Scottish Sheriff Court Decisions

 

 

 

 

 

 

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT DINGWALL

 

B201/05   INTERLOCUTOR   In causa   Mr. Graham Tuley and Mrs. Margot Tuley, Pursuers   Against   The Highland Council, Defenders

 

 

Dingwall, July 2007

 

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

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

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

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

4.      The pursuers have owned Feddonhill Wood since 1992.

5.      Since acquiring Feddonhill Wood the pursuers have developed it as an amenity and recreational area. They have created an area for use by mountain bikers within the woodland. They have actively encouraged walkers, including walkers with dogs both on and off the lead to use the woodland. The woodland is used by members of the public for recreational walking. The pursuers have incurred time and expense in making various tracks in the woodland suitable for walkers. They have kept the tracks clear and well drained. They have cultivated flora and provided seats for walkers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

FINDS IN FACT AND LAW:

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

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

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

 

 

 

 

 

NOTE

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

[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:

 

 

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

 

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

 

Assessment of the evidence

 

Witnesses for the pursuers

 

Graham Tuley

 

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

 

John Wilson Dickson

 

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

 

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

 

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

 

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

 

John Wombell

 

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

 

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

 

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

 

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

 

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

 

Mrs. Sylvia MacDonald

 

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

 

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

 

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

 

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

 

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

 

Witnesses for the defenders

 

Philip Waite

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Mrs. Patricia Somerville

 

[46] Mrs. Somerville, aged 49, was an experienced horse rider. She held the post of access officer for the British Horse Society, living and having her work base in Ayrshire. In that post she gave advice to local authorities, the national park authorities and the Scottish Access Forum. Her employer had published the 'Equestrian Access Factsheets' (production number 4 for the defenders) and a sheet headed 'ARE YOU RIDING RESPONSIBLY THE SCOTTISH OUTDOOR ACCESS CODE' (defenders' production number 4) . She had been responsible for the writing of the latter document. Her first involvement in this case had been to respond to an enquiry from Mr. Tuley as to what might be responsible or irresponsible conduct by horse riders. She had visited Feddonhill Wood on two occasions. Of particular relevance she considered the red path to be suitable for horse riding. She said that she understood Mr. Tuley's attitude towards his woodland and that he had done a lot to improve it. However, she characterised his attitude towards the presence of horses in his woodland as over-protective.

 

[47] Mrs. Somerville shared the view that the question of whether access could be exercised responsibly was one for the access-taker himself to decide. If he exercised his judgement wrongly, then the land-manager could take it up with him thereafter. She accepted that she was not a technical expert regarding paths and drainage. She made certain comments regarding the nature of the path and gave her view on its fragility. However, given that Mr. Dickson's conclusions were not challenged by the defenders, I was unable to attach weight to those comments by Mrs. Somerville.

 

[48] With regard to the gradient of the red path, she agreed that it was steep at either end and steeper that the 1 in 12 recommended by her Society as the maximum suitable for horses and riders. She suggested however that that was an ideal and what a horse and rider could manage was determined by weather, the condition of the ground and experience of the horse rider.

 

[49] She saw no conflict between horse riders and walkers with or without dogs on the red path. She considered the red path to be eminently suitable for access by horse riders. She conceded that at certain times of year, when the risk of creation of mud was high, there might be a case for access on horseback not being taken. However, interestingly she said that in her view there could be 'pooling' on a path, i.e. the formation of puddles, whether horses were on a path or not. She saw no need whatsoever for barriers. In her view, the approach to be taken should be by discussion and agreement, not unilateral action by the landowner.

 

[50] Of interest in her evidence was her clearly held belief that the network of paths lying to the north of the red path were too narrow and unsuitable for horse riding. She considered that any horse riding on them would not be the responsible exercise of access rights.

 

[51] Not least for the considered and discriminating conclusion regarding those minor paths, I found Mrs. Somerville an impressive witness. Although a keen horse rider, she seemed perfectly aware of and sympathetic to the notion of responsible access taking. I did not find her to be biased or unduly prejudiced in favour of horse-riding over the interests of land managers or other access takers such as pedestrians. Her demeanour in the witness box was that of an honest, objective individual. I found her to be credible and reliable.

