Agendas, reports and minutes

Inverness and Nairn Local Access Forum Meeting
Monday, 15 December 2014
2.00pm Site Visit – Lochloy, Nairn
3.30 pm – Nairn Community Centre

Chair: Candy Cameron

Present at the site inspection and the meeting: Tommy Hogg, Harry Lakeland, Liz Macdonald, Hamish Wood, John McGlade, Iain Pocock, Fraser Parr, Hamish MacBean.

Officials in attendance: Stewart Eastaugh, Access Officer, Planning and Development Service, Highland Council

Minute: Liz Lee

Also in attendance at the site inspection and the hearing at Item 1 of the meeting: Invited participants: Mr A Coombs, Mr A Stewart, Mr F Milne

There had been circulated to members and the invited participants Report dated 9 December 2014 by the Access Officer setting out the history of the access dispute and the options open to the LAF, together with a copy of the Highland Council’s Planning Applications Site Visit/Hearings Procedures.  Members had received an email dated 12 December 2014 from Mr Coombs questioning the accuracy of the report, criticising the process by which matters had been and were being taken forward, and requesting a number of matters to be included on the agenda.

Site Visit, Lochloy, Nairn

The Chair explained to all present that the visit would be conducted in accordance with the Council’s Procedures.  The purpose of the site visit was for the LAF members to gain an understanding of the physical features; the issues would be discussed at the hearing.

All present having introduced themselves, the Access Officer drew attention to features that the LAF might wish to look at, including the locked gate, the bell-mouth, the track and the forestry gate. The invited participants then drew attention to a number of issues, including:
• instances of vandalism to the gate and the fence; criminal damage to whins and trees at the side of the road; and irresponsible actions by the public with regard to dog mess, litter and leaving the forestry gate open
• that the access had not been used by the Forestry for many years – it would be better to block off the access and just let the Forestry in when they wanted
• that the bell-mouth and gate were often blocked by parked cars in summer; it was dangerous to park in the nearby layby as traffic was fast, an accident was likely
• that the track beyond the forestry gate was unsuitable for wheelchairs - a Motability scooter had got stuck in sand at Kingsteps earlier in the year; wheelchair access was highly inadvisible
• occasions when horses had had to be rescued from the salt marsh beyond the woods; SNH held concerns at the damage horses caused to the salt marsh.

In response to questions, Mr Coombs described where the boundaries to his land were; advised that there were currently 7 x keyholders who each paid £50 per year for use of the track; and explained that the recreational value he provided was simply access to the countryside – he did not erect jumps etc. for horses and he no longer provided facilities such as the use of stables.

The LAF members accessed the site via the stile adjacent to the locked gate, walked along the track to the Forestry Commission gate, and, in light of the comments made by the invited participants regarding the unsuitability of the further parts of the track for wheelchairs, also walked the Forestry track for approx. 300m to its junction with the Core Path.  Three members then also walked an informal, muddy track to view the salt marsh.

With reference to Standing Order 14, the Forum Agreed that Item 4 on the agenda be taken first.

1. Public Right of Access, Lochloy, Nairn

The Forum had visited the site earlier in the day (see summary above). 

The circulated report stated that the Council had, over a number of years, received complaints from members of the public about a padlocked gate and stile at Lochloy that was not accessible to horse riders, people with buggies, or mobility scooters.  Under the Land Reform (Scotland) Act 2003, the Council had a duty to uphold access rights, unless there were specific circumstances as defined in the legislation, when access rights did not apply.  These included instances where an access route had been established for a particular purpose and continued to be used as such, (Section 6(1)(e)) of the Act; or, where a charge had been made, prior to 31 January 2000 (Section 6(1)(f)) for use of the access.  The landowner contended that both these exemptions applied, the latter in respect of horse riders.  The Access Officer had asked the landowner for evidence of charges made prior to 2000, but this had not been provided.  The report also questioned the validity of the landowner’s arguments regarding the purpose for which the track had been established, and outlined options open to the LAF. 

