Highland landowner faces legal challenge over right to roam
A legal battle has broken out over attempts by a Highland landowner to ban hill-walkers from a path in a major test case over Scotland’s right-to-roam legislation.
Highland council and the Ramblers Association are challenging an attempt by Donald Houston, a businessman who owns a large area of the Ardnamurchan peninsula on the west coast of Scotland, to shut off a significant and scenic access route.
He has gone to court to ask a sheriff to exempt part of the estate from Scotland’s wide-ranging countryside access legislation – a move Ramblers Scotland believes could encourage other landowners to erode right-to-roam rights on other private estates.
Houston has been accused of using obstructive tactics to prevent local people from using the route – an allegation he denies – by padlocking gates, removing a stile and placing no-entry signs on a gate across a timber yard he recently built beside the path.
The dispute escalated after he allegedly aggressively confronted David and Jenny Kime, keen hill-walkers who live in retirement in the nearby township of Glenborrodale, after they climbed a locked gate blocking the path in November 2019.
David Kime said the couple had used the route without any conflict more than 100 times over the last 40 years, logging their walks in a diary, until their confrontation with Houston, when he threatened them with the police.
The couple were later interviewed under caution for aggravated trespass by Police Scotland under the Criminal Justice and Public Order Act 1994. Nearly 18 months later, the procurator fiscal said no action would be taken, although the charges would remain “on file”.
Brendan Paddy, the director of Ramblers Scotland, said that as far as the charity was aware it was the first time the 1994 legislation had been used against hill-walkers anywhere in the UK.
“It’s unprecedented,” Paddy said. “This [act] was rustled up to address a moral panic about outdoor raves and hunt sabs and we were promised at the time, explicitly, by government ministers, the legislation would never be used against walkers. We were genuinely surprised when this was even suggested.”
Kime, 80, said the police interview had been distressing. “We couldn’t work out what we were accused of doing, apart from going on a walk we’d done a hundred times before, with no one else in sight. Jenny was very upset about the confrontation, and she was in tears during the interview,” he said.
The clash with Houston is the latest in a series of disputes with private landowners since the Land Reform (Scotland) Act came into force in 2003, giving the public wide-ranging, legally enforceable rights of access to the countryside.
The act states that access can only be restricted or denied in specific circumstances, such as to protect crops, personal privacy and security, or for limited periods during shooting season on grouse moors or deer culls.
Houston argues that vehicle and machinery operations at the timber yard make it too dangerous to allow public access, and that under health and safety legislation he has to either prevent public access or close down the business.
Highland council and the Ramblers are opposing Houston’s court application and, in a parallel move, the council is seeking a separate legal ruling that the route is a right of way under the Land Reform (Scotland) Act. It also plans to include it in its core paths strategy.
A spokesman for Houston said the Kimes were confusing a different right of way with Houston’s access road, which had been built for the timber yard. It had been a farmyard for 30 years and always had a gate for safety reasons.
Houston was confident he would win his case and suggested the Kimes wanted to get access to the new road because “it is a much better track than any others in the area”, his spokesman said. “They prefer to be able to walk in carpet slippers and dancing shoes rather than wear boots. They are an elderly couple so this is, in part, understandable.
“If they did access [it] through the timber shed area in the years before that this does not mean that there is any absolute right to do so and they would have had to climb over walls, gates or fences to do so on many occasions.”
Paddy said: “We’re very concerned that a decision in this case could significantly broaden the areas that are excluded from access rights and that would have an extremely detrimental effect. Because even if the areas concerned are small, they could block important access routes.”