The access rights to the countryside enshrined in the so called "right to roam" legislation, the Land Reform (Scotland) Act 2003, were created partly to establish statutory public rights of access to land for recreational and other purposes. These access rights are not, however, unlimited as the statute provides that a person only has access rights if they are exercised responsibly. A disagreement as to what constitutes responsible access, and the landowner's remedies when faced with the prospect of irresponsible access, was heard this month in Dingwall Sheriff Court in the case of Graham Tuley and Mrs Margot Tuley v The Highland Council.

Barriers to a woodland path

Mr and Mrs Tuley owned Feddonhill Wood in Fortrose having acquired it in 1992. Mr Tuley, a retired forester, had developed the wood as an amenity and recreational area for use by mountain bikers, ramblers and dog walkers. However, in around 2005, the Tuleys erected barriers at each end of a path known as the "red path", which ran from east to west through the northern sector of the woodland, to prevent access by horses and riders to the path, although a gap at each end allowed for access on foot.

Prior to the Tuleys acquiring the wood, it had been owned by the Forestry Commission who had allowed horses and riders to use the red path. However, since buying the woodland, the Tuleys had not allowed any access to the path by horseback, culminating in them erecting the barriers, secured by padlocks.

The local authority, Highland Council, has the function of upholding access rights under the right to roam legislation. They therefore served a notice on the Tuleys requiring them to increase access to part of the woodland to enable horses and riders to enter the area. The Tuleys then raised their action challenging the Council's notice.

A muddy situation

Mr and Mrs Tuley were concerned, and brought evidence to the court to show that regular exposure of the red path to horse traffic throughout the year would cause the grassy slopes to become boggy banks and the tracks to turn to mud. They argued that the paths were narrow and unsuitable for horse riding. They had therefore erected the bollards so as to deter horse riders from exercising their access rights irresponsibly, contrary to the Act.

The Council were of the opinion that by padlocking the barriers, the Tuleys were preventing any access by horse riders in the wood, contrary to their statutory rights. Horse riders therefore did not have an opportunity to exercise their access rights responsibly. The Council accepted that the presence of horses on the land could lead to soil erosion over time, but argued that this was a matter of degree and it was as yet unclear as to what the level of use of the path would be.

Who decides what is responsible access?

The Council served their notice under Section 12 of the Act. Section 12 prevents an owner of land in respect of which access rights (i.e. responsible access) are exerciseable from preventing or deterring access through the erection of signs or barriers. The Court considered that the issue of whether the Tuleys had fallen foul of this provision depended upon whether the activity in question, namely horse riding, could be said to be a responsible exercise of access rights. Only if horse riding could be said to be irresponsible would the Tuleys have acted legitimately in erecting the barriers.

To adopt the Council's proposition that the decision should be left to the common sense of the access taker as to whether his activity amounted to responsible access was not favoured by the Court: nowhere in the Act was there any reference to a subjective test of responsibility. Equally, however, the Court was of the opinion that to follow the Tuley's pre-emptive approach would allow a well-intentioned but mistaken landowner to prevent lawful access to his land.

It would only be in the most obvious or extreme situation that a landowner would be entitled to prevent access to his land by access takers - he would fall foul of the Act if the possibility of responsible exercise of access rights existed.

The Court therefore concluded that an objective evaluation of the activity required to be undertaken by the Court based on an assessment of the evidence. But this was where the difficulty lay.

A question of degree

The Sheriff highlighted a feature of the case which had proved difficult to resolve - the Tuleys had brought an expert witness to the Court who had spoken about the soil erosion which would be caused by the presence of horses on the path over a period of time. The expert's conclusions had not been challenged by the Council. However, the amount and rate of erosion was a matter of degree. The expert witness had based his conclusions on the use of the path by about ten horses several days a week. But the only evidence of actual intended use of the red path came from the owner of the neighbouring riding school who said that she would use it once or twice a week to lead about four young children on ponies.

Although the Tuleys' intention in erecting the barriers was to prevent soil erosion, the presence of the barriers at either end of the path had the ancillary consequence of denying all access on horseback. Since the Tuleys had failed to establish that all horse riding would be likely to degrade the path, and the proposed level of use by children on ponies would, in the court's opinion, constitute responsible exercise of access rights, by erecting the barriers the Tuleys had denied themselves the opportunity to show how much damage might be caused by a definite number of horses over a specified period . They had therefore acted prematurely.

Remedy in co-operation

Although the Court conceded that the Tuleys had a genuine apprehension, it concluded that their remedy lay in co-operation with the Council in the erection of signs warning horse riders against riding in weather conditions where the creation of mud was an obvious risk. The Council had indeed offered to assist the Tuleys in this way previously, but the Tuleys had declined the offer.

This case demonstrates that, in relation to the right to roam legislation and the landowner's apprehension of damage to his property, prevention may not be better than cure. Preventative measures, unless taken in an obvious or extreme situation, may be seen to be premature and thus contrary to the legislation.