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 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 [the access] 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."

[12] Having made, among others, those findings in fact, the sheriff then proceeded to express these findings 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."

The sheriff thereafter refused to recall or vary the notice and dismissed the pursuers' summary application.

The legislative framework
[13] To give context to those findings in fact and law, and more generally, it is appropriate now to turn to the provisions of the Act relevant to this dispute.

[14] Section 1 sets out the general statutory access right to be on, or to cross, land for the exercise of recreational pursuits (and other educational and commercial purposes connected to such pursuits) but it is, we think, unnecessary to set it out in full. The general right however is not unlimited, since section 2 of the Act 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."

[15] Section 3 of the Act makes provision for what is, in some ways, the counterpart of section 2 respecting the landowner. It enacts:

"3 Reciprocal obligations of owners

(1) It is the duty of every owner of land in respect of which access rights are exercisable -

(a) to use and manage the land; and

(b) otherwise to conduct the ownership of it,

in a way which, as respects those rights, is responsible.

(2) In determining whether the way in which land is used, managed or the ownership of it is conducted is responsible an owner is to be presumed to be using, managing and conducting the ownership of land in a way which is responsible if it does not cause unreasonable interference with the access rights of any person exercising or seeking to exercise them, but -

(a) an owner who contravenes section 14(1) or (3) or 23(2) of this Act or any byelaw made under section 12(1)(a)(ii) below is to be taken as not using, managing or conducting the ownership of the land in a responsible way;

(b) regard is to be had to whether any act or omission occurring in the use, management or conduct of the ownership of the land disregards the guidance on responsible conduct set out in the Access Code and incumbent on the owners of land.

(3) In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights."

[16] That section must necessarily be read with section 14, under which the notice challenged in the pursuers' summary application is brought. Section 14 is in these 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 to 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."

[17] It is evident from these provisions - and appeared to be recognised by counsel on both sides - that the notion of acting "responsibly" plays an important part in the scheme of this legislation. Thus a person taking access to land has no right of access if he is not acting "responsibly" (section 2(1)). An attempt to add some precision to the broad concept of "responsible exercise" is to be found in section 2(3). The access-taker is also presumed, subject to certain qualifications, to be exercising access rights responsibly if those rights are exercised so as not to cause unreasonable interference with the rights of any other person (section 2(2)). Conversely the landowner is, again subject to some qualifications, presumed to be acting responsibly in his use or management of the land if he does not cause unreasonable interference with the access rights of someone exercising, or seeking to exercise, access rights. The qualifications to that presumption include, what is effectively a counter-presumption, that a landowner acting in breach of inter alia section 14(1) is to be taken as not using, managing or conducting the ownership of the land in a responsible way. That leads to a question of the proper interpretation of section 14(1), in particular of the reference to the landowner's purpose or main purpose in carrying out any of the actions catalogued in heads (a) to (e) of section 14(1).

The basis of the sheriff's decision
[18] We turn now to the basis of the sheriff's decision but in doing so we must first say something of the parties' positions at the proof. As already mentioned, the case advanced by the pursuers before the sheriff was essentially that their purpose in erecting the barriers preventing equestrian (and vehicular) access was to prevent damage to the land in the northern sector, particularly damage to the red track and the other footpaths in that sector, and thereby to protect and enhance the interests of the pedestrian members of the public to whom they wish to offer pleasant and agreeable walking conditions. To that end they led evidence of damage to the red track and to the other footpaths caused by the unauthorised incursion of horse riders on occasion in the past and, importantly, evidence from an expert witness, Mr Dickson, a soil scientist with appropriate expertise, that damage would result from horse traffic on the red path.

[19] For their part, the defenders led no counter-evidence respecting the effects of horse traffic on the red track, or the other footpaths. The solicitor conducting the proof on their behalf intimated that she accepted the conclusions reached by Mr Dickson. Central to the position of the defenders at the proof was the proposition that it was for the access-taker to decide whether the taking of access would be

responsible exercise; it was thus for the horse rider to take the decision whether he could appropriately ride over the land without causing unacceptable damage; and the landowner could not prejudge that issue or deprive the horse rider of the opportunity of making that decision (cf. paragraphs [80], [81] and [85] of the sheriff's Note).

