Highland estate owner breaching public access rights, say locals

The former leader of Highland Council has accused a wealthy landowner of breaching outdoor access legislation by locking gates on walking routes, which it is claimed have been used for generations.

Dr Michael Foxley and fellow residents of the peninsula in the west Highlands argue that by doing so, Donald Houston and his estate are breaching the Land Reform (Scotland) Act 2003 and the Scottish Outdoor Access Code.

According to Scottish Land and Estates, Houston bought the 30,000 acre Ardnamurchan Estate, which makes up much of the peninsula, in 1996. The wealthy landowner also owns the Adelphi Distillery, built with the help of a £1.7m Scottish Government grant and is reportedly the second largest donor to the pro-union Better Together campaign.

But now a bitter row has broken out over access to the land. A report compiled by Ardnamurchan locals, including Foxley, says 17 locked gates were counted on paths on estate land in January 2020. They say the situation has not improved since.

They claim locked gates on paths long-featured on local maps, Google Maps and walking guides have breached council planning and commercial forestry grant conditions, setting ”a dangerous precedent” for Scottish land rights.

Blocking access presents a “direct challenge to the democratic authority of the Scottish Parliament”, and risks making laws “unenforceable”, they argue. Houston reported a retired couple for aggravated trespass, which walking charity Ramblers Scotland called “unprecedented” and “worrying”. 

It is claimed that the hill tracks, which link the community of Glenborrodale on the peninsula’s southside to 11 destinations in the north, have been regularly used by the public for decades.

Foxley, a former Ardnamurchan Liberal Democrat councillor of 26 years who still sits on the Lochaber Access Forum, which he helped set up, said one well-established local walking route is now obstructed by locked deer gates

“It’s in walk leaflets, it’s on old maps” said Foxley. “I thought these days were gone, long long gone.”

Aggravated trespass

Local resident Dr David Kime told The Ferret Houston reported him and his wife for aggravated trespass in 2019 after walking a path they had enjoyed without issue for over 40 years. He said Houston confronted the retired couple after they passed through a yard on the route containing biomass woodchip sheds, which the estate built in recent years to heat its properties.

Police Scotland confirmed a report was submitted to the Procurator Fiscal, who decided no action should be taken. A spokesperson added: “This is now the subject of an appeal, and therefore it would be inappropriate for us to comment while the case is still live.”

Kime said the police had not informed him that Houston had appealed the case and only became aware when informed by The Ferret.

Ramblers Scotland stressed the public “have a right of responsible access at Glenborrodale” under the land reform act, “just as they do on other private estates in Scotland.”

“We are particularly concerned that two experienced members of Ramblers Scotland were challenged while walking peacefully near their Glenborrodale home on the beautiful Ardnamurchan peninsula,” said director, Brendan Paddy.

“The subsequent decision by Police Scotland to refer them to the Procurator Fiscal for Aggravated Trespass is unprecedented in our experience – and worrying.”

Former Ramblers director Dave Morris claimed Scotland’s land rights “are under continuous threat”. The police were “completely out of line, both in reporting the Kimes to the Procurator Fiscal and in their advice to the local community council” to no longer walk past the woodchip sheds, he argued.

Morris called for the chief constable to make clear officers were “not compliant” with the Criminal Justice and Public Order Act 1994 through their “misuse” of aggravated trespass provision.

Outdoor organisations should lobby the Scottish Parliament to remove aggravated trespass from the statute books if the police take no action, he urged. “The Scottish Government needs to sort out this shambles immediately before chaos arrives with the end of the lockdown and hundreds more visitors arrive in Ardnamurchan.”

The Scottish Rights of Way and Access Society (ScotWays) echoed his points and had never come across a case of aggravated trespass in Scotland. 

“It’s a civil matter,” said Richard Barron, ScotWays’ chief operating officer. “That’s where access rights sit. There’s no locus for police action to determine where access rights apply.

“There’s a specific clause in the [1994 act] that says if you are exercising your access rights responsibly you can’t be causing aggravated trespass. The owner would have to demonstrate that they were doing something to cause the aggravation.

