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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Tuley & Anor v. The Highland Council [2007] ScotSC 34 (09 July 2007)
URL: http://www.bailii.org/scot/cases/ScotSC/2007/34.html
Cite as: [2007] ScotSC 34

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SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT DINGWALL

 

 

B201/05

 

INTERLOCUTOR

 

In causa

 

Mr. Graham Tuley and Mrs. Margot Tuley,

Pursuers

 

Against

 

The Highland Council,

Defenders

 

 

 

 

Dingwall, July 2007

 

The Sheriff, having resumed consideration of the cause, FINDS IN FACT: -

1.      The pursuers reside at 26 Crown Drive, Inverness. The first pursuer is a retired forester.

2.      The defenders are the Highland Council, a local authority constituted in terms of the Local Government etc. (Scotland) Act 1994. They are the local authority with the function of upholding access rights under the Land Reform (Scotland) Act 2003.

3.      The pursuers are the heritable proprietors of Feddonhill (or Feddanhill) Wood, Fortrose, Ross and Cromarty.

4.      The pursuers have owned Feddonhill Wood since 1992.

5.      Since acquiring Feddonhill Wood the pursuers have developed it as an amenity and recreational area. They have created an area for use by mountain bikers within the woodland. They 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. The pursuers have incurred time and expense in making various tracks in the woodland suitable for walkers. They have kept the tracks clear and well drained. They have cultivated flora and provided seats for walkers.

6.      Feddonhill Wood is divided into two parts by an access track leading from the public road (between Fortrose and Killen) and a property known as Broomhill Farm. That track runs approximately east to west through Feddonhill Wood.

7.      That access track referred to herein as the 'black track' is suitable for the passage of motor vehicles, horses and pedestrians.

8.      The black track has four passing places and two entrances which can be used as passing places.

9.      Broomhill Farm enjoys a servitude right of access over the black track. The proprietor of Broomhill Farm contributes to the cost of maintenance of the black track. Motor vehicles travel along the black track, which is the sole vehicular access to Broomhill Farm and three dwellinghouses built there. It has long been used for such access. It is an unadopted road owned by the pursuers and is used by all the owners of properties at Broomhill Farm, their visitors and service providers.

10.  Horse riders and motor vehicles can pass each other safely and without difficulty on the black track, and in particular on the stretch of the black track lying between the two entrances to the red track.

11.  Broomhill Farm is run inter alia as a horse stable and riding school. It contains about sixty one horses. Twenty six of those were liveried for customers of the stable. Thirty five belonged to the proprietor of the riding school, Mrs. Christine Anderson and her family; of those thirty five, twenty were ridden.

12.  The sector of the wood to the south of the black track consists of spruce trees.

13.  In late 2006 that sector suffered considerable damage as a result of severe weather conditions, particularly high winds. A great proportion of the trees therein were blown over. The pursuers intend to fell the remaining standing trees in that southern sector.

14.  Prior to that damage being suffered, the pursuers had formed a track in that sector along which they believed it was suitable for horses to travel. That path ran approximately parallel to the black track. By the time of its destruction by nature in October 2006 work on that track had not been completed. In due course it might have become suitable for safe access by horses and riders.

15.  Within the southern sector of the wood there lies a track, known as and referred to as the pipeline track, which is suitable for access by horses.

16.  To the north of the black track lies a sector of the woodland consisting of mixed species of trees.

17.  A track, referred to herein as the 'red path' runs through that northern sector of the wood approximately from east to west.

18.  Access to the red path is taken directly at each of its ends from the black track.

19.  Also in that northern sector of the wood is a network of paths which run off the red path. Mostly they are to the north of the red path.

20.  Other than the red path, the paths in the northern sector of the woodland are not suitable for access by horse riders. They are accessible to and used by pedestrians.

21.  Prior to the pursuers acquiring Feddonhill Wood, it was owned by the Forestry Commission. During the period of ownership by that Commission, the red path was used by horses and riders. At one time, during that period, machinery for the extraction of timber was driven on the red path.

