Head 25: 2 Flashcards
(13 cards)
A public right of way is…
Is the right for any member of the public to use a road or pass or a route for passage.
⁃ This is similar to a servitude of ‘way’ but 1) there is no benefited property and 2) the public can exercise the right rather than the owner of a benefited property.
NB THIS IS COMMON LAW
Are public rights of way real rights?
It is a real right in the sense that it runs with the land - its certainly not a contractual right. Some take the view that real rights are private law rights and since these are public law rights they cannot be real rights.
Roads
Roads are often owned by people who own the land on each side of the road.
⁃ Roads can be ‘taken over’ by local authorities for maintenance purposes (so notwithstanding the fact that the road is in private ownership, the local authority will pay for its maintenance).
⁃ For roads which have been taken over, there will be a public right of way over it (even though it may technically be in private ownership)
LOOK UP GRETTON AND STEVEN
Two ways in which public rights of way can be created?
1) Positive prescription (s 3(3) 1973 Act)
2) Express grant BUT THIS IS ONLY IN THEORY - AS HAS NEVER SEEN IT
What are the requirements of creation of a public right of way by positive prescription?
- Must be a fixed route
- Between two public places
- Must be used by members of the public for 20 years. Possession must be 1) for the whole length of the way, 2) uninterrupted, and 3) adverse (not by tolerance.
[the amount of use depends on location, whether populous or remote etc.
Rhins District Committee v Cuninghame 1917
There was a public right of way established along a river which came off the road, looped down along the river and came back onto the road again. [Simply an example of 2 public places (here, different parts of the same road).
Marquis of Bute v McKirdy & McMillan 1937
This case involved whether there was a right of way between the road and the foreshore. It was held that the right had been established on the facts. The Lord President held that: “If a proprietor lies by while regular and unrestricted public use is made of a private road between two public termini for the prescriptive period, the law will assume a public right rather than an easy-going proprietor.”
Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd 1992
Involved an elevated and enclosed heated walkway above and over a main road. The new owners of the walkway decided to lock it at night because of vandalism. However evidence was led of the public using this at all times of the day and night.
It was held a public right of way had been established and thus it could not be locked.
[In contrast, in the Marquis of Bute case above, the amount of use was much smaller - it was confined to the summer months, but it was still held that this was sufficient use to achieve the right of way.]
What governs the extent of the right of public rights of way?
The extent of the right which is prescribed depends on possession (tantrum praescriptum quantum possessum). In other words, if you walk over for 20 years then a pedestrian right of way is created. Whereas if you drive over for 20 years then you receive a vehicular right of way.
Aberdeenshire County Council v Lord Glentanar 1999
The issue was whether use by a bicycle could establish a general right of vehicular use. The court held that it couldn’t. The reason was that a bicycle was simply an aid to pedestrianism as opposed to cars which are powered by engines (but does this mean that if you walk for 20 years you gain a right to cycle? Unclear.)
Can burdened proprietor of a public right of way erect gates etc?
The burdened proprietor can erect gates for legitimate purposes (e.g. Keeping cattle in) but the public right of way must still be capable of being exercised (so locked gates are no good).
There is an important provision s 31 Land Reform (Scotland) Act 2003 - this applies s 14 (about not putting up off-putting signs etc) to public rights of way.
Can public rights of way be extinguished by prescription?
Public rights of way can be lost by 20 years of non-use under the 1973 Act s 8.
If there is a question on different types of access rights in an exam then mention:
1) statutory rights
2) ) public access rights
3) servitudes
