Scottish Rights of Way & Access Society

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I’m Ken, the ScotWays Knowledge Base

Ask Me Your Outdoor Access Question

Important People of Scottish Access

  • Important People of Scottish Access – Adam Black (1784-1874)
  • Important People of Scottish Access – Archibald Eneas Robertson (1870-1958)
  • Important People of Scottish Access – Arthur W Russell (1873-1967)
  • Important People of Scottish Access – Donald Bennet (1928-2013)
  • Important People of Scottish Access – Donald Grant Moir  (1902-1986)
  • Important People of Scottish Access – John George Bartholomew (1860-1920)
  • Important People of Scottish Access – John Hutton Balfour (1808-1884)
  • Important People of Scottish Access – Professor Sir Robert (Bob) Grieve (1910 -1995)
  • Important People of Scottish Access – Rennie McOwan (1933-2018)
  • Important People of Scottish Access – Viscount James Bryce (1838-1922)
  • Important People of Scottish Access – Walter Arthur Smith (1852-1934)
  • Important People of Scottish Access – William Ferris (1894-1963)

Introducing Ken

  • Hello, my name is Ken.

Court Cases

  • An outline of the Scottish Courts System
  • The Authority of Case Law
Cases under the Land Reform (Scotland) Act 2003
  • Aviemore Highland Resort v Cairngorms National Park Authority
  • Caledonian Heritable Ltd v East Lothian Council
  • Creelman v Argyll & Bute Council
  • Forbes v Fife Council
  • Gloag v Perth & Kinross Council and the Rambler’s Association
  • Law Society of Scotland v Scottish Legal Complaints Commission
  • Renyana Stahl Anstalt v Loch Lomond and The Trossachs National Park Authority Appeal Decision
  • Snowie v Stirling Council and Ramblers Association Lindsay and Barbara Ross v Stirling Council
  • Tuley v Highland Council
  • Williamson v Highland Activities Limited
Public rights of way and private servitude rights of way
    Creation of public rights of way – need for public place end points
    • Cuthbertson v Young
    • Darrie v Drummond
    • Duncan v Lees
    • Jenkins v Murray
    • Lauder v MacColl
    • Leith-Buchanan v Hogg
    • Magistrates of Dunblane v Arnold-McCulloch
    • Marquis of Bute v McKirdy & McMillan
    • Melfort Pier Holidays Ltd v The Melfort Club and Others
    • Midlothian Council v Crolla
    • Oswald v Lawrie
    • Scott v Drummond
    • Smith v Saxton
    • Wood v North British Railway
    Creation of public rights of way – use as of right by the public for the prescriptive period
    • Aberdeen City Council v Wanchoo and Neumann v Hutchison
    • Ayr Burgh Council v British Transport Commission
    • Burt v Barclay
    • Cadell v Stevenson
    • Cumbernauld & Kilsyth District Council v Dollar Land (Cumbernauld) Ltd
    • Duffield Morgan v Lord Advocate
    • Kinloch’s Trustees v Young
    • Magistrates of Elgin v Robertson
    • McGregor v Crieff Co-operative Society Ltd
    • McInroy v Duke of Athole
    • Norrie v Magistrates of Kirriemuir
    • Rhins District Committee of the County Council of Wigtownshire v Cunninghame
    • Richardson v Cromarty Petroleum Co Ltd
    • Rome v Hope Johnstone
    • Scottish Rights of Way & Recreation Society Ltd v Macpherson
    • Strathclyde (Hyndland) Housing Society Ltd v Cowie
    • Wills Trustees v Cairngorm Canoeing and Sailing School Ltd
    • Wilson v Jamieson
    Creation of rights of way – interruption of the prescriptive period
    • Mann v Brodie
    Different kinds of use of rights of way
    • Aberdeenshire Council v Lord Glentanar
    • Carstairs v Spence
    • Crawford v Lumsden
    • Macfarlane v Morrison & Others (Robertson’s Trustees)
    • Mackenzie v Bankes
    • Malcolm v Lloyd
    Need for a particular line for public rights of way
    • Home Drummond & Another (Petitioners)
    • Hozier v Hawthorne
    • Mackintosh v Moir
    Obstruction of rights of way
    • Aitchison v India Tyre & Rubber Co.
    • Anderson v Earl of Morton
    • Drury v McGarvie
    • Earl of Morton v Anderson
    • Fife Council v Nisbet
    • Geils v Thomson
    • Glasgow and Carlisle Road Trustees v Tennant
    • Glasgow and Carlisle Road Trustees v Whyte
    • Graham v Sharpe
