TULEY V HIGHLAND COUNCIL DINGWALL SHERIFF COURT, REF B201/05
This case, the
first access case to complete a full proof, occupied Monday 27th November to Wednesday 29th November at Dingwall Sheriff Court. There had been one previous day of evidence in August.
The hearing included a site visit to the wood. The visit in the Archerfield case had consisted only of the Sheriff and the Parties’ Counsel and agents, and that in the Gloag case the Sheriff, the Parties and the press. Here, however, the Sheriff pointed out that as it was agreed that access rights applied to the wood, the public were entitled to be present, though not to speak.
Amongst the cases going through the Courts at present, this case is unique because it is not just about a landowner trying to restrict access by the public in general. It is about a landowner who encourages access in general, but who has to balance the rights he has as owner of the land, the access rights which pedestrians have on his land, and the access rights which horse riders have on his land.
Although it was Graham Tuley and Mrs Tuley who acquired Feddanhill wood from the Forestry Commission, for ease of narration, and with apologies to Mrs Tuley, Graham Tuley will be treated as though he was the sole owner for the purposes of this report.
At the time of the acquisition many of the original tracks had become overgrown, but by a great deal of hard work, a path network was developed in the wood, incorporating an old timber extraction path (which lay at the centre of the dispute) \”the red path\”, and a track formed when water pipes were laid.
The red path lay parallel to a private road or track, owned by Mr Tuley, which gave access to a farm and stables, and some more recently built bungalows. Mr Tuley did not wish horse riders to ride in the wood to the North of the private road, claiming they would damage the paths, and the horse riders wished to ride there. Mr Tuley erected barriers to keep out vehicles and horses. A complaint was raised with Highland Council by a horse rider, and Mr Philip Waite, the Council access officer investigated it.
In the course of the ensuing negotiations Highland Council conceded that the only path to the North of the road which was suitable for horse riding was the path along the former extraction route. Shortly before the case began Mr Tuley constructed a route south of, and parallel to the road, for use by horses.
Part of the wood to the South of the road was given over to an area where young mountain bikers had constructed tracks, jumps and berms.
It was accepted that the wood was land where access rights were exercisable.
Highland Council, who have a duty under Sec.13 of the Land Reform (Scotland) Act to uphold access rights, served a notice under section 14 of the Act calling for the barriers to be removed, or the gaps beside them widened. This would have permitted horse riders to pass through and along the red path. Mr Tuley appealed against the notice.
There was agreement that the function of the court was not to review the administrative actions by the Council, but to decide if the notice fell within the language of the section.
MOTIVE
Mr Jonathan Mitchell QC, for Mr Tuley, argued that a notice under Section 14 has certain requirements. The owner of land who has taken, or failed to take any action (in this case erected and failed to take down the barriers), must have as his \”purpose or the main purpose\” \”preventing or deterring any person entitled to exercise these\” (access)\” rights from doing so.\” He said that it was clear from the evidence that Mr Tuley was committed to public access in the wood and his motive was to protect his land from damage, and protect the rights of walkers. Unless the Council proved otherwise, that was an end of the matter, and the notice should be recalled.
Mrs Macleod, for the Council, claimed that the barriers were erected, as Mr Tuley admitted, to keep out horse riders as well as vehicles, and this denied the former their access rights. The notices should not be recalled.
Mr Mitchell recognised that even if the notice was recalled there were rights conferred under the Act which could be enforced by other remedies such as interdict.
SECTIONS 1-3 OF THE ACT.
Mr Mitchell analysed Sec.1-3 of the Act.
The rights conferred on everyone under Sec.1 exist only if they are exercised responsibly (Sec 2). As to the question of whether the rights are being exercised responsibly there is a presumption that they are being so exercised, provided that that exercise is not causing unreasonable interference with the any of the rights, including land ownership rights and access rights, of others (Sec. 2).
Under Sec2 (2)(b) in answering that question, regard is to be had as to whether the guidance of the Access Code is being disregarded.
Under Section 2(3) responsible exercise of access rights must be lawful and reasonable and take proper account of the interests of others and of the features of the land involved.
Under Sec.2(2)(a) a person who breaks a byelaw or infringes against Sec 9, will not be exercising their rights responsibly.
Under Sec 3(1) landowners must use and manage the land in a way which respects access rights, and they will be presumed to be doing so if they do not cause unreasonable interference with the access rights of any person exercising them.
Regard is to be had as to whether the use and management of land disregards the Guidance in the Code (3(2)(b).
Under 3(3) responsible use and management of land must be lawful and reasonable and take proper account of the interests of persons exercising access rights.
Under Sec 3(2)(a) a person who breaks a byelaw or infringes Sec.14(1) or (3) (preventing exercise of access rights) or Sec 23(2) or 12(1)(a)(ii), will not be using or managing land responsibly.
He proposed that these tests were objective ones, and not a matter for the discretion of the access taker.
The duty placed on a landowner was to manage the land in ways which took account of the interests of those seeking to exercise access rights. He has to juggle the interests of others as well as his own, and not just horse riders but also walkers.
Under Sec 3 responsible land management has to be reasonable and takes proper account of the interest of access seekers. It need not necessarily accede to them. Saying no is interfering with the rights of others but not necessarily unreasonably; eg barriers might be erected round the mountain bike area.
THE CODE
The Code gives Guidance on responsible exercise of access rights in Part 3.
