In Scots law, it is possible to acquire access rights simply by the passage of time. This process is known as “prescription”.
For the creation of public rights of way, it must have been in use for a period of 20 years.
A recent case looked at what is necessary to establish a public right of way.
Mr and Mrs B went to court to obtain an order that there was an established public right of way across the neighbouring woodland owned by their neighbours Mr and Mrs C, together with Mrs C's father.
They claimed that they and others had used the right of way for many years for recreation. The route of the alleged public right of way comprised a path running through a wood. Mr and Mrs C disputed this, claiming that permission had been given to Mr and Mrs B to use the path.
The law provides that if the public has possessed a public right of way over land for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the right of way shall be exempt from challenge.
Mr and Mrs B claimed that both they and their employees used the path regularly from end to end for walking and riding, that this use had been uninterrupted since 1996, and that a path had existed long before that time.
Mr and Mrs C claimed that the woods had been used for commercial forestry purposes between 1950 and 1997. During this time, no defined path had existed and the woods were largely impassable and overgrown until 2002.
In addition, they advised that Mrs C's father had specifically granted permission to Mr B allowing him and his wife to use the woodland.
They also advised that they had not seen either Mr B or Mrs B use the path until 2015 and so could not satisfy the requirements for prescriptive use.
The Court held that Mr and Mrs B could demonstrate only that they, a family member and an employee used the path, which was insufficient to qualify as use by members of the public. Since that use arose from the owner's permission, no public right of way had been created.
The owner had not extended the invitation to the general public, and access was granted in general to the woods, not to the path.