    • Hay v Earl of Morton’s Trustees
    • Kirkpatrick v Murray
    • Lanarkshire Water Board v Gilchrist
    • Lord Donington v Mair
    • Macdonald v Watson
    • Midlothian District Council v MacKenzie
    • Rodgers v Harvie
    • Soriani v Cluckie
    • Stewart, Pott & Co. v Brown Brothers & Co
    • Sutherland v Thomson
    Procedural issues
    • Alexander v Picken
    • Alston v Ross
    • Hope v Landward District Committee of the Parish Council of Inveresk
    • Macfie v Scottish Rights of Way and Recreation Society Limited
    • Nairn v Speedie
    • Potter v Hamilton
    • Torrie v Duke of Atholl
    Public and private rights of way – ancillary rights and burdens
    • Allan v McLachlan
    • Lord Burton v Mackay
    • McRobert v Reid
    • Milne v Inveresk Parish Council
    • Moncrieff v Jamieson
    • Preston’s Trustees v Preston
    Relationship of public rights of way with private servitude rights of way and with ‘roads’ under the Roads (Scotland) Act 1984
      Public rights of way and ‘roads’ under the Roads (Scotland) Act 1984
      • Davidson v Earl of Fife
      • Hamilton v Dumfries & Galloway Council
      • Hamilton v Nairn
      Relationship of public rights of way with private servitude rights of way
      • Alvis v Harrison
      • McGavin v McIntyre
      • Thomson v Murdoch
    Rights of way – land owned by statutory undertakers or the Crown
    • Ayr Harbour Trustees v Oswald
    • British Transport v Westmoreland County Council
    • Edinburgh Corporation v North British Railway Co.
    • Ellice’s Trustees v Commissioners for the Caledonian Canal
    • Kinross County Council v Archibald
    • Lord Advocate v Strathclyde Regional Council and Lord Advocate v Dumbarton District Council
    • Oban Town Council v Callander & Oban Railway
    • The Ramblers Association v The Secretary of State for Environment, Food and Rural Affairs (and Others)
Navigation rights and rights in relation to the foreshore
    Navigation rights
    • Campbell’s Trustees v Sweeney
    • Colquhoun’s Trustees v Orr Ewing & Co
    • Crown Estate Commissioners v Fairlie Yacht Slip Ltd.
    • Denaby and Cadeby Main Collieries Ltd v Anson
    • Ellerman Lines Ltd v Clyde Navigation Trustees
    • Kames Bay Case – Petition of the Crown Estate Commissioners
    • Walford v David
    • Wills Trustees v Cairngorm Canoeing and Sailing School Ltd
    Rights in relation to the foreshore
    • Leith-Buchanan v Hogg
    • Marquis of Bute v McKirdy & McMillan
    • Officers of State v Smith
Liability
    Cases relating to contributory negligence
    • Smith v Finch
    Liability of recreational users to one another
    • Anthony Phee v James Gordon & Niddry Castle Golf Club 4 November 2011
    • Milne v Duguid
    • Pearson v Lightning
    Occupiers’ liability: Cases involving ‘hazards’ in the outdoors
    • Anderson v The Scottish Ministers
    • Brown v South Lanarkshire Council
    • Duff v East Dunbartonshire Council
    • Fegan v Highland Regional Council
    • Graham v East of Scotland Water
    • Johnstone v Sweeney
    • Lang v Kerr Anderson & Co.
    • Marshall v North Ayrshire Council
    • McCluskey v Lord Advocate
    • Michael Leonard v The Loch Lomond and The Trossachs National Park Authority
    • Prosecution by the Health & Safety Executive Dunoon Sheriff Court, 18th August 2010
    • Strachan v Highland Council
    • Tomlinson v Congleton Borough Council
    • Trueman v Aberdeenshire Council
    • Wright v Nevis Range Development Company
    Occupiers’ liability: Cases involving children
    • Dawson v Scottish Power
    • Glasgow Corporation v Taylor
    • Jolley v Sutton London Borough Council
    • Stevenson v Glasgow Corporation
    Occupiers’ liability: Cases involving facilities/indoor premises
    • McCondichie v Mains Medical Centre
    • Poppleton v Peter Ashley Activities Centre
    • Porter v Borders Council
    Cases involving animals
    • Gardiner v Miller
    • Shirley McKaskie v John Cameron
    • Welsh v Brady
Other cases of interest
  • Carol Rohan Beyts v Trump International Golf Club Scotland Limited
  • Law Society of Scotland v Scottish Legal Complaints Commission
  • Neizer v Rhodes
  • R v Howard

