In Scotland, a right of way is a route over which the public has been able to pass unhindered for at least 20 years. The route must link two “public places”, such as villages, churches or roads. Unlike in England and Wales there is no obligation on Scottish local authorities to signpost rights of way. However the charity Scotways, formed in 1845 to protect rights of way, records and signs the routes.
The Land Reform (Scotland) Act 2003 codified in law traditional, non-motorised, access practices on land and water. Under the 2003 Act a plain language explanation of rights is published by Scottish Natural Heritage: the Scottish Outdoor Access Code. Certain categories of land are excluded from this presumption of open access, such as railway land, airfields and private gardens.
Section 4 of the Access Code explains how land managers are permitted to request the public to avoid certain areas for a limited period in order to undertake management tasks, however longer term restrictions must be approved by the local authority. The ability to temporarily restrict public access is commonly exercised without notice by shooting, forestry or wind farm operators, but does not extend to public Rights of Way. In Scotland the public have a higher degree of freedom on Rights of Way than on open land. Blocking a Right of Way in Scotland is a criminal obstruction under the Highways Act, just as in England and Wales, but the lack of publicly accessible Rights of Way maps in Scotland makes it very difficult to enforce.
While in England and Wales, highway authorities have a duty to maintain legally recognised maps of rights of way, in Scotland different legislation applies and there is no legally recognised record of rights of way. However, there is a National Catalogue of Rights of Way (CROW), compiled by the Scottish Rights of Way and Access Society (Scotways), in partnership with Scottish Natural Heritage, and the help of local authorities. There are three categories of rights of way in CROW:
- vindicated – routes declared to be rights of way by some legal process;
- asserted – routes which have been accepted as rights of way by the landowner, or where local authorities are prepared to take legal action to protect them;
- claimed – other right of way routes, which have not been vindicated or asserted, but which appear to meet the common law conditions and have not yet been legally disputed.
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