Public Rights of Way & Access Rights

Visitors travel from all over the world to enjoy Orkney’s natural landscape. Walkers and runners of all ages make use of countryside paths in every parish – many of our celebrated Island Games medallists, national netballers, world class Ironman athletes and ultra-runners (and probably some of our Ba’ winners) gain their physical edge running along these tracks, and for many locals, time spent on these paths on long summer nights (and on coarser wintery days) contributes to general physical and mental health.

Questions about access, however, are not and even some urban areas. We hear from farmers with valid concerns about the public taking access over the ground that provides their livelihood, or from walkers stumbling onto a “PRIVATE” sign or a locked gate on a route they have walked for years.

The Scottish Outdoor Access Code was designed to create freedom for people to explore Scotland’s countryside responsibly. Since the Land Reform (Scotland) Act 2003, everyone has a statutory right of responsible access to most land and inland water for recreation, education, and certain commercial purposes — such as walking, cycling, horse riding, or paddling. These are referred to in the Code as Access Rights.

Access Rights apply regardless of whether a public right of way (“Public Right of Way”) exists. An older legal concept, Public Rights of Way often predate the modern road network and reflect centuries of everyday movement.  Some Public Rights of Way have historically been essential for trade, shifting livestock or travelling to Kirks. Many of these paths still exist today, though sometimes more often used for recreational purposes.

In this article, we detail what Public Rights of Way are, how they differ from Access Rights, and the responsibilities associated with them.

Public Rights of Way vs. Access Rights

There are important differences between the Public Rights of Way and Access Rights.

Public Right of Way

For a route to be considered a Public Right of Way it must:

• connect two public places, with a more or less defined line
• have been established by open and peaceful public use, without the need for a specific arrangement with the landowner
• have been used for a period of 20 years or more without “substantial and effective” interruption

Once a Public Right of Way exists, it becomes and can only be extinguished in certain circumstances. Public Rights of Way exist in addition to Access Rights, and can sometimes be exercised over land which would be excluded from Access Rights.

Access Rights

Access Rights, by contrast, are much broader but also more conditional. They allow the public to go onto most land, but only if that access is responsible — meaning it doesn’t interfere unreasonably with the rights of others, damage the environment, or threaten safety, privacy, or land management. Access must also be lawful.

There are also specific places where Access Rights do not apply, as set out in section 6 of the Land Reform (Scotland) Act 2003 and explained in the Code. These include:

• Houses, gardens, and land associated with a dwelling, where a reasonable degree of privacy is expected.
• Land under crops, including cereals, vegetables, or silage.
• School grounds and areas used for formal recreation or sports while in use.
• Working farmyards and areas where farm operations would make access unsafe or disruptive.
• Construction sites, quarries and other dangerous places where access would pose a clear risk to public safety.

Temporary restrictions may also be introduced for land management or safety reasons — for example, during lambing, calving or maintenance. Legally, these restrictions should be proportionate, clearly signed, and last no longer than necessary. Local authorities can make orders restricting access rights.

Recording Routes of Public Rights of Way

In Scotland, local authorities have a duty to assert, protect and keep open any Public Rights of Way within their area. There is also a duty to prepare a Core Paths Plan, which is available on council websites. There are also details of paths which are currently closed. “Core paths” can include Public Rights of Way, old tracks, minor roads, field margins, or newly created paths. Once a route is recorded as a Public Right of Way or a core path, the Council has powers to ensure it is kept open and free from obstruction.

Other Rights of Access

In addition to Public Rights of Way and Access Rights, there are other types of access rights recognised under Scots law.

Servitude rights of access are private rights – usually benefiting one piece of land (the “benefitted property”) over another (the “burdened property”). Only the person having right to the servitude can exercise them. Servitudes can be created formally within a deed, or by prescription where the right has been exercised for a continuous period of 20 years, openly, peaceably and without any judicial interruption.

Certain emergency services have specific statutory powers of access in situations involving immediate risk to life, property or the environment. These powers do not create ongoing rights of access, and they are used only in emergency circumstances.

There are further statutory rights of access which apply in certain non-emergency situations, for specific organisations. Each of these statutory rights are subject to different sets of conditions, which might include giving notice, minimising disturbance, and compensating for any damage caused.

How we can help

If you have any questions relating to Public Rights of Way, Access Rights or any other legal issue, please contact a member of the Anderson Strathern team or Ellen Eunson directly.