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
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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
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      • 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
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      • Aberdeenshire Council v Lord Glentanar
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      • Lord Donington v Mair
      • Macdonald v Watson
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    • Procedural issues
      • Alexander v Picken
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      • 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
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      • 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
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History

36
  • Historic Footpaths
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  • History of Access
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    • Boardwalks, the oldest types of constructed path
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  • Important People of Scottish Access
    • Adam Black (1784-1874)
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    • Arthur W Russell (1873-1967)
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    • John George Bartholomew (1860-1920)
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    • Rennie McOwan (1933-2018)
    • Tom Weir (1914-2006)
    • Viscount James Bryce (1838-1922)
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    • William Ferris (1894-1963)
  • Signposting
    • 1964 When figure 740 changed the face of path signs
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    • ScotWays’s Oldest Standing Signpost
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Scottish Hill Tracks

2
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  • Richardson v Cromarty Petroleum Co Ltd
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Richardson v Cromarty Petroleum Co Ltd

Case Report: 1982 SLT 237

Key points: Prescriptive period – interpretation of 20-year rule – constitution of right of way – quality of use required.

The facts: Richardson raised an Action for Declarator that a public right of way existed over a path on land owned by Cromarty Petroleum Co Ltd (‘Cromarty’). In order to succeed, Richardson needed to prove that the path had existed for twenty years.

Legal arguments: Cromarty argued that section 3 (3) of the Prescription and Limitation (Scotland) Act, 1973, which reduces the prescriptive period of use required to establish a right of way from 40 to 20 years, did not do so, and that the period remained at 40 years. Cromarty argued, therefore, that Richardson must prove use for that period in order to succeed.

Decision: The Court conceded that section 3 (3) of the Act, was not ”happily worded”, but nevertheless its intention and effect must be to reduce the prescriptive period to 20 years. Cromarty’s argument was, therefore, refuted. As regards the points which Richardson required to prove, the Court held that: (1) the path had existed for 20 years, from 1956 to 1976; (2) it did link two public places, one of these being the foreshore at a place to which the public regularly resorted for recreation and which accordingly fell within the category of a ‘public place’ (see Darrie v Drummond and Duncan v Lees; (3) the question of the amount and type of public use caused difficulty, because there were various ways of getting to the foreshore, and Richardson required to show that the path in question was used sufficiently to constitute a public right of way; the use to be by pedestrians, and to be for the purpose of recreation, not for other purposes, the rule being that the type of use to be taken into account when assessing the quantity of that use must be limited to the purpose of that use; this use of the path, for going to the foreshore for the purpose of recreation, was allowable, but use for other purposes must be disregarded (see Jenkins v Murray; (4) evidence of sufficient use of the type required had not been proved; a right had not, therefore, been established, and the case failed.

Comments: (a) For practical purposes, Cromarty’s argument regarding the length of the prescriptive period, though of technical legal interest, maybe ignored; the length of the prescriptive period required to establish a right of way is 20 years; (b) much more importantly, the case indicates that mere ‘use’ by the public of a path may not be sufficient in all cases; the quality and the purpose of the use may be the critical point – in this instance, Richardson failed to satisfy the Court that the public’s use of the path for recreational purposes was sufficient to establish a right; (c) it also illustrates the point that, when it comes to assessing type and quality of use, each case has to be decided on the basis of its own particular circumstances.

Cases referred to:
(1) Mann v Brodie (1885) 12 R 52
(2) Darrie v Drummond (1865) 3 M 496
(3) Duncan v Lees (1871) 9 M 855
(4) Scottish Rights of Way & Recreation Society Ltd v Macpherson (1887) 14 R 875 and (1888) 15 R (HL) 68
(5) Jenkins v Murray (1886) 4 M 1046

Case Law Public rights of way and private servitude rights of way, Court Case, Creating Rights of Way - Use as of Right, Creating Rights of Way - Use for the Prescriptive Period, Public rights of way and private servitude rights of way, Rights of Way
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Updated on 4 January 2022

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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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