[20] The sheriff dealt with this proposition in paragraph [101] ff of his Note and concluded that the proposition advanced by the defenders that it is for the access-taker to decide whether his proposed exercise of access rights is or is not responsible should be rejected. He expressed that conclusion in paragraph [105] as follows:

"[105] In my view, there has to be an objective test of reasonableness applied when considering whether any activity proposed or continuing can be said to be the responsible exercise of access rights. I therefore reject the proposition that it is for the access-taker to decide whether his proposed exercise of access rights is responsible or not."

The sheriff then observed in the ensuing paragraph of his Note:

"[106] Equally, in my view 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. That is to say that if there existed the possibility of responsible exercise of access rights, then a landowner would fall foul of the prohibition created by section 14 if he impeded access to the land by way of obstruction or notice or any other deterrent."

Given those conclusions, the sheriff then proceeded to the further conclusion, consequent upon them, which he stated thus:

"[108] In the circumstances of the present case, the issue as to whether the riding of horses along the red path is a reasonable exercise of access rights is one for the court to decide. That decision fell to be decided on the basis of the assessment of the evidence."

[21] At this point it should be noted that there is no cross appeal by the defenders respecting the sheriff's rejection, in paragraph [105], of their central proposition at the proof. Nor was there any issue taken by counsel for the pursuers respecting what the sheriff said in paragraph [108]. The primary complaint of the pursuers in these appellate proceedings relates to the manner in which, having regard to the evidence before him, the sheriff addressed that issue in the succeeding paragraphs of his Note. That complaint links with the criticisms of and proposed modifications to the sheriff's findings in fact to which we have already made brief reference.

[22] It is, we think, unnecessary to set out at length all of those succeeding paragraphs of the sheriff's Note. In summary, the sheriff records that Mr Dickson, the pursuers' expert witness, was an impressive witness, whose conclusions were not disputed by the defenders (paragraphs [109] and [116]). The sheriff records what was said by Mrs Anderson, the proprietrix of the stables served by the access track, concerning her intended use of the red track, namely four ponies ridden by children, once or twice at weekends (although, it may be observed, in the earlier summary of her evidence, the sheriff correctly recorded that she deponed that she could not speak for any of her liveried clients, albeit that she could advise them of the pursuers' concerns). The sheriff then deals with certain collateral mattes not relevant to this appeal and then, having referred to the defenders' procurator's intimation, at the conclusion of her cross-examination of Mr Dickson, that "We are not challenging the conclusion Mr Dickson has come to", proceeds to say this:

"[118] In those circumstances, the defenders have accepted that the presence of horses on the pursuers' land, in particular the red path, will lead to substantial soil erosion over a period of time. It seemed to me that given the degree of soil erosion described by Mr Dickson and his opinion that that could be attributed to horse riding on the red path, then the taking of access to the red path to the extent of causing that degree of degradation of the path could only be characterised as unreasonable interference with the pursuers' rights as owners of the land and the access rights of other access takers such as walkers.

[119] However, it was recognised on behalf of the pursuers that the amount and rate of erosion was a matter of degree. It was not their case, as I understood it, that one horse on the red path would cause the degree of erosion apprehended by Mr Dickson. The evidence on the amount of usage of the red path by horses sufficient to cause that damage was unsatisfactory and vague. I was not left with a clear impression as to how many less horses than ten on several days of the week, whatever that expression meant, or over what period of time it could be expected that an unacceptable degree of erosion would be caused and whether and to what extent that would vary according to the amount of use. On the one hand the defenders did not lead any expert evidence to contradict that of Mr Dickson or to provide any assistance on that issue. On the other hand, it was clear that a small level of use of the red path by horses would not cause the difficulties described by Mr Dickson to the extent of making the path unusable by pedestrians.