 

Paul McSorley

 

[52] Mr. McSorley was a 45 year old inspector of taxes. He lived near to Feddonhill Wood. He had been riding horses for only three years. He had ridden along the black track with his children. Since the enactment of the 2003 Act he had been keen to have the opportunity to ride a horse on the red track. Interestingly, he saw no difficulty between dogs and horses, provided that there was responsible behaviour by the horse rider and the dog walker. Mr. McSorley did not consider Mr. Tuley to be a fair-minded person. He seemed to consider that the pursuers' apprehensions were entirely without foundation. He queried the pursuers' good faith when erecting temporary signs in the woodland, suggesting that signs warning of works in the woodland were left up longer than necessary thereby preventing access to the woodland without justification. Regarding the exercise of access rights he seemed to think that this was entirely a matter within the discretion of the horse rider. He said that if the barriers were removed, he would ride a horse on the red path and would not cause any damage to the path or the drains. He did say however that if any damage were caused, he would help with repairs and had made an offer to that effect to the first pursuer in the past.

 

[53] He expressed the view that the paths to the north of the red path were suitable for horse riding.

 

[54] I found Mr. McSorley to be a partial witness. He seemed to find it difficult to have a good word for the first pursuer. His experience as a horse rider was limited, especially when compared against Mrs. Somerville's, yet he felt able to express views about the suitability of various paths and the effect of horse riding on paths and drains. In my view, his approach was subjective and did not take account of the balance to be struck between the rights of access takers on horseback and the rights of others, including the landowner and other access takers. I found his observations regarding dogs and horses helpful.. Otherwise I did not attach any weight to his evidence because of his lack of objectivity.

 

Mrs. Christine Anderson

 

[55] Mrs. Anderson, aged 53, lived at Broomhill Farm and was the proprietor of a riding school there. She had operated that school for sixteen years. About sixty one horses were kept at Broomhill Farm. Twenty six of those were liveried for customers. Thirty five belonged to Mrs. Anderson and her family; of those only twenty were ridden. Mrs. Anderson was clear that prior to the pursuers purchase of Feddonhill Wood from the Forestry Commission horse riding had taken place on the red track without any difficulty. With regard to the anticipated level of usage of the red track if the barriers were removed, she said that so far as she was concerned she would lead a line of no more than four ponies being ridden by young children on a circuit consisting of the entire length of the red track and that part of the black track lying between the two entrances to the red track. She envisaged that that exercise would take place once or twice over a weekend. So far as her livery customers were concerned, Mrs. Anderson said that she would speak to them about the pursuers' concerns. Speaking for herself she said that if she discovered that use of the red track by horses was leading to its being churned up, then she would not go in there: that was a matter of common sense and to do so would not be responsible. She had tried to reason with Mr. Tuley to reinstate horse riding on the red path but had achieved no progress satisfactory to her. She was critical of his management of the black track, suggesting that he blocked with debris or felled timber the passing places thereon; that had a detrimental effect on horse-riding along that track.

 

[56] She acknowledged that she was not an expert regarding the effect of horse traffic on paths or the constitution of the red path. However she did say that in her view, the presence of a horse-shoe print on the ground could hardly be described as damage and that walkers were not entitled to a mud-free environment in the countryside.

 

[57] Mrs. Anderson's truthfulness was not challenged. That was significant when considering the amount of use which she, as the proprietor of the neighboring horse-riding school, said she would make of the red path. I also noted her willingness not to enter the red path with horses or ponies if it were already muddy.

 

[58] Her demeanour was that of a reasonable, if frustrated neighbour. She did not seem given to exaggeration. I found her credible and reliable.

Submissions

Pursuer

 

[59] Mr. Mitchell referred to the relevant statutory provisions. He submitted that the court's role in an appeal under the Act was an exercise of its judicial function not an administrative one.

 

[60] He submitted that the question whether interference in another's rights was unreasonable or not was a matter to be answered objectively by the court. It was not within the power of the horse rider to say whether his exercise of access rights amounted to reasonable interference or not. He submitted that the defenders' position in this case amounted to an assertion that any landowner who debarred people from taking access was interfering with access rights. That approach was wrong in that it took no account of the reasonableness test.