22.  Since acquiring the woodland the pursuers have not allowed any access to the red track by horses and riders.

23.  In about 2005 the pursuers erected barriers at each of the eastern and western ends of the red path. Those barriers are permanently secured by padlock. The pursuers' intention in erecting those barriers was to prevent access to the northern sector of the woodland, including the red track, by horse riders and horses.

24.  A direct consequence of the presence of the padlocked barriers at either end of the red path is to prevent access to the northern sector of the woodland by all horse riders and horses. At each end a gap between the barrier and the nearby fence allows for access by pedestrians.

25.  The red track is well maintained by the pursuers and effectively drained. In the event of heavy use by horses, in the region of ten horses per day on several days of the week, there is a risk of damage to the drains on the red path. That would lead to the path becoming covered with water and in parts muddy.

26.  It is suitable for pedestrian access by walkers with or without dogs. It is a suitable area for dogs to be let off their leads.

27.  In the event of regular exposure of the red path to horse traffic throughout the year the following consequences will ensue. Horse traffic on the red path will cause a progressive deterioration on the steepest sections of the path primarily by cutting of the surface, reduced water infiltration and ultimately soil erosion. On other parts of the red path where the gradient is effectively flat, the present fragile (i.e. barely surviving under human foot traffic at present) cover of grass (which exists in some places) will be damaged and lost from the path. In other flat areas where no grass is present, the surface will become more compact and very likely to suffer from reduced water infiltration and hence soil erosion will occur. 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 suitability as a woodland path.

28.  The use of the red track by about ten horses on several day each week would occasion those consequences.

29.  Those consequences will not ensue in the event of light horse traffic on the red path.

30.  Those consequences have not occurred at all on the red path, given the absence of horses from the red track due to the installation and maintenance in place of said barriers at each end thereof.

31.  The presence of the barriers prevents all access to the red path by any number of horses and riders, no matter how small, at all times of the year and in all weather conditions.

32.  The owner of Broomhill Farm, which operates as a stable, intends to use the red path on one or two occasions per week to lead four ponies with small children as riders, as part of a circuit including the black track.

33.  A near neighbour of the woodland, Mr. Paul McSorley, would ride a horse on the red path on occasion along with his children.

34.  Beyond that, the degree of use to be made of the red path by horse riders in the event of the removal of the barriers is not known.

35.  In inclement weather conditions all traffic on a path, whether human, animal or vehicular, is liable to degrade the surface thereof and can lead to the formation of mud.

36.  The defenders have attempted to persuade the pursuers to allow access by horses and riders to inter alia the red path. The defenders are willing to co-operate with the pursuers in the management of any responsible access to the red track by horses and riders. They are willing to assist the pursuers in the wording and erection of signs discouraging irresponsible, and accordingly only purported, access taking to the red path and to forbid entirely any access by horses and riders to a network of paths lying to the north of the red path.

37.  The pursuers have declined the defenders' offers of assistance.

38.  It is possible for horses and riders to safely pass walkers with or without dogs on the red path.

 

 

 

FINDS IN FACT AND LAW:

1.       The occasional riding of horses along the red path in circumstances which occasion little or no erosion to the red path would be responsible exercise of an access right over the red path.

2.       The erection and maintenance by the pursuers of the barriers at either end of the red path is an intended unreasonable interference with the exercise of responsible access rights over the red path.

THEREFORE Sustains the defenders' first and second pleas-in-law, Repels the pursuers' plea-in-law; Refuses to recall or vary the notice served on the pursuers by the defenders on 7 November 2005; Dismisses this Summary Application; meantime Reserves all questions of expenses and Appoints parties to be heard thereon on

 

 

 

 

 

NOTE

 

[1] The pursuers are the heritable proprietors of Feddonhill, or Feddanhill, Wood, Fortrose, Ross and Cromarty. Since they acquired the wood, they have allowed, and indeed encouraged access by the public thereto by foot. They have also tolerated the adaptation of part of the woodland by young people for its use as an area for the riding of mountain bikes.

