First ‘right to roam’ case from the Court of Session: no access

The first “right to roam” case to reach the Court of Session was decided on 22 April 2009, and the court ruled against the access claimed. 

The case, Tuley v Highland Council [2009] CSIH 31A, was an appeal against a decision of Dingwall Sheriff Court noted previously in Scots Law News here.  The land in question was Feddonhill Wood at Fortrose in the Black Isle.  The owners (the Tuleys) generally allowed and indeed encouraged public access on foot, bike and horseback but had deliberately blocked one path to horse-riders on the grounds that horse traffic would seriously damage the track and made it unusable by pedestrians. 

The sheriff’s order for the removal of the barriers to horse-borne access was overturned by an Extra Division the opinion of which was delivered by Lord Eassie.  In essence the court found that the Tuleys’ barrier was not a barrier to access as such but was rather a reasonable effort to manage access to make the various forms of public use compatible with each other.  This fell within what was permissible under section 14 of the Land Reform (Scotland) Act 2003, even though the feared damage had not yet occurred.  There was no need to wait until damage occurred before taking action.