 

[61] He accepted that it was the cumulative effect of the possibility of access over time by a number of horse riders which was significant. He said that the pursuer was not asserting that the presence of one horse from time to time would lead to interference with the pursuer's rights.

 

[62] His first argument turned on the wording of section 14(1) which only outlawed the placing of signs or barriers etc. by a landowner if his purpose or main purpose was to prevent or deter any person entitled to exercise access rights from doing so.

 

[63] Mr. Mitchell submitted that there had been absolutely no evidence led or questions asked in cross-examination regarding the pursuer's purpose in erecting the barrier being to prevent or deter the exercise of access rights, i.e. the responsible exercise of such rights. The focus of the defenders' case had been on that being the effect of his actions, not his purpose. In those circumstances the defenders' case did not get off the ground. He pointed out that the local authority had other enforcement powers open to it, for example under section 13. Section 3(2)(a) provided protection against a landowner acting maliciously in erecting unwarranted warning signs or barriers.

 

[64] Mr. Mitchell stressed that the pursuer's unchallenged evidence was to the effect that he had erected the barrier in order to stop damage to the land, to protect the land and protect the rights of others exercising access rights, namely walkers.

 

[65] Mr. Mitchell went on to deal with the situation in the event that I found that there had been evidence led to the effect that the pursuer's actions had been carried out with the purpose or main purpose of prevention or deterrence of the exercise of access rights. He said that in that event I had to consider the effect of that evidence and the public interest. Dealing with the evidence he invited me to find all of the pursuer's witnesses to be credible and reliable. Mr. Dickson's conclusions had not been challenged. Neither Mr. Wombell nor Mrs. MacDonald had been seriously cross-examined. The witnesses for the defenders, with the exception of the 'jaundiced perspective' of Mr. McSorley, had been doing their best to be truthful. However he submitted that they had all suffered an inability to appreciate the scheme of sections 2 and 3 and the delicate balance which it constructed. They took the view that it was up to horse rider to decide if his exercise of access was responsible or not. Further they all had a genuine difficulty in seeing the possibility of conflict of interest between the exercise of rights by different groups of access users, in this case, on the one hand, horse riders and, on the other, walkers.

 

[66] He pointed out that horse riders already enjoyed access through the pursuer's property along the access track to Broomhill Farm. There was no evidence to substantiate that that route presented any danger to horse riders. Indeed the evidence pointed towards intended use of that access track as a component part of a circuit route also involving the red track.

 

[67] In addition the pursuers had offered an alternative route through that part of the wood to the south of the access track. As a result of storm damage that track created by the pursuer effectively no longer existed. However Mr. Tuley's offer and work in creating that had been eloquent of his good faith and clearly indicated a lack of vindictiveness on his part towards horse riders.

 

[68] Of less significance was the suitability of the network of paths to the north of the red path for horse riders. The defenders conceded that they were unsuitable for such access.

 

[69] The pursuer had invested time and resources in the wood for the benefits of others, including mountain bikers, for recreational purposes.

 

[70] Mr. Mitchell submitted that even without the evidence of Mr. Dickson, all of the evidence pointed to the path becoming very severely degraded by the passage of horses in the event of the removal of the barriers. However I should bear in mind that Mr. Dickson's evidence and conclusions had been accepted by the defenders.

 

[71] In its present condition the path was suitable for walkers and that was due to the past and continuing efforts of the pursuers. The pursuer had asked the rhetorical question what was the point of maintaining the path if it were destroyed by the passage of horses. Further he had indicated in that event he might not maintain the red path as a path but allow the area to revert to an overgrown wildlife sanctuary. It was possible then that that area would become impassable to walkers. In that event the law would be powerless to enable anyone to order the pursuers, for example, to remove fallen trees.

 

[72] The position was that not all paths were suitable for the exercise of access rights by everybody. Many paths were suitable for multiple use but in this case the evidence from the witnesses Dickson, Tuley and Wombell had shown that the red path was suitable for the exercise of access rights only by walkers.

