Guidance on Roads and Access Legislation in Scotland

Published: 2022

Purpose

This brief guidance note summarises the interaction between the Roads (Scotland) Act 1984 and outdoor access rights under the Land Reform (Scotland) Act 2003. It is primarily intended for officers in roads, planning and access authorities, and Police Scotland. This note has been produced by the National Access Forum, which brings together all relevant interests to advise on access rights and access management in Scotland.

Access rights under the Land Reform (Scotland) Act 2003

The Land Reform (Scotland) Act 2003 has established statutory rights of access to most land for recreation and related purposes, subject to responsible behaviour as set out in the Scottish Outdoor Access Code.

• These access rights extend to all non-motorised users (NMUs), including walkers, cyclists, horse-riders and wheelchair users, and includes motorised vehicles “constructed or adapted” for users with disabilities, Access rights are generally taken to include road legal e-bikes as these are pedal-assisted rather than self-propelled, but these rights do not include e-scooters. These users all coexist on the basis of responsible and considerate shared use in line with the Scottish Outdoor Access Code.
• These rights apply to all land with some exceptions, such as buildings and associated land (including a garden or the curtilage of a commercial building), or land which is excluded from access by other legislation.
• Local and National Park authority access officers have key roles in supporting access and helping to manage any issues, with advice from local access forums.

These statutory access rights are important for a wide range of NMUs and are now the usual default expectation among these users in most outdoor settings, ranging from hill and coastal areas to urban paths, greenspace and the urban fringe.

The Roads (Scotland) Act 1984

The above access rights are integrated with most other areas of policy and legislation, and are an important consideration in development management under the planning system. The relationship between statutory access rights and roads legislation, in particular the Roads (Scotland) Act 1984, is however less clear. The Roads Act defines various categories of route for different types of users, which it collectively refers to as “roads”. These include:

• “carriageways” which can be used by a wide range of vehicles (this equates to the normal understanding of a road in common usage);
• “footways” associated with carriageways (more commonly referred to as “pavements”), which are only for use by walkers;
• “footpaths” away from a carriageway, for walkers only, and;
• “cycle tracks” for cyclists, with or without walkers.

The definition of any given “road” is determined by the relevant roads authority, and this authority can also re-determine any such route (assigning it to a different category) at any time.

Relationship between roads and access legislation

None of the “road” definitions in the Roads (Scotland) Act is equivalent to the broadly inclusive multi-use model that applies under the Land Reform (Scotland) Act. Where a roads authority has determined that a “road” falls into one of these categories, the Roads Act states that it is an offence to use these routes by modes other than those specified – so cyclists, for example, could not legally use either a “footpath” or a “footway”. This approach is reflected by the Highway Code.

These types of route are sometimes clearly indicated on the ground, for example on paths marked for shared use, but the distinctions between them, and with areas where access rights apply, may not otherwise be obvious to users. There is particular scope for confusion around the urban fringe, as the existence of access rights is particularly widely understood and recognised in rural settings.

Many types of route, including minor roads, can be designated as “core paths” under the Land Reform Act. This has the effect of overriding the above restrictions so that access rights under that Act apply along the route.

Key issues

The complex and poorly understood relationship between these two areas of legislation results in differences of interpretation across Scotland.

• The position is confusing for the public, particularly in urban and peri-urban areas, where signage may restrict the range of users in some locations, while apparently similar routes elsewhere are available to all users. The UK Highway Code also takes a restrictive approach in line with the Roads Act and does not refer to Scottish access rights. There have been cases in which users (in particular horse-riders) have been charged with an offence under the Roads (Scotland) Act in places where access rights might have been expected to apply.
• Unnecessarily restrictive design features, such as selective barriers and tight curves, are sometimes used on paths that would otherwise be suitable for a wide range of users. Such approaches may be inconsistent with equalities legislation and wider policy objectives for health and active travel.
• A strict adherence to the categories of “road” as defined in the Roads (Scotland) Act can result in vulnerable road users, e.g. cyclists and equestrians, being forced onto the carriageway, putting them and other road users at increased risk despite a safer route being available.
• The National Access Forum considers that legislative changes would help to clarify the relationship between the two Acts, although there are no current proposals to do this (Annex A summarises some key issues which could usefully be addressed in this way). For the moment, these issues will therefore need to be addressed by a pragmatic approach on the ground, hence this advice note.