The Bookshelf

  • Welcome to The Bookshelf
Legislation
  • Legislation 1960-1969
  • Legislation 1970-1979
  • Legislation 1980-1989
  • Legislation 1990-1999
  • Legislation 2000-2009
  • Legislation 2010-2019
  • Legislation 2020-2029
Guidance on Legislation
  • Guidance on Legislation 1990-1999
  • Guidance on Legislation 2000-2009
  • Guidance on Legislation 2010-2019
  • Guidance on Legislation 2020-2029
Responsible Access
  • Publications on Responsible Access 1990-1999
  • Publications on Responsible Access 2000-2009
  • Publications on Responsible Access 2010-2019
Rights of Way and Outdoor Access Management
    Land Management
    • Managing Land for Outdoor Access 2000-2009
    Path Management
    • Path Management 1980-1989
    • Path Management 1990-1999
    • Path Management 2000-2009
    • Path Management 2010-2019
    • Path Management 2020-2029
    People Management
    • Managing the Public 2000-2009
    • Managing the Public 2010-2019
    Signposting
    • Signposting and Interpretation 1990-1999
    • Signposting and Interpretation 2010-2019
    • Signposting and Interpretation 2020-2029
Surveys of Rights of Way, Access and Procedures
  • Surveys of Rights of Way, Outdoor Access and Procedures 1980-1989
  • Surveys of Rights of Way, Outdoor Access and Procedures 1990-1999
  • Surveys of Rights of Way, Outdoor Access and Procedures 2000-2009
  • Surveys of Rights of Way, Outdoor Access and Procedures 2010-2019

About Access Rights

  • What are Outdoor Access Rights?
Rights of Way
  • A local landowner has fenced off a path that is well used by local people, and has put up a sign saying No trespassers’. What can I do about it?
  • Can I ride my motorbike on a right of way or take it off road?
  • Development Proposals and Outdoor Access
  • Do public rights of way exist in Scotland?
  • Horse riders are using a local path and churning it up so that it is difficult for walkers to use. What can be done?
  • How does a route become a right of way?
  • Is there any need for rights of way, now that there is freedom of access?
  • Is there any record of rights of way in Scotland?
  • My neighbour says he has a right to go along the path at the back of my house. Could this be a public right of way?
  • Private Signs, Private Roads, Public Roads, What’s the difference?
  • Rights of access to land
  • There is a path close to my house which local people say is a right of way. Can I divert the route so as to protect my privacy?
  • There is a proposal for a windfarm development that will be close to a well-used right of way. What can be done?
  • Where can I cycle?
  • Where Can I Ride or Drive my Horse?
  • Who’s responsible for path maintenance?
Statutory Access Rights
  • A Brief History of Access Rights
  • A local landowner has fenced off a path that is well used by local people, and has put up a sign saying No trespassers’. What can I do about it?
  • Are access rights different in Scotland from those in England and Wales?
  • Can I go wild camping in Scotland?
  • Can I ride my motorbike on a right of way or take it off road?
  • Horse riders are using a local path and churning it up so that it is difficult for walkers to use. What can be done?
  • Is there any need for rights of way, now that there is freedom of access?
  • Private Signs, Private Roads, Public Roads, What’s the difference?
  • Right to Roam Timeline
  • Rights of access to land
  • The Coming of Access Rights
  • The Scottish Outdoor Access Code, A Replacement for the Country Code
  • What activities are covered by rights of access?
  • What activities are not covered by rights of access?
  • What are core paths?
  • What does behaving responsibly mean?
  • What happens when there is a dispute about whether, or how, the rights of access apply?
  • What is a Local Access forum?
  • Where can I cycle?
  • Where Can I Ride or Drive my Horse?
  • Where do access rights not apply?
  • Who should I contact if I have a problem about access rights?
  • Who’s responsible for path maintenance?