[120] In that situation the presence of the barriers at either end of the red path has the effect of denying all access on horseback thereto. While the pursuers' intention in the erection of the barriers was to prevent soil erosion by way of repeated use of the red path by horses, their presence has the ancillary consequence of denying some responsible access to that path. It is worth bearing in mind that the only evidence of actual intended use of the red path came from Mrs Anderson when she said that she would use it once or twice a week to lead about four young children on ponies. In my view, such a level of intended use is a great deal less than the only figures on which Mr Dickson based his conclusions, namely about ten horses several days a week."

[23] In paragraph [122] the sheriff recognised that dismissing the summary application would be unsatisfactory from the pursuers' point of view. He says:

"[122] I appreciate that from the pursuers' point of view this is not satisfactory in that it leaves open and somewhat difficult to ascertain the stage at which, if ever, horse riding on the red path might become irresponsible in the future. That exercise would not be difficult if the presence on the red path of a very small number of horses in a matter of weeks or months brought about the level of erosion and mud described by Mr Dickson in his evidence and report; in such an event it might very well be that all horse riding on the red path could be said to be irresponsible and an unreasonable interference with the pursuers' rights.

[123] If however, there were a gradual deterioration in the condition of the red path over say a period of years, then if that could be shown to be attributable to the presence of horses on the red path, then that too might well indicate that all horse riding was irresponsible, as defined by section 2, in that particular area. The difficulty in that event is, of course, that degradation of the path might in fact be attributed to horse riding but perhaps only to irresponsible horse riding, for example immediately after a heavy fall of rain or the like, leading to the creation of mud by the impact of the horses' hooves on wet ground."

[24] But the sheriff then continues:

"[124] The difficulty for the pursuers in this aspect of their case is that by the erection of the barriers, they have denied themselves the opportunity of showing how much damage, if any, might be caused on the red path by a definite number of horses over a specified period. Effectively they have engaged in an exercise of speculation as to the extent of damage which horses might cause to the red path in that minimal use will not cause the amount of degradation feared and clearly high levels of use in all weather conditions throughout the year will undoubtedly cause considerable damage, according to Mr Dickson's conclusions.

[125] In my view the pursuers have acted prematurely in the erection of these barriers. Undoubtedly they prevent the legitimate exercise of access rights and it cannot be said with certainty that any use of the red path by horse riders would be irresponsible or an unreasonable interference with the pursuers' rights."

As counsel for the pursuers observed, the sheriff appears thus to proceed upon the view that the pursuers could not proceed upon the basis of reasonably apprehended damage, but required to await its actual occurrence. The sheriff's overall conclusion is expressed in paragraph [127] as follows:

"In all the circumstances, it seemed clear that the pursuers' intention in erecting the barriers at each end of the red path was to obstruct access thereto to horse riders and horses. The pursuers have failed to establish that all horse riding would be likely to degrade the path to the extent spoken to by Mr Dickson. In my view, if there were the level of use spoken to by Mrs Anderson in the circumstances described by her, then the exercise of access rights by horse riders would be responsible. Such use is prevented by the presence of the barriers and accordingly the pursuers have fallen foul of the provisions of section 14(1)(e) by taking action, namely the erection of those barriers for the purpose, and indeed main purpose, of preventing the exercise of access rights by horse riders."

The Grounds of Appeal
[25] The pursuers have tabled three grounds of appeal. As counsel recognised, there is a considerable degree of overlap between the first and the second grounds of appeal which, put shortly, relate to the sheriff's approach to Mr Dickson's expert evidence and the acceptance by the defenders' procurator of Mr Dickson's conclusions. The third ground of appeal relates to a question of the proper interpretation of section 14 of the Act. So the three grounds of appeal effectively form two chapters.

The Grounds of Appeal: Chapter 1: the expert evidence
[26] As respects the first chapter, Mr Dickson had, of course, produced a written report, to which he spoke in evidence. His ultimate conclusion is expressed in paragraph 18 of the section headed "conclusions" as follows:

"I conclude 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 BHS (British Horse Society) Factsheets and leaflet (Are You Riding Responsibly?) warn against. On other parts of the path where the gradient is essentially flat, the present fragile (i.e. barely surviving under 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 sustainability as a woodland path. ...".

