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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,
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B201/05 INTERLOCUTOR In causa Mr. Graham Tuley and Mrs. Margot Tuley, Pursuers Against The Defenders |
Dingwall, July 2007
The Sheriff, having resumed consideration of the cause, FINDS IN FACT: -
1.
The pursuers reside at
2.
The defenders are the Highland Council, a local authority
constituted in terms of the Local Government etc. (
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
[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 (
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Access rights |
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(1)
Everyone has the statutory rights established by this Part of this Act. |
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(2)
Those rights (in this Part of this Act called "access rights") are-
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(a) the right to be, for any of the purposes set out
in subsection (3) below, on land; and |
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(b) the right to cross land. |
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(3)
The right set out in subsection (2)(a) above may be exercised only- |
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(a) for recreational purposes; |
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(b) for the purposes of carrying on a relevant
educational activity; or |
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(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. |
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(4)
The reference- |
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(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- |
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(i) going into, passing over and remaining on it for
any of those purposes and then leaving it; or |
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(ii) any combination of those; |
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(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. |
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(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- |
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(a) furthering the person's understanding of natural
or cultural heritage; or |
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(b) enabling or assisting other persons to further
their understanding of natural or cultural heritage. |
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(6)
Access rights are exercisable above and below (as well as on) the surface of
the land. |
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(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:
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Access rights
to be exercised responsibly |
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(1)
A person has access rights only if they are exercised responsibly. |
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(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- |
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(a) a person purporting to exercise access rights
who, at the same time- |
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(i) engages in any of the conduct within section 9
below or within any byelaw made under section 12(1)(a)(i) below; or |
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(ii) does anything which undoes anything done by
Scottish Natural Heritage under section 29 below, |
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is to be taken as not exercising those rights
responsibly; and |
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(b) regard is to be had to whether the person
exercising or purporting to exercise access rights is, at the same time- |
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(i) disregarding the guidance on responsible conduct
set out in the Access Code and incumbent on persons exercising access rights;
or |
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(ii) disregarding any request included or which
might reasonably be implied in anything done by Scottish Natural Heritage
under section 29 below. |
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(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. (
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Duty of local
authority to uphold access rights |
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(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. |
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(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. |
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(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:
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Prohibition
signs, obstructions, dangerous impediments etc. |
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(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- |
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(a) put up any sign or notice; |
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(b) put up any fence or wall, or plant, grow or
permit to grow any hedge, tree or other vegetation; |
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(c) position or leave at large any animal; |
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(d) carry out any agricultural or other operation on
the land; or |
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(e) take, or fail to take, any other action. |
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(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. |
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(3)
If the owner fails to comply with such a notice, the local authority may- |
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(a) remove the sign or notice; or, as the case may
be, |
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(b) take the remedial action specified in the notice
served under subsection (2) above, |
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and, in either
case, may recover from the owner such reasonable costs as they have incurred
by acting under this subsection. |
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(4)
An owner on whom a notice has been so served may, by summary application made
to the sheriff, appeal against it. |
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(5)
Rules of Court shall provide- |
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(a) for public notice of the making of summary
applications for the purposes of this section; |
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(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; |
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(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:
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The Scottish
Outdoor Access Code |
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(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- |
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(a) those exercising these rights are to be regarded
as doing so in a way which is or is not responsible; |
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(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; |
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(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; |
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(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
[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
[21]
Mr. Wilson had carried out an inspection of Feddonhill wood on
[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) .