3 (p.17) General responsibility to care for the environment.
6 (p 19) Take particular care if you are running a business.
3.1 Access right is not an absolute right. Must not interfere unreasonably with rights of others.
3.3 Not following the Code could cause unreasonable interference with rights of others.
3.4 In practice this means making reasonable decisions in everyday situations. One may use a bit of land infrequently, but there may be cumulative effects if many people do.
3.5 Can go off path but it is a practical issue and must consider the environmental impact.
3.9 Reference to common law duty of care to landowner. Show consideration to others and to the more vulnerable on multi use paths.
Forests and Woods (p 93). Keep to suitable paths and tracks. Land managers to plan for different use and consider paths.
Horse riding (p 99) Riding on firm or hard surfaces, Wide and well drained ground causes few problems. On narrow routes give way to walkers. Off path avoid wet boggy or soft ground, and churning up the surface. (Mr Mitchell took the view that this advice applied to paths as well).
Mr Mitchell said responsible access takers must assess their own characteristics. Because other categories of access takers have access rights, one does not necessarily have them. The characteristics of the land are also important.
Sec.3.2 referred back to Sec.14(1). The purpose of the landowner was important but only in deterring those who had actual, not purported, access rights. There may also be situations where the motive is deterrence and the effect is actual deterrence, but it is not in the public interest for the Local Authority to serve a Sec.14 notice e.g. danger to public.
Although the removal or otherwise of the barriers is a matter of judicial discretion, neither side had suggested part time use of barriers, and the Court was invited to decide the matter as a barriers or no barriers’ case.
Mr Mitchell suggested that Mr Tuley’s motives were not malicious, and there was no evidence of that, but should it be held otherwise one had to look at the effect of his actions.
Evidence had been led that members of the public enjoyed walks along the red path, and these included elderly people, people with limited mobility, and a blind person with a guide dog. Those walkers would not use the paths if they became muddy. They were also apprehensive about meeting horses on the red path.
Mr Tuley had commissioned a report on the soil characteristics of the red path from Mr Dickson as an expert witness. This concluded that horse riding, unlike walking, would damage the drains and lead to removal of the grass with its binding root system, erosion of the topsoil, puddling and the creation of mud, on the steeper slopes on the eastern and western ends of the path. Another witness, Mr Wombell, had agreed.
Mr Mitchell claimed that since Highland Council had not challenged the findings of the report these must be taken as agreed, including any assumption in it as to the amount of horse usage.
In taking walkers’ rights into consideration, riders could not argue that they should put on boots, cope with mud or else stick to pavements.
In damaging the path the horse riders were not taking Mr Tuley’s position into account.
It was not responsible to ride on the red path, and therefore riders did not have access rights. Highland Council, and their witnesses had erred in claiming that the question of whether it was responsible to ride over the path was a matter to be decided by the individual rider. If it was clear that riding along the path would cause damage Mr Tuley was entitled to erect a barrier. He did not have to wait for damage to be done.
Mrs Somerville (of the British Horse Society) had clearly given thought to the issues and had considered that there would be times when it would be reasonable to proceed along the red path and other times when a rider should turn back. She also said that if horse riders had to assess the confidence of individual walkers, and if the path was narrow without spaces on either side, the horse rider might have to retreat to a wider area. She thought that the first step was to educate riders, then to put up signs, and only as a last resort to erect a barrier. It must be left to the rider and not be prejudged by the landowner.
It was argued for Mr Tuley that the landowner, like the rider, was merely exercising his judgement. The question was whether it was objectively reasonable.
Mrs Macleod, for Highland Council, said that the red path was an extraction path, for use by large forwarder machines made by bulldozing the topsoil away. The subsoil had a high stone content with some material added to the eastern end. Drains had been put in by Forestry Commission, as confirmed by an engineer. Mr Tuley and Mr Dickson had misunderstood the advice on paths produced by the British Horse Society about width and gradient when they criticised the suitability of the red path. This advice was to those constructing new paths. Mrs Somerville was authoritative on this. There was no requirement under the Act or Code to have a soil analysis done. There was no time scale from Mr Dickson on the degradation of the path. The stables used unshod ponies which had less impact on paths.
It was unreasonable for the walkers to expect mud-free paths. There were different views of suitability of paths because of varied riding ability.
Mr Tuley had stacked log piles in passing places, reducing the area allowing cars and horses to pass safely. The use of the pipe path did not require Mr Tuley’s consent, as had been suggested, since access rights applied to it. He had erected barriers to keep out horse riders trying to exercise access rights. The red path could be used by responsible horse riders, but Mr Tuley had denied the riders the right to show that they were exercising their access rights responsibly and had prejudged the issue.
It was suggested that in seeking to understand the legislation, the court should have regard to the Guidance to Local Authorities issued by the Scottish Executive: “In general byelaws should be limited to those specific areas where a need has arisen, rather than be applied over extensive areas on a precautionary basis. This indicated that the principle to be adopted was not in line with Mr Tuley\’s pre-emptive action.
The notices should not be recalled.
Some court time was taken up with the question of the danger to horse riders from cars using the road. It was suggested that no such danger had been shown and that the red path was intended to be used by the riding school in conjunction with, and not as an alternative, to the road. Also, that an alternative, safe route along and beyond the pipe path could be constructed by the stables.
The Sheriff’s decision is awaited in due course.
George Menzies
Chairman, ScotWays
11 December 2006