The Cooperative Owner 1/5/09

On 21 April, Mr and Mrs Tuley, a retired forester and his wife won their appeal against a decision of the Sheriff in Dingwall ordering them to remove barriers and allow horse riders to take access over a path in a woodland at Feddonhill, near Fortrose on the Black Isle. 

Mr Tuley was keen to provide public access facilities through a woodland he owned for public use.  Paths were constructed for the use of mountain bikes, horses and walkers.  One of the paths for walkers was “fragile” and Mr Tuley wished to stop horse riders from using the path and rendering it impassable for walkers.  He erected barriers to stop all but pedestrian access to this path.  A neighbouring riding school objected and The Highland Council served a notice requiring removal of the barriers under the Land Reform (Scotland) Act 2003 (Right to Roam).

The Tuleys went to court to have the Council’s notice set aside and the Sheriff ordered that access be allowed on the ground that the Tuleys had acted prematurely in restricting access.  The Sheriff said that it was not enough for Mr Tuley to anticipate damage might occur if horses used the path but rather that actual damage had to take place before he was entitled to restrict access.

Tuley v The Highland Council
Mr Tuley appealed to the Court of Session on two fronts. 

The first was that the Sheriff had not dealt with the issue of damage to the path correctly both in his assessment of the damage likely to be caused and in saying that Mr Tuley was not acting responsibly (as required by the Act) by restricting access to the path before it was damaged.  The Court agreed that the Sheriff had been wrong, saying,

“For our part we are unable to accept … [Mr Tuley] acted prematurely and required to await the occurrence of actual damage. … in our view it makes little sense to say the landlord must allow a mode of access which will be likely to prove productive of damage to the land and suffer that damage without being able to take preventative steps.”

In other words Mr Tuley’s actions amounted to responsible land management as regards his statutory obligation to allow access.  Mr Tuley welcomed public access and was merely seeking to regulate its exercise by dedicating areas to certain uses. 

As Mr Tuley won on the first point the Court did not need to decide the second front but did express views which will be persuasive in future and should influence Councils in deciding whether to raise proceedings to ensure public access.  Section 14 of the 2003 Act prohibits a landowner from taking steps, such as erecting barriers or notices, “for the main purpose of” restricting access rights.  In this case the Court noted that, while the immediate purpose of erecting the barrier was to stop access it was clear that Mr Tuley did so for the wider purpose of avoiding damage to his path.  It is this wider or main purpose which will determine whether section 14 has been breached and access unlawfully restricted or not.

Commentary
It is reasonable that a landowner should be able to restrict access which he knows is going to cause damage, even if that damage has not happened yet.  We hope that Mr Tuley will continue to develop his woodland for public access as he had intended before being served with the notice by Highland Council.  The Court note in their judgement that the British Horse Society’s guidelines on taking responsible access would appear to indicate that they do not consider access over this track would have been reasonable due to its fragile state in any event.  Sadly, as with the Scottish Outdoor Access Code, not all persons exercising access rights do behave responsibly, if they did perhaps no barriers would have been needed at all.

The Court’s guidance on the meaning of “main purpose” is also welcomed.  In effect it allows each case to be considered on it own facts, not imposing a one size fits all approach that some had argued providing that any prohibition on access breaches section 14.

Each case that is decided on the access rights provisions of the 2003 Act continues to clarify the framework for the courts to approach access issues allowing more educated decisions to be taken on what is and is not responsible access and land management.

Further information
For further guidance on issues raised in this ezine or for any other land resource-related matter, please contact Alasdair Fox or Douglas Reid .

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.