 

[73] The pursuers had not fallen foul of the provisions of section 14. In erecting the barriers Mr. Tuley's purpose or main purpose had not been to prevent the exercise of responsible access rights and as a matter of fact horse riders did not fall within the category of persons entitled to exercise access rights over this land because their use would not be responsible, and accordingly not an access right as created by section 2. The question of responsibility fell to be judged by the court.

 

[74] Neither party had raised the issue of any variation to the notice and no detailed evidence had been led on which any variation could be based. Accordingly, Mr. Mitchell submitted that the notice should either be recalled or not. He invited me to sustain the pursuers' plea in law and recall the notice. With regard to expenses a hearing should be fixed. The pursuers would in due course be seeking certification of the cause as suitable for the instruction of senior counsel and of Mr. Dickson as a skilled witness.

 

Defenders

 

[75] For the defenders Ms. Macleod reminded me of the evidence that there had been a riding stable at Broomhill Farm since 1990 and that prior to the pursuers acquisition of Feddonhill wood, horse riders had not been prevented from entering the northern section of the woodland, in particular the red path.

 

[76] She referred to the evidence regarding the pipeline path and suggested that an inference could be drawn to the effect that there were no issues regarding the responsible exercise of public access thereto.

 

[77] There had been evidence from two access officers, namely Mr. Waite and Mrs. Somerville, to the effect that the red path was appropriate for use by horses. It had not been disputed that the red path had previously been used for timber extraction purposes. She submitted that the evidence indicated that the red path was sufficiently robust to withstand the occasional use by ponies or horses.

 

[78] With regard to the evidence of Mr. Dickson, she submitted that neither the Act not the Code required any expert soil analysis to be made before the question of reasonableness of exercise of an access right could be determined. The defenders, she said, accepted Mr. Dickson's conclusions, based on what he considered to be the likely situation. She pointed out that he had not made any assessment of the period of time over which the difficulties would arise. She invited me to consider his conclusions against the evidence of Mrs. Anderson as to the amount of use which she anticipated making of the red path.

 

[79] The defenders accepted that the pursuers encouraged the exercise of access rights over Feddonhill wood by walkers. She suggested that it was not reasonable to expect the paths to remain free of mud. It was reasonable for walkers to expect the ground to be in such a condition as to require the wearing of walking boots.

 

[80] She submitted that, by their action, the pursuers had not given horse riders the opportunity to exercise their right of access responsibly. Horse riders had the right to make decisions; a horse rider should have the opportunity to decide whether he could ride safely over any particular piece of land. The ability of the horse rider was important in the exercise of deciding whether the access right could be exercised responsibly.

 

[81] She submitted that horse riders had the same rights under the Act as walkers. She said that it could be said that the red path, in its present condition, was suitable for the exercise of access rights by people on horseback.

 

[82] She submitted that the Act did not permit landowners to judge in advance whether any intended purported exercise of an access right was irresponsible. That approach was supported by the reference to the making of byelaws at page 23 of a production being ' Guidance for Local Authorities and National Park Authorities' to Part 1 of the 2003 Act, produced by the Scottish Executive, which said,

'The byelaw-making power in section 12 of the Act may be exercised generally in relation to land ...or in respect of a specific area of land over which access rights are exercisable. In general byelaws should be limited to those specific areas where a need has arisen, rather than be applied over extensive areas on a precautionary basis.'

 

[83] Ms. Macleod submitted that if the pursuers had proved that in the past there had been irresponsible purported exercise of access rights over the ground in question by horse riders, that would be a different matter. However, at present there was no conflict---. Nevertheless notwithstanding efforts by the defenders' access officer to achieve some compromise solution with them, the pursuers had refused to remove the barrier.

 

[84] That had led to the service of the section 14 notice. She pointed out that the barrier prevented access to the ground by horse riders. It also prevented access by wheelchair users and made difficult access by those pushing young children in push chairs.

 

[85] Ms. Macleod presented the following proposition: that the decision whether access rights can be exercised responsibly is one for the access taker to decide and not for the landowner to pre-judge.

 

[86] Landowners were under reciprocal obligations to manage land in a way which permitted the exercise of responsible exercise of access rights. By erecting padlocked barriers at either end of the red path, the pursuers were clearly preventing the exercise of access rights along that path. That action was contrary to the prohibition imposed by section 14 and accordingly was not responsible land management.

