Tuley v Highland Council

[2009] CSIH 31

Summary of decision in the appeal to the Court of Session

Opinion dated 21/04/09

This was an appeal to the Court of Session by Mr and Mrs Tuley against a decision of the Sheriff in Dingwall Sheriff Court in July 2007. The Tuleys are owners of a wood in Feddanhill Wood, near Fortrose. They had appealed to the Sheriff against a notice by Highland Council (under section 14 of the Land Reform (Scotland) Act 2003) requiring them to remove barriers which prevented access by horse riders along the route of a track in part of the wood. The route gave access to a network of narrow paths which they had created for walkers.

There were two main issues in the appeal: whether the landowners had acted responsibly in placing barriers preventing horse access along the disputed track (‘the red track’), and whether (under section 14(1) of the 2003 Act) their purpose, or main purpose, in erecting the barriers had been to prevent or deter access.

An expert witness had given evidence for the landowners about the soil damage that would occur on the red track as a result of horse use. His evidence had not been disputed by Highland Council. The Council had argued 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. They argued that the Tuleys had acted prematurely in preventing access by horses. 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. In the judges’ opinion the Tuleys were exercising land management responsibly in the way that they were managing different recreational uses of the wood.

The appeal judges also examined the interpretation of section 14(1) of the 2003 Act. This section 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).

ScotWays, 21 April 2009