authority (local authority) list of roads that are maintainable at public expense. The local authority is under a DUTY to maintain these roads. These can include what people would think of as roads, e.g. where cars can go, but also paths, e.g. footpaths totally remote from any road fit for cars.
Private roads are not maintainable at public expense.
Can the public use both private roads and public roads? #
In a word, yes. Again, it’s the Roads (Scotland) Act that holds the key. The Act interprets a “road” widely.
“road” means, subject to subsection (3) below, any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road’s verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof;
Roads (Scotland) Act 1984 Section 151
This means the term “road” includes all public rights of way, roads in new housing developments, tracks in the countryside, in fact anywhere that a public right of passage exists.
However, there are some exemptions from the definition of a road.
The Land Reform (Scotland) Act 2003 (section 5(6)) stops access rights from being considered a public right of passage in terms of the Roads (Scotland) Act 1984. This means that a core path or any path/track across land to which access rights apply is not covered by the road definition above.
The Roads (Scotland) Act 1984 itself excludes three types of routes from being defined as a road (section 151(3)).
- Footpaths created by a public path agreement under section 30 of the Countryside (Scotland) Act 1967.
- Footpaths designated as long-distance routes under section 40(1) of the Countryside (Scotland) Act 1967.
- Paths and tracks across land owned and managed by local authorities and used for recreational, sporting, cultural or social activities under section 14 of the Local Government and Planning (Scotland) Act 1982.
In all four of these exemptions, there is still a public right of access, but it is provided by other pieces of legislation, as set out above. In practical terms this makes little difference to a path user.
Does this mean I can drive my car on any private road? #
No. Whether something is a private road or a public road is purely down to where the maintenance responsibility lies. You can only drive a motor vehicle on a private road if you have the legal right to do so or you have the permission of the landowner.
Does this mean that a local authority is not responsible for maintaining core paths, rights of way and private roads? #
Correct. A local authority is only under a DUTY to maintain public roads, but it does have a POWER to maintain private roads, core paths, rights of way and long-distance routes. Whether it chooses to exercise its powers will depend upon the budget available to it and the priorities that it has set for its area.
