Access rights… nothing is ever straightforward!

Very often rural property is not directly accessed from a publicly adopted road. Access may need to be taken over roads, or tracks are owned by a third party. If you are buying rural land, ideally a seller will have a clear servitude right of pedestrian and vehicular access to that land over the road or track owned by the third party specified in their title to the land. However, where there is no such servitude right, further investigation will be needed to determine if a servitude right of access has been created by “prescription” i.e. unchallenged use of the road or track by the seller and their predecessors as the land owners for a continuous period of 20 years or more.

If it is established that a servitude right of access has been created by prescription, a seller will be required to provide evidence (usually in the form of sworn statements called Affidavits) of the use of this access for the period of at least 20 years.

What if the access hasn’t been used for 20 years?

Where a seller has not owned or been using the access for the full 20 year period a purchaser will likely insist on Affidavit evidence being sought from previous owners of the property or other witnesses such as tenants, employees or the neighbours of previous owners of the property who can speak to the previous owners’ use of the road or track to access the property for the 20 year period. Affidavits are then normally backed up by a title indemnity policy which will provide a purchaser with financial recompense in the event that they are prevented from using the road or track to access the property.

What about public rights of way?

In some cases access to land is taken by a public right of way. For a right of way to be established in Scotland, four requirements need to be met. These are:

1. The access track or path must connect one public place to another. Usually “public places” would be public outdoor spaces such as parks or recreation grounds. The purpose of a right of way is to facilitate a member of the public getting from A to B by crossing land. It is not a right to use or stay on land. This is an important distinction to make when considering whether or not this first criterion has been met;
2. the access track or path must follow a relatively defined route. Such a route could appear on an OS (or other) map, but the absence of any such route on a plan or map does not necessarily prevent this condition from being satisfied;
3. use of the access track or path must have been established by prescription (as explained above), i.e. the access track or path must have been used for a continuous period of at least 20 years; and
4. the access track or path must have been used “openly and peaceably” by members of the public without seeking permission from the landowner. In other words, the use of the access must not have been prevented or challenged and neither must permission (whether express or implied) have been granted by the landowner for access to be taken.

If all of the above criteria are met, a right of way will have been created whether or not it is recorded in a specific document. If unrecorded it’s simply referred to as an “unrecorded” right of way until it has been recorded or enforced. To enforce a right of way a member of public would need to seek a court declaration confirming that a certain right of way has been created and therefore exists. Once confirmed, the right of way in question would then be added to the register comprising all public rights of way in Scotland.

Right to roam

Further to establishing or creating an official right of way, there are also general access rights bestowed on the people in Scotland which allow members of the public to take responsible access over most rural land in Scotland. This is often referred to as the “right to roam”, which was created as part of Scotland’s Land Reform Act in 2003 (“2003 Act”). There are a number of exceptions listed in section 6 of the 2003 Act which would prevent the public rightfully exercising their right to roam, but unless one of the exceptions is triggered, the right to roam will apply to all land whether or not there is an established route, path, right of way or otherwise in existence.

Since the 2003 Act came into force there have been a number of cases seeking to clarify how it should be interpreted by the public. The Scottish Outdoor Access Code has proven most useful to the legal profession and public alike, providing substantial and practical information on how the right to roam should be exercised.

The right to roam is a topic in itself but briefly, the 2003 Act grants the public the right to access the majority of Scotland’s land and inland water for recreational (walking, cycling, horse-riding, wild camping etc), educational (understanding natural or cultural heritage) and some commercial purposes. This is contingent on the rights being exercised responsibly, without interference with the rights or interests of others. There is also a duty to care for the environment and for individuals to take responsibility for their own actions.

When are access rights in Scotland excluded?

As mentioned, there are a number of areas in which access rights are excluded. These include, but are not limited to, access over private residences and their gardens, other buildings and their surrounding curtilages, construction sites and visitor attractions. Certain activities are also excluded, namely the use of a motorised vehicle or vessels (unless permitted due a disability) and field sports.

As touched on above, with rights come responsibilities both for landowners who must use and manage their land responsibly and respect, and not deter, individuals from exercising their access rights and for individuals exercising their rights. Landowners can exercise control in periods where dangerous activities such as forestry works, stalking or burning are taking place but even then, if possible, they should try to offer alternate routes or restrict access only at certain times to minimise the impact. They must also put up relevant signage and information for the public. The legal test which underpins this approach is one of legitimacy. If the restrictions on access can be justified, and are reasonable and proportionate, they will be deemed acceptable.

So access is as you can see a very large topic and not always straightforward. For more information about private or public access rights please contact any member of our Rural Land and Business Team.

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• Increase in forestry demands linked to environmental and social benefits

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