D G CPP-12 PRINT - Dumfries and Gallowayegenda.dumgal.gov.uk/aksdumgal/images/att27515.pdfo...

4 The Courtyard, Callendar Business Park, Falkirk, FK1 1XR DX 557005 Falkirk www.scotland.gov.uk/Topics/Planning/Appeals

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Directorate for Planning and Environmental Appeals

Report to the Scottish Ministers abcdefghijklmnopqrstu

LAND REFORM (SCOTLAND)ACT 2003

Recommendation That the Access Authority is directed to adopt the plan as indicated in Appendix 1 of this report.

Report by James McCulloch, a reporter appointed by the Scottish Ministers

• Case reference: CPP-12 • Draft Core Paths Plan for Dumfries and Galloway Council • Number of objections and representations: 207 • Main issues raised in objections:

o Need for additions to the proposed paths network o Disruption to livestock farming o Effect on the safety of access-takers where routes cross livestock grazing o Effects on residential privacy o Existence of better alternatives, with fewer adverse effects o Lack of demand, absence of need o Interference with land management in farming, forestry, tourism and game

shooting o Increased maintenance liability o Reduction in agricultural support payments o Potential for irresponsible use and anti-social behaviour o Potential for and consequences of risk-taking in coastal locations o Restriction of development potential o Threat to bio-security o Safety at a railway level crossing

Date of this report and recommendation: 29 March 2012

Directorate for Planning& EnvironmentalAppeals 4 The Courtyard Callendar Business Park Callendar Road Falkirk FK1 1XR Reference: CPP-12

The Scottish Ministers Edinburgh Ministers 1. I have, in accordance with my Minute of Appointment dated 2nd September 2011,conducted as instructed an inquiry under section 18(4) of the Land Reform (Scotland) Act 2003 (the Act) into whether the draft Core Paths Plan prepared by Dumfries and Galloway Council will, if adopted, fulfil the requirement of section 17(1) of the Act to provide a system of paths “sufficient for the purpose of giving the public reasonableaccess throughout their area”. That is the test that is applied in this report together, inter alia, with the mattersset out in section 17(3) of the Act in considering the submissions and counter submissions made by parties. 2. In this report:

• “the Act” is the Land Reform (Scotland) Act 2003; • “the Access Authority” is,within the meaning of the Act, Dumfries and

Galloway Council; • “the Access Code” is “The Scottish Outdoor Access Code”, approved by the

Scottish Parliament on 1 July 2004; • “the Code” is the “Code of Practice for Local Inquiries into Core Paths Plans

and Other Inquiries under Part 1 of the Land Reform (Scotland) Act 2003”; • “the Draft Plan” is “Dumfries and Galloway’s Final Draft Core Paths Plan”; • “DPEA” is the Directorate for Planning and Environmental Appeals within the

Scottish Government; • “ECHR” is the European Convention on Human Rights; • “FCS” is the Forestry Commission Scotland; • “the Government guidance” is “Guidance for LocalAuthorities and National

Park Authorities, 2005” prepared under Part 1 of the Land Reform (Scotland) Act 2003;

• “LMC” is the Scottish Government’s Land Management Contract Menu Scheme introduced in 2005 under EC Error! Hyperlink reference not valid. as

Preamble Dumfries and Galloway’s Core Paths Plan

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amended by Regulation 1783/2003. Grant was paid for a 5 year term, the scheme closed to new entrants in 2007;

• “NFUS” is the National Farmers’ Union Scotland; • “NNR” is a National Nature Reserve; • the “Outdoor Access Forum” have the functionsinter alia under section 25(2)

of the Act of advising the local authority and any other person or body about access rights, rights of way and the drawing up of a core path plan;

• “OS” refers to the Ordnance Survey mapping base; • “Scotways”is the Scottish Rights of Way & Access Society; • “SNH” is Scottish Natural Heritage; and • “SRDP” is the Scotland Rural Development Programme 2007 – 2013.

Preparation of the Draft Plan 3. Dumfries and Galloway Council initiated their core paths planning project in 2006. Consultation events were held with every community council. Residents were asked to annotate maps with the routes they used, or wished to use, for non-motorised access includingwalking, cycling, horse riding and water/wind sports. 4. The council sifted this information and launched a period of informal consultation from 23rd February to 23rd March 2009. Access Officers were available to meet the public in 9 local centres during March 2009. Subsequently more than 69 meetings were held with land managers; 21 special interest meetings took place; and there were an additional 18 meetings with the general public.Every landowner with an Integrated Administration and Control System1 (IACS) number received a letterdetailing the project and every council tax payer was sent a leaflet. There was also extensive publicity in the local media; documentation relating to theDraft Plan was posted on the council website at: http://www.dumgal.gov.uk/index.aspx?articleid=3812 5. The council’s assessment process was based on an initialconsultation that identified an extensive network of paths, other routes and open countryside used for access. The fundamental criteria for further consideration were the support of more than 33% of the public involved in the initialconsultation and that the route was primarily off-road. Outside residential areas paths should have parking, a lay-by or public transport access along the route. Routes identified in the initial selection were then considered to ensure their fulfilment of one of 15 identified functions:

A. Safe route to school B. Link between residential areas C. Link between residential areas and services D. Coastal path E. FCS recreational route F. Link between residential areas and places of interest G. Encourages green transport to work H. Route to place of interest I. Long Distance Route

1 The IACS number is a unique identifier used by the Scottish Government Rural Payments and Inspection Directorate for, inter alia, the payment of grant and subsidy.


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J. Recorded Right of Way K. Used as a health walk L. Provides access to public transport M. Circular route N. Supportseconomicdevelopment O. Improves quality of life in community regeneration areas

6. The council’s assessment is stated to have been designed to avoid obvious hazards. These included active steadings; prohibitive obstacles like a major road or a gorge requiring an expensive solution; land-management impediments, such as a route tending to drive cattle into a corner; the potential for damage to a fragile environment; and duplication of an existing route. Where possible, routes wererelocated to avoidobstacles. 7. An element of professional judgement was used by the council to decide whether some routes should be included, particularly where it was judged unlikely that improvements could be achieved within the 2 year period following adoption of the plan. The council was assisted in the production of the Draft Plan by the Dumfries and Galloway Outdoor Access Forum and by a range of volunteers. 8. The council published the Draft Plan for comment during a 12 week statutory consultation period ending on 2 October 2009. The council received more than 500 representations. Where these contained an objection, the council tried to resolve the issue and that has led to some of the amendments and alterations now proposed to the Draft Plan and which are considered in this report. 9. The council investigated all objections and wrote to objectors explaining the outcome, including any changes proposed. Objectors were asked to indicate whether they wished to withdraw their objection or to have it maintained. Where no answer was received a further letter was sent by recorded delivery asking again. The council indicated that if no answer was received within 21 days the objection would be treated as withdrawn. 10. Some of the paths proposed will require work to make them fit for use. This may include signage, removal of barriers or provision of accessible boundary crossings, upgrading of surfaces or cutting backvegetation. The council’s policy is that such works should be achievable within 2 years of adoption. In total, 2,005 km are proposed as core paths. There are, in addition, some 100 km of aspirational routes where the council is working towards achieving a fit for purpose solution within 8 years so as to be included in the first revision of the Plan. Aspirational routes shown on the map base are indicative and thus not definitive. Dumfries and GallowayCouncil’s submissions to Scottish Ministers 11. The Draft Plan was submitted late in 2010 and the instruction to DPEA to consider the objections followed from ScottishMinistersearly in 2011. An initial assessment of the unwithdrawn objections was made with a view to writing to parties to start the inquiry. This proved impossible becausethere weresubstantivedifferencesbetween the material submitted and more up-to-date information published on the council’s website.


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12. These differences were put to the council at a meeting in March, when the administrativeimplications of the scale of amendment and correction that the council proposed were also explained. This was significantbecausethe 64 amendments and 107 correctionsthat the council separately proposed to the Draft Plan would be subject to the same level of scrutiny by Scottish Ministers as applied to the unwithdrawn objections. It was indicated to the council that it would not be possible to recommend to Ministers that the proposed modifications and corrections be made without assurance that all interested parties were aware of the change that the council sought to make and had been given the opportunity to make their position known. Consideration would be likely to involve an examination of relevant objections and detailed information about the negotiationsentered into by the council, any further consultation undertaken and the views of other potentially affected parties. 13. This mattered because the scale of the task in considering unwithdrawn objections relating to 24 (later reduced to 22) issueswas dwarfed by the 171 other changes that the council proposed. The council was also invited to provide greater clarity concerningthe identity of objectors and the subject matter of their unwithdrawn objections because some of the submitted Comment Form Histories used the expression “various” rather than referring to the identity of specific objectors. This was addressed in the council’s re-submission titled Document C. 14. The council withdrew Document 2, the published listing of objectors,and replaced this with an updated spread-sheet. New material was submitted in April 2011. This included numerous revised corrections and a series of late objections made by FCS. The submission and re-submission relating to amendments and corrections respectively were withdrawn in June, followed by the withdrawal in July of the late objections made by FCS. 15. Following consideration and legal advice the council decided to submit to Scottish Ministers only those changes to the Draft Plan that required a new path to be introduced into the plan; and to reserve those changes that required the deletion or diversion of a core path to a time following the adoption of the plan, when the adopted plan may be reviewed and changed. A further re-submission reducedsignificantly the number of amendments and corrections to be considered. It is the council’s position that the consultation undertaken concerning all additions to the plan has been both appropriate and sufficient to canvas the views of affected parties, thus avoiding the possibility of prejudice. 16. A further submission was made on 18 August 2011 detailing correspondence said to relate to 10 proposed amendments that would involve an addition to the Draft Plan. Specifically:

• Borgue • Bridge of Dee • Cairnsmore of Carsphairn • Demperston to Laggan • Galdenoch to Larbrax • Killantringan to Portslogan


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• Kirkbride to Hillhead • Kirkconnel Flow • Kirkpatrick Durham • Springholm to Milton Loch

17. However, in the case of Killantringan to Portslogan the submission relates not to an unopposed amendment, but to a site involving an unwithdrawn objection where the council’s first submission to Scottish Ministers (proposed amendment to draft Core Paths Plan Map dated 27 September 2010)was replaced by another amendment dated 11 August 2011. In addition, the council has renumbered core paths with the result that submissionsconcerning this proposed amendment do not refer to the numbering used in the DraftPlan. 18. The Strategic Environmental Assessment of the Draft Plan was submitted to Scottish Ministers in September 2011. Organisation of the inquiry and this report 19. In August 2011 DPEA made the decision to proceed with the inquiry into the unwithdrawn objections notwithstanding the uncertainties that remained. This was approached using the material from the council’s original submission that had not been withdrawn, specifically Documents 5-13, read with the council’s re-submission letter of 28 April; Document C, the Addenda of 2011; the further submission in August 2011; the SEA report; and other material submitted during December 2011. 20. However, because it had remained impossible to develop a fully coherent and consistent inventory of objections and objectors DPEA exceptionally decided to send to the council extracts from the report to Ministers that detailed, for each of the objection issues, the parties involved and the initial summary of the subject matter of their objection based on the council’s submissions. The extracts sent did not include any assessment of the merits of the objection. The intention was to ensure that no objector was missed from the inquiry, thus avoiding the possibility of justified complaint. 21. In a number of instances the material submitted by the council accompanying the respective Comment Form History is clearly incomplete. Requests have been made for that missing information so as to be able to reach a proper understanding.Not all have been answered. 22. In the report that follows objections and representations are grouped according to their geographical location in a series of Chapters covering Wigtownshire; Stewartry; Nithsdale; and Annandale and Eskdale. The objections relating to 2 issues were withdrawn following the submission of the Draft Plan to Scottish Ministers and a further objection was added relating to a matter already under consideration. The Chapters contain my summary of the submissions made, my appraisal and my recommendation for each of the issues that remain outstanding. In each case the path orlink is identified by the unique reference number that the council devised except where these involve new paths suggested by objectors.


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23. In considering parties’ submissions I have had regard to their address so as to gain a better understanding of their concerns. However, those addresses are not contained in this report and are no longer retained by me so as to ensure that Data Protection principles are not compromised. 24. As envisaged in the Code,objections were considered by means of written submissions and site visits. Most were unaccompanied, but several accompanied inspections were made and these are detailed in Appendix 2. My site visits were made between November 2011 and March 2012 and I have applied my experience to the effects of the weather during that period. 25. The council prepared, for each objection issue, a “Comment Form History” that detailed the issue, the parties and their addresses, the history of contact between the council and those with an interest and the council’s assessment of their submissions. In each case that Comment Form History was sent to the individual objector and their response invited in order to assist Scottish Ministers’ consideration of the unwithdrawn objections. Many of the objectors provided further comments which have been taken into account in this report and in one instance the council provided a rebuttal statement. Some objectors questioned in robust terms the council’s summary and the assessment of their submissions in the relevant Comment Form History. For these reasons reliance could not be placed on the council summary alone. This report is based on the original material submitted by objectors as well as the council’s submissions. It is, for that reason,significantly longer than need otherwise have been the case. 26. Several parties have suggested in objecting to a proposal contained in the Draft Plan that an alternative should instead be considered, often on land in differentownership. However, it is only the council’s proposals contained in the DraftPlan or proposed as modifications of it following consultation that are before the Scottish Ministers for decision. The alternatives that have been suggested have some bearing on assessing the merits of the council’s proposals. However, the only scope in reaching a decision on a plan proposal to substitute an alternativeis where it is clearthat the alternativehas been subject to the same level of consultation by the council as the Draft Plan proposals. That must be the case because parties with an interest in those routes may be unaware of the re-routeing proposed by objectors. Their interests could thus be prejudiced by the imposition of a substitute without the consultationneeded to allow proper consideration of their views. 27. In a number of instances the council’s comment forms contain representations that were not treated by them as formal objections. In addition, some parties who had not made objectionsto the council have, on hearing of this inquiry, commented to Scottish Ministers concerning the subject matter of objectionsmade by others. Both types of submission have been treated as third party representations in this report.As indicated earlier, the intention was to avoid the possibility of justified complaint on the grounds that material that was contained in the submissions had not been considered.These have been handled as outlined in the Code; each may be identified by the absence of an SCR number (which is the council’s numbering system used to track representations following the consultation) at the head of the narrative concerning each issue in the report that follows.