 

[87] If the appeal failed and the barriers removed, then the defenders had indicated that they would co-operate with the pursuers in the erection of signs discouraging irresponsible conduct by horse riders, namely by directing them not to ride on the network of paths to the north of the red path.

 

[88] Ms. Macleod submitted that the defenders had simply complied with their statutory responsibilities. She invited me to refuse the appeal.

 

Response by the pursuers

 

[89] Mr. Mitchell replied briefly, making the following points.

 

[90] Firstly, the defenders did not seem to be disputing the first pursuer's evidence or the submission on his and Mrs. Tuley's behalf regarding what their purpose had been when putting up the barriers.

 

[91] Secondly, he reminded me that the defenders' acceptance of Mr. Dickson's conclusions had been unequivocal. He contrasted that with the submission that they should be reconsidered in light of Mrs. Anderson's evidence. That was unacceptable: he indicated that he had shortened his case on the basis of the acceptance of Mr. Dickson's conclusions given in the course of the pursuers' case.

 

[92] With regard to the issue of pre-judging, he submitted that it was for the court to determine the situation, not the horse rider. In any event, all that the pursuers had done was to reasonably anticipate that damage would be done to the ground by horse-riding that could be nothing other than irresponsible conduct and accordingly not an exercise of an access right. He drew the analogy of banning dogs from a children's play area.

 

[93] He submitted that the defenders' reference to section 12 was completely wrong. The criteria for the making of byelaws was completely different from to those under consideration in the present case.

Discussion and decision

 

[94] Several issues fell to be addressed. The first of those was the pursuers' submission on their intention when installing the barriers. In Mr. Mitchell's submission he said that if their purpose was to prevent the apprehended damage to their ground by virtue of the action of horses' hooves thereon, then that could only occur as a result of irresponsible exercise of purported access right. In his submission that could not be said to be the same thing as the prevention or deterrence of the exercise of a responsibly exercised right of access and accordingly they were not forbidden from erecting the barriers by virtue of section 14.

 

[95] In my view, whether what the pursuers had done by erecting the barriers fell foul of section 14 depended on the objective determination of what their apprehension actually was. It is not sufficient simply for the pursuers to say

'We think that that any horse riding in this area of our land will damage our property to the extent that the riding of horses here would be an irresponsible exercise of an access right, and accordingly not an exercise of an access right at all.'

 

[96] That would be a subjective approach which in my view is quite inappropriate in determining what the land manager's purpose, in terms of section 14, was.

 

[97] In my view, the matter should be approached in the following way. Firstly there must be an examination of what is taking place or is proposed to take place. That must be an objective evaluation of the activity or proposed activity. In the present case that exercise is one to be undertaken by the court. If the court decides that what is proposed is the responsible exercise of access rights, then and only then does one go on to look at what the pursuer is said to have done and to decide whether that action was performed with the purpose or main purpose of preventing or deterring the exercise of those access rights. To follow the approach suggested by the pursuers would allow a well-intentioned but mistaken landowner the opportunity of preventing lawful access on to his land. The legislature cannot have intended such an outcome. In any event, in the present case there did not seem to be any question between the parties as to the activity which the pursuers sought to prevent, namely the presence of horses and riders in the area of Feddonhill wood lying to the north of the access track leading to Broomhill Farm. That, in my view, rendered the approach to section 14 an easy one. One simply looked at the activity, namely horse-riding in that area and had to decide whether in all the circumstances described in evidence it could be said to be a responsible exercise of access rights or not.

 

[98] Given the pursuers' candid position as to their intentions, it seemed to me that if the activity was a responsible exercise of access rights, then clearly they fell foul of section 14 in that their purpose was to deter or prevent access to that area of land by persons on horseback. However, if the activity were an irresponsible, and accordingly only purported, exercise of access rights, then their purpose in erecting the barriers was legitimate and not forbidden by section 14.

 

[99] The next issue to determine was whether I should follow the approach suggested by the defenders as to it being within the judgment of the access taker as to whether he can exercise his rights responsibly, and not a matter for the landowner to pre-judge and prevent by the erection of, as in this case, a barrier.