This conclusion, which is echoed to some extent by the sheriff in his findings in fact, and indeed the other conclusions, was not expressed as being predicated upon any particular level or intensity of horse usage. But given the acceptance by the solicitor acting for the defenders at the conclusion of her cross-examination of Mr Dickson that she accepted his conclusions, it is necessary for us to examine the terms of his evidence.

[27] In the course of his evidence in chief, having been taken to a photograph of damage caused by the unauthorised incursion of a horse rider, the following dialogue takes place (transcript pp.76-77):

"Taking this path, I think, though that all these paths have not had any indications that they were being used constantly on a daily basis? - That's perfectly true.

If they were, would you expect them to have anything like the same degree of condition that we had when you saw them? - No.

Why not? - They would be considerably worse in condition. I was not aware exactly when this horse access had been taken on these paths but it was clear that there was at least some dry soil in dry conditions when this was happening. Photograph 13 for instance is an indicator of a slight slope and horses had either been going up and down or going down, I am not too sure which way, and we can see there is not a considerable amount of physical disturbance made to that slope which was in dry weather. In this particular point of the forest the soil was particularly sandy and fragile so I suspect the physically damaged condition that we can see here, that is in dry weather, if this had been in wet weather this would have been much more puddled and would be very much more vulnerable in peak running water conditions.

I am not sure how often it is suggested that horses would be going up there but do we take it that there is a possibility at least that several, or a number of horses can be there many or most days. Would you expect this path, putting it shortly, to be acceptable to walk on at all after a short period? - I think it would not take very long in very wet conditions. That path would be very difficult and not a choice for walkers, unless there was a particular reason to get to the other end it would not be looked upon as a nice walk. The effect of wet weather on the path suggests, as I have seen on other areas of the steep slopes, what begins as a nice path which it still is on the photographs, and it could be levelled out and inevitably as erosion takes place the path becomes narrow as well, erosion takes away the centre of the path. I have seen paths round about my own place of work where there are horses exercising and I have seen considerable erosion taking place on the path which show a metre or a metre and a half and essentially thirty centimetres if it begins to dip and deepen as horses use the same path."

At page 84, in a respect of a particular section of the red track, the question is put to Mr Dickson and answered by him thus:

"But ultimately if horse use is permitted, do we expect that the current section of the path is likely to be fit for walkers? - Inevitably and eventually it will become damaged by horse traffic, especially during the winter weather and because of the fragility of the soil, the thinness and lack of cover of grass, all the things are quite correctly, in my opinion, in these Factsheets issued by the BHS [British Horse Society] would come to pass, that there would be degeneration of the paths where walkers would want to walk and they would be beginning to walk around some of this damaged area, and instead of walking in a straight line if they were talking to each other they would be concentrating on meandering in and out of the damaged and puddled areas."

For completeness, respecting Mr Dickson's evidence in chief, at page 85 of the transcript the following testimony is recorded:

"Do I take it what you mean is that if there is more road traffic, if there is horse traffic, it is not sustainable? - If there was horse traffic or any other severe form of traffic or any other kind of strain there would be more pressure put on the fragile pieces of paths and they would degenerate over time".

[28] The matter of the likely usage by horse riders of the red track (not a matter put in issue by the defenders in their pleadings or in their central proposition) is alluded to in cross by the defenders' procurator in this brief exchange at pages 93 to 94 of the transcript of Mr Dickson's evidence:

"You must have expected a fair level of horses when you were giving your conclusions, is that a fair comment? - That's true.

Can you explain to the Court how often you expect horses to be using this?, how many using it? - I was assuming that there would be a reasonable number. From my information there are quite a few horses go up Broomhill, they wouldn't necessarily all be using the path all at the one time and I believe some of them were not really, they just had a 'bed and breakfast' to some extent, in a sense they just enjoyed going round the paddock that they have got, but it was on the basis of something like ten horses at a time.

Is that ten horses daily or ten horses over the course of a week? - Maybe several times a week. I didn't necessarily think it would be every day but it very much depends, for instance if I can try and relate to, if we had ten horses once a week but that came after a very heavy shower there could be more damage than twenty horses every day during the summer when it was dry, but the problem being then is that it does not level with the number of horses and the number of times on the path would impact on the number of horses at the time when they are there, but it actually causes degradation to the path.