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28. In each case my conclusions are based on consideration of relevant matters raised by parties in theirsubmissions, together with the observations made at my site inspections. Where not specifically mentioned, I have found that other submissions concerning the merits, orlack of merit, of a particular proposal are not such as to set aside important conclusions of principle. My findings are based on the probability that the outcome will be as specified. 29. A claim for the award of expenses against Dumfries and Galloway Council on the grounds of unreasonable behaviour was made on behalf of Mr Emery, the owner of the Barscobe Estate. This is the subject of a separate report. Yours faithfully

James McCulloch Reporter


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DOCUMENTS FOR DUMFRIES AND GALLOWAY COUNCIL Document 1 Dumfries and Galloway’s Final Draft Core Paths Plan Withdrawn(Summary of responses) Withdrawn(Amendments proposed in response to the public consultation) Withdrawn(Corrections identified by Dumfries and Galloway Council

Officers) Document 5 Wigtownshire, as updated by Document 13

• Logan Fish Pond • Port Logan Coastal Path • Coastal Path • Logan Mains to Port Gill

Document 6 Wigtownshire, as updated by Document C and Document 13 • Drochduil School • Killantringan to Portslogan • Balloch Wood • Broadstone • Lovers’ Lane • Boreland Plantation

Document 7 Stewartry, as updated by Document C and Document 13 • The Stell to Back Newton near Kirkcudbright; • Milton, near Springholm

Document 8 Stewartry, as updated by Document C • Kenick Burn, near Laurieston • Livingstone Hill, near Glenlochar • – withdrawn by the sole objector whilst before Scottish Ministers

Document 9 Stewartry, as updated by Document C and Document 13 • Cornharrow, east of Carsphairn • Barscobe

Document 10 Nithsdale • Cairn Valley

Document 11 Nithsdale • Closeburn • – withdrawn by the sole objector whilst before Scottish Ministers • Irongray

Document 12 Annandale & Eskdale • Kirkwood Estate, Dalton • Kirkhill, Dalton • Additional routes

Document 13 All Districts • Logan Fish Pond • Killantringan to Ports Logan • Lovers’ Lane • Hollybush Cottage to Lovers’ Lane • Barscobe • Cornharrow • Milton

Deleted: Document 2

Deleted: Document 3

Deleted: Document 4

Deleted: Carsphairn Forest

Deleted: Georgetown


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Each of the following is to be read with the council’s re-submission letter of 28 April 2011: Document A Index of responses, replacing the submitted Document 2 Document B Revised Objection Comment Form Histories Document C The Addenda of 2011 Withdrawn (Revised Corrections identified by Dumfries and

GallowayCouncil Officers) Withdrawn (Late objections fromFCS) Further council submissions: No reference Revised proposed amendments and corrections to Dumfries and

Galloway Council Draft Core Paths Plan, Submitted June 2011

Amendments requesting an addition to the Draft Plan agreed with the objector who withdrew their objection on that basis:

• Borgue • Bridge of Dee • Kirkpatrick Durham • Milton – Springholm to Milton Loch • Kirkconnel Flow • Cairn Valley

Corrections from aspirational to core pathstatus, with the agreement of land managers:

• Larbrax • Barclye • Cairnsmore of Carsphairn

No reference SEA Environmental Report, dated August 2009 No reference Further correspondence relating to the 10 proposed

amendments involving additions to the Draft Plan, submitted 18 August 2011:

• Borgue • Bridge of Dee • Cairnsmore of Carsphairn • Demperston to Laggan • Galdenoch to Larbrax • Killantringan to Portslogan • Kirkbride to Hillhead • Kirkconnel Flow • Kirkpatrick Durham • Springholm to Milton Loch

Deleted: Document D

Deleted: Document E


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No reference Larbrax to Galdenoch proposed amendment reference Wig 11 to draft Core Paths Plan Map 9, submitted 6 December 2011

No reference Lovers’ Lane Proposed amendment to draft Core Paths Plan Map, dated 24 November 2010, submitted 12 December 2011

DOCUMENTS SUBMITTED BY MESSRS BRODIES LLP ON BEHALF OF ALISTAIR AND SOPHIE EMERY - SCR396 AND SCR 397 B1 Alistair Emery’s initial objection 28 April 2009 B2 Objection by Brodies LLP to the proposal for designation 28

September 2009 B3 Letter from Brodies LLP to Dumfries and Galloway Council 4

November 2010 B4 Letter from Brodies LLP to the reporter 1 March 2011 B5 Letter from Brodies LLP to the reporter 1 August 2011 B6 Comment Form History from Dumfries and Galloway Council B7 Addenda to the Barscobe file received from Dumfries and

Galloway Council March 2011 B8 Addenda to the Barscobe file received from Dumfries and

Galloway Council July 2011 B9 Report by David Clyne and Karen Morley, access officers at

Dumfries and Galloway Council 25 August 2009 B10 Part 1 of the Land Reform (Scotland) Act 2003 B11 Policy section of the Final Draft Dumfries and Galloway Core

Paths Plan B12 Excerpts from the Outdoor Access Code B13 Photographs and film of steading operations B14 Letter from Dumfries and Galloway Council 11 November 2010 B15 e-mail from June Hay secretary of the Balmaclellan Community

Council dated 13 May 2010 forwarding e-mail dated 2 April 2010 from Alan Pallister, vice chair of the Community Council

B16 e-mail from June Hay secretary of the Balmaclellan Community Council dated 13 May 2010 forwarding e-mail dated 19 April 2010 fromBill Blyth, member of the Community Council

B17 Letter from Alan Pallister, vice chair of the Community Council 1 February 2011

B18 Letter from Hewats solicitors on behalf of Robin Jardine 23 July 2010

B19 Letter from Margaret Steel 5 July 2010 B20 Letter to Dumfries and Galloway Council from Sheila Mackay

1 April 2011 B21 Pilgrims Way Group objection to proposed route B22 Report from site visit to Old Edinburgh Road 24 August 2011 B23 Access officer’s letter of consultationon suggested alternatives

(sample) 9 July 2010 B24 Response from JR Hermion 17 July 2010 B25 Response from SE Hogg 20 July 2010 B26 Dumfries and Galloway Council offer letter 20 September 2010 B27 Letter from Alistair Emery to Dumfries and Galloway Council

accepting offer 3 October 2010


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B28 Letter from Alistair Emery to Dumfries and Galloway Council explaining his position 3 October 2010

B29 e-mail from Simon Fieldhouse to Alistair Emery 8 October 2010 B30 Correspondence between Alistair Emery and SimonFieldhouse

in October and November 2010 B31 Letter from Alistair Emery accepting Dumfries and Galloway

Council’s withdrawal of the proposed route 16 November 2010 B32 Gloag v Perth and Kinross Council (2007) B33 Creelman v Argyll & Bute Council (2009) B34 Plan of Barscobe B35 Plan of alternative routes B36 Print fromVisit Southern Scotland website B37 Print from Southern Upland Way website B38 e-mail correspondence between Alistair Emery and Simon

Fieldhouse 1 July 2011 B39 e-mail correspondence between Alistair Emery and Jo Mercer of

Dumfries and Galloway Council 22 to 27 July 2011


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CONTENTS Page Preamble

Preparation of the Draft Plan 2 Dumfries and Galloway Council’s submission

to Scottish Ministers 3 Organisation of the inquiry and this report 5

Documents 8 Contents 13 Chapter 1 Legal submissions 15

Third parties 15 Railway Crossings 16 Access rights and exclusions 16 Exclusions and draft core paths 18 The core path consultation process 18 ECHR 19 Amendments, corrections and deletions from the Draft Plan 20 Environmental Assessment 21 Legal cases 21

Chapter 2 Wigtownshire 23

Logan Fish Pond 24 Port Logan Coastal Path 31 Coastal Path 35 Logan Mains to Port Gill 38 Drochduil School 40 Killantringan to Portslogan 42 Balloch Wood 45 Broadstone 47 Lovers’ Lane 49 Boreland Plantation 51

Chapter 3 Stewartry 55

The Stell to Back Newton 56 Milton 61 Kenick Burn 67 Livingstone Hill 70 Cornharrow 73 Barscobe 78


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Chapter 4 Nithsdale 93

Cairn Valley 94 Closeburn 101 Irongray 105

Chapter 5 Annandale & Eskdale 109

Kirkwood Estate, Dalton 110 Kirkhill, Dalton 114 Additional routes 117

Chapter 6 Amendments and Corrections 119

Amendments requesting an addition to the plan agreed with the objector who withdrew their objection on that basis:

• Borgue 120 • Bridge of Dee 122 • Kirkpatrick Durham 124 • Springholm to Milton Loch 126 • Kirkconnel Flow 128 • Cairn Valley

• Demperston to Laggan 130 • Kirkbride to Hillhead 132

Corrections from aspirational to core path status, with the agreement of land managers:

• Larbrax 134 • Barclye 135 • Cairnsmore of Carsphairn 136

Appendices 1 Summary of Recommendations 137 2 Details of accompanied site visits 141

15

Chapter 1

Legal submissions

1.1 A number of parties made legal submissions with theirargumentsconcerning the merits of the council’s proposals. These and other submissions are the subject of comment by me where necessary to resolve the objections and representations. I believe that it is for Scottish Ministers to satisfy themselves that the council’s preparation of the Draft Plan has accorded with the requirements of the Act and that the plan, if adopted as recommended, would be lawful. Third parties 1.2 Some parties, who had not made objections to the council have, on hearing of this inquiry, commented to Scottish Ministers concerning objections raised by others. These have been treated as third party representations and have been handled as outlined in the Code; each may be identified by the absence of an SCR number (which is the council’s numbering system used to track representations following the consultation) at the head of the narrative concerning each issue. Other parties listed with no SCR number made representations to the council, but were not treated by them as timely objections, yet the council submitted those submissions as part of their case. 1.3 Messrs Brodies question this approach on behalf of their client Mr Emery and consider that some of the individuals who made these submissions cannot be considered to be parties to the inquiry. In particular they refer to Mr Jardine as a supporter of the proposed route but observe that Mr Jardine did not make any submission during the consultation period, his solicitor's letter being elicited by the Council as a consequence of their correspondence on alternatives. Mr Emery’s agents request that he should not be treated as a party to the inquiry and do not see what locus he would have to be involved in a site visit of the proposed route. 1.4 The council’s submissions indicate that in an e-mail sent in April 2009, and thus before the statutory consultation period on the Draft Plan had commenced, Mr Emery asked the council not to disclose to Mr Jardine that he had suggested that Barscobe’s paths be reached over Mr Jardine’s land. I am unaware howthe council reacted to Mr Emery’s suggestion that Mr Jardine be kept in the dark. References to a conversation with Mr Jardine about alternatives involving his land do not appear in the submissionsuntilFebruary 2010, well after the consultation period ended. It may thus have been the case that when the statutory consultation was under way Mr Jardine was still unaware of Mr Emery’s suggestion that rather than routeing a

Chapter 1 – Legalsubmissions Dumfries and Galloway’s Core Paths Plan

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core path through Barscobe as the council proposed, it could instead be routed over Mr Jardine’s farm. 1.5 Given that background I consider that it would be unreasonable now to discount Mr Jardine’s submissions. I also find that material that has been the subject of continuing and concerned dialogue between interested local residents and the Access Authorityshould be taken into account because ithas been included by that authority as part of their case so as to improve Scottish Ministers’ understanding of the reasoning underpinning the proposals. Inote that, in some instances and despite their submissions to the contrary effect, this material isreferred to insupport of the case made by Messrs Brodies. Furthermore, those whose objections were decided by the council to have been timely have commented to Scottish Ministers on material produced by others that would be discounted were the Brodies’ submission adopted. Railway crossings 1.6 The objection by Network Rail in respect of the railway crossing serving Drochduil School (page 40 of this report) raises unspecified legal arguments concerning liability that may have wider, national, implications and this is, accordingly, drawn to Ministers’ attention. In that context I have had regard to the determination of a similar issue in Ministers’ decision on the Fife Core Paths Plan. Access rights and exclusions 1.7 Ministers’ attention is drawn also to a difficulty that is perceived to exist between the effect of section 6 when read with section 7(1) of the Act. Specifically, section 6 sets out the circumstances where the statutory access rights granted by section 1 are not exercisable. Where relevant this is generally taken by objectors to establish an absolute exemption in the specified circumstances. And, for example, it is submitted that the council cannot ignore the provisions of section 6, and the absence of access rights, when proposing core paths in a draft plan. Indeed that appears to have been the approach taken by the Access Authority in the Cairn Valley where the suggested additionalroutes: Lagg Farm to Swyre and Straith to Bankhead were ruled out by them on grounds of their effect on privacy. I am not able to make a finding concerning the council’sapplication of the law in this respect, but these decisionsindicate a clear application of their policy which has been helpful in considering analogous situationselsewhere. 1.8 Section 7(1) of the Act provides that section 6 does not prevent or restrict the exercise of access rights over any land which is a core path. This suggests to me that it was the intention of the Scottish Parliament that the designation of a core path could override the exemptions from access rights conferred by section 6. That is consistent with the Access Code which, for example in relation to farmyards (at paragraph 3.40), states, as provided by section 6 of the Act, that access rights do not apply but then instructs access-takers that where a core path is routed through a farmyard this can be followed at any time. 1.9 Section 17(3)(a) refers local authorities in preparingtheir core paths plans to have regard to the likelihood that persons exercising… access rights will do so by using core paths. This, with the use of the expression “rights” in section 17(3)(c)


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may give some support to the contrary view that the definition of land over which access rights are not exercisable is absolute. Messrs Brodies submit also that a core path inquiry is not the appropriate forum to decide on statutory access rights and that the council and others are actingunlawfully and improperly in seeking an authoritative ruling. That said such a ruling is invited by Brodies on behalf of their client. I consider that the construction of the Act, specificallysections 6, 7 and 17 mean that such decisions are inevitable when considering contested path proposals. In addition, there are circumstances in which a local authority is expected to consider whether or not access rights should apply. Had this not been the intention the terms, in particular, of sections 11, 12 and 13 of the Act would have been different. I note also that section 28(9) indicates that the Act’s provisions concerning judicialdetermination of access rights are without prejudice to any remedy otherwise available in respect of rights conferred and duties imposed by or under this Part of the Act. I have considered parties’ submission on access rights and have proceeded on the basis of section 7of the Act, taking account of 17(3), the exclusions contained in section 6 and, as indicated later, I have considered these submissionsalso in the context of Convention rights and the terms of case law. 1.10 A further submission by Messrs Barbour and Callendarat Milton, near Springholm(page 62 of this report) contends that, when account is taken of sections 6(1)(b)(iv) and 7(1) of the Act, a core path can only be situated on land over which access rights are exercisable or land over which there is a public right of passage as specified in section 17(1)(a) to (c). Thus, it is argued that for the council to be able to include a route as a core path where access rights are not exercisable they would first need to establish that the route was already a public right of way. Messrs Brodies develop a similarargument on behalf of the owner of Barscobe (page 81 of this report) by suggesting that section 17(2) of the Act is intended to restrict the categories of land that may be designated a core path. Where there is no public right of way, or path agreement under the Act, and where access rights do not apply, a person may not lawfully cross land, and therefore none of the categories in section 17(2) apply, meaning that core paths through the curtilages on the Barscobe Estate cannot lawfully be designated. However, I take the view that section 17(2) is not prescriptive in the sense claimed. It states that “such a system of paths may include”, in other words it suggests categories that could be considered as candidate core paths. This is reinforced by the terms of section 17(d) (which was not referred to in the submissions for Messrs Barbour and Callendar) which refers to “any other means” and by the terms in which the interpretation of core path is defined in the Act. I do not find that,as drafted, section 17(2) restricts the categories of land that may be designated a core path to those listed. 1.11 The relevance of this in Dumfries and Galloway is that core paths are held, amongst other things, to affect the curtilage of houses, pass through working farm steadings, traverse paid visitor attractions and affect commercial shoots. The recommendations that I have made take account of the circumstances specific to each case and are thus a judgement of both fact and degree.


