Horses for courses
Phyllis Stephen

The so-called right to roam legislation (Land Reform (Scotland) Act 2003) has resulted in a few interesting cases ending up in court. Part of the interest is that they have involved rich landowners trying to keep out the ramblers. Ann Gloag’s six-foot high fence, for example, round her property at Kinfauns Castle in Perthshire resulted in an action brought by Perth Council. Another case decided that Euan Snowie, the millionaire businessman, could not have his Boquhan estate in Stirlingshire made exempt from the right to roam legislation, as Mr Snowie had wanted.

The Court of Session decision in another long-running court battle, this time between Highland Council and Graham & Margaret Tuley about their land on the Black Isle, has just been issued. This case involves two fairly ordinary landowners who, far from wanting to keep out members of the public seemed to do everything to invite them onto their 35 acre woodland north of Inverness.
This case seems to have been decided very much on common sense principles.

Highland Council first raised the action to try to gain access for horses and riders on a particular area of the woodland which Mr & Mrs Tuley own. The appeal court judges have made it clear that the Tuleys need not allow the horses to erode paths other than those already designated as bridle paths by the Tuleys themselves as part of their land management programme. It becomes clear on reading the decision that, in contrast with some other landowners, Mr & Mrs Tuley had actively encouraged walkers by constructing paths and installing benches for them as well as zoning separate areas for use by mountain bikers, walkers and indeed horses and their riders. Lord Eassie’s written decision is shown in full below.

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On 7 November 2005 Highland Council served a formal notice on Mr and Mrs Tuley, as landowners, under the Land Reform (Scotland) Act 2003 to secure access for horses and riders to a particular track in an area of woodland known as Feddonhill Wood, Fortrose, Ross & Cromarty. Mr and Mrs Tuley made an application to the Sheriff Court to recall the notice but that application was refused. The Sheriff found that the occasional riding of horses along the path in circumstances which occasion little or no erosion to the path would be a responsible exercise of an access right over the path and that the erection and maintenance of barriers at either end of the path is an intended unreasonable interference with the exercise of responsible access rights.

Mr and Mrs Tuley appealed the Sheriff’s decision to the Court of Session.

The Land Reform (Scotland) Act 2003 sets out the general statutory right to be on, or to cross, land for the exercise of recreational pursuits and other educational and commercial purposes connected to such pursuits. This general right is not unlimited and section 2 of the Act provides that such access rights be exercised responsibly. The issue in this case centred on whether, in preventing equestrian access to the track in question Mr and Mrs Tuley were not managing their land responsibly and whether the riding of horses along the path is a reasonable exercise of access rights.

Mr and Mrs Tuley have owned Feddonhill Wood since 1992 and since then have developed it as an amenity and recreational area. They have created an area for use by mountain bikers within one part of the woodland and have actively encouraged walkers, including walkers with dogs both on and off the lead to use the woodland. The woodland is used by members of the public for recreational walking. Mr and Mrs Tuley have incurred time and expense in making various tracks and paths in the northern sector of the woodland suitable for walkers and have kept the tracks clear and well drained. They have also cultivated flora and provided seats for walkers.

The track with which this notice is concerned is in that northern sector, where Mr and Mrs Tuley make particular provision for walkers. They also provide a track for horses in the southern sector but during the course of proceedings in the Sheriff Court a storm resulted in this being blocked by fallen trees.

The Sheriff court was presented with expert evidence from a Mr Dickson, a soil scientist, who concluded that horse traffic on the path in dispute will cause a progressive deterioration on the steepest sections of the path primarily caused by cutting of the surface, reduced water infiltration and ultimately soil erosion. The path consequently is highly likely to suffer from all the possible problems that the British Horse Society warn against. The presence of grass on parts of the path makes it very suitable for walkers and horses alike, but the presence of horses will cause a progressive degradation of the path to the detriment of its long-term sustainability as a woodland path. At the hearing before the Sheriff, Mr Dickson’s conclusions were accepted without qualification by Highland Council’s solicitor.

Those conclusions were not expressed as being predicated upon any particular level or intensity of horse usage. Mr Dickson’s conclusions were generally expressed as being the occurrence of deterioration over time, the speed and extent of which would be dependent on a variety of factors, including the frequency of equestrian use and prevailing weather-related conditions.

Counsel for Highland Council did not take issue with the assessment that damage would occur progressively over time, but submitted that the particular steps taken by the Mr and Mrs Tuley were premature. He contended that by erecting barriers Mr and Mrs Tuley denied themselves the opportunity of showing how much damage, if any, might be caused on the path by a definite number of horses over a specified period. As it was put by the Sheriff they had effectively engaged in an exercise of speculation as to the extent of damage which horses might cause to the path. Until damage was caused to the track, horse riders had rights of access which they were entitled to exercise.

Counsel for Highland Council thus sought to support the approach adopted by the Sheriff that Mr and Mrs Tuley acted prematurely in the erection of these barriers. The Sheriff considered that they prevent the legitimate exercise of access rights and since it could not be said with certainty that any use whatever of the path by horse riders would be irresponsible or an unreasonable interference with the pursuers’ rights.

The judges in the Court of Session did not accept the proposition that Mr and Mrs Tuley acted prematurely and required to await the occurrence of actual damage. It was clear from Mr Dickson’s report, and the other evidence of damage having occurred in the past when horses gained access, that allowing horse traffic would, in all probability, produce damage to the track.

“In our view it makes little sense to say that the landowner must allow a mode of access which will be likely damage the land and suffer that damage without being able to take preventative steps. Additionally, as counsel for Highland Council appeared to recognise, the contention that no preventative steps could be taken prior to the occurrence of damage raised difficult practical issues as to the extent of the predictable damage which the landowner must endure (without compensation) before he could take measures to prevent the occurrence of yet further damage.

On any broad view of matters, what the pursuers were doing appears to be a responsible exercise of land management”.

For these and other reasons the appeal was granted.