 

[2] The woodland is divided by an access track, referred to in this note as the black track, suitable for motor vehicles, leading from the public road (between Fortrose and Killen) to Broomhill Farm. This action was principally concerned with that part of the woodland lying to the north of that access track. That part of the woodland contains a network of paths. Among those is a principal track, referred to in the productions, evidence and this note as the 'red path' or 'red track', leading from the western to the eastern end of that part of the woodland. The pursuers aver that those paths are narrow and unsuitable for horse riding use. If horses are ridden on those paths, the pursuers apprehend that they will cause damage with grassy slopes becoming boggy banks and tracks being turned to mud.

 

[3] Against the background of that apprehension, the pursuers have padlocked barriers at each end of the red path. They have left a narrow gate beside those barriers which allow foot passage into the woodland. Effectively the padlocking of the barriers prevent access to the northern section of the woodland by any means other than foot. The pursuers' admitted intention is to prevent access thereto by persons on horseback.

 

[4] On 7 November 2005 the defenders, a local authority, issued a notice under section 14(2) of the Land Reform (Scotland) Act 2003. That notice stated that the there were two padlocked barriers at either end of what is referred to herein as the red track, that there was insufficient space between the barriers and the adjoining fence to permit the exercise of access rights by horse riders in particular. The notice went on to require the pursuers to enlarge the width of the gap between the barriers and adjoining fence to 1.5 metres and to permit the passage of horses with riders, or to remove the padlocks from the barriers. The notice gave the pursuers fourteen days to comply.

 

[5] The pursuers were aggrieved by the service of that notice and have brought this summary application seeking the recall of that notice. Although the crave also provides for variation of the notice, as the case developed it became clear that parties were not suggesting any variation. The pursuers simply sought recall of the notice and the defenders dismissal of this summary application.

 

[6] In their application the pursuers aver that they actively encourage walkers to use the woodland. Dog walkers regularly use the woodland, some without requiring to keep their dogs on leads. The pursuers have kept the tracks clear and well drained; they have cultivated flora and provided seats for walkers. They have created a small car park for the use of walkers.

 

[7] To the east of the woodland lies Broomhill Farm where Mrs. Christine Anderson runs a horse stable and riding school. The pursuers aver that they permit horse riders access through the woodland along the track or access road which divides it into two. They aver that they have suggested the creation of a separate track for horse riders to the south of that access road. However they aver that horse riders seek to use other tracks through the woodlands, in particular the network of tracks to the north of the access road, including the track referred to as the 'red path'.

 

[8] Of significance in this appeal, the pursuers aver that these tracks are narrow and unsuitable for horse riding use. They consider that passing horses will disturb walkers. They aver that horses will cause damage to the tracks with grassy slopes becoming boggy banks and tracks being turned to mud.

 

[9] Against that background the pursuers candidly aver that that they have padlocked barriers at either end of the red path in order to prevent horses from using that track and gaining access to the other tracks and areas of land, which are not suitable to be used by horse riders if the access rights of walkers are to be protected. They aver that they have done so to deter horse riders from exercising their access rights irresponsibly and in a manner contrary to section 2 of the 2003 Act. They aver that they use and manage their land and conduct their ownership of it in a manner as regards access rights which is responsible and in accordance with section 3 of the Act.

 

[10] In answer the defenders aver that the track coloured red offers a traffic free alternative to the access track or road. They aver that the red track varies in width but is sufficiently wide for a horse rider to pass a walker side by side without requiring either to step off the path. They aver that the path is, in the main, comprised of a layer of hardcore material under a thin layer of soft mulch which will offer good wearing durability. They aver that if the notice is upheld they will work with the pursuers and local horse riders to manage access to Feddonhill wood. This would include the erection of signage informing horse riders to keep to the red, black and pink tracks, site inspections and education sessions for local horse riders about access rights.

 

[11] They aver that by padlocking the gates, the pursuers are preventing any access by horse riders in Feddonhill Wood contrary to their statutory rights. Horse riders do not have an opportunity to exercise their access rights responsibly.