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Exclusions and draft core paths 1.12 It is argued on behalfMessrsBarbour and Callendar(page 63 of this report) that, while section 7(1) disapplies section 6 over any land which is a core path, it does not disapply section 6 in respect of a draft core path. Therefore where there is an infringement of section 6 and the candidate core path is not a right of way or subject to a path agreement, then the candidate core path cannot be included in the Draft Plan. The crux of this argument is that before a Core Paths Plan is adopted there are no designated core paths. Core paths shown in a draft plan thus have no status and consequently section 7(1) of the Act is not engaged; thus the exemptions contained in section 6(1) are not modified or set aside. Whilst I understand the basis of the submission Ifind that the premise is at odds with the purpose of the Act which, in this respect, is to draw up a plan for a system of core paths, subject to the rights and obligations contained in the Act which means that in doing so the rights set by section 6 are to be considered subject to the qualifications contained in section 7 and then against the requirements of section 17. The core path consultation process in Dumfries and Galloway 1.13 At Boreland (page 52 of this report) it is argued that, as the landowner was not consulted he had no prior knowledge of the council’s proposal in response to objections against non-inclusion to designate a core path in place of a previous aspirational proposal. For that reason the consultation process that was carried out did not meet the requirement of Section 18(1)(c)(ii) of the Act. Thus the council failed to discharge their statutory obligations and by proceeding with this change to the Draft Plan are acting ultra vires. The council was given the opportunity to withdraw this proposal, but declined to do so. Because the matter to which the objection relates was not initiated in compliance with statute, the current consideration of the objection is incompetent and that defect cannot be corrected by Scottish Ministers. Thus, at Boreland, it is argued that the objection should be sustained on the basis of statutory non-compliance. 1.14 Whilst that submission is made in respect of Boreland alone, there are a number of instances where new links have been proposed by the council following, and as the result of, the statutoryconsultation. The council’s position is that the consultation undertaken concerning all additions to the plan has been both appropriate and sufficient to canvas the views of affected parties, thus avoiding the possibility of prejudice. The landowner at Boreland appears to have been unaware of the objections made by others that suggested that the aspirational status (of which also he may have been unaware) be dropped in favour of a core path designation over his land. The council reacted favourably to that suggestion and the proposed core path was included in this inquiry process as an addition. The owner admits that he was told of this change by the council. Section 18 of the Act requires that specified steps are taken. It does not require that the consultations under section 18(1)(c) are undertaken whilst the plan is on deposit under section 18(1)(b). Consequently I do not find that the council’s approach was ultra vires. Their pragmatic response meant that the owner was contacted and his views canvassed; that is what section 18(1)(c)(ii) of the Act requires. As a result he was able to make,


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and made, representations against the merits as well as legal submissions. It is thus difficult to see how the landowner’s interests have been prejudiced. ECHR 1.15 The owner of the Kirkhill Estate, at Dalton, has raised also the issue of ECHR. He contends (page 111 of this report) that a private driveway, which goes through the privacy zone of several properties, should not be designated as a core path because it is outside the competence of the council to propose it as such given that Article 6 of ECHR supersedes the Act on these matters. 1.16 Brodies argueon behalf of the owner of Barscobe (page 81 of this report) that the exclusion of access rights from land attached to a house in section 6 of the Act was specifically drafted to ensure that the Act accorded with Convention rights – to privacy (Article 8) and peaceful enjoyment of possessions (Article 1 of the FirstProtocol). The land excluded from access rights is such as to enable reasonable measures of privacy and to ensure that enjoyment of the house and place is not unreasonable disturbed. Designation of a core path adjacent to a house to which access rights do not apply and where there is no public right of way would infringe these Convention rights. 1.17 I am unaware of the information that leads Brodies to conclude that section 6 of the Act was drafted for particular reasons connectedwith ECHR. The fact is that Convention rights are qualified with the result that the State is enabled to enforce the laws it considers necessary to control the use of property in the public interest. One such law is the Land Reform (Scotland) Act 2003; it sets rights and obligations for landowners, land managers and access-takers. The extent of any interference with privacy or the peaceful enjoyment of possessions is to be balanced against the obligations contained in the Act and the need to protect rights of access for the general public. It is that balance that is considered where this issue is raised later in this report. This approach is consistent with section 17(3)(c), where the exercise of rights of way and access rights is to be balanced with “the interests of the owner of the land in respect of which those rights are exercisable”. Despite the specification of “owners” in that section I have decided that occupiers of land and property who are not owners should be afforded the same consideration, not least to protect their Convention rights.This approach ensures also that the matters raised in the cases referred to at paragraph 1.25 are considered in their appropriate context. These considerations have proved the most contentious amongst the issues raised in the objections. My assessment has been assisted by the council’s rejection, for these reasons, of additions suggested by objectors in the Cairn Valley. 1.18 In Dumfries and Galloway the importance of agriculture and tourism is significant also in striking that balance within the context set by section 17(3)(c) of the Act. Tourism is heavily dependent on access to the countryside, particularly for walking and cycling and is widely referred to in promotional and explanatory material. The contribution of beef, dairy and sheep farming is also very significant to the UK agricultural economy; it is these uses with forestry that maintain the landscapethat the Act seeks to make available for access. However, agricultural practice has changed in recent years and it is now unusual for stock in fields to be checked on foot. This means that animals may be unused to encountering walkers in grazing fields, such as those using new or evenexisting paths. In addition, the importance of


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livestock rearing means that gates to serve core paths are less acceptable than would be the case in arable areas; the preferred method of land-managers for fieldboundary crossings is thus by stile. This may mean that certain paths may for good reason only be of use to those wishing to take access by walking. Amendments,correctionsand deletions from the Draft Plan 1.19 In respect of the amendments and corrections considered in Chapter 6 of this report, the council state that they have consulted relevant landowners, the Access Forum and, where appropriate the community council and have received no objection. The council observe that it is not necessary for me to examine these 10 routes except insofar as the sufficiency of the plan is to be considered. That is because the council understand that the purpose of the inquiry is to investigate unwithdrawn objections, which do not apply to any of these 10 routes. 1.20 The council consider, in addition, that they may make deletions to the Draft Plan because the Act does not prohibit an access authority from agreeing with an objector a specified change to the Draft Plan, whether by addition, deletion or diversion, following which the objector may withdraw his objection. The Code (page 1, para 4) explicitly states that an access authority may agree such changes: “Authorities are encouraged to enter into a dialogue to ensure that, as far as appropriate, suitable resolutions can be found to any points of formal objection which remain outstanding. This may involve a specified change to the plan, or some other particular resolution, with the objector then formally withdrawing the objection.” The council draw attention also to the report of the inquiry into objections to the East Lothian Core Paths Plan (CPP-8) where the reporter found that amendments to the draft plan made to resolve objections would be incorporated into the plan to be adopted by the access authority “because without the unresolved objections they would have adopted them anyway”. 1.21 I note the council’s submission, but it is my understanding that this matter was not raised in connection with the East Lothian Plan. The experience of other core paths plan examinations since is that parties have queried the power of access authorities to modify their published plan, even in response to objections which are resolved by way of negotiation. The current approach of DPEA is therefore to recommend that any desired modifications are directed by Ministers in order to minimise the risk of a subsequent challenge to the validity of the plan. Consideration of the proposed modifications is thus similar to that undertaken for issues involving unwithdrawn objections. It involves examination of relevant submissions and detailed information about the negotiations entered into by the council, any further consultation undertaken by the council and the views of other potentially affected parties. The information that was provided by the council matched that for all other issues - a Comment Form History supplemented by additionalcorrespondence that was submitted in August 2011 following a request from DPEA. 1.22 The council consider it appropriate that modifications to the Draft Plan agreed to resolve objections should be made at the same time as the adoption and publication of the plan. The council has already scrutinised the proposed modifications arising from the statutory consultation and has given staff delegated authority to agree with objectors that modifications be made allowing objections to be


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withdrawn so as to reduce the number of unwithdrawn objections requiring examination. Therefore there is no question that agreed modifications where objections have been withdrawn might be overturned by the council. 1.23 As the Draft Plan was published in May 2009 there are a number of further modifications already required due to erosion, new bridges and path developments. The review and amendment of the plan in respect of these will be carried out as required by section 20 of the Act, having regard to the need to consult affected landowners, community councils and others. If required, an amended plan, subject to statutory consultation, will be drawn up. Environmental Assessment 1.24 I have considered also the Strategic Environmental Assessment of the Core Paths Plan carried out for Dumfries and Galloway Council. That report understandably concentrates on any potential effects on designated Natura Sites none of which is at issue in connection with the consideration of objections in this report. In respect of mitigation the SEA report concludes, in general, that there are no significantdirect and indirect impacts of construction predicted to affect environmental resources (e.g. loss or disturbance of wildlife, protected species and nature conservationinterests … etc.). Legal cases 1.25 Ministers’ legal advisers will wish to note also that the cases of Gloag v Perth and Kinross Council (2007)(Document B32), Snowie v Stirling Council andCreelman v Argyll & Bute Council (2009) (Document B33) are referred to by parties at pages 63, 80 and 81 of this report. 1.26 The legal interpretations that I have made have been necessary to consider parties’ submissionsconcerning the merits of the council’s proposals. However, the interpretation of the law is a matter for Scottish Ministers and, ultimately, the Courts.

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Chapter 2

Wigtownshire

Objections and representations are grouped according to their geographical location. For each objection issue there follows a summary of the submissions made, my appraisal and my recommendation:

• Logan Fish Pond • Port Logan Coastal Path • Coastal Path • Logan Mains to Port Gill • Drochduil School • Killantringan to Portslogan • Balloch Wood • Broadstone • Lovers’ Lane • Boreland Plantation

In each case the path or link is identified by the unique reference number that the council devised except where these involve new paths suggested by objectors. The council prepared, for each objection issue, a “Comment Form History” detailing the issue, the parties, the history of contact between the council and those with an interest and the council’s assessment of their submissions. In each case that Comment Form History was sent to the individual objector and their response invited in order to assist Scottish Ministers’ consideration of the unwithdrawn objections. Where objectors provided further comments these have been taken into account in this report. My report is based on the material submitted by the council and also the original material as submitted by objectors. Some parties, who had not made objections to the council have, on hearing of this inquiry, commented to Scottish Ministers concerning objections raised by others. These have been treated as third party representations and handled as outlined in the Code; each may be identified by the absence of an SCR number (which is the council’s numbering system used to track representations following the consultation) at the head of the narrative concerning each issue. Other parties listed with no SCR

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number made representations to the council, but were not treated by them as objectors, yet the council submitted those submissions as part of their case.

Chapter 2 – Wigtownshire – Logan Fish Pond Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Logan Fish Pond Core Paths Number: Link 4810

Core Paths Map 3

Persons whose representations raise the issue: SCR Number Name

SCR 325 SCR 531 SCR 221 SCR 322 SCR 399 No SCR

Peter Miller Richard Blakemore Ruth Daynes Dorothy Miller R BowerIn support of the Access Authority, but principally in respect of link 2253) Russell Brown MP, in support of Ruth Daynes

Reporter’s recommendation: As proposed by the Access Authority designate link 4810 as a core path from the council car park to the bungalow “Sandy Neuk”. Delete link 4810 from the Draft Plan as proposed, and as proposed to be amended from Sandy Neuk to the Boathouse. Replace the deleted section with an indicative aspirational notationover an amended route fromSandy Neuk climbing to the west to run along the head of the slope above the Marine Life Centre and descending by the estate wall to the boathouse. The proposal and its context: The proposed link runs north-west for approximately 0.8 km from the council car park close to the northern end of Port Logan Bay. The route follows a metalled, private, track which serves first Sandy Neuk, a single bungalow, and then the car park serving the Marine Life Centre. A 5 bar gate leads from the fish pond car park to the centre which has been developed in traditional listed buildings built on and into the rocks at the head of the foreshore. Signage at the start of the private road indicates that the Logan Fish Pond is open between 10 am and 5 pm, 7 days a week; it was closed for the winter at the time of the site inspection. There is a variety of informative and other signage displayed at the gated entrance from the car park. The surface of the round fish pond is some 10 m or more below the head of a very substantial traditional stone wall and this directly adjoins a single storey listed building in which the business is based as well as being in residential use. It overlooks Maidenhead Bay. The land rises steeply behind the Marine Life Centre, first as a rocky outcrop and then as a rough grass scarp slope topped by bracken, dense briars, gorse and a stone dyke. The rocky outcrop corrals those visiting the centre to a narrow surfaced area with a maximum width of no more than 6 m between it and the buildings. These features define the extent of the paying visitor attraction which is open throughout the tourist season. Further west the track passes through a 2.5-3.0 m wide gap between the rocky outcrop and the high stone wall of the pond to reach an area where a large residential caravan is sited along


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with sheds, a driftwood store and a drying green before reaching a rustic boathouse at the foot of Mount Sallie Glen close to the limit of the land leased to the Marine Life Centre. Views of this area are cut-off by the landform and vegetation. The council’s proposed amendment to the Draft Plan would re-direct the core path on to the lower part of the slope above the rocky outcrop. This would avoid use of the track at the centre, but the new route would remain clearly visible and a few meters above. A domestic water pipe is laid on the surface and it is held that buried electric power and telephone and broadband cables are routed through it. The ground surface is rough, undisturbed and evidently used by a variety of wild animals. Other suggested alternatives could take the route up the scarp slope from Sandy Neuk and along its head on the edge of the field to descend the slope by a boundary wall to the boathouse. The gradients in this deviation appear to be no more significant than are proposed by the council’s amendment to the adjoining link 2253. Alternatively the route could detour from the council car park up a short section of the B7065 and follow Mulhill Road to the west of the woodland at Mount Sallie Glen. From there, where the field is at a higher level than the adjoining road, it is suggested that the route could run down to the shore along the field margins. This land appears to be part of a low-ground shoot. Summary of the representations:

• Ms Daynes has run the Marine Life Centre business since 2000 and has had

an interest in it for the last 28 years. The land is rented from the estate. • The existence of a right of way over the proposed link is disputed; the access

road goes only to the fish pond. It has not provided access to any other areas for a number of years. There is no reason for the path to be designated. Beyond the fish pond the path was created for access from Logan House to the boat house for the estate’s residents and workers. However, it is stated also that beyond the fish pond there is no path and never has been.

• It does not even meet the council’s criteria asa right of way. It leads to nowhere that could be regarded as public.

• The only complaints known to objectors are from those who wish to walk Mount Sallie Glen known as “Ladies Walk” and who had hoped to reach it through the fish pond site. However, Ladies Walk has been closed by the new landowner and is now part of a pheasant shoot.

• The path would not provide reasonable access. It is inconsistent with the criteria in the Act being in conflict with a private house and a paying visitor attraction open daily. It is thus unlawful. An entrance fee has been charged for the last 200 years. Access rights are not exercisable here.

• The veracity of council statements ischallenged. Harassment is alleged by council officers with an adverse effect on the business. The council are proceeding on the basis of speculation, not fact and have ignored the advice of Scotways. Signs are a matter for Ms Daynes alone to protect her interests.