The weather is obviously one of the big factors? - The weather will affect the ferocity of the soil compaction and erosion in some places and break up of the grass and generally speaking the problems that are associated with damage, that will not be recoverable in a short time."

But beyond that matters were not further developed and, in particular, the proposition that a particular level of horse traffic - especially Mrs Anderson's statement of her intended use of the red track for pony trekking with children at the weekends - would not risk damage, was never put to Mr Dickson in any form or shape. This is no doubt because of the proposition, central to the defenders' case but rejected by the sheriff, that the decision on responsible access was entirely one for the access-taker.

[29] At the conclusion of the cross-examination of Mr Dickson the following exchange took place:

"MR MITCHELL [counsel for the pursuers]: I am not quite clear where we are at. As I understood it, and I say this just to be clear on the matter before Re-examination. What Mr Dickson has said in his 'Conclusions' is not under challenge. Now if that is the case then I would not require to Re-examine. He has not been challenged on his account of soil conditions, he has not been challenged on his account of gradients and their effect, he has not been challenged on his conclusions as to the consequences that horse riders would have on the path. He has not, as I understand it, been challenged on a single line of his conclusions with a possible exception of the reference to the 2.5 centimetres. Now if all of this is actually uncontroversial as I say I have no Re-examination.

SHERIFF MACFADYEN: Is that the case Miss McLeod?

MISS MACLEOD [procurator for the defenders]: We will not be leading evidence on soil, we will be leading evidence on path construction from my witness Mr Waite but certainly we are not doubting the conclusions that Mr Dickson has come to.

MR MITCHELL: That is a very important sentence, 'We are not doubting the conclusions that Mr Dickson has come to', with that, my Lord, I need not Re-examine."

We were informed that as a result of that concession, the pursuers decided to dispense with the leading of two other witnesses.

[30] Counsel for the pursuers submitted to us, in summary, that given the terms of Mr Dickson's report and his evidence, it was clear that Mr Dickson's conclusions to the effect that damage would in due course be caused to the red track were horse traffic to take place were conclusions which were not predicated upon any given level of equestrian usage; the extent and speed with which damage would result were affected by a variety of factors, including not only the number and frequency of the horses but also the weather conditions and the effect of those conditions on the ground. The conclusions were expressed quite generally, and given the publicly intimated acceptance of them by the defenders, it was not open to the sheriff to go behind that acceptance and qualify the conclusions. From the pursuers' point of view what was of concern to them was the eventual result of horse traffic, not particular numbers. It was never part of the defenders' case that a limited amount of horse usage would not result in damage. Further, the sheriff was not correct in thinking that the only evidence of intended use was Mrs Anderson's weekend pony trekking with children (paragraph [120] of the sheriff's Note). As Mrs Anderson accepted, she could not speak for her liveried clientèle. There was also evidence from another witness, Mr McSorley, that he and his children would use the red path (cf. finding in fact 33).

[31] In our view there is force in this criticism of this part of the sheriff's approach. Having studied both Mr Dickson's report and his oral evidence, it is plain that 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. We did not understand counsel for the defenders to take issue with that assessment, namely that damage would occur progressively over time. It is, we think, also correct to say that evidence of potential usage was not confined to Mrs Anderson's intended weekend children's pony trekking. While Mrs Anderson might have influence over them, she could not control the use which might be made by her clients who had livery horses at her stables. Nor could she control riders from elsewhere. And there was of course the evidence of Mr McSorley that he and his children intended to use the paths.

[32] While the evidence of likely user thus extended more widely than the weekend children's pony trekking, more importantly, the position adopted by counsel for the defenders came to be that, taking Mr Dickson's conclusions as being that damage would occur progressively and over time, the particular steps taken by the pursuers were premature. Until damage was caused to the track, parties, that is to say, horse riders had, said counsel, rights of access which they were entitled to exercise. Counsel for the defenders thus sought to support the approach adopted by the sheriff in paragraphs [124] and [125] of his Note (quoted above in paragraph [24] of this opinion).