Prior to discussion, Mr Coombs expressed strongly that in his view, the proceedings constituted a consultation and that clear guidance from the Scottish Government on how a consultation should be conducted had not been followed.  In response, the Access Officer and the Chair explained that the purpose of the hearing was to allow the LAF to gain an understanding of the issues and see what could be done to resolve them; as part of this Mr Coombs and the complainants had been invited to give their side of the story.  This did not amount to a formal consultation.  Should an amicable solution not be found, the LAF’s role was to recommend to the Highland Council the steps that it felt should be taken to ensure that access legislation was complied with.  In response to a question raised by Mr Coombs, the meeting was advised that whilst the hearings process being used had been drawn up for use in Highland Council Planning hearings, it was also used in other hearings as it provided a practical and fair way of conducting a hearing.

Landowner’s case

On being asked to present his case, Mr Coombs commented that had he been involved in the discussions in 2006, the matter could have been dealt with at that time; however it was important to go forward from today.  His two main concerns were:
(a) whether Section 6 of the Act applied (i.e. whether he was within his rights to lock the gate and charge for access).  In this regard he asserted that he had a statement from 1993, and that he could and would provide evidence, in due course, that charging had been in place prior to the Act coming into force; he had not provided this information up to now as he was concerned that the Council, which he saw as hostile, would trouble people (former key holders etc.); and
(b) the lack of information provided to him as to the identity of the complainants – information he had requested under Freedom of Information (FoI) legislation had been redacted, removing the identities of those who had complained.  He was sceptical as to whether the complainants existed.

Access Officer’s case

The Access Officer explained that the Council was asking for the LAF’s recommendations as to how the matter should be taken forward.  He drew attention to the Council’s legal responsibility to uphold Access Rights and summarised the arguments as to whether Access Rights applied.  With regard to the exemption claimed under S.6(1)(f) of the Act, he stated that it was reasonable for the Council to ask the landowner for evidence of charging; and with regard to the exemption claimed under S.6(1)(e), Mr Coombs’ assertion that the track had been established before 1955 to allow owners and guests to access the beach did not constitute proof of its purpose.  The Access Officer emphasised the need for the public to comply with the law when taking access and in this regard he read out the Scottish Outdoor Access code relating to general use and equestrian use.  He also drew attention to the cattle grazing the land adjacent to the track, and Mr Coombs’ having declined the Forestry Commission’s offer of fencing.  The LAF should consider whether the landowner was managing his land responsibly in relation to access rights.

Questions raised by LAF Members

In response to questions raised, members were advised that:
• the reasons for the delay in  resolving the matter included: the time taken in dealing with Mr Coombs’ FoI requests and subsequent appeal; ongoing correspondence between Mr Coombs and the Access Officer; and pressure of work
• if Mr Coombs provided evidence of having charged for use of the track, this information would be assessed by the Council’s legal staff
• Mr Coombs had previously rented out stabling and tack room facilities, as well as permitting access to the woodland
• the FoI Commissioner had instructed that complainants’ names be redacted from the information provided to Mr Coombs – this information therefore could not be given to him.

Landowner’s response to points raised

Mr Coombs responded to points raised in discussion, including that:
• the only reason the track would have been made was for the family to access the beach – it had been in place since the turn of the century; if a forestry operator took access over a golf course for the purpose of removing trees, this did not alter that the primary use of the track was recreational
• he had requested the Council’s legal staff to provide him with the Council’s legal opinion – this had not been given; with regard to wheelchair access, he had only received the Access Officer’s opinion as to how the law – which was complex – should be interpreted; SNH had said there was no requirement to provide wheelchair access; in his view, anyone using a wheelchair would use the Kingsteps access – he did not believe any wheelchair users had requested to use the Lochloy access
• the complainants had been invited to attend but had not done so; he therefore doubted whether the complaints were genuine, particularly as the Council would not let him know who the complainants were; it was his opinion that the Council had provided false information to the FoI Commissioner, and he would be raising this matter with the Police
• he would not accept a self-closing gate from the public purse in principle; anyone offering this, or fencing for the track for example, should be aware that assets installed on his land became his property and he was at liberty to move them; he would refuse any gate provided by the Council which allowed wheelchair access if it did not prevent equine access
• providing a gate would lead to health and safety issues, with increased parking in the bell-mouth causing obstruction; there was better car parking at Kingsteps and Cloddy Moss; the Forestry Commission charged for car parking.