• Sufficient curtilage is not given to the house, the business or the caravan which, along with the sheds, has been sited for 25+ years and is for leisure use by friends and family also requiring privacy. The Access Authority’s letter of 13 September 2011 suggesting that enforcement action might be initiated was at odds with the views expressed by their former planning officer who had


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been invited by an Access Officer to investigate an allegation of an unauthorised caravan. In any event, these matters are now closed following the opinion of the council’s Area Planning Manager in October 2011 and should not be revisited by the Access Authority.

• There is no parking publicly available. The fish pond car park served by the private road from the council car park was constructed to serve that business, but the proposed new route would only encourage more people to think that they had the right to park there reducing the parking left for paying visitors.

• Construction of the path on the amended route would involve negotiating wet boggy ground; moving all of the services on which the listed house and the operation of the business depends; encroach on a garden that is being restored; and overlook the tenant’s house. It appears unlikely that disabled access would be feasible.

• There would be a loss of main services to the property; these could not be maintained as the council state. The service providers have each said that the layout cannot be changed; they cannot be dug deeper; there is no other routeing that the buried services could take. Both the business and Ms Daynes house would thus be adversely affected.

• On the site of the council’samended route there are greater crested newts, adders, barn owls, an otter den and deer. These habitats are protected under the Wildlife and Countryside Act 1981. A lot of the curtilage and garden is not touched so as to protect these habitats, but there has been a private residence at the site, with a formal garden, since 1788. The council’s blurred photographs are incorrect and prove nothing.

• The viability and security of the historical site and the business would be jeopardised. For safety and security reasons access should be controlled and not open, not least because there is a 30-40 ft. drop on the far side of the wall into the blow hole. Visits by school parties would be at risk were access unsupervised and effectively open to all-comers. Management of the business, such as dealing with quarantine, would be made more difficult.

• Unrestricted access could lose Ms Daynes her business; she suffers already from anti-social behaviour, hostility, racial abuse and criminal damage. During March 2012 the business was attacked, pipework in the aquarium was damaged, fish killed and faeces smeared over surfaces. An attempt was made to cut the private water supply and phone lines. Ms Daynes has been advised by Dumfries and Galloway Police and her solicitor to restrict access to her property to those visiting as a customer or as a personal guest, thus affecting both the route proposed in the Draft Plan and the amendment.

• The proposal should be revisited so that it does not impact on the fish pond which is a successful local visitor attraction. Both alternatives would fulfil the criteria for a coastal path on the high ground well above the fish pond and with excellent views.

Summary of the case made by Dumfries and Galloway Council:

• The council observe that 5 objections are outstanding; 4 against the proposed path and one in support, of 41 originally2 made. A number were the result of

2 The council investigated all objections and wrote to objectors explaining the outcome, including any changes proposed. Objectors were asked to indicate whether they wished to withdraw


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a campaign by the owner of Logan Estates to encourage objections to all core paths in the area.

• The council has been in negotiation with the estate owners and the tenant operating the Marine Life Centre since before the route was identified as a proposed core path. The route proposed is a popular short walk from the bay round to the boathouse as well as the start of the longer coastal route.

• There has been unrestricted public access by the fish pond for a number of years, but since this tenant took over the council has received complaints. Actions were agreed with the estate, but not undertaken by the tenant.

• The route fulfils the criteria for a right of way as it leads from a public place to a place where people have resorted; the number of recent complaints shows its existing and historic usage.

• The veracity of statements in the objectors’ submissions are counter-challenged. Scotways have not advised Ms Daynes that the route cannot be proposed and have made no representations to the council.

• The line of the old carriageway is demarcated from the paying visitor attraction. It is either indoors or behind a high wall, there is thus no conflict between the paying attraction and general access rights.

• Rather than detracting from the Marine Life Centre the existence of the core path could encourage passing traffic to stop. Users of the path would not be able to see the fish pond itself.

• As the core path starts at a council managed car park there would not be undue pressure on parking at the fish pond car park; the tenant has been informed she is within her rights to put up signage to exclude vehicles from her land provided this is not off-putting.

• The core path would not make the issue of security any better or worse than at present. Anyone acting irresponsibly forfeits their access rights.

• The council attempted to negotiate the revised route as a solution.There was no evidence of a formal garden in the location of the path when the revised route was proposed. It completely separates the path from the vicinity of the paying attraction and the vicinity of the caravan. This revision, which is the council’s proposal, was agreed with the land owner but not the tenant.

• The path could be created relatively easily in this area, the council would consider paying the 25% contribution to an application for SRDP funding for fencing. All pipework could be safeguarded with no loss of services and signage would be supplied to keep walkers on the path.

• The alternative proposed by the tenant was investigated but found to be too steep and too much of a diversion. There would be the risk that walkers would simply short-cut across the fish pond site.

• The caravan which is outside the curtilage of the existing building does not have planning permission and cannot therefore be taken into consideration in applying the Act. When the access officer first visited the site in connection with complaints there was no caravan present and the council contend that photographs confirm that fact.

• The council later suggested that it may benefit from Permitted Development rights in association with the business and dwelling and “by virtue that it has

their objection as the result of the investigation or to have it maintained. Where no answer was received a final letter was sent by recorded delivery asking again. The council said that if no answer was received within 21 days the objection would be treated as withdrawn.


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been there for nearly 10 years”. Subsequently the council observed as Access Authority that because there has not been a caravan continuously on-site for the last 10 years (supported by undated photographic evidence) it does not have “automatic planning permission”. The Access Authority considers that they could therefore seek either a planning application or its removal and sent a letter requesting information concerning its status.

• The council’s Area Planning Manager wrote to Ms Daynes in October 2011 stating that, whilst unauthorised, the caravan is immune from enforcement action - even were it not immune it would not be in the public interest to take such action; and the fact that the caravan had not received planning permission is immaterial to the issues relating to the proposed path.

Reporter’s appraisal and conclusions: Based on my accompanied and unaccompanied site inspections I understand why the council have proposed the designation of a core path that would continue the coastal path in this part of the Rhins. Here there are not only those who wish to take a stroll from the village, but also longer-distance access-takers wishing to experience the outstanding sea views and coastal geology. However, the manner in which the council propose to meet that objective at Port Logan has proved locally controversial. The outcome is, in large part, dependent on the consideration of the rights and obligations set by the Act as well as the merits of the proposed route. I note that the Access Authority consider that the route fulfils the criteria for a right of way but there is no suggestion that they have assertedit as such. The question of whether or not there is a right of way is not for me to determine. I have drawn attention at paragraphs 1.7-1.9 of this report to the difficulty that is perceived to exist between the application of section 6 of the Act when read with section 7(1). Based on my site inspection I have reached the view as a matter of fact and degree that link 4810 would run through the curtilage of the Marine Life Centre – a facility to which members of the public are admitted only on payment on not fewer than 90 days in each year; as well as through the land required to ensure reasonable measures of privacy for those residentwithin the house in which the business is based and those using the caravan. That view applies equally to the amended route that the council now propose, except that the curtilage of the business would no longer be directly affected. Thus, I find that neither route would provide the physical separation necessary to ensure reasonable measures of privacy and to ensure that enjoyment is not unreasonably disturbed. In addition, the curtilage of the business appears to me to be an area where access rights should not apply as the consequence of section 6(1)(f) of the Act. I note that the council as Access Authority still wish to take issue with the siting of the caravan on the land, but the council’s view expressed as Planning Authority is that it is immune from enforcement. This does not grant planning permission, but it does mean that the protection afforded by section 6(1)(a)(ii) of the Act applies. Thus, were the determination to be made solely on the grounds of section 6 of the Act, it is my conclusion that access rights should not be exercisable in these locations. However, section 7(1) of the Act indicates that section 6 does not prevent or restrict the exercise of access rights over any land which is a core path. This suggests that


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the designation of a core path is able to override the exemptions from access rights conferred by section 6. That is consistent with the Access Code which, for examplein relation to farmyards (at paragraph 3.40), states, as envisaged by section 6 of the Act, that access rights do not apply but then instructs access-takers that where a core path is routed through a farmyard this can be followed at any time. On that basis I see why the council consider it possible to propose a core path in this location, but it is still necessary to consider the objections to the proposal in the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. The relationship with residential and other property engages Convention rights, applied here as indicated at paragraph 1.17 of this report. Based on my accompaniedinspection I consider that there could be significant interference with privacy and the peaceful enjoyment of possessions for the owner of the business and residents. Accordingly, I am not convinced that the exercise of access rights along a proposed core path at Logan Fish Pond could be fairly balanced with the interests of the owner and occupiers of affected property. That is because I do not consider that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating core paths where, otherwise, access rights should not be exercisable over the land. As indicated, I do not consider that this difficulty would be resolved by the amendment that the council now propose. Based on my site inspection I consider that a more substantial deviation would be required to safeguard the interests of owners and occupiers and meet the objective, which is worthy of support, of providing for access on a core path along the coast. Besides the minor deviation that the council has proposed, and that I have rejected, 2 other alternatives have been suggested. One involves a significant detour inland along Mulhill Road which, although feasible, would not accord with the council’s policy which precludes the designation of core paths on public roads. It appears to me that that policy has been applied consistently in the Draft Plan proposals. The other alternative involves a less significant detour at the head of the scarp slope above the Fish Pond site, effectively running up the slope from the nearby bungalow and descending to the boathouse. It appears that the ownership of the Estate is a common factor in each. However, it is not clear from the council’s submissions that either option has specifically been considered with the owner. Instead, the submissions suggest only the council’s concern with gradients and the possibility that access-takers would simplyshort-cut ignoring these alternatives. It seems possible that rather more than signposting would be required and that fencing,agraded pathand possibly steps might be necessary on the shorter route. On the longer route besides the fact that this would use a public road contrary to the council’s policy, adjustments to fencing would be necessary as well as steps at the roadside; there could also be the need to find an accommodation with low-ground shooting. I note that the landowner owns the ground involved and also the Marine Life Centre but, in the absence of a considered opinion, I do not find scope to suggest that Ministers direct the substitution of either as an alternative. The


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consultation necessary to obtain that opinion, and thus to prove the route,is properly the responsibility of the Access Authority within its duties under the Act. It is my conclusion at Port Logan Fish Pond that the balance of advantage that has to be considered in applying section 17(3) of the Act does not presentlyjustify designating the core pathproposed by the Access Authorityin this location; and also that a determination made solely on the grounds of section 6 of the Act should preclude the exercise of access rights in the specified locations. That conclusion does not diminish the importance of establishing this link in the linear coastal route, and for that reason I consider that an indicative aspirational notation could besubstituted taking the path from a suitable location close to the nearby bungalow, to run along the head of the slope above the Marine Life Centre and descend by the estate wall to a point close to the boathouse. I consider that this route could more appropriately balance the interests of landowners and tenants and those who wish to take access. The aspirational notation would allow the Access Authority to pursue a review and amendment of the plan following adoption within the terms set by section 20 of the Act so as to bring forward a solution agreed with the landowner. This change would only marginally affect the distance available to those wishing to stroll along a level route from Port Logan. It is not the case that all core paths should cater equally for access-takers of all abilities. Part 6.6 of the Access Code states that “in some places better provision of paths and other facilities might be needed to maximise people’s enjoyment of the outdoors, particularly by people with disabilities”. The off-road alternatives that maybe pursued in this location are not therefore ruled out on grounds that disabled access may not be feasible. This important consideration does not lead me to conclude that access-takers, including thedisabled, should be encouraged instead to use a public road. I note the concern regarding competition for parking within the private car park that serves the business, but apart from the registered disabled, access rights do not extend to driving over land, for example by persons seeking to park. In that respect therefore this business is no different from any other; the route starts from a large council car park in any event. I have considered also the other submissionsconcerning the merits for and against a core path as proposed by the council, but none is such as to set aside myconclusionsconcerning the application of the Act to the circumstances of this location. The issue ofthe effect on protected species and habitats has been raised in connection with the council’s proposed amendment. The SEA report concludes, in general, that no significantdirect and indirect impacts of construction on environmental resources are predicted. Whilst thatbroad conclusion may be correct, at Logan Fish Pond the information presently available is inadequate to allow an informed judgment to be reached concerning the likely effects of the council’s amended core path proposal on habitats and species. That shortcoming would need to be addressed were my recommendation not accepted, as would the means of safeguarding buried utility services.

Chapter 2 – Wigtownshire – Port Logan Coastal Path Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Port Logan Coastal Path Core Paths Number: Link 2253

Core Paths Map 3


SCR 324 SCR 328 SCR 338 SCR 532 SCR 222 SCR 398

Dorothy Miller Peter Miller James Reid Richard Blakemore Ruth Daynes R Bower(in support of the Access Authority, but indicated as withdrawn on 17 June 2010 on the understanding that the link is put forward as a core path with slight amendments)

Reporter’s recommendation: As proposed by the Access Authority designate link 2253 as a core path as shown on the Proposed Amendment to Draft Core Paths Plan Map 3, reference 2253, 2254, dated 31 May 2010 contained in Document 5. The proposal and its context: This proposed link would run for some 2.5 km from the boat house at the foot of Mount Sallie’s Glen, reached from link 4810, to join link 2254 at the Mull of Logan. The council propose to amend the route from that shown in the Draft Plan to take it away from the margins of the two fields closest to Mount Sallie Glen so as to avoid commercial shoots. This deviation takes the proposed path some 600 m along the foot and lower slopes of the grassy cliffs, as opposed to the field margins at their head. In places a rough scramble is involved. The path then climbs to run along the margins of fields in grazing use close to the head of the low sea cliffs. That path, which is already clear, is at no point constrained to the cliff edge and on the headlandis an easy walk. There are outstanding views of the shore rock formations such as the Devil’s Bridge natural arch and towards Northern Ireland. The alternative suggested would use a short section of the B7065 close to the council car park at Port Logan Bay and then the entirety of the single track Mulhill Road which serves several isolated single houses, steadings and shoots. It was quiet when inspected and was a safe walking route but would no doubt be significantly busier with farm and other traffic at other times of year.


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Summary of the representations:

• The absence of defined path boundaries, safety fences and fencing against farm animals means that the proposed path is ill-advised and potentially dangerous, particularly as the cliff edges are rounded and slippery.

• Experienced walkers will use this route anyway, but the inexperienced will be attracted by signage putting them, and those called to mount a rescue, at risk.

• There is no parking to serve the route which, in common with link 4810, is a waste of money. Resources would be better spent on other routes.

• There is no path in this location and never has been a path since at least 1843. The route encroaches on a human grave above Robertson’s Bay.

• In order to use link 2253 the public would walk from link 4810 having there traversed a private garden and a paying visitor attraction in breach of the Act. This would invade the privacy of the householder, put the continuation of a business at risk and threaten theft of the fish on which that business depends.

• A better alternative would designate the little–used road from Port Gill to the old Port Logan Schoolhouse. Being at the top of the hill the views would be better and the route could better meet the needs of the disabled.

Deviation from link 2253 and the associated links 4810 and 2254 to use instead the B7065 road and the single track road to Mulhill and Port Gill is argued against on the grounds that:

• The Devil’s Bridge and associated sea cliff scenery would no longer be seen; walkers could be in conflict with traffic on a blind bend on the B7065 where there is no verge; the single track road to Port Gill is narrow and in constant use by farm machines where visibility is constrained by high hedgerows; and walkers could be at risk from game bird shooting.