 

[12] This action concerned the application of the Land Reform (Scotland) Act 2003. That Act was enacted partly to establish statutory public rights of access to land for recreational and other purposes. Section 1 is in the following terms:

1    

Access rights
 

 

    (1) Everyone has the statutory rights established by this Part of this Act.
 

 

    (2) Those rights (in this Part of this Act called "access rights") are-
 

 

(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and

 

(b) the right to cross land.

 

    (3) The right set out in subsection (2)(a) above may be exercised only-
 

 

(a) for recreational purposes;

 

(b) for the purposes of carrying on a relevant educational activity; or

 

(c) for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

 

    (4) The reference-
 

 

(a) in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to-

 

(i) going into, passing over and remaining on it for any of those purposes and then leaving it; or

 

(ii) any combination of those;

 

(b) in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.

 

    (5) A "relevant educational activity" is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of-
 

 

(a) furthering the person's understanding of natural or cultural heritage; or

 

(b) enabling or assisting other persons to further their understanding of natural or cultural heritage.

 

    (6) Access rights are exercisable above and below (as well as on) the surface of the land.
 

 

    (7) The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.

 

[13] The right to exercise access is not unlimited. Section 2 provides:

2    

Access rights to be exercised responsibly
 

 

    (1) A person has access rights only if they are exercised responsibly.
 

 

    (2) In determining whether access rights are exercised responsibly a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to 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-
 

 

(a) a person purporting to exercise access rights who, at the same time-

 

(i) engages in any of the conduct within section 9 below or within any byelaw made under section 12(1)(a)(i) below; or

 

(ii) does anything which undoes anything done by Scottish Natural Heritage under section 29 below,

 

is to be taken as not exercising those rights responsibly; and

 

(b) regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time-

 

(i) disregarding the guidance on responsible conduct set out in the Access Code and incumbent on persons exercising access rights; or

 

(ii) disregarding any request included or which might reasonably be implied in anything done by Scottish Natural Heritage under section 29 below.

 

    (3) In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised.

 

[14] The Act imposes duties on local authorities constituted in terms of the Local Government etc. (Scotland) Act 1994. Section 13 provides:

13    

Duty of local authority to uphold access rights
 

 

    (1) It is the duty of the local authority to assert, protect and keep open and free from obstruction or encroachment any route, waterway or other means by which access rights may reasonably be exercised.
 

 

    (2) A local authority is not required to do anything in pursuance of the duty imposed by subsection (1) above which would be inconsistent with the carrying on of any of the authority's other functions.
 

 

    (3) The local authority may, for the purposes set out in subsection (1) above, institute and defend legal proceedings and generally take such steps as they think expedient.

 

[15] In addition, section 14 is in the following terms:

14    

Prohibition signs, obstructions, dangerous impediments etc.
 

 

    (1) The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so-
 

 

(a) put up any sign or notice;

 

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

 

(c) position or leave at large any animal;

 

(d) carry out any agricultural or other operation on the land; or

 

(e) take, or fail to take, any other action.

 

    (2) Where the local authority consider that anything has been done in contravention of subsection (1) above they may, by written notice served on the owner of the land, require that such remedial action as is specified in the notice be taken by the owner of the land within such reasonable time as is so specified.
 

 

    (3) If the owner fails to comply with such a notice, the local authority may-
 

 

(a) remove the sign or notice; or, as the case may be,

 

(b) take the remedial action specified in the notice served under subsection (2) above,

 

and, in either case, may recover from the owner such reasonable costs as they have incurred by acting under this subsection.
 

 

    (4) An owner on whom a notice has been so served may, by summary application made to the sheriff, appeal against it.
 

 

    (5) Rules of Court shall provide-
 

 

(a) for public notice of the making of summary applications for the purposes of this section;

 

(b) for enabling persons interested in the exercise of access rights over the land to which a summary application relates, and persons or bodies representative of such persons, to be parties to the proceedings;

 

(c) for limiting the number of persons and bodies who may be such parties.

