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
  • Ask Ken
  • About Access Rights
  • Rights of Way
  • Private Signs, Private Roads, Public Roads, What’s the difference?
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Private Signs, Private Roads, Public Roads, What’s the difference?

A sign saying Private Road No Parking on a street

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;
“private road” means any road other than a public road; 

Roads (Scotland) Act 1984 Section 151

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)).

  1. Footpaths created by a public path agreement under section 30 of the Countryside (Scotland) Act 1967.
  2. Footpaths designated as long-distance routes under section 40(1) of the Countryside (Scotland) Act 1967.
  3. 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.

Land Reform (Scotland) Act 2003 - Section 14, Motor Vehicles, Rights of Way, Roads Legislation, Statutory Access Rights
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Updated on 30 June 2023

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Table of Contents
  • Surely all private signs are wrong?
  • Can private signs be illegal?
  • Public roads and private roads?  What’s the difference?
  • Can the public use both private roads and public roads?
  • Does this mean I can drive my car on any private road?
  • Does this mean that a local authority is not responsible for maintaining core paths, rights of way and private roads?
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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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