• Link 2253 could be preserved as a coastal path and potential conflict with shooting removed by using the path running along the coast below the cliff tops from the beginning of link 2253/end of 4810 as far as Bonny Well Bay (west of Clanghie Point) with the path then ascending to the cliff top on an easy incline thence re-joining link 2253. The existence of nesting grey partridges in the vicinity of this detour, and the potential for their disturbance by walkers, is disputed.

• Alternatively, link 2253 could be re-routed northwards from its junction with link 4810 up the Ladies Walk and Glen Plantation joining the single track road to Port Gill at Mount Sallie.


• The council observe that 6 objections remain outstanding – one being a counter argument in support - from 623 made originally concerning this route.

3 The council investigated all objections and wrote to objectors explaining the outcome, including any changes proposed. Objectors were asked to indicate whether they wished to withdraw their objection as the result of the investigation or to have it maintained. Where no answer was received a final letter was sent by recorded delivery asking again. The council said that if no answer was received within 21 days the objection would be treated as withdrawn.


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A number were the result of a campaign by the owner of Logan Estates to encourage objections to all core paths in the area.

• The council assessed the suggested alternative. Although quiet it is used by farm vehicles travelling between farms in the same ownership. Moreover, the demand within the area from both locals and visitors is for coastal routes.

• A suitable coastal link was identified taking on comments from landowners and a local resident who walks the route regularly. The path would be routed along the lower shore line until Bonny Well Bay when it would rise to follow the headland thus avoiding conflict with farm animals and estate shooting. It is relatively easy to walk, but will need way-marking and is not considered to be dangerous.

• The coastal route has spectacular views and geology. It continues the coastal walk from Mull of Galloway.

• The owners and the shooting tenant have agreed the revised route. An SRDP application to fence the headland has since been made by the owner of that land. The public will be kept away from farm animals along the entire route. That owner has also applied for funding for interpretation of the wildlife along the cliff top.

Reporter’s appraisal and conclusions: The council indicate that the demand in this area is for coastal routes. In this instance theseallow the public to experience the unique geology and outstanding land and seascapes. Inevitably these are normally associated with headlands, if not cliff tops. Whilst it is presently the case that the route proposed is not fenced it is the council’s evidence that an SRDP application has been made with the intention of separating the public from farm animals. Section 2 of the Act requires that those exercising their right to take access behave responsibly. The Access Code advises that:

• Access-takers owe a duty of care to land managers and others (annex 4, paragraph 3.5).

• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated by warning signs when special care is required or it is necessary that the public avoid an area during particular land management operations, such as low-ground shooting, although here the path has been re-routed to accommodate the shoot.

• Access-takers should recognise (paragraph 3.10) that the outdoors is not risk free; section 5(2) of the Act provides, as indicated in the Access Code, that access rights do not alter the nature of the liability owed by a land manager.

• The Access Code refers to the many natural hazards that may be encountered such as cliffs and to the long-standing legal principle that a person taking access will generally be held to have accepted any obvious risk or risks that are inherent in the activities that they are undertaking.

The issues that are of concern are thus addressed by both the law and the Access Code approved by the Scottish Parliament, and have been anticipated by the council and by the landowner. The risk that those taking access would be crowded by animals into a dangerous position at the cliff edge has been addressed, whilst the


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intention to erect interpretative material would allow the risks for the foolhardy to be reinforced. Based on my site inspection I find that the risks of walking on this part of the headland are similar to those that would be experienced elsewhere in the coastal routes in the Mull of Galloway and, in some instances, substantially less. I find that those using the proposed core path responsibly would be unlikely to be at risk from its routeing along the headland, whilst those intent on climbing in exposed locations would be likely to ignore the risks involved whether there was a core path here or not. I saw no evidence of a grave above Robertson’s Bay and those present at the accompanied site inspection did not agree on where it may have been located. Whilst the inland Mulhill Road could be used as an alternative, albeit not as a core path – being a public road, it would not provide this link in a linear coastal route that the council, and others within the community, wish to see designated. It is not the case that all core paths should cater equally for access-takers of all abilities. Part 6.6 of the Access Code states that “in some places better provision of paths and other facilities might be needed to maximise people’s enjoyment of the outdoors, particularly by people with disabilities”. This important consideration does not lead me to conclude that access-takers, including the disabled, should be encouraged instead to use a public road. Objection is made also on the grounds that access-takers would reach this link from Port Logan only after traversinglink 4810. I have recommended that link 4810 is deleted within the curtilage of the Marine Life Centre and replaced with an aspirational notation on a route that could more appropriately balance the interests of landowners and tenants and those who wish to take access. That means that link 2253 could be reached by way-marked path only from the north until a core path route is designated avoiding the Marine Life Centre. My examination of the Draft Plan has revealed several situationswhere through routes are either not complete or are dependent on actions yet to be taken for their completion. Whilst not desirable here in the long-term I consider that there is a reasonableprospect of resolution of the difficulties with link 4810 that would ensure that the objective of a continuous through coastal route could befulfilled. I conclude in respect of the Port Logan Coastal Path that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating the core path proposed by the Access Authority.

Chapter 2 – Wigtownshire –Coastal Path Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire –Coastal Path Core Paths Numbers: Link 2254

Core Paths Map 3

Persons whose representations raise the issue: SCR Number Name SCR 574 SCR 400

James Reid R Bower (In support of the Access Authority, but principally in respect of link 2253 and indicated as withdrawn in respect of link 2254 on 17 June 2010)

Reporter’s recommendation: As proposed by the Access Authoritydesignate link 2254as a core path and amend the Draft Plan to removethe Mulhill spur as shown on Proposed Amendment to draft Core Paths Plan Map 3, reference 2253, dated 31 May 2010 contained in Document 5. The proposal and its context: This link runs from the junction of links 2256 and 2266 at Port Gill south to the Mull of Logan where it would join link 2253. A 1 km spur of link 2254 is shown as running inland south-east and then east via the steading at Mulhill to reach Mulhill Road below McCulloch’s Hill. The council’s proposed amendment to the Draft Plan involves the deletion of that Mulhill spur. The proposed link runs along the margins of fields in grazing use close to the head of low sea cliffs. The path, which is already clear, is at no point constrained to the cliff edge. There are outstanding views of the shore rock formations and towards Northern Ireland. The Mulhill spur runs through grazing land for the most part on an unfenced track. The fenced farm track is reached through a gate in the farm yard. The alternative suggested would use a short section of the B7065 close to the council car park at Port Logan Bay and then the entirety of the single track Mulhill Road which serves several isolated single houses, steadings and shoots. It was quiet when inspected and was a safe walking route but would no doubt be significantly busier with farm and other traffic at other times of year. Summary of the representations:

• The absence of defined path boundaries, safety fences and fencing against farm animals means that the proposed path is ill-advised and potentially dangerous, particularly as the cliff edges are rounded and slippery.

• Experienced walkers will use this route anyway, but the inexperienced will be attracted by signage putting them, and those called to mount a rescue, at risk.


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• The council observe that 2 objections are outstanding; one in favour and one remaining of 214 originally made. A number were the result of a campaign by the owner of Logan Estates to encourage objections to all core paths in the area.

• The council assessed the suggested alternative. Although quiet it is used by farm vehicles travelling between farms in the same ownership. Moreover, the demand within the area from both locals and visitors is for coastal routes.

• A suitable coastal link was identified taking on comments from landowners and local residents who walk the route regularly. It keeps largely to the headland to avoid conflict with farm animals and estate shooting. It is easy to walk, but will need way-markings and is not considered dangerous.

• The coastal route has spectacular views and geology. It continues the coastal walk from the Mull of Galloway.

• The council considered the route from the coastal path to the Port Gill road. It follows a track through the middle of a field at Mulhill Farm. This is permanent cattle pasture and is unsuitable as a core path.

• The owners and the shooting tenant have agreed the revised route. An SRDP application to fence the headland has since been made by the owner of that land. The public will be kept away from farm animals along the entire route. That owner has also applied for funding for interpretation of the wildlife along the cliff top.

Reporter’s appraisal and conclusions: The council propose to drop the Mulhill spur from link 2254 because the land over which it would pass is permanent cattle pasture, unsuitable for use as a core path. I agree with the council’s assessment which appropriatelybalances the interests of the owner and occupier of the land with the interests of those exercising access rights. The objections are not concerned with that amendment, but insteadwith the consequences of the coastal routeing. The council indicate that the demand in this area is for coastal routes that allow the public to experience the unique geology and outstanding land and seascapes; inevitably these are normally associated with headlands, if not cliff tops. Whilst it is presently the case that the route proposed is not fencedit is the council’sevidence that an SRDP application has been made with the intention of separating the public from farm animals. Section 2 of the Act requires that those exercising their right to take access behave responsibly. The Access Code advises that:


4 The council investigated all objections and wrote to objectors explaining the outcome, including any changes proposed. Objectors were asked to indicate whether they wished to withdraw their objection as the result of the investigation or to have it maintained. Where no answer was received a final letter was sent by recorded delivery asking again. The council said that if no answer was received within 21 days the objection would be treated as withdrawn.


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• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated by warning signs when special care is required or it is necessary that the public avoid an area during particular land management operations, such as low-ground shooting, although in case the path has been re-routed to accommodate the shoot.


• The Access Code refers to the many natural hazards that may be encountered such as cliffs and to the long-standing legal principle that a person taking access will generally be held to have accepted any obvious risk or risks that are inherent in the activities that they are undertaking.

The issues that are of concern are addressed by both the law and the Access Code approved by the Scottish Parliament, and have been anticipated by the council and by the landowner. The risk that those taking access would be crowded by animals into a dangerous position at the cliff edge has been addressed, whilst the intention to erect interpretative material would allow the risks for the foolhardy to be reinforced. Based on my site inspection I find that the risks of walking on this part of the headland are similar to those that would be experienced elsewhere in the coastal routes in the Mull of Galloway and, in some instances, substantially less. I find that those using the proposed core path responsibly would be unlikely to be at risk from its routeing along the headland, whilst those intent on climbing in exposedlocations would be likely to ignore the risks involved whether there was a core path here or not. Whilst the inland Mulhill Road could be used as an alternative,albeit not as a core path – being a public road, it would not provide this link in a linear coastal route that the council, and others within the community, wish to see designated. On balance I find that the proposed link would make an important contribution to a system of paths sufficient to provide the public reasonable access, taking account also of the interests of the owner of the land, and the policy framework established to allow access rights to be exercised and those interests to be protected.

Chapter 2 – Wigtownshire – Logan Mains to Port Gill Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Logan Mains to Port Gill Core Paths Numbers: Link 2266

Core Paths Map 3

Persons whose representations raise the issue: SCR Number Name SCR 530

Richard Blakemore

Reporter’s recommendation: As proposed by the Access Authority designate link 2266 as a core path. The proposal and its context: A single track metalled public road runs south-west from the A716 south of Ardwell. It serves utility buildings, grazing land, Logan Mains and Logan House and link 2266 connects it with Port Gill overlooking the Mull of Logan. The route provides a connection between the west coast of the Rhins with the A716 where another link, 2268, takes access-takers towards the shore overlooking Luce Bay. Summary of the representation:

• The path should continue from Logan Mains to the junction with link 2268 at Auchness allowing signage in public view on the A716 road.

• The Draft Plan has failed to provide a series of circular routes for the benefit of locals and tourists.


• Link 2266 is an LMC route available to the public for a number of years with no real problems. When reassured that there would be no requirement to fence the route, the farmer agreed to withdraw his objection. It is a popular access to Port Gill.

• There is no connection between link 2266 and link 2268 because the route between these paths is a public road.

• The council’s policy is not to designate core paths on roads where public rights of access already exist.

Reporter’s appraisal and conclusions: Based on my consideration of objections to core paths throughout the council’s area I consider that their policy not to designate public roads as core paths has been applied consistently in the Draft Plan proposals. I also find that the policy is broadlyconsistent with the approach set by section 17 of the Act, where the

Chapter 2 – Wigtownshire – Logan Mains to Port Gill Dumfries and Galloway’s Core Paths Plan

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emphasis on candidatecore paths does not suggest that it would normally include public roads. I have considered also the argument that the council’s proposals do not, in general provide circular routes. The criterion in section 17 of the Act concernssufficiency to provide reasonableaccess for the public. Consequently, that is a judgement to be applied to the circumstances in a particular area – in this instance the Rhins of Galloway. When considering a peninsula of this sort where there are outstanding sea views it is understandable that effort has been concentrated on enabling linear coastal routes. However, the plan also includes local loops allowing circular walks to serve mostof the dispersed communities in the Rhins. I find on balance that the system of paths proposed by the council in this area is sufficient for the purpose of giving the public reasonable access.

Chapter 2 – Wigtownshire – Drochduil School Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Drochduil School Core Paths Numbers: Links 3088, 4055

Core Paths Map 17

Persons or body whose representations raise the issue: SCR Number Name SCR 542 SCR 185 SCR 173

Martin Henderson, Network Rail Jane Kelly, Drochduil Primary School (In support of the Access Authority) Eunice Crosbie, Planning and Environment, Dumfries and Galloway Council(In support of the Access Authority)

Reporter’s recommendation: Deletefrom the Draft Plan that part of link 4055/3088 that crosses the railway. The proposal and its context: Most of the small community of Dunragit is situated on the north side of the A75 trunk road and thus also to the north of the railway which parallels the trunk road. The A75 has footpaths and is subject to a 40 mph speed limit except when the school warning signs are in operation. These protect a pavement crossing leading to the track over the railway at a private level crossing marked “Private - Authorised users only”. There are both vehicular and pedestrian gates. It is this level crossing where the council provides a school crossing attendant. The fenced track then leads due south for some 0.75 km joining the B7084 road 30 m east of the primary school. This road is subject to the national speed limit except when the school warning signs are in operation. The school backs onto an impressive stand of mature pines where link 4055 runs west past the school’s rear boundary. It connects with other, signposted, footpaths leading to Drochduil Mote and thence to a minor road linking the B7084 with the A75 on the western margins of the village. That minor road crosses the railway at an automatic level crossing next to a manned signal box. These roads are used to provide an alternative HGV route to avoid a low bridge on the A75 east of the village. There are no pavements on the minor road, the B7084 or on the A75 east of Dunragit. Summary of the representations:

• Network Rail understand the existing use by school children but object to the designation of the route as a Core path on the grounds that this may encourage increased use which would be inappropriate for this type of

Chapter 2 – Wigtownshire – Drochduil School Dumfries and Galloway’s Core Paths Plan

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crossing. Such use should be discouraged as the consequence of the [unspecified] legal and safety implications.

• The Council has not provided the correspondence in support of their designation of this link, but this is separately summarised as indicating that this is a safe route for pupils to the Primary School.


• The railway line at this point is straight so there is good visibility; trains are

infrequent and not travelling at high speed. • The council provides crossing attendants in the morning, noon and afternoon

to assist pupils crossing both the road and the railway. • As the level crossing is the main route for children accessing the school it

ensures that a large number walk. • The only alternative is a longer walk along the A75 and down an adjoining

road which is used by high-sided vehicles avoiding the low bridge on the A75 east of Dunragit.

• The alternative route also requires that children cross the railway at another level crossing.