History

  • 175th Anniversary
  • 1844 The beginning of ScotWays
  • 1964 When figure 740 changed the face of path signs
  • A Brief History of Access Rights
  • Boardwalks, the oldest types of constructed path
  • Historic Footpaths
  • Right to Roam Timeline
  • ScotWays’s Oldest Standing Signpost
  • The Association for the Protection of Public Rights of Roadway in and Around Edinburgh
  • The Bedford Memorial Bridge
  • The Changing Face of ScotWays Signs
  • The Coming of Access Rights
  • The First ScotWays Signposts
  • The History of ScotWays
  • The Launch of the Heritage Paths website
  • Welcome the Scottish Rights of Way and Recreation Society Limited
  • What’s in a name?

Scottish Hill Tracks

  • Scottish Hill Tracks ~ Overview
  • SECTION 11: Glen Coe & Appin
  • SECTION 13: Loch Leven to Glen Spean
  • SECTION 14: Ardgour, Moidart & Morven
  • SECTION 15: West Mounth & Sidlaw Hills
  • SECTION 17: Cairngorms
  • SECTION 19: Monadh Liath
  • SECTION 2: Central & South-West Borders
  • SECTION 20: Loch Eil to Glen Shiel
  • SECTION 21: Glen Affric, Kintail & Strathfarrar
  • SECTION 22: Mull & Skye
  • SECTION 23: Wester Ross
  • SECTION 24: Caithness, Sutherland & Easter Ross
  • SECTION 3: Lammermuir & Moorfoot Hills
  • SECTION 4: Pentland Hills
  • SECTION 5: Clydesdale & Lowther Hills
  • SECTION 6: Galloway & South Ayrshire
  • SECTION 7: Arran, Inverclyde & North Ayrshire
  • SECTION 9: Southern Highlands

Heritage Paths

  • Heritage Paths Introduction
  • Historic Footpaths
  • The Launch of the Heritage Paths website
About Types of Heritage Paths
  • Coffin Roads
  • Drove Roads
  • Fish Roads
  • Heritage Paths Introduction
  • Leisure Paths
  • Medieval Roads
  • Military Roads
  • Pilgrimage Routes
  • Postie Paths
  • Public works and private enterprise: moving towards the modern transport system
  • Religious Routes
  • Roman Roads
  • Salters’ Roads
  • Trade Routes
  • Traveller Routes

Signposting

  • 1964 When figure 740 changed the face of path signs
  • A Signposting Tour of the Cairngorms
  • ScotWays’s Oldest Standing Signpost
  • The Changing Face of ScotWays Signs
  • The First ScotWays Signposts

#RespectProtectEnjoy

  • A different way to get there or doing something different.
  • Different Ways
  • Places to Visit
  • Home
  • Ask Ken
  • Court Cases
  • Cases under the Land Reform (Scotland) Act 2003
  • Tuley v Highland Council

Tuley v Highland Council

Table of Contents
  • Decision in the Dingwall Sheriff Court
  • Appeal hearing at the Court of Session – 21 April 2009

Case Report: [2009] CSIH 31; 2009 S.L.T. 616
Court of Session, 21st April 2009
Scottish Courts Service decision on appeal.

This was a successful appeal by Mr and Mrs Tuley to the Court of Session, against a ruling by the Dingwall Sheriff Court, July 2007.

The facts: Mr and Mrs Tuley had purchased Feddonhill Wood in 1992 from the Forestry Commission on Mr Tuley’s retirement. It was a small wood, mainly coniferous, and located on a slope above the village of Fortrose in the Black Isle, with views to the south over the inner Moray Firth. The wood was bisected by a private road providing vehicular access eastward to a few private houses and a livery stable/riding school at Broomhill Farm, with about 60 horses. That part of the wood to the south of the private road suffered severe wind throw in 2006, and this was being cleared. When owned by the Commission there had been public access for walking and riding, but Mr Tuley had not allowed riding on the main path through the northern section of the wood, and which led to the vehicular road to Broomhill Farm. He had been managing the wood for amenity and public access, aiming to provide separately for different categories of user, his original intention being to provide for riders in that part of the wood which had been storm-damaged.

