Mapping Public Rights of Way and Core Paths
General
While public rights of way do exist in Scotland, there are far fewer than in England and Wales where there exists a large network of public footpaths and bridleways. In Scotland, most public access to land is covered by the Land Reform (Scotland) Act 2003, allowing reasonable and responsible access under certain conditions. The 2003 Act also allows local authorities to make Path Orders to define Core Paths in their area.
A key point to remember is that Public Rights of Way, paths created by Path Orders, and Core Paths are different - public rights of way are created by common law, whereas some Core Paths are formally created by Path Orders. Occasionally, a route is both a public right of way and a Core Path, but this is not always the case. Some Core Paths are created by Path Orders, others are not. When considering them as part of an application for registration, there are slightly different approaches depending on the nature of the route.
When to map a Public Right of Way
Section 9 (1) of the 2012 Act sets out that we must enter a public right of way into the burdens section of a title sheet in so far as is known to the Keeper.
We need information about two different things before we include a public right of way as a burden in a title sheet: the route that the right takes, and evidence of its existence. The plans officer should establish if the route is sufficiently defined and provide an appropriate plans reference for it. The legal officer will consider if there is sufficient evidence in the application to support its inclusion in the burdens section.
The route of a Public Right of Way & how to map it
The route must be identified in the application in such a way that we can plot it on the cadastral map at an appropriate scale (the OS base map scale for that area). A clear line of the route depicted on a plan is therefore normally required at a similar scale.
Either a broken line reference or a tint reference can be used to show the route of the public right of way. The decision on which style of reference should be made considering:
the way the route is shown on the plan supplied with the application
the type of OS feature the route follows - if a single line path is shown on the OS map, preference should be given to using a broken line reference, but if a double-lined track reference is shown on the OS map, use of a tint reference can also be considered.
the scale of the OS base map. For instance, a broken line plotted up the centre of a double-lined track feature may be more visible at 1:10,000 than a very narrow tint.
If you are unsure which style of reference to use, speak with your referral officer.
The route can be plotted on the main ungrouped cadastral map layer, or in a grouping showing an Additional Cadastral Map View, depending on the complexity of the title.
Add a note to legal on the LRS describing the plans reference used and whether it is on the cadastral map or Additional Cadastral Map View xx.
A statement that there is a path between points A and B isn't sufficient, unless the route is identified by a physical feature on the ordnance map (for example, a clear, continuous track shown on the OS map between the two lettered points).
If the plan is at a small scale, (we do see examples where the route is marked on a 1:25,000 or even 1:50,000 scale map), the route is normally shown with a relatively thick line. In those instances, we need to consider if we can see and plot the route accurately.
If the route on a small scale plan follows a defined OS feature such as a path or a track, the reference on the cadastral map should follow that feature. If we later discover that this is incorrect, the title sheet can be amended by rectification.
If the route on a small scale plan does not follow a defined OS feature such as a path or track, we should not attempt to plot the route as we would not be able to transfer it to the cadastral map with a sufficient degree of accuracy. Instead, a copy of the plan can be incorporated into the title sheet by reference to the plan in the archive record. Add a note to Legal on the LRS explaining the route is shown on a particular plan but it is not suitable to be plotted onto the cadastral map due to the scale - request that it be incorporated by reference instead.
Evidence of the existence of the route of a Public Right of Way
In practice, if an application discloses that the land being registered is burdened by a public right of way, and it is capable of being mapped (or the plan can be incorporated by reference) then in most instances this means the legal officer will include that information in the title sheet. However, there are other legal considerations they will take into account, sometimes in conjunction with a legal senior caseworker, so occasionally you may be asked to remove a reference. Further guidance for legal officers can be found here.
When to map a Core Path
Section 17 of the 2003 Act makes provision for each Scottish local authority to draw up a plan for a system of paths (“core paths”) that is sufficient for the purpose of giving the public reasonable access throughout their area. The routes of these paths can be found on the Nature Scot website. These paths are generally signposted and likely to be the most popular and commonly used. They may cross land to which access rights apply and they may also cross land where access rights do not apply.
Example of a Core Paths Plan
Eligibility of a Core Path for inclusion in Land Register
Core path plans may designate many types of paths and routes as core paths, and these may include existing Public Rights of Way and paths delineated by a Path Order made under Section 22 of the 2003 Act, as well as other paths and routes accessed under the statutory rights of access in the 2003 Act. However, from a registration point of view, only those core paths that are Public Rights of Way or have been created by a Path Order will be entered in the Land Register.
Other types of core paths relating to the statutory right of access under the 2003 Act cannot be shown on the land register because the 2012 Act states that the Keeper “must not enter any rights or obligations except in so far as their entry is authorised by an enactment”, and entry in a core paths plan does not in itself constitute ‘an enactment’.
So, the first check to make when an application refers to the subjects being burdened by a Core Path is to see if the application contains enough information to determine if it meets the criteria for registration: is it described as a Public Right of Way, or is it described by reference to a Paths Order?
If the application clearly indicates that is does not meet these criteria, the plans officer should add a note to legal on the LRS advising that no plans reference has been provided for the Core Path on plan x as it would appear not to be a Public Right of Way or subject to a Paths Order. The legal officer may return it for a reference to be added later if their considerations bring more information to light.
If the application is unclear, then the plans officer should refer to a Plans HEO for consideration. If the route is sufficiently defined and an appropriate plans reference could be provided for it (see below), then the HEO will contact the submitting agent and seek clarification on the status of the route. A short period of 21 days should be allowed to respond. If no response is received, or the response is that the route does not meet the criteria, the route should be omitted from the title sheet.
If the application clearly indicates that it does meet these criteria, the plans officer can carry on and decide if it is capable of being mapped.
The route of a Core Path & how to map it
Once it has been established that the Core Path does meet the criteria for being entered in a title sheet, the same mapping considerations, styles of references, and necessary notes to legal described above for Public Rights of Way should be followed.
The Nature Scot website may be of use in some instances as it allows users to zoom into the locality to improve the clarity of the exact route of a path. This could help the plans officer define the route as accurately as possible on the cadastral map.
Evidence of the existence of the route of a Core Path
As with public rights of way, the legal officer will consider if there is sufficient evidence of the existence of the route in the application to support its inclusion in the burdens section. In practice, if an application discloses that the land being registered is burdened by a Core Path that is a public right of way or was created by a Path Order, and it is capable of being mapped (or the plan can be incorporated by reference) then in most instances this means the legal officer will include that information in the title sheet. However, there are other legal considerations they will take into account, sometimes in conjunction with a legal senior caseworker, so occasionally you may be asked to remove a reference. Further guidance for legal officers can be found here.