 

[16] Chapter 3 of the Act is headed 'THE SCOTTISH OUTDOOR ACCESS CODE'. It contains section 10, subsection (1) of which is in the following terms:

10    

The Scottish Outdoor Access Code
 

 

    (1) It is the duty of Scottish Natural Heritage to draw up and issue a code, to be known as the Scottish Outdoor Access Code, setting out, in relation to access rights, guidance as to the circumstances in which-
 

 

(a) those exercising these rights are to be regarded as doing so in a way which is or is not responsible;

 

(b) persons are to be regarded as carrying on activities, otherwise than in the course of exercising access rights, in a way which is likely to affect the exercise of these rights by other persons;

 

(c) owners of land in respect of which these rights are exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is or is not responsible;

 

(d) owners of land in respect of which these rights are not exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is likely to affect the exercise of these rights on land which is contiguous to that land.

 

 

[17] When this summary application first called on 12 January 2006, various interested parties had written to the sheriff clerk and attended court. However, only the local authority, the defenders, sought leave to lodge answers and participate in the procedure. Answers were duly lodged and the application eventually proceeded to a proof before me. The pursuers were represented by Mr. Jonathan Mitchell Q.C. and the defenders by Ms. Karen Macleod, solicitor, the Highland Council, Inverness.

 

[18] Both parties led the evidence of witnesses and relied on documentary productions. In the presence of the pursuers and representatives of the defenders, together with both parties' legal representatives, I viewed Feddonhill wood in order to better understand the evidence and submissions heard in court.

 

Assessment of the evidence

 

Witnesses for the pursuers

 

Graham Tuley

 

[19] Mr. Tuley gave his evidence in a straightforward manner. He was emphatic that he and his wife (the second pursuer) were committed to the principle of access to land. His motivation in padlocking the gates at either end of the red path was to prevent damage to the ground by horses, a process which he considered inevitable. Mr. Tuley's belief seemed to be genuine. I did not form the impression that he was seeking to be obstructive without reason. He was credible and reliable.

 

John Wilson Dickson

 

[20] Mr. Dickson was led by the pursuer as a skilled witness. In 1973 he had graduated from the University of Glasgow with a 2nd class honours BSc degree in agricultural chemistry. Thereafter he had been a research assistant in the Civil Engineering department there, studying soil structure for three years, then he spent his career working in a research institute at Bush Estate, Penicuik, Midlothian, now part of the Scottish Agricultural College. For the past twelve years he had been involved in consultancy work, including the training of undergraduates. He was expert in soil and its properties in a variety of situations of land use. He had previously given evidence in court and at a planning inquiry. He was an objective witness. He seemed familiar with his claimed area of expertise, namely the effect on soil of various activities. In the present case his evidence was focused on the amount of soil erosion likely to be caused by the footfall of horses in Feddonhill wood, especially in the area of the red path and the network of paths lying to the north thereof.

 

[21] Mr. Wilson had carried out an inspection of Feddonhill wood on 9 May 2006 and thereafter produced a report dated 10 June 2006. That report was lodged as a production for the pursuers and was referred to by him as he gave his evidence. Mr. Dickson's findings were that the red path was well maintained with drains, not all of which were visible to the naked eye. The path had been created, and not constructed over many years. It was suitable for pedestrian traffic. However, if exposed to horse traffic, the drains might be broken and become ineffective, the red path would degrade and become muddy and difficult to pass through at certain points in particular at the steep gradients at each of its ends.

 

[22] Mr. Dickson said that the level of horse use of the red path which he had in mind when writing his report was a 'reasonable number'. He referred to the presence of 'quite a few horses' at Broomhill Farm and assumed that not all would be ridden on the red path but that there might be ten horses there several times a week, pointing out that the presence of ten horses on the path the day after a heavy fall of rain would be worse for the preservation of the path than twenty on a dry day in the summer.