 

[100] Dealing firstly with the position of the landowner, I have already said that it was not a matter for him to pre-judge the responsibility of any proposed activity, except perhaps in the most extreme of circumstances. The Act requires responsible behaviour on the part of the landowner just as much as on the part of the access taker.

 

[101] Turning to the position of the access taker, the proposition presented by the defenders seemed to be quite extreme and indeed was reflected in some of the evidence led on their behalf. It seemed to me that the defenders were asserting that a landowner such as the pursuers had no right whatsoever to erect barriers but that it should be left to the common sense of the access taker as to whether what he wanted to do amounted to responsible exercise of an access right. If a particular individual or group of individuals were found to be behaving irresponsibly, then remedies were open to the landowner, such as interdict, but generally he should leave his land open to all comers who each would decide what they wanted to do, where they wanted to go and whether that amounted to responsible exercise of access rights.

 

[102] It is of course of significance that section 1, which creates the statutory right of access, is broadly stated. Section 1(1) and (2) reads:

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

 

 

[103] However, those rights are quickly defined in section 2 as access rights only if they are exercised responsibly, and that section goes on to describe how responsibility is to be determined.

 

[104] Nowhere in the Act is there any reference to a subjective test of responsibility resting with the access taker. It seems to me that the position suggested by the defenders is far too extreme. While resort to formal notices and litigation is not to be commended as a way to secure the effective operation of the 2003 Act, nevertheless in my view some objective standard must be capable of being set as to whether any proposed activity is or is not a responsible exercise of access rights. Thus, while an individual on foot walking up an already muddy slope might be unobjectionable, to ascend a slope in such a condition while riding on a heavy horse might well be an irresponsible and only purported exercise of access rights. The consequences of certain, indeed much, human activity can be reasonably predicted. It cannot be right that the judgement of responsibility is within the exclusive jurisdiction of the access taker. If that were so, then what would be the point of the test of responsibility at all?

 

[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.

 

[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.

 

[107] In addition, given the wording of section 1, it seemed to me that notwithstanding the pursuers' willingness to afford access to horse riders to that part of Feddonhill Wood lying to the south of the access track, that did not entitle them to deny access to that part of the wood lying to the north thereof. The right to exercise access is in respect of all land in Scotland unless the right cannot be exercised responsibly or the land in question is excepted from the application of the Act. In the present case, the pursuers' argument was based only on the first of those exceptions.

 

[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.

 

[109] Mr. Dickson was an impressive witness. His conclusions were not doubted by the defenders. That was to the effect that damage would be caused to the red path by the presence thereon of horses and riders. It was however accepted that the amount of damage would depend on the amount of usage of the red path by horse riders. Equally he spoke of damage being caused by pedestrians who walked on such a path after rain. Mrs. Somerville was an equally impressive witness. She was firmly of the view that the red path was suitable for use by horse riders provided they did not enter it if it was likely to be churned up by the horses' hooves.

 

[110] Mrs. Anderson who ran the stables situated closest to Feddonhill Wood described the limited use which she would make of the red path, namely a maximum of four ponies at a time being ridden by small children. Interestingly she also said that prior to the pursuers' purchase of Feddonhill Wood, the red path had been used by horse riders.

 

[111] The Scottish Outdoor Access Code's guidance on responsible behaviour by the horse riding public, found at page 98, is in the following terms:

'Access rights extend to horse riding. Riding on firm or hard surfaces, such as

wide paths and tracks and well-drained ground, causes few problems. On

narrow routes, horse riding may cause problems for other people, such as

walkers and cyclists. If this occurs, take extra care by giving way to walkers

where possible or by looking for an alternative route. If you are riding off-path,

particularly in winter, take care to avoid:

·        going onto wet, boggy or soft ground; and

·        churning up the surface.

Take care not to alarm farm animals and wildlife, particularly if you go round a

field margin. Do not go into fields where there are grazing horses or animals that

might be a danger. Get permission if you wish to carry out repetitive schooling

on other people's land or wish to use jumps or custom-made gallops when

these are not in use.'

