The Walker's Handbook

Thank you, CP. I live and learn!

Hugh

Hugh Westacott wrote (see)

5  Walkers should honour reasonable requests to minimize disturbance, or avoid areas where certain activities are taking place including:
a)    Shooting for deer, grouse or pheasants. Information is available from the Hillphones Service (www.hillphones.info) but not all shooting estates are part of the scheme and it is wise to enquire locally. The main shooting seasons are
•    grouse: Aug 12 to Dec 10
•    pheasant: Oct 1 to Feb 1
•    red deer: Jul 1 to Oct 20

9        Local authorities have a duty to produce a core paths plan. These can normally be downloaded from their websites and can give you an idea of paths that are likely to be well maintained. Many of them are short and some are on roads.

 Hugh

I represent land users (walkers, cyclists and anglers) on the local access forum, and have had some input in the creation of the local Core Path Plan. Our plan is due to be launched next month, so not all areas may be up and running as yet. How each authority makes its plan available may differ. North Lanarkshire plan to make a only a few paper copies available in certain public buildings, due to the high print cost. The plan should be available online. In this area there is NO budget for signage, and no plans to do so, so core paths here will not have any distinctive signage.

Some rights of way, but not all, are also core paths. There was some confusion in North Lanarkshire over whether core paths should be accessible by disabled people in wheelchairs, which meant some paths were taken off the proposed plan. Other rights of way were take off the plan for a variety of reasons, none of which I agreed with.

Each local authority does have Access Officers, and should you encounter a blocked path you should report it to them, with a grid reference and a photo. They will determine whether it is a core path/right of way/ etc, and deal with it accordingly.

You should also report any instances of either signage or land manager behaviour which denies or deters access, particularly in relation to shooting. Signage should be clear, up to date and should give you an idea of where you can go, as well as where you should not. "Hills Closed For Shooting" is not acceptable. You could perhaps mention that there is usually no shooting on Sundays.

Jester

Many thanks for your helpful comments which I've incorporated into my text.

I have another problem! Given the wonderful opportunities for access in Scotland what practical purposes do rights of way serve? Of the 7,500 rights of way on the Scotways database, only 16% seem to have any legal protection. At first I assumed that the pre-CROW legislation no longer applied whereas it has, in fact, been incorporated into the CROW Act.

This is the first draft of my revised text. You will note that the main heading is now 'Public Paths' with sub-headings for 'Rights of way' and 'Core paths'. Should I have another heading for Scotways Heritage Path project?

Public paths
There are two categories of public path
• rights of way
• core paths

Rights of way
A right of way is a route along which the public have a right of passage. To be a right of way, a route must meet certain conditions. The main ones are that the route must have been used by the public for at least twenty years, it must connect two public places, and it must follow a more or less defined route.

CROW classifies rights of way into three status categories:
• vindicated – routes declared to be rights of way by the courts or through another legal process (1% of the total)
• asserted – routes which have been accepted as rights of way by the landowner or where local authorities have indicated that they would take legal action to protect them if necessary (15% 0f the total)
• claimed – other routes which appear to meet the common law conditions necessary to be regarded as rights of way, but which have not been formally vindicated or asserted (84% of the total)

Core paths
No change to text.

Hugh

Hugh Westacott wrote (see)

Given the wonderful opportunities for access in Scotland what practical purposes do rights of way serve?

They serve to get you from the road to the interesting places, without thrashing around places where you don't really want to be, whether or not you have a right of access.

Long before CROW in England and Wales, and the clarification of the access situation in Scotland, there were areas of open access in the Isle of Man that were freely available to anyone, any time. The fact that they were covered in dense thickets of gorse was neither here nor there! For all practical purposes, walkers would stick to the rights of way because the 'access' on either side was just too painful to contemplate.

Paddy:

I don't follow the rationale of your argument!

If a path or track exists, it can be used under the access laws whether or not its a right of way. I believe that most paths and tracks visible on the ground in the mountainous areas of Scotland are shown on Ordnance Survey maps, so I ask again; what additional benefits does the designation of a right of way bestow on a path or track?

Hugh

Ah... 'paths and tracks' rather than just 'access'.

In that case, the distinction is thus...

A right of way is something you can follow whenever you choose.

For non-rights of way, under the current Scottish access legislation, the landowner can at least request that you take some other route than the one you intended, for example to avoid deer-stalking. It's up to you whether to comply or not, but to my way of thinking, I'd be more inclined to take an alternative than risk being shot! 

Paddy:

I'm still not convinced that there is a meaningful distinction between a route vindicated as a right of way, and other paths and tracks covered by the access law.

I believe it to be the case that a right of way is a route that the public can use as of a right between its start and finishing points. These must be public places, or places where the general public has the right to resort. But the exact line of the route is not defined precisely as is a right of way in England and Wales. Landholders have always had the right to make minor amendments to the route of a right of way providing that the deviation is acquiesced to by the general public. Most rights of way have been acquired at common law.

If my interpretation is correct, then I can't see that the vindication of a right of way any longer has any practical significance.

Hugh

Hugh. As you say around 84% of rights of way in Scotland are "claimed". For this to be the case, evidence of use would be submitted through Scotways to the local authority, and if the authority agrees, this will be adopted as a right of way. It may then be signposted as such. This is, in general, sufficient. It keeps the cost of having a path designated low, as at this stage there is little if any legal involvement.