[33] For our part we are unable to accept the proposition that the pursuers acted prematurely and required to await the occurrence of actual damage. It was clear from Mr Dickson's report and the other evidence that allowing horse traffic would in all probability produce damage to the red track. That apart, there was indeed evidence of damage having been caused by the occasional unauthorised use of the paths by horse riders in the past. In our view it makes little sense to say that the landowner must allow a mode of access which will be likely to prove productive of damage to the land and suffer that damage without being able to take preventative steps. Additionally, as counsel for the defenders 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. Counsel vaguely suggested that there might be "discussions" but was not able to offer any satisfactory answer to the problem which he recognised to lie within his own proposition.

[34] It was of course not submitted by counsel for the defenders that were damage - to some undefined extent - to result from equestrian access, the pursuers would not be acting responsibly in confining access to the northern sector of the forest to their pedestrian visitors. The essence of the argument advanced by counsel for the defenders appear to be that notwithstanding the predictability of damage the pursuers were acting irresponsibly in not waiting until the actual damage had occurred. Since in the circumstances of this case we are unable to accept the proposition that the pursuers were acting prematurely in seeking to prevent the damage to the red track (and the other paths) it follows, in our view, that the pursuers were acting responsibly in preventing equestrian access (and also, incidentally, motorised access by motorcycles or "quad bikes") to the northern sector which they intended for the enjoyment of their pedestrian visitors.

[35] We would add the observation that, on any broad view of matters, what the pursuers were doing appears to be a responsible exercise of land management. While, as counsel for the pursuers put it, the Feddonhill Wood is a "working wood", the fact is that the pursuers welcome public access to it by a variety of users - walkers, mountain bike users, and equestrians. What they seek to do is to make these activities compatible inter se by dedicating or allocating areas or paths to the particular recreational activities in question. That is in our view in compatibility with and in furtherance of their principal duty in section 3(1) of the Act.

Grounds of Appeal: Chapter 2: the interpretation of section 14(1)
[36] In light of our decision in respect of the first chapter of the grounds of appeal it is not strictly necessary to decide this second chapter. But in deference to the arguments advanced, it is appropriate that we give brief expression to our views.

[37] The perceived problem which the legislation may present is that section 3(2)(a) of the Act provides that a landowner who contravenes section 14(1) or (3) or section 23(2) or any relevant byelaw "is to be taken as not using, managing or conducting the ownership of the land in a responsible way". For present purposes the important provision in that list of statutory provisions is section 14(1) which, for convenience, we set out again:

"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."

Counsel for the pursuers sought to illustrate the difficulty by instancing the owner of woodland who, since tree felling is to be carried out, bars entry to the wood by a notice "Do Not Enter! Danger! Tree Felling!" (head (a) of the list in the subsection) and possibly accompanied by physical barriers (head (e)). Prima facie, putting up the notice, and putting in place the physical barrier, were all steps preventing or deterring access. So while on a simplistic view the purpose of taking those steps was indeed to prevent or deter access, the further, or underlying, purpose was to prevent injury to the access-taker. Transporting that illustration to the circumstances of the present case, while the immediate purpose of the erection of the barriers confining access to walkers was to prevent access by horse-riders (and no doubt "quad bikes" and the like) the further or wider purpose was the avoidance of predictable damage by horse riders to the red track (and damage, by horse riders, to the other paths in the northern sector). Put in another way, and having regard to the language of the section, the act in question was the act of putting up the notice warning persons not to enter or, in casu, putting up a barrier which prevents the entrance of horses. But the act was not its own purpose. The purpose, and particularly the main purpose, was something different, namely what the landowner wished to achieve.