 

[112] Its guidance on responsible behaviour by land managers, found at the same page is in the following terms:

'Where possible, work with your local authority to help

identify paths or routes across your land which are

suitable for horse riding and help to integrate access

and land management.'

 

[113] In my view, those extracts from the Code are of evidential value only in that, as already noted, section 10 provides for the Code to set out, in relation to access rights 'guidance'. In any event the first of those passages was expressed in such terms as to be no more, in the case of guidance for access takers, than a statement of the obvious; in the case of the guidance for land managers, it encapsulated a clear definition of the difference between the parties in this case in that what they could not agree was whether the red path was suitable for horse riding. In those circumstances, I found little assistance in the Code in the exercise of resolving this dispute.

 

[114] The next issue to determine was whether the riding of horses along the red path would unreasonably interfere with the rights of other access takers. If it could be demonstrated that it would, then it would follow that horse riding there was an irresponsible, and therefore only purported, exercise of access rights. I have already given my views of the evidence on this aspect of the case, in particular that of Mrs. MacDonald on the one hand and Mr. McSorley on the other. Mrs. Somerville also foresaw no difficulty in the path being shared by walkers, including dog walkers and horse riders. I agreed with her and Mr. McSorley's analysis of the situation. It seemed to me that there was evidence that the red path was wide enough to allow walkers to go to the side to allow horses to pass and that it was perfectly possible for there to be co-existence between walkers, dogs and horses on the length of that path.

 

[115] For the sake of completeness, I agreed with the pursuers' submission that, given the terms of Mrs. Anderson's evidence that she would use the black track and the red path as a component parts of a circuit on which to lead small children on ponies, the defenders can hardly rely on the assertion that the red path provides a safe alternative to the black track.

 

[116] What was not in dispute were Mr. Dickson's conclusions. The last of those, number 18 in his report of 10 June 2006 was that 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.

 

[117] A feature of this case which has proved difficult to resolve is this: the defenders did not challenge the conclusions reached by Mr. Dickson following his inspection of the woodland and preparation of his report. He gave evidence in support of his report. At the conclusion of the cross-examination of Mr. Dickson on behalf of the defenders, senior counsel for the pursuers saw fit to raise that issue by pointing out that Mr. Dickson's conclusions had not been challenged in cross-examination. In response to that the solicitor for the defenders said,

'We are not challenging the conclusions Mr. Dickson has come to.'

 

[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.

 

[121] If I dismiss this appeal, thereby effectively ordering the removal of the barriers, the pursuers have an apprehension that all access, both responsible and irresponsible, would be available to the red path and the network of paths lying to the north thereof. At this stage of the argument, notice should be taken of the defenders' willingness to co-operate with the pursuers in practical measures to discourage the irresponsible, i.e. purported, exercise of access rights. There was no reason to doubt Mr. Waite's good faith when he said that he was willing to assist the pursuers with the provision and wording of signs in the woodland. In passing I would mention that in my view that provides sufficient protection against irresponsible exercise of purported access rights on the network of paths to the north of the red path. Further I can see no reason why any signs erected could not contain warnings against entering the red path at a time when it might be reasonably expected that the presence of horses thereon could lead to the creation of mud, or if mud were found by the horse rider to be already present. Such a system would be in accordance of what seemed to me to be the reasonably expressed position of Mrs. Somerville.

 

[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.

 

[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.

 

[126] The pursuers have a genuine apprehension. However, in my view, their remedy lies in co-operation with the defenders in the erection of signs warning horse riders not to enter the network of paths to the north of the red path at any time and warning against riding in weather or soil conditions when the creation of mud is an obvious risk of the presence of horses on the red path.

 

[127] 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.

 

[128] I am therefore persuaded that the defenders were entitled, in terms of section 14(2) to serve the notice of 7 November 2005, requiring remedial action, namely the widening of the gap to allow horses and riders (and indeed wheelchair users) through or removal of padlocks from the barriers, and that it was appropriate in the circumstances to do so. Accordingly, the pursuers' appeal fails.

 

Expenses

 

[129] Parties were agreed that expenses should be reserved. I have appointed a hearing to discuss those, including the issues of certification of the cause as suitable for the employment of senior counsel and certification of Mr. Dickson as a skilled witness.