by pt2021 » Sat Jun 12, 2021 9:42 pm
Ok, so I am having Right to Roam and Rights of Way thrown at me here, and it’s unfortunate that there is so much misinformation on this forum. So I thought I would explain a bit for you.
First off, lets consider: existing Rights of Way are unaffected by the legislation; therefore if it is a Right of Way as so many of you seem to think, then the 2003 Act has no impact on it. Let’s look a bit deeper into this. So, is it a Right of Way? Well, as you may or may not know, unlike in England, Scotland does not have a specific register which details Rights of Way however there are about 7000 recorded Rights of Way. The majority of Rights of Way are historic, and the Heritage Paths website happily details these for us – it’s a really good site.
Here’s the thing – the track that you refer to which links the Edenmill’s road to the private driveway is not an historic track and it is not a Right of Way on the Heritage Paths site – it was created by the Christmas Tree company in what was previously just a field, so it is definitely not an historic Right of Way, and I very much doubt you will be able to argue in the Land Courts or even a Sheriff Court that it is.
Now, the private drive is most definitely not a Right of Way – it definitely does not meet the criteria for a Right of Way and it is also not recorded in one of the historic Rights of Way in Scotland. So we can safely rule that out too. So based on the evidence can we agree that it’s safe to say that Right of Way doesn’t apply here.
So the next port of call is then the 2003 Act – The Land Reform (Scotland) Act 2003, specifically section 6.
Having already been castigated on here for quoting the legislation, lets move on to the evidence you kindly provided – something of an easier read – Thanks for the link to the Ramblers Association Page – that is really helpful. Scottish access rights - Ramblers
I am not sure how you think that helps your cause though but anyway lets work our way through it. Let me point you to the section in the link you posted which is entitled ‘Scotland on Foot, our guide to getting more out of walking in Scotland’, specifically Page 3 entitled “Where the statutory right of access does not apply’. It states that those which are mainly relevant to walkers are listed below – to save my fingers I will cut and paste it:
“Houses and gardens - Access rights don’t apply to houses or other dwellings and you must stay far enough away from them to make sure that you don’t intrude on the pri[1]vacy of the occupants or create un[1]reasonable disturbance for people in the house.
For those of you who have walked on the private drive past my house you will have seen that my house wall bounds it – if you are walking it you have no option other than to be within a couple of metres from our bedroom windows. That does not align with the dicta in the above statement “you must stay far enough away from them to make sure that you don’t intrude on the privacy of the occupants or create unreasonable disturbance for people in the house”.
This leads us to the next statement - “In the great majority of cases this simply means keeping out of their gardens. Where there are large country houses surrounded by extensive grounds, it’s always a matter of judgement how close to the house access rights apply, taking into account the matters of privacy and disturbance mentioned above. The Code advises that in these circumstances you should keep a sensible distance from the house and use a path or track if one’s available.
The above is quoted directly from the ramblers association page so if you won’t listen to me perhaps you will listen to them.
So when you walk on the private driveway which is not a track or a path, rather it provides vehicular access for the vehicles of the properties which it serves, you are not keeping a sensible distance from my house – it would be very difficult to argue this to any Land Tribunal.
So, there is no Right of Way, and the legislation does not apply – so on what grounds, excuse the pun, are you asserting the right to walk down our private drive