 

[23] Mr. Dickson was a thoughtful and objective witness. He indicated that he a had pointed out to the pursuers when receiving his commission from them to inspect the woodland and write his report that they might not agree with his conclusions. I found him a credible witness. The degree to which I felt able to rely on his evidence was affected by the absence of presentation of alternative conclusions based on differing factual propositions as to differing likely amounts of use of the red path by horse riders. Accordingly, while I had no doubt that the presence of horses on the red path would lead to the consequences described by him, I was far from clear as to what level of horse use of that path would lead to that outcome. That was important because it was clear that the presence of an occasional horse and rider on the red path would not have the extremely harmful outcome described by Mr. Dickson. I deal with the consequence of that uncertainty later in this note.

 

John Wombell

 

[24] Mr. Wombell was retired. He held qualifications in commercial horticulture. He had been involved professionally in land management all his working life. He had spent many years as principal officer of leisure and recreation in the former Kincardine and Deeside District Council, with responsibility then for all parks and outdoor spaces, including footpaths. Thereafter he had worked as walking development officer in Lochaber, which included the development of footpaths. He had written three walking guides. He had got to know the first pursuer when they had collaborated on several projects. They had become and remained friends.

 

[25] Since 1997 he had been a regular visitor at Feddonhill Wood. He had helped with the maintenance and improvement of the woodland. He confirmed that the pursuers had put some effort into the maintenance of the drainage of the paths within the woodland.

 

[26] The impression he had was that if horses were allowed into the woodland then certain sections would become very muddy. He was concerned about the effect of horse-riding on the steep sections of the red path.

 

[27] At present, the red path was a pleasant, mud-free environment in which to walk.

 

[28] Mr. Wombell, although a friend of the first pursuer, did not seem given to partiality. He gave his evidence in a measured and restrained manner. He was a credible and reliable witness.

 

Mrs. Sylvia MacDonald

 

[29] Mrs. MacDonald was aged 67 years. She had lived in a cottage very close to Feddonhill Wood for over twenty-eight years. She said that the wood had been greatly improved since the pursuers had taken over ownership. It was now a place where people could take exercise and walk their dogs. That was in contrast to its previous condition when it could not be entered. She now felt able to walk anywhere in the wood. She had seen disabled people making use of the woodland.

 

[30] She said that she had often seen a 'string of horses' being led in the summer months along the access track from Broomhill Farm. She was apprehensive that if the barriers were removed, then virtually all of the horses at Broomhill, which she estimated to be seventy in number, would be exercised on the red path. She expected that between twenty and twenty-five horses would be taken along there every day. That would have the effect of stopping her from using the red path.

 

[31] She was of the view that even one horse a day would make a difference to the surface in the woodland. She said that if, on the path, she met a horse coming in the other direction, she would be 'terrified' because a horse is enormous. She was of the view that the red path was not wide enough to afford safe passage for pedestrians and horses. She said that this was a concern shared by other walkers.

 

[32] My assessment of this witness was that she was adopting a somewhat extreme position regarding the issue of the use of woodland paths by horse riders along with pedestrians. There did not seem to be any rational basis for her point of view that if she came across a horse she would be terrified because of its size. Similarly, her estimate of the level of usage of the red path by horses from Broomhill Farm seemed not to have any objective basis beyond her belief as to the number of horses stabled there.

 

[33] I accepted her evidence as to the improvements which the pursuers had made to Feddonhill Wood and that it was a pleasant and suitable location for walkers, including disabled walkers. However, her expressions of her apprehensions if horses were allowed into the area including the red path were voiced in such extreme terms that I could not attach any weight to that chapter of her evidence.

 

Witnesses for the defenders

 

Philip Waite

 

[34] Mr. Waite, aged 42 years, was an access officer for Ross and Cromarty, employed by the Highland Council. His duties included the implementation of the local authority's duties and responsibilities under the 2003 Act and the giving of advice to landowners. He held a BSc (Honours) in environmental science and geology. Over the years he had been involved in the construction and maintenance of paths.

