When it comes to navigating the intricacies of Scotland's public rights of way (PROWs), the landscape can seem as vast and complex as the terrain itself.
From ancient drove roads to modern highways, understanding the differences between each type is essential for anyone involved in development of Scottish land.
What is a PROW?
PROWs are pathways that are open to the public for use, providing access from one public place to another. The origins of PROWs can be traced back for centuries. Historically, they would have been established by continuous use over the prescriptive period. Nowadays, there are other means such as express dedication or statutory creation.
What is the difference between a PROW and other pathways, such as roads or servitudes?
Aspect | Highways/Roads | PROWs | Servitudes |
Similarities | |||
Leads from one public place to another | ✔️ | ✔️ | ❌ or can be✔️ (Agreement based) |
Used by public | ✔️ | ✔️ | ❌ Can benefit visitors/tenants |
Solum ownership | Original proprietor unless acquired by roads authority | Original proprietor unless acquired by roads authority | Agreement between landowners |
Differences | |||
Controlled by local authority | ✔️ | ❌ | ❌ (Agreement based) |
Mode of acquisition | Various, including construction, dedication, or acquisition by authority | Statute or express agreement/dedication or express grant/reservation prescription. | Agreement based (save for limited cases in relation to statutory undertakers e.g. utilities) |
Diversion/Extinction | Can be diverted or stopped up under statue. Can also be abandoned | Can be diverted or stopped up under statue (planning permission for the activity that needs the right of way/core path moved must be granted first before any order to close or divert). Non-use over the prescriptive period of 20 years | Perpetual unless time limited or discharged by agreement |
Core paths are another type of public path/right of way introduced in Scotland in 2003. Core paths are not the same as PROWs but they can be. Local authorities have the power to identify, designate and manage core paths within their jurisdictions.
The importance of due diligence on PROWs (and Core Paths)
What comprises title to your development site is critical. It is more than the extent of the boundaries. It is important to know about third-party rights that could impact on future development. Not all will be signposted on the ground or on plans. The appearance of a PROW on an OS map isn’t enough to establish its existence, further checks are required. Our title diligence includes reviewing property enquiry certificates, road adoption reports and reference to the information and resource available from Scotways, the Scottish Rights of Way and Access Society. A Scotways search provides key data on existing pathways and can help identify any PROWs that may impact the site.
The impact of PROWs on developments
Understanding and addressing PROWs is essential for developers for several reasons. Firstly, PROWs can significantly impact site layout and design, requiring careful consideration to avoid conflicts. Secondly, failure to address PROWs can lead to delays, disputes and potential legal challenges that can hamper project progress. Lastly, recognising and respecting PROWs contributes to sustainable development practices and community engagement.
Identifying any issues at an early stage can help with mitigation steps such as altering existing routes if a PROW affects the site.
Developers embarking on real estate projects in Scotland will want to avoid wandering too far down the development path without understanding whether any PROWs affect their site. It is important to ensure the path is clear (or at least not in the way) for a successful project outcome.
Written by
Related News, Insights & Events
Building safety in Scotland: Legislation comes into force on 6 January 2025
The Act was introduced by the Scottish Government to reduce the risk to life from unsafe cladding on high-rise homes.
Letters of Intent in construction projects: Practical insights
Letters of intent (LOI) are widely used in the construction industry. Here we explore what LOIs are, their role in the industry and how they can be used effectively.
The Moveable Transactions (Scotland) Act 2023: What does it mean for the construction industry?
Scotland is on the brink of a transformation in commercial law, with the introduction of the MTA.