• Parents could drive their children to school, but this may not be feasible for some. That goes against government and council targets for encouraging children to walk.

• The route is also an important link for residents of Dunragit to the countryside and shore below the railway line. Given the location of this route it is highly unlikely that designation will increase usage.

Reporter’s appraisal and conclusions: The representation made by Network Rail objects to designation of the core path on the grounds that this may lead to increased use. However, the majority of the council’s observation and the representations made by council employeesare concerned with the potential for curtailment of its use by children accessing the school. There is no suggestion that Network Rail wishes to see the use by school children curtailed. This is to be commended as a pragmatic recognition of the unsuitability of the pedestrian alternatives by road and the arrangements made by the council to improve safety for children on this direct route. Scottish Ministers’ decision, dated 21 September 2011, concerning the Fife Core Paths Plan dealt with a situation directly analogous to this private level crossing. In that case Scottish Ministers directed that two such paths should be excluded from the plan and made reference to the review of the legal framework for level crossings led in Scotland by the Scottish Law Commission. In that case Ministers decided that it would be premature to direct that the 2 paths be designated. As the circumstances at Drochduil are the same, in that the proposed designation involves pedestrian access over a private level crossing, my conclusion also is that it would be premature for this link to be designated until informed by the Scottish Law Commission’s review.

Chapter 2 – Wigtownshire – Killantringan to Portslogan Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Killantringan to Portslogan Core Paths Numbers: Links 2415, 4100 and 4101

Core Paths Map 7

Persons whose representations raise the issue: SCR Number Name SCR 593 No SCR

Paul Hutchinson, Factor per Lord Stair Mr Holland, Mr McMillan, Mr Fisher – other landowners and managers whose agreement has been secured

Reporter’s recommendation: As proposed by the Access Authority delete the aspirational link 4101 andreplace with the amended core paths proposal shown on Proposed Amendment to draft Core Paths Plan Map 7 Killantringan to Portslogandated 11 August 2011. The proposal and its context: These links are situated in an attractive coastal landscape with panoramic sea views at the start and end. In the Draft Plan the proposed route starts at the parking area adjacent to the Southern Upland Way (link 6000) on the access road to the light house at Black Head. It then descends on a clear desire line to the beach as far as Knock Bay and thence up the track from the bay to the B738 road at Knock. A further link would have taken the proposed path from the B738 north of that point over an existing informally marked path to continue the coastal route to the north. The amended proposals (dated 27 September 2010, superseded by 11 August 2011) recognise that the beach is entirely covered at high tide and in storms and that the headland descends directly into the water. The final amendment routes the path from the Southern Upland Way around the headland through grass and gorse to descend 35 m to the more easily accessible land above the foreshore beside a horse grazing paddock below the House of Knock. The proposed link would then climbback on to the headland to join link 4100 which would now continue the coastal route northwards on the headland above Broadsea Bay, rather than following the dogleg inland to the B738 and back. In common with other elements of this coastal path the amended route requires surefootedness to negotiate descents and ascents. Summary of the representations:

• There are no grounds for the objection made on behalf of Lord Stair.


• Assessment of the path from Killantringan Lighthouse to Knock Bay highlighted its routeing along a tidal beach to a dead-end as the continuation


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to the road at Knock was only aspirational and no continuation of the coastal path towards link 4100 was proposed.

• The council’s policy precludes core paths within tidal areas on health and safety grounds.

• The council has dropped the aspirational proposal for the core path by Knock Bay House. It is an existing right of way andthe council has negotiated improvements, indicated by the council to involve link 6825.

• On that basis, and subject to agreement concerning bracken spraying in a 3 m wide corridor on the new alignment at the head of the beach, Mr McMillan withdrew his objection.

• The new, coastal, route for the core path avoiding the link up to Knock and back to the coast at Portslogan was negotiated with agricultural tenants, the game keeper for Dunskey Estate and Mr McMillan.

• The Factor of the Stair Estate initially indicated acceptance of the proposals where link 683 appears to involve crossing a short section ofthe Estate above the headland, but this agreement was subsequently withdrawn. The Estate suggested instead an alternative route at the base of the cliff. Although possible this placed the link entirely on Mr McMillan’s land and potentially at odds with his development plans. The council informed Stair Estates that their proposal was not feasible for that reason.

• The amended route replaces the missing links in off-road access from Corsewall Lighthouse in the north of the Rhins to the Mull of Galloway in the south.

Reporter’s appraisal and conclusions: The proposedamendment to draft Core Paths Plan Map 7, dated 11 August 2011, unfortunately uses reference numbers for these (and other) core paths in this vicinity that are not used in the Draft Plan. It appears that:

• Link 6000 is now link 504 • Link 2415 is now link 365 • Link 2435 is also now link 365, in the relocated position off the foreshore • Link 4101, which was aspirational, is dropped • Link 683 is a new link taking the path back on to the headland north of Knock

Bay,first across Mr McMillan’s land and then Stair Estate’s land • Link 405 is the new connection to the link below Portslogan formerly defined

as link 4100 • Link 682, is a new link number that has no equivalent in the Draft Plan.

It is clear that the proposal contained in the Draft Plan,which routed a part of this proposal along a beach that is entirely covered at high tide,was inconsistent with the council’s policy. Given the potential risk to users, designation as a core path would have been inappropriate and is the reason for the council’s search for an amended solution. Consideration and resolution of the issues involved in this location are not

5 Link 682 is not shown graphically in any of the submitted documents. An explanation was requested, but not received.


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assisted by the fact that the issues underlying the objection lodged, withdrawn and then reinstated by Stair Estates are not defined. The objective of bridging the missing links in the linear coastal route is worthy of support, particularly where there are outstanding sea views and some interesting geology. The arrangements struck with most landowners in this location mean that, with the exception of StairEstate, the amendmentto achieve this objective could have been secured by agreement. Whatever the reasons for the Estate’s opposition, their suggested alternative was not agreed by the owner of the land involved. I note that the council considers that a route close to shore level would be feasible but I consider based on my site inspection that elements of it could also place users at risk in extreme weather conditions coupled with a high tide, just as the council’s original proposal. In the absence of any definition I assume that the Estate is concerned about the effects that access-takers might have for their operations. Section 2 of the Act requires that those exercising their right to take access behave responsibly. The Access Code advises that:


• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated by warning signs when special care is required or it is necessary for the public to avoid an area during particular land management operations, such as on grazing land, when running a bull or during and following calving or lambing; and when low-ground shooting is under way.


• The Access Code refers as well to the long-standing legal principle that a person taking access will generally be held to have accepted any obvious risk or risks that are inherent in the activities that they are undertaking.

In this case the risks involved for access-takers are the equivalent of those elsewhere on the coastal path in the Rhins. There landowners have found the means of reaching an accommodationrecognising that the issues that are of concern are addressed by both the law and the Access Code approved by the Scottish Parliament. On balance I find that the proposed links would make an important contribution to a system of paths sufficient to provide the public reasonable access, taking account also of the interests of the owner of the land,as far as these can reasonably be anticipated,and the policy framework established to allow access rights to be exercised and those interests to be protected.

Chapter 2 – Wigtownshire – Balloch Wood Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Balloch Wood Core Paths Number: Link 2171

Core Paths Map 53

Person whose representations raise the issue: SCR Number Name SCR 583

Miles Wenner

Reporter’s recommendation: As proposed by the Access Authority designate link 2171 as a core path. The proposal and its context: This proposed link starts above Creetown at the head of link 2207 at a parking area associated with the Balloch Community Woodland where there is a large pond developed for wildlife interpretation and a picnic shelter as well as informative signboards. The way-marked route crosses the burn at a wooden bridge to run through hardwoods on the banks of the burn and then along the western edge of a pine plantation to reach the private road to Glenquicken. That private road is, in turn connected to a single track public road that runs downhill past Chapelton to Creetown. On part of the route within the woodland a loop allows a different path to be taken on the outward and return legs. Summary of the representation:

• Mr Wenner does not object to the core path designation of the short section of private road linking Balloch Wood to the single track public road. It needs to be so designated to provide a core path return route.

• The proposed core path does not take walkers to the minor public road, but instead only to the end of the FCS woodland where there is no parking provision. To avoid walking on the public road to Creetown, users would have to retrace their steps.

• The return route envisaged by the council is the narrow single track public road which has been approved for use by a haulage operating centre for 4 lorries and 2 trailers allowing movement variously put by Mr Wenner as 75 k and 100 k tonnes a year.

• The route is not suitable and unsafe as an all-user core path as there is no refuge for pedestrians confronted by on-coming HGV traffic of around 1 each hour. The Council Roads Department appeared to be unaware of the walking interest when granting the operating licence.

• Additional public safety considerations apply to a core path which the public are actively encouraged to use. Advisory signs would apply to a dual use public route as well as adequate public safety provision.

• On a general level the core paths network appears to show only off-public road routes without car parking or without return routes from points of

Chapter 2 – Wigtownshire – Balloch Wood Dumfries and Galloway’s Core Paths Plan

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departure which the core network is supposed to serve. This severely restricts the use and value of these routes and fails to highlight the need to make routes safe. This needs to be resolved before a core path can fulfil its designated function.


• The main objection to this route is not about the path itself but the fact that it has an access onto a private road which links to a public road which can be used along with the core path to make a circular route from Creetown.

• The proposed core path is part of a long-running community woodland initiative. The path is well-used and has been in existence for a number of years with no issues or complaints about the exit onto the private road; there is no reason that the private road should not be available for public access.

• The public road is a narrow single track minor road and as such any vehicle using it should expect to meet other road-users, pedestrians and farm animals. HGV and other traffic to the haulage and engineering business at Glenquicken Farm is not significant.

• The objection refers to lack of car parking but there is a formal car park at the southern end of the proposed core path. This is considered sufficient.

Reporter’s appraisal and conclusions: It appears that the objection in this case is not primarily concerned with the core path proposal, but the possibility that the proposal could be incorporated in a circular walking route using a short section of private road and then a single track public road leading back to Creetown. However, that is not the council’s proposal, presumably because it would not beconsistentwith their policy that public roads should not be designated as core paths. Thus the use of that public road by HGVs and the basis on which the decision was takento allow a development resulting in that use is irrelevant to the consideration of the core path proposal. Exception is also taken in the objection to the consequence of that policy that most of the core paths relate to off-road routes without car parking. Clearly that is not the case here, where the parking area associated with the Balloch Community Woodland is close to a large pond developed for wildlife interpretation and to a picnic shelter as well as informative signboards. The objector’s concernsaboutdeficiencies in respect of other areas and paths are unspecified. Based on my site inspection I find that the proposal to designate this core path is well-founded. It has the agreement of the owner of the land and the designation of the core path would capitalise on investment made already in encouragingaccess to the countryside and informing users concerning their experience. It is thus entirely consistent with the objectives of section 17 of the Act.

Chapter 2 – Wigtownshire – Broadstone Wood Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Broadstone Wood Core Paths Number: Link 3556

Core Paths Map 10

Persons whose representations raise the issue: SCR Number Name SCR 1046 SCR 580

John Ferguson Mr and Mrs Aitken

Reporter’s recommendation: As proposed by the Access Authority delete link 3556 from the Draft Plan and replace with the amended proposal shown on ProposedAmendment to draft Core Paths Plan Map 10 Broadstone 26 April 2010 contained in Document 6. The proposal and its context: The council’s original proposal in the Draft Plan showed this link routed along the sea wall and then along the foreshore of Loch Ryan at McCulloch’s Point below the mature woodland at Broadstone. The council’s amended proposal recognises the fact that the beach is entirely covered during storms and at high tide leaving no space between the high water mark and the headland. It diverts the link through Broadstone Wood on an existing well-used path. This starts with a short uphill section next to a ruined building on the foreshore and then ascends to a private residential lane serving 3 houses, which in turn leads to a residential road. The link follows the pavement of Larg Road returning to the foreshore to the north-west of McCulloch’s Point. Summary of the representations:

• The existing well-established footpath linking the proposed core path to Larg Road through Broadstone Wood immediately to the west of McCulloch’s Point should be included as it meets the criteria for a core path.

• Mr and Mrs Aitken’s objection is unspecified. It appears that Broadstone Wood is in their ownership.


• A site visit revealed to the council that the proposed path was routed along the tidal area on the shore with no easy exit for someone caught by the tide. Such a routeing is precluded by the council’s health and safety policy.

6 Mr Ferguson conditionally withdrew his objection on 28 April 2010 on the understanding that link 3556 would be re-routed as indicated.

Chapter 2 – Wigtownshire – Broadstone Wood Dumfries and Galloway’s Core Paths Plan

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• Further investigation revealed an existing Right of Way through the wood showing signs of regular use; the wood has historically been well-used by the public for recreation. The council proposed the diversion as described.

• The 2 owners of the lane agreed to the diversion not least because walkers traverse their gardens to avoid high tides.

• The council contend that the route forms a vital part of the coastal walk north of Stranraer. It is a popular route, with clear evidence of regular public use, for local residents to access the shops in Stranraer.

Reporter’s appraisal and conclusions: The proposal containedin the Draft Plan was inconsistent with the council’s policy. Given the potential risk to usersits designation as a core path is inappropriate. The amended proposal makes use of a well-used path that is asserted to be a right of way. The Act and the Access Code envisage the designation of such routes as core paths. Whilst the land is in private ownership it has neither the appearance, nor is it managed as part of any property’s garden or policies. I find,taking account of the interests of the owner of the land and the policy framework established to allow access rights to be exercised and those interests to be protected, that a link in this location is necessary to contribute to the sufficiency of the plan in maintainingthis part of the coastal walking route.

Chapter 2 – Wigtownshire – Lovers’ Lane Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Lovers’ Lane Core Paths Numbers: Links 4124, 41257 - now referred to as link 421

Core Paths Map 36

Persons whose representations raise the issue: SCR Number Name SCR 88 SCR 564 SCR 596 SCR 594

Mr and Mrs Gaskell8 Mr J McColm9 Valerie Stevenson (Owner with 2 others) Mr Templeton (Owner)

Reporter’s recommendation: As proposed by the Access Authority amend the Draft Plan to designate links 4124 and 4125 as core paths (now link 421) as shown on Lovers’ Lane Proposed amendment to draft Core Paths Plan Map, 24 November 2010. The proposal and its context: As originally numbered, link 4214 is proposed to run north along Lovers’ Walk which is an existing fenced track which heads out from a residential cul-de-sac on the northern edge of Wigtown. There are panoramic views over Wigtown Sands; a seat at the highest point is positioned to take advantage of these. The route then turns west, originally numbered as link 4125, where it meets another track and then winds down through an avenue of mature trees to pedestrian and vehicle gates at the house at Glencarse. This is the route shown accompanying the council’s Comment Form History. Following submission of the Draft Plan to Scottish Ministersthe council found a mapping errorin the proposed addition. This has the effect of extending link 4125 west of the A714 road following another avenue of mature trees past a stable and thence on a track between fields to reach the B7005 road at Hollybush Cottage. Summary of the representations:

• Mr and Mrs Gaskell and Mr McColm suggested that the route between Hollybush Cottage and Lovers’ Lane, following existing farm tracks, should be included as a core path.