[38] Assessment of the landowner's purpose was not wholly objective (as the sheriff opined in paragraphs [95] - [98] of his Note). Counsel referred to the debate in the Scottish Parliament [Meeting No.32, 2002: 25 September 2002: Col.1827 to 1844] and in particular to amendment 262 [in the 6^th Marshalled List of Amendments for Stage 2] which was discussed at that debate and which sought to substitute for the words in section 14(1) "for the purpose or for the main purpose" the words "if it is likely to have the effect (whether or not intentional)". The sheriff's approach, said counsel, was consistent with that proposed amendment. But that proposed amendment was rejected by the legislature, which retained the protean language of the Bill in its form as now enacted. The well-intentioned, though possibly mistaken, landowner who put up a notice for the wider purpose of, say, preventing an access-taker entering into a situation of danger to him, should not be held to be in breach of section 14(1). To adopt the strictly objective approach adopted by the sheriff would indeed attribute to the landowner a purpose which he had never had. The evidence of Mr Tuley made plain that his genuine concern was the damage which would ensue to the red track and the other paths in the northern sector were horses to be admitted.

[39] For his part, counsel for the defenders submitted that because section 14(1) talked of "purpose or main purpose" one had first to discern whether there was one purpose or more purposes. Counsel referred to the discussion in Chandler and Others v Director of Public Prosecutions [1962] 3 W.L.R. 694 (albeit that the decision is also reported in [1964] AC 763) of the term "purpose" as employed in section 1 of the Official Secrets Act 1911, which provides for the commission of a felony if a person enters a prohibited place "for any purpose prejudicial to the safety or interests of the State". Counsel referred to the speech of Lord Reid at page 705; of Lord Devlin at page 715 and page 717; and of Lord Pearce at page 724. Counsel sought to draw the proposition that in section 14(1) "main purpose" should be equiparated with the "direct purpose" of the act. While agreeing that the act itself was not its purpose, the direct purpose of the pursuers' act, namely the installation of the locked barrier, was simply to prevent access by horses. So the main purpose of the pursuers was to prevent or deter access. As respects the reference made by counsel for the pursuers to the debate in the Scottish Parliament, counsel for the defenders referred in particular to Columns 1831 and 1836, noting that the main examples given in that discussion were acts whose main purpose was the agricultural management of the land.

[40] In our view, on this chapter of the argument the approach of counsel for the pursuers is to be preferred. It is clear that the carrying out of any of the acts listed in heads (a) to (e) of section 14(1), or the omission of something covered in the universality of head (e) of that catalogue, cannot in itself and without further consideration amount to an infraction of section 14(1). One is directed by the language of the provision to consider "the purpose or main purpose" of the landowner in performing the act or omission in question. And, of course, for section 14(1) to be infringed, the purpose or main purpose has to be directed towards the exercise of the statutory access rights, that is to say, the responsible access-taker.

[41] In his speech in Chandler v Director of Public Prosecutions Lord Devlin observed that purpose was subjective. At page 717 - 718 of the report of his speech in the Weekly Law Reports he said this:

"I shall begin by considering the word 'purpose' for both sides have relied on this word in different senses. Broadly, the appellants contend that it is to be given a subjective meaning and the Crown an objective one.

I have no doubt that it is subjective. A purpose must exist in the mind. It cannot exist anywhere else. The word can be used to designate either the main object which a man wants or hopes to achieve by the contemplated act, or it can be used to designate those objects which he knows will probably be achieved by the act, whether he wants them or not."

Thus in so far as Chandler indicates the subjective nature of the person's purpose, we consider that, if anything, it supports the pursuers' position on the interpretation of section 14. Moreover, we would comment that the scheme of the Act, and its reliance on the very protean concepts of acting "responsibly" if anything endorses that subjective approach, which ultimately may focus on the bona fides of the landowner. We would add that as to bona fides, no issue arises in this case since of course it is recognised and accepted that the pursuers encourage public access to their land and only seek to regulate that access between different users.

