Access Rights - Latest Developments
1. Horse Riders v Walkers
The subject of our two recent Ezines, the Ann Gloag Case, related to whether access rights were exercisable, at all, over her property in Perthshire.
The case of Tuley v The Highland Council, just decided by the Sheriff in Dingwall, follows a different tack. The question at issue was whether Mr and Mrs Tuley were entitled to prevent access by one class of access taker (horse riders) over a path while another class, namely walkers, were permitted to use it.
The Land Reform (Scotland) Act 2003 Part 1 granted statutory rights of “responsible access” over "all land" in Scotland (except land which was exempted) to "everyone". Access rights are exercisable on foot, or on horseback or by bicycle. They are exercised responsibly if they do not cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person, but there is a reciprocal obligation on landowners to act responsibly by not causing unreasonable interference with the access rights of any person exercising or seeking to exercise them.
Mr and Mrs Tuley own land on the Black Isle. They positively encourage access having, for example, set out an area on their land for mountain biking. They allowed horse riding to take place on another part of the property. They did, however, erect padlocked barriers at either end of what is known as "the red track" preventing it being used by horses, while walkers (including those with dogs) were permitted access through spaces beside the barriers. The Tuleys argued that use of the track by horse riders was likely to churn it up to such an extent as to make it muddy for walkers and to cause permanent damage to the track itself. Exercise of access rights over the track on horseback would not therefore, in their view, be responsible. The owners of a local riding stables argued, on the other hand, that it was up to the access taker to judge whether access could be exercised responsibly and that it was not for the landowner to pre-judge the issue and prevent access by the erection of, as in this case, barriers.
The Sheriff has found in favour of the access takers, i.e. the owners of the riding stables and, accordingly, Highland Regional Council's Order on Mr & Mrs Tuley to remove the barriers and to allow access to horse riders, has been upheld.
There are, once more, some useful lessons to be learned from the Sheriff's Judgement. These are (to paraphrase):-
The question of whether or not a proposed activity on land is a responsible exercise of access rights is to be set objectively (if necessary by the courts) and it is neither for the landowner, nor for the access taker, to judge, subjectively, whether that activity is, or is even likely to be, irresponsible.
If there is any possibility at all of access rights being exercised responsibly, the landowner is not permitted to impede access.
Even if the landowner is willing to allow access by a class of access taker (in this case horse rider) to part of his property he is not permitted to deny it access to another part of that property.
Where it is possible for various classes of access taker to co-exist (the Sheriff found, in the Tuley case, that the track was wide enough to allow horses to pass walkers, including walkers with dogs, without hindrance) the landowner is not permitted to prevent access to one class of access taker. Only if access by that class unreasonably interferes with the rights of other access takers would it be “irresponsible access”. Access must, where possible, be allowed to “everyone”.
While it was possible that use of the track by horses might, in time, cause damage to it to such an extent that access over it ceased to be responsible, by preventing access to horses, in the first place, the landowners denied themselves the opportunity of showing how much damage, if any, might be caused to it – they had, therefore, engaged in speculation as to the extent of damage horses might cause and acted prematurely.
Signs could be used to warn riders against entering the path when it might reasonably be expected that the presence of horses could make it muddy.
In deciding what was, or was not, responsible behaviour, the Scottish Outdoor Access Code was of evidential value only – what it said in the case of horse riding was, in any case, only "a statement of the obvious".
Mr & Mrs Tuley have the right to appeal the Sheriff's decision.
2. Liability in the case of natural and obvious hazards
In another recent case in the context of access rights (Fegan v Highland Regional Council, decided on 6 June 2007) there is welcome confirmation of the limits on a landowner’s duty to protect visitors (including access takers). The facts were unusual, but the law is clear. Mrs Fegan, having consumed several measures of vodka, had decided to take her dog for a walk near some cliffs at Thurso. She sat on a memorial bench to have a cigarette and listen to her personal stereo. As she bent down to pick up her walkman, which she had dropped onto the ground, she somehow fell forwards and over the cliff edge, some six feet away, sustaining serious injuries. She sued the local authority, who were the occupiers.
To succeed in her case Mrs Fegan would have had to prove that the cliff edge ought to have been fenced off, a proposition many would find extraordinary given the natural and rugged beauty of that part of Scotland. Fortunately, the Court of Session decided against Mrs Fegan. The law remains that the occupier of land containing “natural; phenomena” such as rivers or cliffs, which present “obvious dangers”, is not under any duty to protect against those hazards. Precautions are only required where there are special risks, such as unusual or unseen sources of danger. A cliff edge is obvious, the law is unchanged and common sense, it might be said, has prevailed.
For further guidance on access rights and other matters arising from the Land Reform (Scotland) Act 2003 please refer to your usual contacts in Anderson Strathern, or to any partner in our Land Resources Department.
|