The Chair thanked the invited participants for their time and the participants left the meeting.

Discussion

In discussion, comments made by members included:
• it was important to try to find a consensual way forward, but ultimately the access laws had to be complied with
• horse riders had the right to use the track, unless charging had been in place prior to the Act; if evidence of such charging was provided, this would be accepted; however, no evidence had been provided to date; evidence needed to be in a verifiable form, such as receipts/invoices/accounts – a letter would be difficult to verify
• although provision of a “recreational facility” might be expected to include provision of, for example, jumps for horses, it could be argued that access to the woodland met this criteria
• the LAF would accept SNH’s views with regard to the requirement to allow wheelchair access
• there was local knowledge that the track was formerly the access to fishermen’s bothies; and that at one time it had been fenced along both sides; it was understood that Mr Coombs had removed one side of the fencing, allowing cattle to roam; his reasons for doing this were not known
• it was unknown whether the provision of an accessible gate would lead to  increased use of the car park and additional nuisance
• no complaints had been received by the local Community Council
• possible ways forward could include: complainers resolving the matter directly with Mr Coombs; and finding out from Mr Coombs what would be acceptable to him.

The Access Officer read out the section of the Act relating to levying charges, and reiterated that the Council had to be satisfied that charging was in place prior to 2000.  He also informed members that:

• should an amicable solution not be reached, legal opinion on the evidence from Mr Coombs and complaints from objectors would be sought - if it appeared that Mr Coombs was in breach of the Act, the matter would be brought to the Planning, Development and Infrastructure Committee, seeking approval to take the matter further
• Mr Coombs had been offered a gate that would prevent access by quad bikes, but had declined this
• it was foreseeable that providing a gate would lead to an increase in numbers of riders
• parking issues were not covered by the Act, but were taken into consideration as part of responsible promotion of paths.  The Council had no budget for making or maintaining car parks
• there was a history of the Forestry Commission allowing approved scavengers to use the track; Mr Coombs had complained that they had left the main gate open
• one complainer had contacted his MSP
• an informal approach to the British Horse Society for information on charges levied had elicited a poor response; a more proactive approach might be more effective
• the Access Officer would offer help to Mr Coombs for making the stile safer, given its slipperiness that morning.

Having given due consideration to the hearing and to points made in discussion, the  Forum AGREED:

i. to recommend to Highland Council that the ownership of the land be established, this could be via the Register of Sasines, asking the original owner to confirm that the land had been sold to Mr Coombs, and/or asking Mr Coombs for proof;
ii. to recommend to the Council that evidence of charging be obtained;
iii. that the Access Officer find out from Mr Coombs what kind of gate, if any, would be acceptable to him. 

2. Welcome and Introductions

The Chair welcomed John McGlade to his first meeting of the LAF. Iain Pocock was also new; he had attended the recent training at CNPA LOAF.

3. Apologies:

Liz Walsh, Sandra Bardwell.

Given Dr Bardwell’s continued absence, the LAF agreed that an alternative representative, ideally from the Drumnadrochit area, be sought.

4. Minutes of Local Access Forum – 22 September 2014

Having been duly proposed and seconded, the minutes of meeting of 22 September 2014 were APPROVED.

