Public rights of way are traditional routes that are established under common law with no single statute governing them. 

Public rights of way do exist in Scotland and have been recognised for centuries. They continue to be important for providing people with access to the countryside. Some people are often surprised that there are rights of way in Scotland, but anyone who has journeyed though the countryside may have have used them. Many of the most famous routes in Scotland are rights of way, for example the Lairig Ghru, Glen Tilt, the Minigaig Pass, the Gaick Pass and Jock’s Road.  

Whilst the Land Reform (Scotland) Act 2003 gives a right of access, provided this is used responsibly, to most land and inland water in Scotland, there are areas that are excluded. However, rights of way may still provide public access where the statutory access rights do not apply. For example, rights of way can exist through the curtilages of working buildings such as farm steadings, and in urban areas.

Any limitations applying to the statutory access rights (e.g. for land management needs) do not apply to the use of rights of way, although when using them people should still act responsibly.

The means of limiting statutory access rights do not restrict the use of a right of way, although byelaws may affect how people can use it.

Rights of way (and rights of navigation) also provide important strategic cross-country routes. Some (such as drove roads) are of great historic interest.

Many key local rights of way have been incorporated into core path plans. However, other rights of way will often complement and extend local access beyond core path networks.

To be a right of way, a route must meet all the following conditions:

1. It must join two public places (e.g. public roads or other rights of way);
2. It must follow a more or less defined route;
3. It must have been used, openly and peaceably, by the general public, as a matter of right, i.e. without requiring landowner permission;
4. It must have been used without substantial and effective 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 disputed 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 all the conditions to be a right of way is a right of way.  

This 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. 

If the right of way either follows a core path or crosses land where statutory access rights apply, then you can cycle on it as long as you do so responsibly. 

If the right of way is not also a core path and if statutory access rights do not apply, then you can only cycle along it if it’s a right of way for horses, often called a bridleway or bridle path, or if there are rights for vehicles, or if there are rights for cycling either because of historic use or because it has been designated as a cycle route.

If the right of way either follows a core path or crosses land where statutory access rights apply, then you can ride a horse on it as long as you do so responsibly.

If the right of way is not also a core path and if statutory access rights do not apply, then you can only ride a horse along it if it’s a right of way for horses, often called a bridleway or bridle path, or if there are rights for vehicles. If you want to drive a carriage along a right of way then the route must be a right of way for vehicles.

You can only drive a vehicle along a right of way if it’s a right of way for vehicles. It is important to note that very few rights of way in Scotland have vehicular rights. Most that do are very short, averaging less than 1 mile. 

For more information on access to land by any motorised vehicle, read Rights Of Way and Motor Vehicles on Ken.

There is no single place on the web where you can find out about rights of way. You will find information on some of the more historic rights of way on our Heritage Paths page and can find out about particular routes, or particular areas, by contacting the ScotWays office. We offer a paid service for solicitors, developers or consultants wanting to know whether our records show any rights of way running across a piece of land.

Sometimes people ask about rights of way when they are really looking for somewhere to go. If that’s you, have a look at our #RespectProtectEnjoy article on Ken for places to visit.

The National Park and Access to the Countryside Act 1949 created definitive maps of rights of way for England and Wales. But the legislation never applied to Scotland – there is no definitive map of rights of way for Scotland. You can find out more about definitive maps over on the Ramblers website. 

Whereas there is no definitive map or legislative requirement for a record of rights of way to be kept, there are records of rights of way in Scotland. ScotWays maintains the National Catalogue of Rights of Way (CROW). Local authorities have their own records. 

Any route that meets the conditions to be a right of way is a right of way; no further action is necessary. CROW thus does not include all rights of way many of which are known only to local people and come to the notice of ScotWays when a problem arises. However, ScotWays continues to add rights of way to CROW as we hear about them.

You can read more about the record of rights of way in Scotland on Ken. 

It will only be a public right of way if it meets all the conditions to become a right of way. However, he may have a private right of access along this path. In which case, it should be set out in the title deeds of the properties involved.

The same planning application process operates for windfarm applications as any other sort of development proposal – take a look at our Development Proposals and Outdoor Access article on Ken. The Scottish Government provides guidance “Onshore wind turbines: planning advice” which you should read.

If the windfarm will directly affect the right of way (e.g. if the path will be blocked, or it will affect the safety of users) then this could be grounds for objection to the development. As well as objecting yourself, you are welcome to contact ScotWays, as we can check whether it is a recorded right of way, or consider whether it may meet the conditions for being a right of way. We may put in an objection too, although as a small charity we do not necessarily have capacity to comment on all planning applications which are brought to our attention.