Right of way

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For other uses, see Right of way (disambiguation).

Right of way is a term first used to describe the right to travel unhindered, to access a route regardless of land ownership or any other legality.

The right of way may be limited. If one person owns a piece of land which is bordered on all sides by lands owned by others, a court will be obliged to grant the right of way to those approved by the owner or owners of the isolated land area. It is also common practice for the public to be granted the right of way on a path or track which is in common use for a lengthy period of time (see Easement). A public right of way is not restricted by land ownership and grants travel access to all.

United Kingdom[edit]

England and Wales[edit]

In England and Wales, public rights of way are paths on which the public have a legally protected right to pass and re-pass. The law in England and Wales differs from that in Scotland in that rights of way only exist where they are so designated (or are able to be designated if not already) whereas in Scotland any route that meets certain conditions is defined as a right of way, and in addition there is a general presumption of access to the countryside. Private rights of way or easements also exist.

Footpaths and other rights of way in England and Wales are shown on definitive maps. A definitive map is a record of public rights of way in England and Wales. In law it is the definitive record of where a right of way is located. The highway authority (normally the county council, or unitary authority in areas with a one-tier system) has a statutory duty to maintain a definitive map, though in national parks the National Park Authority usually maintains the map. The Inner London boroughs are exempt from the statutory duty though they have the powers to maintain a map: currently none does so.[1]

Scotland[edit]

In Scotland, a right of way is a route over which the public has been able to pass unhindered for at least 20 years.[2] The route must link two "public places", such as villages, churches or roads. Unlike in England and Wales there is no obligation on Scottish local authorities to signpost or mark a right of way. However the charity Scotways, formed in 1845 to protect rights of way, records and signs the routes.[3]

Scotways sign for a "Public Path"

There is no legal distinction between footpaths and bridleways in Scotland, though it is generally accepted that cyclists and horseriders may follow rights of way with suitable surfaces.

The Land Reform (Scotland) Act 2003 established a general presumption of access to all land in Scotland, making the existence of rights of way less important in terms of access to land in Scotland. Certain categories of land are excluded from this presumption of open access such as railway land, airfields and private gardens.

Northern Ireland[edit]

Northern Ireland has very few public rights of way and access to land in Northern Ireland is more restricted than other parts of the UK, so that in many areas walkers can only enjoy the countryside because of the goodwill and tolerance of landowners. Permission has been obtained from all landowners across whose land the Waymarked Ways and Ulster Way traverse. Much of Northern Ireland’s public land is accessible, eg. Water Service and Forest Service land, as is land owned and managed by organisations such as the National Trust and the Woodland Trust.[4]

Northern Ireland shares the same legal system as England, including concepts about the ownership of land and public rights of way, but it has its own court structure, system of precedents and specific access legislation.[5]

Republic of Ireland[edit]

In the Republic of Ireland, pedestrian rights of way to churches, known as mass paths, have existed for centuries. In other cases, the modern law is unclear; on the one hand, Victorian era laws on easements protect a property owner's rights, amplified by the 1937 constitution, which stipulate that a right of way has to be specifically dedicated to public use.[6] Opposing these, those claiming general rights of way hark back to an anti-landed gentry position that has endured since the Land War of the 1880s. Rights of way can be asserted by Adverse possession, but proving continuous use can be difficult. A case heard in 2010 concerning claims over the Lissadell House estate was based on the historical laws, since amended by the Land and Conveyancing Law Reform Act, 2009.[7]

The 2009 Act abolished the doctrine of lost modern grant, and allows a user to claim a right of way after 12 year of use across private land owned by another, 30 years on state land and 60 years on the foreshore.[8] The claim must be confirmed by a court order and duly registered, an expensive process. The user must prove "enjoyment without force, without secrecy and without the oral or written consent of the .. owner", a restatement of the centuries-old principle of Nec vi, nec clam, nec precario.

Right to roam[edit]

Main article: Right to roam

In England and Wales public access rights apply to certain categories of mainly uncultivated land—specifically "mountain, moor, heath, down and registered common land." Developed land, gardens and certain other areas are specifically excluded from the right of access. Agricultural land is accessible if it falls within one of the categories described above (See Countryside and Rights of Way Act 2000). Most publicly owned forests have a similar right of access by virtue of a voluntary dedication made by the Forestry Commission. People exercising the right of access have certain duties to respect other people's rights to manage the land, and to protect nature.

In Scotland and the Nordic countries of Finland, Iceland, Norway and Sweden as well as the Baltic countries of Estonia, Latvia and Lithuania the freedom to roam may take the form of general public rights which are sometimes codified in law. The access is ancient in parts of Northern Europe and has been regarded as sufficiently basic that it was not formalised in law until modern times.

Many tropical countries such as Madagascar have historic policies of open access to forest or wilderness areas.[citation needed]

Foreshore[edit]

Public rights of way often exist on the foreshore of beaches. In legal discussions the foreshore is often referred to as the wet-sand area.

For privately owned beaches in the United States, some states such as Massachusetts use the low water mark as the dividing line between the property of the State and that of the beach owner. Other states such as California use the high-water mark.

In the UK, the foreshore is generally deemed to be owned by the Crown although there are notable exceptions, especially what are termed several fisheries which can be historic deeds to title, dating back to King John's time or earlier, and the Udal Law, which applies generally in Orkney and Shetland. Where the foreshore is owned by the Crown the public has access below the line marking high tide.

In Greece, according to the L. 2971/01, the foreshore zone is defined as the area of the coast which might be reached by the maximum climbing of the waves on the coast (maximum wave run-up on the coast) in their maximum capacity (maximum referring to the “usually maximum winter waves” and of course not to exceptional cases, such as tsunamis etc.). The foreshore zone, apart from the exceptions in the law, is public, and permanent constructions are not allowed on it.

As with the dry sand part of a beach, legal and political disputes can arise over the ownership and public use of the foreshore. One recent example is the New Zealand foreshore and seabed controversy.

Rivers[edit]

The Rivers Access Campaign is being undertaken by the British Canoe Union (BCU) to open up the inland water-ways in England and Wales on behalf of members of the public. Under current UK law, public access to rivers is restricted, and only 2% of all rivers in England and Wales have public access rights. The BCU is using the campaign not just to raise awareness of the access issues, but to try to bring about changes in the law.

See also[edit]

References[edit]

  1. ^ See: Public Paths and the Definitive Map from the Ramblers Association and Definitive Map Orders: Consistency Guidelines from the Planning Inspectorate.
  2. ^ Rights of way in Scotland Scottish Natural Heritage
  3. ^ [1] Scotsway: The Scottish Rights of Way & Access Society.
  4. ^ Walk Northern Ireland: [2]
  5. ^ A Guide to Public Rights of Way and Access to the Countryside: [3].
  6. ^ The constitution guarantees the "life, person, good name and property rights of every citizen" (Article 40.3)
  7. ^ Lissadell owners' case, reported Jan 2010; and a group opposed to the current laws.
  8. ^ http://www.irishstatutebook.ie/2009/en/act/pub/0027/sec0033.html 2009 Act, s.33

External link[edit]

  • [4] Heritage Paths (Scottish rights of way).
  • [5] Keep Ireland Open
  • [6] Public rights of way (Naturenet).
  • [7] Public rights of way for shoreline access in Rhode Island, USA.
  • [8] The Ramblers: Basic rights of way law
  • [9] Scotsway: The Scottish Rights of Way & Access Society.