Mr. Graham Tuley+mrs. Margot Tuley V. The Highland Council
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Hardie,Lord Eassie |
| Judgment Date | 21 April 2009 |
| Neutral Citation | [2009] CSIH 31A |
| Court | Court of Session |
| Published date | 21 April 2009 |
| Docket Number | XA146/07 |
| Date | 21 April 2009 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Hardie Lord Mackay of Drumadoon | [2009] CSIH 31A XA146/07 OPINION OF THE COURT delivered by LORD EASSIE In Appeal from the Sheriffdom of Grampian, Highland and Islands at Dingwall in the cause MR GRAHAM TULEY AND MRS MARGOT TULEY Pursuers and Appellants; against THE HIGHLAND COUNCIL Defenders and Respondents: _______ |
Act: Jonathan Mitchell Q.C.; McGrigors LLP (for Anderson, Shaw & Gilbert)
Alt: Eric Robertson; Biggart Baillie
21 April 2009
Introductory
[1] This is an appeal by the pursuers in a summary application made by them to the sheriff at Dingwall in terms of subsection (4) of section 14 of the Land Reform (Scotland) Act 2003 in respect of a notice served on them as landowners by the defenders and respondents under subsection (2) of that section.
[2] The Land Reform (Scotland) Act 2003 - "the Act" - makes various provisions respecting public rights of access to land for recreational purposes (and educational and commercial purposes essentially connected to recreational pursuits). Those provisions include, in section 13 of the Act, what may be put shortly as the imposition of a duty on the relevant local authority to assert and protect the rights of access given to the public by the Act. The means - or at least one of the means - of their doing so is by the serving of a notice under section 14(2) requiring a landowner to take certain remedial action specified in the notice. If the landowner does not obtemper the local authority's requirements, section 14(3) allows the local authority itself to take the steps involved to secure compliance and thereafter recover such reasonable costs as it may have incurred in doing so. But section 14(4) of the Act allows the landowner to appeal to the sheriff by summary application. That is what the pursuers and appellants did when they were served with a formal notice by the defenders on 7 November 2005. In the summary application they sought recall or variation of the notice.
[3] The land to which the notice relates is an area of woodland, described in the notice as "Feddonhill Wood, Fortrose, Ross & Cromarty" as shown on a plan annexed to the notice. The alleged breach of the provisions of section 14(1) of the Act was narrated in paragraph 3 of the notice in these terms:
"There are two padlocked barriers at either end of the track through the wood, shown hatched in purple on the said plan. There is insufficient space between the barrier and adjoining fence to permit the exercise of access rights by horse riders in particular."
Paragraph 5 of the notice set out what the defenders required the pursuers as landowners to do. It says:
"(1) Enlarge the width of the gap between the barriers and adjoining fences to 1.5 metres, to permit the passage of horses with riders. OR remove the padlocks from the barriers.
(2) Timescale for compliance: 7 days after this notice takes effect, namely 5 December 2005."
Thus, put briefly, the notice required the pursuers to allow equestrian access to the track in question in addition to the existing pedestrian access which a walker might obtain by means of passing through the gap referred to in paragraph 5 of the notice.
[4] In response to the summary application the defenders lodged answers. It is not necessary at this point to advert in any detail to the parties' pleadings. In due course a proof extending over a number of days was heard by the sheriff. Having made avizandum he later issued a full written judgment giving, inter alia, his reasons for refusing the summary application by the pursuers for recall or variation of the notice.
[5] It is useful next to describe the relevant topography.
[6] Feddonhill Wood (or Feddanhill, the appropriate spelling being a matter, we were told, of minor local controversy) lies generally to the north or northeast of the public road between Fortrose and Killen. From a point on that road an access track or road, suitable for motor vehicles, leads through the wood and beyond to Broomhill Farm, the proprietors of which have a servitude right of access and egress over that track. The access track runs generally in an easterly direction from the public road and effectively bisects the pursuers' woodland into what may be described as a northern and a southern sector. The track to which the notice relates lies in the northern sector. It was referred to at the proof and in the sheriff's judgment as "the red track" and we shall follow that terminology. Proceeding from west to east, the red track commences at a point on the access track near to the public road and then runs through the northern sector of the wood on what might be described as very roughly the same general direction as that of the access track, eventually to rejoin the access track at a point circa 100 metres west of the point at which the woodland borders on its east with Broomhill Farm. From the red track a number of other footpaths lead off into the areas of woodland which lie to north of the red track.
[7] Within the southern sector of the woodland there is an area which has been laid out by the pursuers for use by mountain bikers. And prior to the service of the notice, the pursuers had created, to the south of the access road, a track which they intended for the use of horse riders and which would follow, south of the access track, the direction pursued to its north by the red track. (Unfortunately, during the currency of the proof, a storm resulted in this intended bridle path being blocked by fallen trees).
[8] The sheriff's findings in fact make plain - as is also obvious from the transcripts of the evidence before us - that the pursuers are not adverse in any general way to public access to their land. We quote findings in fact 4 and 5:
"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."
It is thus recognised and accepted that the pursuers welcome public access to their land. But they consider that to enhance the interests of their pedestrian visitors (with or without dogs) horses should not be allowed on the northern part of the wood; albeit that they have no difficulty respecting the southern sector in which they sought to create a bridle path frustrated only during the course of the litigation by force majeure.
[9] The reason for which the pursuers, in furtherance of the enjoyment of walkers, wish to exclude horses from the northern sector is apprehension of the damage which horse traffic may cause to the red path, and indeed the other paths leading off the red path which are, on the general view of all but one (Mr McSorley) of the witnesses at the proof, unsuitable for horses (albeit that there was evidence that on at least one occasion in the past a horseman had proceeded on his mount along such a path in an unauthorised incursion into the northern sector of the wood). The pursuers led evidence, including expert witness evidence, respecting the damage which would ensue from the allowance of horse traffic along the red track, and in consequence on the other tracks leading off to the north from the red track.
[10] The sheriff made the following findings in fact respecting the consequences of the allowance of horse traffic:
"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 (sic) each week would occasion those consequences.
29. Those consequences will not ensue in the event of light horse traffic on the red path."
Counsel for the pursuers proposed important modifications to, among others, those findings in fact, principally in relation to the qualifications within the findings respecting the number of horses and the frequency of their presence. To those proposed modifications we shall revert.
[11] The sheriff then made these further findings in fact:
"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...
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