• The landowners’ grounds of objection are unspecified. 7 Links 4124 and 4125 are not shown in the Draft Plan. 8 Mr and Mrs Gaskell conditionally withdrew their objection on 26 March 2010 on the understanding that links 4124 and 4125 would be added to the plan and in the form eventually proposed by the Council, rather than the truncated route included in the first submission to Scottish Ministers. 9 Mr McColm did not formally object but instead made the suggestion that Lovers’ Lane be included in the Plan.

Chapter 2 – Wigtownshire – Lovers’ Lane Dumfries and Galloway’s Core Paths Plan

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• On inspection the council considered this to be a well-used path serving the residents of Wigtown.It fulfils the requirements of a right of way, has been maintained by the council for many years and – with the exception of finger post signs at the beginning of the route - very little would change as the result of its designation. Mrs Stevenson confirmed her understanding that the route is a right of way.

• As the track serves adjacent fields 6 owners were contacted to seek agreement to the proposed addition to the plan. The council believe that the objections of 2 owners are made on the grounds that the proposed path might affect future planning proposals on land adjacent to the route.

• The council state that Mrs McGrath, owner of the land on which the extension of the route to Hollybush Cottage is now proposed, has no objection to that element of the proposal.

Reporter’s appraisal and conclusions: These links are an addition to the Draft Plan; there are no proposals contained in the published version. There is no evidence of the objectors’ suggested concerns about the effect on future development proposals. The council has provided no indication of the statutory Development Plan allocations that could have a bearing on the prospects of success of such proposals. Section 13(1) of the Act imposes the duty on councils to assert and keep open routes over which access rights may reasonably be exercised. This would appear to include the proposed core path in its existing state. In addition, the Government guidance states that access rights and core paths will be material considerations in development planning and determining planning applications (page 46). This was reinforced by Scottish Government Planning Policy issued in February 2010 which advises that planning authorities should consider access issues and should protect core paths and other important routes when deciding planning applications. Thus, national policy indicates that access rights, including those enabled over the system of core paths, are to be protected in allowing other worthwhile development proposals. Most of this route is already well-used with a strategically located bench seat to take advantage of panoramic views. It is notable in providing a stock-free walking route from the villagewithin an area devoted tolivestockfarming. With the exception of routes at the shore in Wigtown, the only other path proposals in the wider area are aspirational; achieving sufficiency is thus an important consideration in this location. The fact of its existence, and use, means that, as indicated by the Access Authority, little would change as the result of designation. I find that these proposed additions to the Draft Plan would make an importantcontribution to the quality and sufficiency of the system of paths required to provide the public reasonable access, taking account also of the interests of the owners of the land and the policy framework established to allow access rights to be exercised and those interests to be protected.

Chapter 2 – Wigtownshire – Boreland Forest Dumfries and Galloway’s Core Paths Plan

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District: Wigtownshire – Boreland Forest, Newton Stewart Core Paths Number: Link 402110

Core Paths Map 40

Persons and body whose representations raise the issue: SCR Number Name SCR 223 SCR 273 SCR 579

Margaret E. Smith, Knockman Community Company (conditionally withdrawn on 23 February 2010following the council’s change from aspirational to committed) Alex T. Murray (conditionally withdrawn on 17 February 2010following the council’s change from aspirational to committed) The Alistair Dean Law Practice Limited per Mr McCort, Ecoforest Enterprises (Owner)

Reporter’s recommendation: As proposed by the Access Authority amend the Draft Plan to designate link 4021 as a core path as shown on Proposed Amendment to draft Core Paths Plan Map 40, reference Boreland Plantation, dated 30 September 2010, contained in Document 6. The proposal and its context: The published Draft Plan shows link 4021 with the annotation “These are aspirational core paths. We would like to designate them when some element of the path has improved”. The proposed linkruns from the minor road linking Minnigaff with Boreland. There is a bellmouth at the road side which leads to a gated forest access road which is in good condition. That gate is locked and a nearby stile is broken. A short section runs through rough grazing and then into mature commercial forestry where some 1 km later it joins a network of other tracks that are proposed to become core paths, and which are not the subject of objection. Summary of the representations:

• Link 4021 should be designated a core path and not marked aspirational. It leads not only to places of historical interest but also to the most spectacular vantage points in the Cree Valley.

• It is presently difficult to access due to the locked gate but still well-used by the local community.

10 Link 4021 is indicated to be aspirational in the published Draft Plan; the council’s proposal is an amendment.


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• The westerly section, and greater part of it, is a hard core well-made path. Thereafter it is a well-defined grassy track leading into Knockman Wood. None of it would require improvement.

• The route is popular due to the ease of car and bicycle parking within Minnigaff and the wider area.

Mr McCort objects on the grounds that:

• As the landowner he was not consulted and had no prior knowledge of the change proposed to the core paths plan until told of it by the council on 26 February 2010.

• The consultation process that was carried out did not meet the requirement of Section 18(1)(c)(ii) of the Act. Mr McCort carries on a forestry business and was at no stage consulted until this proposed change was mooted. Thus the council failed to discharge their statutory obligations and by proceeding with the change to the Draft Plan are acting ultra vires. The council was given the opportunity to withdraw this proposal, but declined to do so.

• The current consideration of Mr McCort’s objection is incompetent because the matter to which the objection relates was not initiated in compliance with statute.That defect cannot be corrected by Scottish Ministers. The objection should thus be sustained on the basis of statutory non-compliance, failing which a similar outcome should result from consideration of the merits.

• It is unacceptable if the Act is being interpreted by the council to favour the views of narrow groups pursuing self-interest in the name of the public good.

• The proposal is a waste of public money and resources when the national need is to question and cut such expenditure.

• Other council officers have said there is no demand for public access. • Were demand to be demonstrated that would benefit the wider community

and the tourist industry, then Mr McCort would be prepared to discuss where and how this could be accommodated at the council’s cost and without affecting the commercial value of his asset.

• The purpose-designed forest access road is neither suitable nor safe for use by the public due to the potential conflict with forestry vehicles; there is also the potential for conflict with stock between the forest and the public road.

• Another access appears to be available closer to Newton Stewart that would serve the likely use.


• The proposed core path was suggested by a local community group; the council seeks to listen to local opinion where possible. The site was visited with an objector and the route found to be in reasonable condition. The council agreed to change its status from aspirational to a proposed core path.

• The landowner was notified of this change but it appears that he had no knowledge of the existence of the aspirational core path on his land.

• The council refer in detail to the history of the project as indicated in the preamble to this report. It was not possible to know the details of every individual landowner in a project involving more than 2005 km of paths.


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• Often, as in this case, details only came to light following the identification of a problem with a particular path. Usually an absentee landlord had a local agent fully aware of the core path planning process who would have brought it to the owner’s attention.

• The core path plan is available to all council departments; the planning department has not indicated that this link is not a valid core path.

• The council have discharged their duties under section 18(1) of the Act and their actions are not ultra vires. Section 18(1)(c)(ii) does not impose a duty to consult individually every person who carries on a business on land where a core path is proposed.

• The council consulted NFUS and the Scottish Rural Property and Business Association. They wrote to every person with an IACS number. Those consultations together with local newspaper adverts and the council’s newsletter referring to the Core Paths consultation was proper and sufficient to enable those persons carrying on business on land where core paths were proposed to be aware of the process and to respond. A search of all affected landowners would have been extremely expensive and may have been less than 100% accurate.

• The council does not consider forest roads incompatible with core path status. FCS leads the way in combining access with forest operations. The council believes that all forest managers can operate with public access taking place under the Act, although at certain times access may have to be restricted or alternative routes used.

• Wigtownshire is an intensive livestock farming area and a large number of paths pass through an area that may be stocked in future with the potential for conflict. The Act and guidance deals with the issue. The council would consider appropriate signage for this link alongside wider education campaigns to reinforce the responsibilities of the public in taking access.

Reporter’s appraisal and conclusions: I note the objector’s submission that this proposal is a waste of public money in a time of stringency, but in preparing their Core Paths Plan the council are meeting the statutory responsibility appliedby section 17(1) of the Act. The council’s position is that the consultation undertaken concerning all additions to the plan has been both appropriate and sufficient to canvas the views of affected parties, thus avoiding the possibility of prejudice. The landowner at Boreland appears to have been unaware of the objections made by others that suggested that the aspirational status (of which also he may have been unaware) be dropped in favour of core path designation. The council reacted favourably to that suggestion and the proposed core path was included in this inquiry process as an addition. The owner admits that he was told of this change by the council. Section 18 of the Act requires that specified steps are taken. It does not require that the consultations under section 18(1)(c) are undertaken whilst the plan is on deposit under section 18(1)(b). Consequently I do not find that the council’s approach was ultra vires. Their pragmatic response meant that the owner was contacted and his views canvassed; that is what section 18(1)(c)(ii) of the Act requires. As a result he was able to make, and made, representations against the merits as well as legal


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submissions. It is thus difficult to see how the landowner’s interests have been prejudiced. The objector is concerned also about the effects that access-takers might have. Section 2 of the Act requires that those exercising their right to take access behave responsibly. The Access Code advises that:


• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated by warning signs when special care is required or it is necessary that the public avoid an area during particular land management operations, such as movement by forestry vehicles and contractors and, on the grazing land, when running a bull or during and following calving.



In this case the risks within the woodland are the same as those experienced by FCS, but far from seeking restrictions that organisation leads in promoting responsible access to its estate. It is clearalso that the issues that are of concern to the owner are addressed by both the law and the Access Code approved by the Scottish Parliament. A network of other paths is included within the wider area of Knockman Wood of which the objector’s plantation forms a part. This formerlyaspirational proposal is connected to that network and to the northwardsextension that is proposed to link with the RSPB BarclyeReserve (page 135 of this report). It is correct that link 757, to the south-east, could provide the sole access to the wider woodland, but link 4021 would provide more opportunities for circular routes and thus add to the sufficiency of the network that is proposed. On balance I find that the proposed link would make an important contribution to a system of paths sufficient to provide the public reasonable access, taking account also of the interests of the owner of the land and the policy framework established to allow access rights to be exercised and those interests to be protected.

56

Chapter 3

Stewartry


• The Stell to Back Newton near Kirkcudbright; • Milton, near Springholm • Kenick Burn, near Laurieston • Livingstone Hill, near Glenlochar • Cornharrow, east of Carsphairn • Barscobe

In each case the path or link is identified by the unique reference number that the council devised except where these involve new paths suggested by objectors. The council prepared, for each objection issue, a “Comment Form History” detailing the issue, the parties, the history of contact between the council and those with an interest and the council’s assessment of their submissions. In each case that Comment Form History was sent to the individual objector and their response invited in order to assist Scottish Ministers’ consideration of the unwithdrawn objections. Where objectors provided further comments these have been taken into account in this report. My report is based on the material submitted by the council and also the original material as submitted by objectors. Some parties, who had not made objections to the council have, on hearing of this inquiry, commented to Scottish Ministers concerning the subject matter of objections raised by others. These have been treated as third party representations and handled as outlined in the Code; each may be identified by the absence of an SCR number (which is the council’s numbering system used to track representations following the consultation) at the head of the narrative concerning each issue. Other parties listed with no SCR number made representations to the council, but were not treated by them as objectors, yet the council submitted those submissions as part of their case.

Chapter 3 – Stewartry - The Stell to Back Newton Dumfries and Galloway’s Core Paths Plan

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District: Stewartry – Kirkchrist, the Stell to Back Newton Core Paths Number: None – additional path

Core Path Map 75

Persons whose representations raise the issue: SCR Number Name SCR 122 SCR 103 SCR 32 SCR 584 SCR 583 SCR 582 No SCR No SCR

William Johnstone Tania Gardner Felicity Gelder John A Neil, Land Agent and Valuer per Mr and Mrs Reid Mr Craig Mr Dunlop Marguerite Lee Ms Dunlop, NFU Scotlandin support of Mr Dunlop

Reporter’s recommendation: The Draft Plan should not be amended by the addition of the proposed path. The proposal and its context: The proposed route runs for some 1.5 km from Rockmount, a large modern bungalow on the B727 above the western shore of the River Dee overlooking Kirkcudbright. The route climbs over the hill to the south-west to Back Newton cottage on a minor single trackroad. The core path is intended to followa right of way that starts at the roadside and is reached either through an attractive arch in Rockmount’s high roadside hedge, or over stone stile steps in the wall of the adjoining Kirkchrist Cemetery. The right of way ascends on grass through the garden of Rockmount along the boundary wall and then past a stand of woodland crossing another stone stile where it exits the garden into the adjoining field. The right of way continues to a wooden stile fence on the far boundary of that field. The right of way is discernible by those features on the ground only over the first 250 m from Rockmount and by the final 250 m or so of agricultural trackfrom Back Newton Cottage to another cottage at High Newton. Attempts to follow its general direction, the location of which was the subject of dispute between parties at the accompanied site inspection, requires walkers to climb well-maintained stock-proof barbed wire fencing. The need to do so may be avoided in part by very substantialdetours to use field gates on either side – well away from any desire line that could be associated with the right of way. These stock fences are not easily negotiated as I discovered to my cost. Within the garden of Rockmountthe right of way is within 4-4.5 m of the side elevation of the house and directly overlooks windows there. As the garden, and proposed path, climb steeply there are then clear views into an otherwisesecluded patio at the rear of the house and towards further windows. As indicated it was not


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possible to confirm the entire route of the right of way at the site inspection. The route corridor runs along the boundary between the landholdings of Bishopton and Back Newtonfarms and crosses land owned by Kirkchrist at the rear of Rockmount. Depending on its exact position, and also that of the core path proposal, it may affect land in the ownership of Compstonend of which that land manager may be unaware. All of the land crossed is permanent grazing involving up to 750 animals (dairy cows that run with a bull; beef cattle, also running with a bull; and lambing ewes). There are, in addition, 3 pheasant shoots. There are no other core path proposals in the immediate vicinity, but there are other well-used rights of way that radiate from the steading at Bishopton providing access to the same minor road to the west. Summary of the representations:

• The route has been used for many years and is recorded as a right of way on the Dumfries and Galloway Council system. It is referred to as such in correspondence from 1988.

• The walk features in a leaflet published by the Kirkcudbright Community Council at some undated time previously. It is a pleasant circular walk through fields with panoramic views of Kirkcudbright.

• It has been fenced recently and it is reported that stiles in the dykes that were previously usable are no longer, or are missing.

• The walk makes up part of a longer circular walk from Kirkcudbright using a minor unclassified road and forms an important addition to a longer Kirkcudbright to Gatehouse coastal route.

Landowners object on the grounds that:

• The risk of disease transference from dogs and from neighbouring land would impact on bio-security and farm income.

• The safety of walkers, which would be at risk from both the bull and cows with calves. Mr Dunlop would not be allowed to have a dairy bull in these fields were there a core path with a resulting detrimental effect on the business.

• Safety could also be compromised by the winter pheasant shoot. • Devaluation in the value of annual grass let and potential contamination;

reduced yield of silage and increased costs for bought-in animal feed. • The effect of disturbance on pregnant ewes and lambing. • The route is not well-used, there are no walkways stiles or paths and walkers

could easily become lost.