[42] While we find helpful the observations of Lord Devlin respecting the subjective nature of a man's purpose, we do not think that otherwise the decision in Chandler v Director of Public Prosecutions is of much assistance in the present case. It is, we think, important to recognise that the statute which was under consideration in Chandler did not have the terminology of "purpose or main purpose". Any purpose prejudicial to the State sufficed to enable a prosecution to be brought. It appears to us that the inclusion with the concept of "any purpose" of the foreseeable, even if unwanted, results which their Lordships thought appropriate in the interpretation of section 1 of the Official Secrets Act 1911, is not appropriate in the context of section 14(1) of the Act. As already indicated, the statutory language of section 14(1) of the Act is very different. And, in the context of section 14(1) of the Act, it envisages many agricultural activities which may have the foreseeable result of preventing responsible access but which are done for the wider purposes of the agricultural management of the land. Thus, by way of example, the establishment of a hedge may have the foreseeable and direct result of preventing access across what was otherwise open land but yet be done for the genuine purpose of enabling the enclosure of livestock, the provision to the livestock of shelter, and the provision of habitat for birds and other wildlife. We therefore incline to the view that "purpose or main purpose", as employed in section 14(1) of the Act, should be given the wider flexible meaning for which counsel for the pursuers contended.

[43] As already indicated, in the present case there is no suggestion that the pursuers' concern to prevent damage to the red track (and the other paths), and thereby maintain an appropriate and pleasant environment for the walking public was other than genuine. Further, in our view, their genuine concern was subsequently supported by Mr Dickson's expert evidence. Given that their main purpose was thus to prevent damage to the track, and the paths leading off it, it appears to us that the pursuers cannot be said to have been in breach of section 14(1).

[44] Finally, as also indicated earlier, we were asked by counsel for the pursuers to make certain alterations to the sheriff's findings in fact and his findings in fact and law reflecting essentially the argument for the pursuers respecting grounds of appeal 1 and 2, but also, to an extent, ground of appeal 3. We now list the findings in fact in question: the proposition for amendment; and our decision on whether the proposition should be granted.

(a) Finding in fact 22:

Proposition: Add at the end of the finding in fact "although unauthorised access has at times been taken".

Decision: This is consistent with the evidence and not actively opposed by counsel for the defenders. We therefore allow it.

(b) Finding in fact 23:

Proposition: Substitute for "access" in the third sentence of the finding the word "damage".

Decision: As counsel for the defenders accepted, this reflects the wider "purpose" argument of counsel for the pursuers. In light of what we have said on that matter we approve this alteration.

(c) Finding in fact 25:

Proposition: In summary, delete references to "heavy" use by horses; "in the region of ten horses per week on several days of the week"; and to "risk"; and re-write as follows:

"The red track is well maintained by the pursuers and effectively drained. In the event of use by horses, there will be damage to the drains on the red path. That would lead to the path becoming covered with water and in parts muddy."

Decision: In light of our assessment of Mr Dickson's evidence and the significance of the concession respecting his conclusions, we consider this proposed alteration to be justified. We did not understand counsel for defenders to dispute this, on the hypothesis that we reached that assessment.

(d) Finding in fact 27:

Proposition: Delete the words in the first sentence (i) "regular" and (ii) "throughout the year".

Decision: Subject to a minor query respecting the appropriate use of the word "exposure", counsel for the defenders did not oppose this proposed amendment. We shall therefore allow it.

(e) Findings in fact 28 and 29:

Proposition: Delete these findings.

Decision: On the hypothesis to which we have referred as respects finding in fact 25 (head (c) above) we did not understand counsel for the defenders to dispute that these findings should be deleted. We shall therefore delete them.

(f) Finding in fact 30:

Proposition: Add at the end - "other than some damage in about April 2005 when horses gained access".

Decision: Counsel for the defenders did not resist this proposition, which we therefore allow.

The alterations which are proposed to the sheriff's findings in fact and law are essentially reflections of the arguments for the pursuer in the light of the amended findings in fact. We simply set out these findings in fact and law in these amended terms:

"1. The riding of horses along the red path in circumstances which occasion erosion to the red path would not be a 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 not an intended unreasonable interference with the exercise of responsible access rights over the red path."

Decision
[45] For all these reasons, the appeal succeeds. We shall recall the interlocutor of the sheriff against which the appeal is taken; and we shall in lieu grant the first crave of the initial writ and thereby recall the notice served on the pursuers by the defenders by letter dated 7 November 2005.

[46] For completeness we would simply mention that there was discussion before us as to whether the legislation enabled a notice to be varied by the sheriff but in the event it is unnecessary for us to decide that issue.