On the coming into force of statutory access rights, Mr Tuley erected padlocked pole barriers to deter riders at either end on the path through the northern section of the wood, although there were narrow gaps to allow others to pass. Mr Tuley feared that use of this track by riders would cause unreasonable damage on account of parts of the path having a steepish gradient. This action led to complaints by some local riders to Highland Council, which entered negotiation with Mr Tuley, but there was no agreement and the Council issued a Notice under s.14(2) of the Land Reform (Scotland) Act 2003 requiring that the barriers be removed or sufficient space provided for the passage of all users. This order was challenged by Mr and Mrs Tuley, arguing that the purpose of the barriers was not to inhibit all access but to ensure that the said track was not damaged by horses to the disadvantage of walkers. They said this was responsible management in line with section 3 of the Act.

Evidence: both parties to the case provided technical evidence. Mr Tuley had an expert witness in soil science whose report predicted that any major use of the track by horses would inevitably lead to damage, which was supported by a recreation professional, and a local walker expressed concern about meeting horses given the narrowness of the track. For the Council, evidence was led by the Council’s access officer and the access specialist for the British Horse Society, to the effect that the track could stand use by horses and that some impact from such use was not unreasonable – riders had to exercise judgement and act responsibly when conditions were unsuitable for riding. The owner of the stables said that she would limit use of the track to a small number of ponies ridden by children as part of a circuit using the vehicular road. The Council offered to assist should problems arise, but it did not dispute the evidence of the main expert witness on path damage.

Decision in the Dingwall Sheriff Court #

In a thoughtful review of the evidence, the Sheriff reflected on the uncertainties that still remained: the prospect that all users would always act sensitively and responsibly seemed uncertain; the Act made clear that the land manager should not limit access except in obvious or extreme circumstances, and without some objective evidence of the nature of the impacts that might arise; there was uncertainty in the number of riders that might use the contested track if access were to be opened up to all; there was uncertainty in the evidence as to the degree of impact that would arise; and there could be adverse effects on other users of the wood, although, on balance, this last point was not a major issue in the case. In conclusion, the Sheriff came to the view that while Mr Tuley had valid concerns, he had acted prematurely in limiting access for riding, and had denied the opportunity to assess objectively what damage might arise, given use by horses. He also had a remedy available in cooperating with the Council, which had offered assistance. The appeal against the Notice was refused.

Appeal hearing at the Court of Session – 21 April 2009 #

Mr and Mrs Tuley appealed to the Court of Session against the above decision. There were two main issues in the appeal.

The first issue was whether the landowners had acted responsibly in placing barriers preventing horse access along the disputed path. An expert witness had given evidence for the landowners about the soil damage that would occur on the disputed path as a result of horse use. The Council had not disputed the expert evidence, but argued that the Tuleys had acted prematurely in preventing access by horses. They said that horse riders should not be prevented from using the route unless/until it could be shown that damage was being caused as a result, and they had offered to assist if drainage problems arose. The appeal judges rejected this argument. The uncontested expert evidence had indicated that, in all probability, horse use would damage the track, and the Tuleys were therefore acting responsibly in preventing horse access to the part of the wood that was intended for pedestrian use. It was stated that the Tuleys were exercising land management responsibly in the way that they were managing different recreational uses of the wood.

The Court went on to give its views on the second issue, which was whether the purpose, or main purpose, for erecting the barriers had been to prevent or deter access. Section 14(1) of the 2003 Act prohibits landowners from putting up any obstructions if the purpose, or main purpose, is to prevent or deter people from exercising their access rights. The appeal judges said that ‘purpose or main purpose’ should be given a flexible interpretation. In the present case they said it was recognised and accepted that the Tuleys encouraged public access, and were only seeking, in good faith, to regulate different uses of access. The ‘main purpose’ of the barrier to horses was the landowners’ genuine concern to prevent damage by horses to the track and the paths leading off it. The Tuleys were therefore not in breach of section 14(1).

Comment: As the case had been decided on the first issue, the Court’s views on the second issue were only ‘obiter’, i.e. not part of the decision and therefore not binding in any future cases.

Case Law Land Reform (Scotland) Act 2003, Court Case, Land Reform (Scotland) Act 2003 - Section 14, Obstruction of Statutory Access Rights, Statutory Access Rights
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Updated on 2 January 2022
Snowie v Stirling Council and Ramblers Association Lindsay and Barbara Ross v Stirling CouncilWilliamson v Highland Activities Limited

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Table of Contents
  • Decision in the Dingwall Sheriff Court
  • Appeal hearing at the Court of Session – 21 April 2009
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