“I think it’s a complete red herring. I think [Houston] has just thought ‘I don’t like this’, I’m going for aggravated trespass.”

In an email dated 22 February 2019, passed to The Ferret, Houston threatened the council’s then-access officer, Donald Kennedy, with legal action. He challenged Kennedy’s “continued false assertion that there is a Public Right of Way through a working farm yard in Glenborrodale – which, as I pointed out and as is very clear in law, by definition, cannot to [sic] be a public right of way”.

The estate would proceed with legal action “within 14 days if we do not receive a formal written acceptance and agreement of our stated position.”

In a 26 February 2019 email to the community council, Kennedy said the route was covered by “a right of responsible public access”. He believed “all reasonable access routes have to pass through the immediate vicinity of the [woodchip] sheds” but until access issues were resolved could not “advocate members of the public taking access through the area between the sheds for reasons of health and safety.”

The council later proposed a core path which bypasses the sheds. Core paths “facilitate, promote and manage the exercise of access rights” under the land reform act, according to the Scottish Government. The estate objected to the proposals, which went to the council’s local access committee and some two years on, is due for a Scottish Government inquiry.

“I don’t understand the council’s attitude to this,” said Kime. “There shouldn’t be a need for a core path. If the access code was followed, then there should be a right of way through there. The council, the government, no one is raising a prosecution for blocking the path.

“We, and others, have been denied access to a vast area of countryside to the north for over two years.”

Locals are calling for the historic route to be reopened and the gate locks removed. They called the locks “illegal and dangerous”, forcing people to either climb them or face a four-hour walk back.

The estate’s objection to the path proposals claimed the woodchip site had been “a working yard” for “over 30 years.” But Houston said the site was unused when he applied for planning permission to erect a “general agricultural shed” in 2013. He also stated it would not impact on public access.

The estate opposes the core path for health and safety reasons, mainly due to heavy vehicle use by the sheds. Locals claim the estate did not put up any warning signs until the council referred the core path proposal to the Scottish Government. 

The estate also warned of an impact “on the local community and economy”. It argues the proposal is “unlawful as being contrary to the principles and provisions” of the land reform act and “proceeds on a misunderstanding of rights of way and the historical use of paths in the area”.

It also deemed the core path “unnecessary”, said alternative routes were available, and claimed it restricts access to just 27 of its 27,318 acres. Kime said the estate had proposed an alternative path through the nearby RSPB reserve, but claimed the route is on rough terrain and leads to a small area confined by locked gates.

The council told The Ferret it had “received reports of several public access issues in Ardnamurchan which will be investigated.” 

“One concerns the route linking Glenborrodale, Acharacle and Arivegaig. The council has proposed this become a core path; a proposal that Ardnamurchan Estates and others have objected to”, said spokesman.

“Once the council’s proposals are formally submitted with outstanding objections to Scottish ministers that issue and others are likely to be addressed by the planning and environmental appeals division of the Scottish Government by a local inquiry.”

Locals claimed the estate has locked gates preventing access to publicly-funded commercial woodland, which could breach the grant conditions.

Scottish Forestry’s application guide for woodland creation grants states applicants “must make provision for public access, where it has been customary or where there is local interest, and management of public access to woodland must be in line with the Scottish Outdoor Access Code.”

In a proposal for the creation of new woodland, the estate promised to “avoid fencing across main access routes” and “provide appropriate means of access through fences.” It added: “There is an open access policy over the whole estate.”

Morris said he encountered a locked gate on a route passing through such commercial forestry on estate land on 27 May. He said this breached the land reform act and called for authorities to remove any locks. “If the landowner does not comply, Scottish Forestry should be seeking a reimbursement of all or part of the grant aid [Houston] received for his forestry schemes,” he argued.

Scottish Forestry confirmed it funded woodland creation and associated works at the estate. “This has included deer fencing but we have ensured that the main access points have gates in place to allow the public to continue on their journey through these fences,” said a spokesman.

“We are satisfied that on the works we have funded, provision has been made for continued public access on the main access points.”

Ardnamurchan Estate did not respond to our requests to comment.

This story was published in tandem with the Sunday National.

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