Let's say some time down the line the landowner makes moves to block the right of way or prevent users from accessing it. This may be out of an ignorance of the law. The local authority would contact the landowner and notify them of the legal status of the path, and that if they continue to block/deny access they will go to court. Should the landowner back down, this would then be classed as an "asserted" right of way.

If the landowner gets bolshie and decides to go to court, then it's up to the courts. If the landowner loses, the path is "vindicated", which is probably the strongest position to have. However it will only arrive at this position after a long process, and usually only because some has tried to prevent its use.

Vindicated, or any other right of way, still have an important role to play. With more and more land being developed for industrial or residential use, or for the likes of windfarms, the fact a right of way exists means that those rights must be considered and hopefully protected when planning new developments. One example would be if siting a wind turbine near a right of way, where the turbine may be re-sited to prevent walkers being injured by ice thrown from the blades in cold weather.

This is perhaps all a bit too detailed for a walkers handbook, and your paragraph regarding CROW may cloud things to the casual path user, as it really has no relevance to whether they can walk somewhere or not.

Hugh Westacott wrote (see)

Paddy: I don't follow the rationale of your argument! If a path or track exists, it can be used under the access laws whether or not its a right of way. I believe that most paths and tracks visible on the ground in the mountainous areas of Scotland are shown on Ordnance Survey maps, so I ask again; what additional benefits does the designation of a right of way bestow on a path or track? Hugh

It protects the route Hugh. Lets suppose an estate changes hands and is purchased by a "Get Orf Moi Laand" type. Lets also suppose that there is a well used track crossing his land, used by walkers to access a particular hill, and this track is not a right of way or core path. The land owner could change the way he uses the land, which may have the effect of deterring or preventing access, however this would be legal. A simple example would be planting dense trees.

The SOAC does state that land managers should consider the needs of land users, but this is where the legislation is weak, as without any recorded paths, this possibly would not be picked up until the deed was done.

Near where I live is a track which leads to a river. This area has been well used by families for years. It doesn't meet the requirements of a ROW (as it doesn't join two public places) so at present has no protection. On one side of the track was a fence, and the farmer kept cattle in the field. One day he moved the fence to the other side of the track. Instead of being separated from the cattle you now have to walk in the same field. This deters families from using it now, after all who wants to take small children through a field of sometimes aggressive cattle? All legal, and nothing can be done about it.

Regarding Heritage Paths.

Some of these may be existing rights of way or now core paths, but some possibly are not, and I don't think they have any legal status as such, unless they are either rights of way or core paths. I think they are more about discovering the history of the paths themselves. How useful this information to the likes of long distance walkers would be I'm not sure.

Jester:

Many, many thanks for your helpful explanations and comments; I really am most grateful to you and everyone else who has helped me understand the law in Scotand.

The difference between English and Scottish law is well illustrated by your example of the farmer who moved his fence. Under English law, as the track is not a right of way, anyone using it would be trespassing and could be kept out by, for example, locking a gate. If trespassers refuse to leave, landholders have the right to use reasonable force to eject them. It would also be possible for landholders to bring a civil action for trespass against anyone using the track. Actions for a single act of trespass would be unlikely because trespass in not a crime, so landholders could only bring an action for damage caused by trespass. But they could seek to obtain an injunction against persistent trespassers.

If it was a right of way, landholders would be entitled to move the fence providing that it caused no obstruction to the route. But an offence would be committed under the Health & Safety at Work Act, 1974 if cattle, known to be dangerous, were kept in the field and a walker was attacked. The walker would also be able to sue for damages.

My daughter is a solicitor and had an interesting case some years ago. A runner was following a right of way across a field which contained a rare breed of cattle present with calves. He ran through the herd and was attacked and injured. The case was settled out of court but the runner got reduced damages because he had to accept that he was negligent in running through the herd rather than running round it.

Again, grateful thanks for all the help received.

I trust that the OP has been following this thread and has realized just how helpful OMers can be.

Hugh

> I trust that the OP has been following this thread and has realized just how helpful OMers can be.

Hugh, you're the OP of this thread (the Original Poster)...

We might call FM the OR (the Original Replier).  I don't think this is accepted internet parlance, though...

;-)

CP:

 As I've mentioned before, I struggle to understand initials, contractions and acronyms.

In this case, OP stands for Only Protester.

 Hugh

Happy to help, Hugh.

I've tried six times today to post a new thread requesting help for the chapter on 'Safety, hazards, and safety' in 'The Walker's Handbook'. After submitting it, I get a message thanking me for the new thread and awarding me 100 points, but the message does not appear on the forum. I can't understand what I'm doing wrong. So I've gone back to one of my previous threads on this subject in the hope that this post will get through.

 I've completed the chapter on 'Safety, hazards ad the weather' but I'm not entirely happy with it and would be grateful for any advice and criticisms. Also, please point out any errors of fact or omissions.

PDF and Word versions can be downloaded from here.

(Please note that the PDF version contains a number of blank pages at the end of the text because I forgot to remove them before uploading it.) 

Thanks in anticipation!

Hugh