 

[35] As a result of an approach from a Mr. McSorley (also a witness for the defenders) in 2005 he became involved in the present case. He had inspected Feddonhill Wood. He had organized meetings between the pursuers and local residents, including horse riders. He endeavoured to reach a compromise settlement. However, he was of the view that there was no good reason for horse riders not to have access to the red path. He considered that, at two to three metres across, it was wide enough and had a firm enough base. He accepted that it had some steep gradients. However he had seen 'worse' tracks along which people had ridden horses. The impression which he had was that only a small number of people were interested in riding in Feddonhill Wood.

 

[36] He was firmly of the view that the red path, in particular, was suitable for use by persons on horseback and that the barriers should be removed. However if thereafter the pursuer came across anybody acting irresponsibly, then he could ask them to leave his land and the local authority was available to provide help. The local authority was willing to monitor the amount of use of the woods by horse riders and to provide 'signage' advising riders to keep only to the paths suitable for horse riding.

 

[37] While he recognized Mr. Tuley's efforts in trying to provide other tracks for horses, nevertheless Mr. Waite considered the red path suitable for horse riding and accordingly thought that access thereto should not be denied.

 

[38] With regard to the issue of the effect of horses' hooves on the ground, i.e. whether the ground would be churned up, Mr. Waite said that that was a matter of degree. He thought that there had to be an acceptable amount of wear and tear on a path. With regard to the question of responsible exercise of access rights, Mr. Waite said that he would prefer to give horse riders the benefit of the doubt and in the first instance leave it to the personal judgement of the horse rider.

 

[39] He was opposed to the erection of the barriers in this case because in his view all potential users must be given the opportunity to exercise their access rights responsibly. He characterised prediction of irresponsibility on the basis of objective assessment as pre-judgement. If after allowing access, it was found that there had been irresponsible conduct then he contemplated steps other than barriers being erected, such as the erection of signs, as worthy of investigation in the first instance.

 

[40] In the present case he said that he had made the pursuers aware that as the representative of the local authority he had offered to arrange the monitoring of the amount of horse usage of Feddonhill Wood, the erection of signs and to provide education for horse riders.

 

[41] Mr. Waite's involvement in this case had come about as a result of his duties as access officer for the Highland Council. Although perhaps tending towards a somewhat discursive manner in the witness box, he gave his evidence in a straightforward and professional manner. He was credible and reliable.

 

[42] Three aspects of his evidence are worthy of special mention. The first is that as a matter of principle he seemed to be of the view that it was not appropriate for a land owner to anticipate irresponsible conduct and to take steps to prevent it. In his view, the question of assessment of responsibility of the exercise of the access rights lay with the access taker in the first instance and accordingly the land should be open to the access taker. That of course was in direct contrast to the position adopted by the pursuers whose stated reason for the erection of the barriers was to prevent what they perceived as irresponsible exercise of access rights.

 

[43] The second was Mr. Waite's view that some of the network of paths lying to the north of the red path were in fact suitable for horses riding. I could not accept that evidence because it was entirely contrary to the stated position of the defenders, his employers, that those other paths were not suitable for horse riding.

 

[44] Thirdly, Mr. Waite seemed somewhat reluctant to accept as correct Mr. Dickson's conclusions as to the likely consequences of horse use of the red path. I was unable to place any weight on that aspect of Mr. Waite's evidence, given the defenders' position regarding those conclusions.

 

[45] Subject to those comments, I found Mr. Waite a credible and reliable witness. He seemed committed to trying to find an acceptable solution to the problem in this case that allowed what he considered to be responsible exercise of access by horse riders on the red path. He was professional and objective when giving his evidence.

 

Mrs. Patricia Somerville

 

[46] Mrs. Somerville, aged 49, was an experienced horse rider. She held the post of access officer for the British Horse Society, living and having her work base in Ayrshire. In that post she gave advice to local authorities, the national park authorities and the Scottish Access Forum. Her employer had published the 'Equestrian Access Factsheets' (production number 4 for the defenders) and a sheet headed 'ARE YOU RIDING RESPONSIBLY THE SCOTTISH OUTDOOR ACCESS CODE' (defenders' production number 4) .