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Footpath Furore by Ian Blois of the Inverness Office
8Oct2009
The decision in April this year by three appeal court judges at the Court of Session to rule in favour of a Black Isle landowner and overturn an earlier Sheriff Court hearing in Dingwall was both a victory for common sense and a wake up call to all landowners and land managers. The Highland Council had won the earlier case, which had argued that the landowner should not be permitted to prevent access on a footpath to horse-riders even when it was clear that the footpath would be damaged as a result. Mr & Mrs Tuley, who pursued their belief that they had a right to protect their own property, have now won a valuable appeal.
The decision in April this year by three appeal court judges at the Court of Session to rule in favour of a Black Isle landowner and overturn an earlier Sheriff Court hearing in Dingwall was both a victory for common sense and a wake up call to all landowners and land managers. The Highland Council had won the earlier case, which had argued that the landowner should not be permitted to prevent access on a footpath to horse-riders even when it was clear that the footpath would be damaged as a result. Mr & Mrs Tuley, who pursued their belief that they had a right to protect their own property, have now won a valuable appeal.
While at first sight it was just a triumph for the persistence, not to say bloody-mindedness, of the Tuley’s, it was far more than a one-off ruling with no wider implications and no kickback on the 2003 Land Reform Act. What has been brought out into the open by the ruling is that while the right to roam is still good in principle, it comes with responsibilities, and where damage is fairly anticipated and where that damage is unlikely to be repaired or compensated for by the access users, the landowner has the right to prevent access in order to preserve the condition and value of the property.
For it is quite clear to anyone who walks in the hills and woodlands that paths can be severely damaged by the feet of horses and cattle. The kind of path found in the Tuley’s Feddonhill wood, and hundreds like it elsewhere, has been formed by natural grass and woodland debris pressed by the soles of countless boots, themselves often following the ancient tracks of sheep and deer. Such paths are delicate footways, suitable only for the occasional tramping of responsible walkers. Indeed there is nothing more pleasant at the end of a day’s work to be able to don sensible shoes for a bit of fresh air and exercise or for an hour’s brisk dog walk through the woods or open hillside. It is out of the question to expect such unimproved, un-metalled paths to withstand the wear of heavy-hooved horses and cattle, whose high ground-pressure prints, especially at a trot or canter, will tear up the turf or pit the ground with the weight of their feet. The damaged turf, followed by the rains and frost heave of winter and the dust bowling of the summer months, is soon irreparable. For the casual walker, what was once a pleasant stroll, becomes a rigorous walk requiring the protection of stout and waterproof boots.
All this is self evident. Why else are those great men Telford, Wade and Macadam still remembered and honoured for their work in designing, building and surfacing roads, which are still used throughout the countryside, roads that could withstand the constant wear and tear of horses hooves and narrow cartwheels and which allowed the rural areas to become accessible for migration and trade. For where a track has been metalled and has stood the test of time, like old farm tracks and drove roads, access to horses may be acceptable. But where the path is merely a way, a short cut, a stroll through the forest, it should remain just that, and be safeguarded from the damage imposed by horses and the narrow wheels of mountain bikes.
Despite all this I have sympathy for the Highland Council. Presumably they took legal advice and read the letter of the law and could see no reason that the Sheriff’s decision in 2005 should be overturned. As a local taxpayer I am concerned that the Council should have to pay the reported legal costs of £400,000 in order to defend its position in a law that badly needs reviewing. I feel that the Council should at least appeal against the costs, which ought to be paid by the Scottish Government in advance of the law being amended, For while it is stated that the Tuley’s won this case on a technicality, that in this particular case the landowner was able to anticipate the damage likely to be caused and wished to prevent it by excluding horses, it is clear that such foresight is applicable to all similar pathways. The knee jerk reaction of the British Horse Society who are quoted as saying that the case does not create a precedent, that this is an isolated case, is surely only the necessary response of an organisation being loyal to its membership, rather than a considered opinion. Because the case brings to the fore the questions constantly asked by landowners and their agents: who is responsible for damage caused to their property by members of the public and who is responsible for maintaining the standard of footpaths with their associated bridges, fords and steep mountain tracks, so that the public are able to enjoy their right to roam?
Under the law, access is permitted: damage is not. Therefore damage caused by the public should be repaired by the public or compensated for. But pinning liability for long term damage to a footpath ( ie non-malicious, incidental damage) on individuals is obviously not possible, nor desirable. So where does that leave the landowner. He should certainly take heart from the Tuley ruling and consider whether any footpaths can be protected in the same manner, prior to damage occurring, by allowing access only to those unlikely to cause damage. Secondly, with the initial 5-year agreements under the Land Management Contracts which began in 2005 coming up for review next year, the landowner should think carefully about extending their contract under the new Land Management footpath Option. Not only are you inviting the public onto your property with no known level of legal protection, but there is also the strong possibility that the path will become part of the local core footpath system. This will inevitably mean greater scrutiny by the Local Access Officer and the requirement to maintain the path to a level appropriate to all legitimate users under the Right to Roam Act. In other words the cost to the landowner is likely to rise, and while the costs may be recoverable through the LMO, accepting such money makes the landowner both responsible for the standard of the footpath and for the safety of the users.
I am mostly in favour of encouraging access to the countryside, but until landowners are sure of their liabilities they should act warily and tread carefully through the current legislation.
Ian can be contacted at:
Bell Ingram 22 Market Brae, Inverness IV2 3AB
01463 717 799
ian.blois@bellingram.co.uk