These are paths that link two public places, follow a more or less defined line and have been used by the public for a period of at least 20 years without permission or any attempt to stop this use.
Legal Duties of the Local Authority
In Scotland there is no requirement for a local authority to maintain a 鈥淒efinitive Map of Public Rights of Way鈥 therefore records of Public Rights of Way are very poor. Local Authorities do have a legal duty to keep Public Rights of Way open and free from obstruction. However there is no duty to maintain Public Rights of Way although powers do exist to carry out work on them.
Generally a local authority will only become aware that a path may be a Public Right of Way when it is blocked or a developer proposes to close it. Therefore the minority of Public Rights of Way have been recorded anywhere.
When the public report problems with a claimed Public Right of Way it is generally fairly simple to demonstrate that a path links two public places. A public place is usually a public road, another Public Right of Way or a place to which the public have a right of access in common law i.e. the foreshore. It is also possible to see if the path has followed a defined line for a number of years by looking at maps going back over the previous twenty or more years. Some Public Rights of Way follow old routes including drove roads and pilgrimage routes; to learn more visit the .
The most difficult test to prove is that the path has been used by the public 鈥渨ithout let or hindrance鈥 for a period of at least twenty years. In this instance a 鈥渓et鈥 is the permission of the landowner which would be considered to exist where those claiming the right were tenants or employees or for some other reason were considered to have permission. A hindrance could be attempts to stop the public from using the route, for instance signage, a fence or other obstruction of their use of the path. This would have to be consistently applied. In England and Wales it is possible in law to stop a Public Right from becoming established by closing the path for one day a year. In Scotland the closure would have to be more substantial to stop the right from being established.
If you believe a path is a Public Right of Way and that it has been obstructed or may be lost as a result of a proposed development, please contact the Access Team to discuss this with them.
The history of use as a right is established by asking members of the public to complete an online questionnaire which records the route they have used, how long they have used the path for and how they have used it. Information from a number of people is assessed before being passed to our colleagues in Legal Services who will take a view regarding the validity of the claim and whether it will stand being tested in a court of law. Often this is where the claim of a Public Right of Way will fail. It is difficult to find evidence of use and we have to rely upon local communities to encourage local people to complete the questionnaires.
If there is sufficient evidence of use it may be necessary for the Council to take legal action which may see some of the individuals who provide evidence of use being called as witnesses in a court case, although this is rare.
Further Information can be found on the . The FAQ page may be of particular interest.
Please contact the Access Team if you need further advice.