Matters arising and update on progress

• Kingsteps – the next step was for this to be considered by the Court of Session; it was understood that the Sheriffs were deciding whether this should go ahead
• Ardersier – Fort George – signposts were being erected that day, funded by LEADER
• Pitmain Lodge, Kingussie – still with the lawyers
• Balintombuie, Dalchriechart – the sign had been amended to “Private Property” – SE still trying to resolve the issue
• Moy Estate – padlocked gates: finding a solution which allowed access but protected the sheep from theft was proving difficult – a funnel gate was a possibility; SE working on resolving the issue
• Smithton – bollards on cycle route; action allocated to SE
• Inverfarigaig – the Chair had spoken to local land managers/owners and it was hoped signage would be improved
• Guisachan – a walking event requested by Strathglass Heritage had been refused.  The RSPB had concerns that birds would be affected.  SE to advise Strathglass Heritage to seek a consultation with the landowners (rather than make a request), and to look at SNH advice regarding holding events.  Permission was required for larger events, or where a group required control posts or similar (e.g. orienteering events), but a small event should be possible if the landowner was consulted with
• Great Glen Way, Abriachan to Drumnadrochit  - the Chair had brought the issue to the attention of Mrs M Davidson, one of the Councillors for Ward 13.  A solution might be to erect a different kind of gate to allow equine access at Achpopuli – the Great Glen Way was a long distance path; the A82 was very dangerous.  A horse-friendly route was now in place round most of Loch Ness.
• Great Glen Way, Scorguie – SE had measured the height of the underpass - it would be possible to move the chicanes; 3m width was needed for horses.
• Coastal Pathways – SE to get in touch with Brodies (Solicitors) and Alexander Brodie (landowner), about way-marking a path between Forres and Nairn.  The Council had aspirations for a path between Inverness and Nairn; the Community also sought a path running from Moray to Nairn.  It was understood that signs could be erected pointing to land owned by the Brodie family, but not placed on the land itself.  SNH and the RSPB had indicated that they would prefer the path to go via the woods than along the coast.
• Torbreck  - SE to approach the owner’s agents to see if a solution could be found to an issue with cars parking in front of the access which horse riders used.
• Member training and development – visit to Cairngorm National Park Authority Local Outdoor Access Forum  - this had been attended by the Chair, Liz Walsh, Iain Pocock, Hamish Wood and SE; the visit had been worthwhile and interesting; of note was that no access issues remained outstanding longer than 6 months.
• Stratherrick and Foyers – there had been 17 respondents; SE was writing a report on access initiatives in the area – agreed members to have sight of this for information.

Arising from discussion, it was reported that the informal camping area at Loch Duntelchaig had been fenced off by the landowners.  This was an area that had been open for 50 years but in recent times had become subject to fly tipping and litter from camping.  Concerns were raised that the fencing might prevent access for those walking round the Loch.  The Chair offered to speak to the landowners, SE to investigate also.  Walkers should still be able to take access.

5. Access Update – Inverness and Nairn

5.1

Cradlehall – an approach had been received with regard to establishing a path through a private wood at Cradlehall – it was hoped this could be achieved.

5.2

Fort Augustus – Battery Rock it was hoped to work with the community to improve this path.

5.3

Fort Augustus – Footpath to Glendoe – a planning application had now been lodged by Scottish and Southern Energy (a condition of their planning permission was to provide this path) as part of the creation of the South Loch Ness trail. The Chair drew attention to the desirability of the path being away from the road, and for the surface to be suitable for horses’ feet (i.e. not tarmac). SE advised that the application ran close to the road between Fort Augustus and Loch Tarff, and that a sealed surface would be easier to maintain. The path from Ardachy to Glendoe would be away from the road.

5.4 

Bhlàraidh and Stonelairg Windfarms – the existing access paths were to be kept open while the new turbines were installed (previously the developers had been allowed to close the paths/access tracks).

6. AOB

None.

7. Date of next meeting

March/April 2015 – details to be confirmed.

AGREED that members let SE know of any site visits that might be useful – this to inform where the meeting would be held.

The meeting ended at 5.10 p.m.