MR AND MRS TULEY V HIGHLAND COUNCIL
DINGWALL SHERIFF COURT, REF B201/05
The following is a summary of the decision of Sheriff Alasdair MacFadyen in this case, issued on 9th July 2007. A full copy of the decision can be seen on the Scottish Courts Service website at: http://www.scotcourts.gov.uk/opinions/B201_05.html
This was an appeal by the owners of a wood against a notice by Highland Council requiring them to remove barriers which prevented access by horse riders along the route of a track in Feddanhill Wood, near Fortrose. The route gave access to a network of narrow paths which they had created for walkers. Horse riding and mountain biking were permitted in another area of the wood.
It was argued for Mr and Mrs Tuley that if they genuinely thought there was a danger of the path being damaged and blocked access, they were not in breach of Section14 of the Land Reform (Scotland) Act 2003 because the protection of the path was the main purpose of their actions. The Council could still proceed under Section 13 of the 2003 Act to have the obstruction removed if responsible access rights were being interfered with.
The Sheriff held that the test was an objective one. The first step was to identify the activity and then decide if it amounted to a reasonable exercise of access rights. The final step was to examine the actings of the landowner to see if preventing access was his purpose.
It was argued for the Tuleys that Section 2 of the 2003 Act laid down that access takers had duties not to interfere with the rights of other access takers, in this case walkers, as well as the rights of the landowner. The Sheriff agreed, but concluded that the route was safe for use by both walkers and riders.
The Council argued that a landowner should never prevent access because that was prejudging the issue. It was for each access taker to decide if their actions were responsible. The Sheriff disagreed. In exceptional cases if the consequences could be correctly predicted the landowner could barr access. The Sheriff could envisage circumstances developing where that might be the case at Feddanhill Wood.
An expert’s report stated that 10 horses a day, several days a week, would lead to degradation of the route to an extent which the Sheriff regarded as infringing the rights of walkers and the owners. That would not be be responsible. The report was accepted by Highland Council. The question then was what evidence was there of how much use would be made of the route
On the evidence before the Court the Sheriff held that not all activity could be shown inevitably to lead to such a degree of degradation of the route. There was evidence of lesser use being made by the neighbouring riding school owner which would amount to light horse traffic. She would not use the path when muddy, or liable to be churned up.
The route ought to have been kept open for the responsible access takers, but the barriers barred all horse riders.
The Sheriff felt that the Tuley’s action was premature, and that they had not been able to assess what would happen in the future. If in practice the path degraded rapidly under light horse traffic then all horse use would be seen to be irresponsible. If it took several years to degrade, the difficulty would be to show that it was the responsible riders causing this and not irresponsible riders.
The Tuleys had been unable to establish that all horse riding would be irresponsible. But all horse riders would be prevented from using the route – the responsible exercising access rights as well as the irresponsible (who could not be exercising access rights).
The Sheriff’s personal view was that signage could solve the problem. Signs cautioning against use of the route in mud-making conditions would protect the route, and signs prohibiting access to the paths in the path network that Highland Council had conceded were unsuitable for horses would prevent riding there. This is in line with the approach of the Executive, SNH, the National Access Forum, Highland Council and the British Horse Society. That can now be put to the test in a part of the world where there must be hope of success.
George Menzies
ScotWays
20 July 2007