Mrs Lee’s main concerns are with privacy and security:

• If signposted from the road casual visitors could be encouraged to nosey around in her garden. She would be happy to encourage use by those who have seen it described in books or by word of mouth.

• The path could and should be diverted via the cemetery along the garden boundary to the woodland and the field beyond, thus avoiding Rockmount.

• Next best would use the cemetery diversion but enter the garden at the woodland with the path continuing to the stile at the end of the garden, as at present.


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• Mrs Lee would take up the council’s offer of planting11 to at least partially screen the path from her house, but a fence should not be erected to isolate the path from the garden.


• Three people objected to the Draft Plan on the basis that this path should be included. The council assessed the route, consulted the community council and met the land-managers. It was explained that the link was an existing right of way, that the council would provide gates and would support an SRDP application to fence the route from stock if bio-security made this necessary. This might include a 25% contribution to the cost of fencing.

• The council contend that the agricultural arguments are either irrelevant or unproven; there is no evidence that designating a right of way shown on OS maps as a core path has any impact on the value of agricultural land.

• People have to accept an element of risk when they enter the countryside and this is reflected in case law, where a very measured response is generally given to cases of negligence.

Reporter’s appraisal and conclusions: This link is an addition to the Draft Plan in response to objections. Other proposed core paths were promoted in the Draft Plan based on the criteria of public support from more than 33% of those involved in the initialconsultationand an identified need. It is not clear from the council’ssubmissions howthose objective criteria were triggered inthis case to justify an additional route over those proposed in the Draft Plan. The proposed core path is intended to follow an undisputed right of way that is marked also on OS sheets. I find therefore that the principle of public access is established. The proposal to include this in the core path scheme raises new, and separate, considerations but, in terms of section 17(2) of the Act, the route fulfils the right of way criterion as a candidate for core path designation. However, that right of way is discernible on the ground for only some 500 m. Whilst a desire line for the balance of 1 km may be guessed at,itslocation,and thus that of the proposed core path, is not evidentbecause the boundarycrossings that would have defined it are not in place. This difficulty is complicated by the fact that it was not possible to determine at the site inspection whether the council’s amendment plan routed the proposed core path on the Bishopton or Back Newton side of the boundary between the 2 properties. Based on my site inspection I have reached the view as a matter of fact and degree that the proposed core path would run through the curtilage of Rockmount and through the land required to ensure reasonable measures of privacy for the occupants of that house. Thus, were the determination to be made solely on the grounds of section 6 of the Act, it is my conclusion that access rights under the Act

11 At the site inspection Mrs Lee said that she did not wish the route to be screened as this would reduce the width of her garden at the narrowest part and appear intrusive in its own right.


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should not be exercisable here.Notwithstanding that conclusion, the status of the route as a recorded right of way would be unchanged. However, section 7(1) of the Act indicates that section 6 does not prevent or restrict the exercise of access rights over any land which is a core path. This suggests that the designation of a core path is able to override the exemptions from access rights conferred by section 6. On that basis, and taken with the existence of a right of way(albeit one that cannot be followed)I see why the council consider that they are able to propose a core path in this location, but it is still necessary to consider the objections in the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. In this instance the relationship with residential and other property engages Convention rights, applied in this context as indicated at paragraph 1.17 of this report. Based on my inspectionI consider that from a core path in this location there could be significant interference with privacy and the peaceful enjoyment of possessions for those living in Rockmount. That would also be the case were the route screened or fenced within the garden; its close physical relationship with the housewouldmean that the measures intended to provide that screening wouldbe oppressivewhen so close to the property. The option of a diversion to avoid these effects has been suggested. I have concerns about the appropriateness of a re-routeing that would take access-takers (who could include those on bicycles and, potentially, equestrians) through the tranquil setting of the cemeterybut it would require works to create a path through the adjoining woodland, together with a fence and a wall crossing. There could be an effectofsignificance on the woodland backdrop to the setting of the cemetery and that land is said to be in the ownership of another party whose views are unknown. Thus, in the case of Rockmount, I am not convinced that the exercise of access rights under the Act over a proposed core path may be fairly balanced with the interests of the occupiers of the affected property. That is because I do not consider that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating this part of the right of way as a core path. Notwithstanding the fact the route is proposed to start from Rockmount where I have found that neither this nor the alternativeswould be appropriate, the merits of the balance of the route must also be considered. The concerns raised by the land owners apply equally to the right of way but, as in the case of Rockmount, other considerations must be taken into account in considering whether it would be appropriate to now designate that right of way as a core path. The entirelink crosses permanentgrazing pasture. Within most of the fields a bull is present for at least part of the year. The risksposed are realgiven the tragedy that befell a worker on one of these holdings.The council have suggested that the path could be fenced, but for bio-security, rather than reasons concerned with safety. Whatever the justification, fencing a route of some 1.5 km would be a considerable expense and would, through the removal of land from productive use, be likely to impact on farm income.


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Section 2 of the Actrequires those taking access to behaveresponsibly and the Access Code anticipates and advises the means of ensuring that rights of access can be exercised without unreasonablyaffecting the interests of others. Thus the circumstances that concern the landowners have been considered and solutions of a general nature suggested. In most circumstances elsewhere I have found these to be an effective means of resolving such concerns. However, here the situation is directly analogous to that at Mulhill (page 35 of this report) where the Access Authority have requested deletion of a section of core path that they proposed in the Draft Plan because the land over which it would pass is permanent cattle pasture, unsuitable in their view for use as a core path. I conclude that the same judgement should be applied here. I recognise that the combination of considerations raised by this link is unusual. Even if not designated as a core path a right of way will remain in existence where the council may exercise its statutory powers of repair and maintenance. However, I am not convinced that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating the core path that has been proposed as an addition to the Draft Plan.

Chapter 3 – Stewartry – Milton, near Springholm Dumfries and Galloway’s Core Paths Plan

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District: Stewartry – Milton, near Springholm Core Paths Number: None – additional path

Core Path Maps 84, 111 and 113

Persons whose representations raise the issue: SCR Number Name SCR 441 SCR 437 SCR 443 SCR 442 SCR 438 SCR 410 SCR 581

Kenneth Murchie Valerie Middleton Mark and Anna White Joe Smith M.C. Middleton Mrs K Barrick Messrs Turcan Connell on behalf of the Barbour family and the Callander family

Reporter’s recommendation: The Draft Plan should not be amended by the addition of the proposed path. The proposal and its context: The proposed path runs from the steading at West Glenarm which is located on a minor road to the south-east of Springholm. The overall route amounts to some 2.5 km; it runs north-east to join another minor road close to Bridgestone Bridge some 0.75 km to the south-west of the hamlet of Milton. The first 500 m of the proposed route is on a metalled road serving 3 houses (one is within 5.5 m), the farmhouse and the steading at East Glenarm. There is no parking available; any vehicles parked on the narrow verge would block the carriageway to tractors. East Glenarm is an extensive dairy farming enterprise with some 300 cattle and a further 250 sheep. It is run in conjunction with the much larger steading at Crofthead which is being expanded, and where there are already 1,400 milking cows. Crofthead is a short distance to the south and is the hub of the integrated business. There are continuous movements of feed and muck between the two using first the public road and then the 2.5-2.8 m wide farm access which is proposed as the first stage of the core path. The farm access is used also by the milk tanker; given the scale of the herd this is a large vehicle. At East Glenarm the proposed core path, which runs directly alongside the steading, is gated and continues on a hard core track. There are more gates placed to aid in the movement of the dairy cattle to and from a succession of fields along the dairy lane. At its highest point, the track also serves a Scottish Water tank. Further to the east the track continues between attractive stone boundary walls but becomes ever more difficult to negotiate because a near continuous thicket of gorse and briar has taken hold. Eventually that part of the route is terminated by a fence topped by an electrified wire. The route continues on water-bound track to which beasts have access and crosses a cattle grid to reach the road close to Milton.


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The surrounding countryside is attractive and due to its elevated position there are extensive views from the proposed core path. At the site inspection cattle were housed at East Glenarm for the winter, but for the majority of the year the herd finds its own way back after milking to the fields along the proposed core path. When in operation the gates across the dairy lane are used to direct livestock. During spring, summer and autumn some would be temporarily closed, closing alsothe core path. Summary of the representations:

• The hamlets of Milton, Burnbrae and Burnside need opportunities for safer off-road walking segregated from narrow lanes carrying 2-way traffic. There is little such opportunity in the area, but every small community needs options to avoid the need to drive to find a safe place to walk and to avoid also the possibility of alienating the young from their local environment. This would benefit health and welfare as well as tourism and the wider area. It would also benefit landowners because walkers are conscious of their responsibilities and would alert landowners of animals in danger or distress.

• The pathis held by the Urr Community Council and several local residents to be a right of way. With the route from Milton Loch to Springholm, which is proposed to be designated in the Draft Plan as an unopposedaddition (page 126 of this report), itwould contribute to a safe circular walking route.

• This route is an historical track, shown on maps, that has become overgrown. In 2008 it was blocked by a substantial post and rail fence topped with an electrified wire and a cattle grid with no pedestrian provision making it virtually impassable.

• There have been a number of attempts in the last 10 years by locals to clear it, but met with negative responses from landowners. It is one of only 2 paths that exist within walking distance of those living in the village and 50% of it involves a farm road. It is held to be illegal that the route should be closed.

• At least 3 other villagers made representations to the council supporting the addition of this route, but have not been listed by the council. Many other residents would also like the path to be accessible.

• It is unfortunate that relationships have broken down between the landowner and the Access Authority. The surest way of having the path re-opened and protecting it for the future lies in designation as proposed by the council with provision for alternative field-side access during milking.

Messrs Barbour and Callendar object on the grounds that:

• The proposed path meets none of the 15 functions where at least one is cited as necessary in the Draft Plan (pages 2 and 3 of this report).

• The council cannot ignore the provisions of section 6, and the absence of access rights, when proposing prospective core paths in a draft plan. When account is taken of sections 6(1)(b)(iv) and 7(1) of the Act, a core path can only be situated on land over which access rights are exercisable or land over which there is a public right of passage as specified in section 17(1)(a) to (c). For the council to be able to include this route they would require to establish that the route is a public right of way.


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• The purported route does not fall within any of the 4 categories specified in section 17(2) of the Act.

• The proposal fails against the criteria contained in section 17(3) of the Act. It should not have been put forward as a candidate path in the Draft Plan.

• The failure of the initial consultation to highlight the route suggests a lack public demand; the route is not used; the support of only 6 out of 50 households does not indicate strong community support. The eastern section is overgrown, but there is no evidence of the community attempting to clear the route in the last 10 years. The route is thus not used.

• The admission that the route would be used primarily by local residents suggests that, even if promoted, the wider public would show little or no interest.

• The cattle grid is required for the primary purpose of the land. The council have no power to have it removed. It makes the route unsuitable for cyclists and horse riders, many access-takers would thus be unable to secure through passage.

• Only in 2008 was it noticed that the purported route was blocked by an electrified post and wire fence, but there had been no complaint from a member of the public to the Access Authority and no action under section 14(1) of the Act. Accordingly, no-one is being prevented or deterred from exercising access rights.

• The landowners are unaware of the route being a recorded right of way and this is confirmed by the council’s statement that “there is little evidence following the rights of way investigation that can document use over a prolonged period”. Other evidence of use by the public as of right has not been produced in support of the core path proposal.

• Part of the route is a dairy lane used daily by dairy cattle which may run with a bull. It is the council’s general policy that core paths avoid dairy lanes. Here that use, which includes also other cattle handling and the passage of agricultural vehicles and machinery, is incompatible with public access irrespective of whether the access-takers are local residents or not.

• The principal use of the land at Burnfell is by suckler cows and their calves. The presence of walkers with dogs would be to the detriment and potential danger of those cattle. In any event the land is poached and unsuitable for public access in anything other than dry weather.

• The owner or keeper of an animal carries statutory liability for injury caused to the public. Bulls, cows and calves can react aggressively to strangers. The safety and public health issues arising mean that it is not desirable to encourage persons exercising access rights to use this route contrary to section 17(3)(b) of the Act.

• At its eastern end the route follows the main farm road to East Glenarm and is in constant use by farm vehicles. It passes also within a minimum of 5.5 m and a maximum of 11 m of 2 cottages and the farm buildings. The case of Creelman v Argyll and Bute Council is cited in this context.

• The council’s response to the judgement in Creelman is blinkered; it goes much wider than simple considerations of the neighbouring tourism business. The occupiers at East Glenarm are entitled to the same protection as others of their privacy end enjoyment under section 6. While section 7(1) disapplies section 6 over any land which is a core path, it does not disapply section 6 in


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respect of a draft core path. Therefore where there is an infringement of section 6 and the candidate core path is not a right of way or subject to a path agreement, then the candidate core path cannot be included in the Draft Plan.


• This route did not achieve the 33.3% threshold for inclusion in the paths assessment, and was therefore immediately discounted as a core path. In response to the Community Council following the initial assessment the council observed that the route had no immediately obvious function, although it could be argued that it could make up a circular route. The council then considered that it was not a strong candidate for designation due to its poor condition, its use to gather cattle on a daily basis, the lack of popular support and lack of clear function.

• Later submissions said to supersede those earlier views indicate that the council now consider that the lack of popular support was due to there being a number of scattered communities in the consultation area. Thus many routes achieve a smaller level of support;in such a location overall sufficiency of the plan is more important. The support of 12%, or 6 households, from a very small community like Milton is substantial and should not be discounted.

• There is little evidence following the right of way investigation to document use over a prolonged period. The test that should instead be applied is that in section 13(1) of the Act.

• It is not currently walked due to its overgrown condition, but would make part of a circular walk with small sections on minor roads, providing a safe, stock-free route outwith milking.

• It does not fit any other criteria but has good community support where the community has been striving for at least 10 years to clear the route to enable use, but so far with no success. The council favoured maintaining the route for open access with consent from the two landowners concerned. A community group was formed to clear vegetation on the eastern section of the route, owned by Mr Barbour. The council was to contribute two gates.

• Where possible routes avoid dairy lanes – in Wigtownshire one route was withdrawn as a core path on condition that open access was maintained facilitated by signage and gates. That would be an acceptable solution here.

• There are other core paths on lanes which are used to gather cattle for milking. The walk would be used primarily by locals; it has only two exits, so signage detailing milking times could be effective in managing access.

• Although the route passes close to the Glenarm houses, the privacy zone of these dwellings is clearly defined. In the Creelman case the issue was not the distance of the access from the dwelling, but that the neighbours primarily wanted to identify the track through the Creelman’s property as an asset for their tourism business. That is not the case here.

Reporter’s appraisal and conclusions: This link is an addition to the Draft Plan. Dealing first with the legal issues that are raised, I note that local residents claim that this route is a right of way, whilst the council do not support that claim and instead


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point to section 13(1) of the Act which contains the duty for the local authority “to assert, protect and keep open and free from obstruction … any route … by which access rights may reasonably be exercised”. The question of whether, or not, there is a right of way in this location is not for me to determine. The landowners argue that for the council to be able to include a route as a core path where access rights are not exercisable they would first need to establish that the route was already a public right of way. For this to be the case section 17(2) of the Act would need to be prescriptive, but it is not. It states that “such a system of paths may include”, in other words it suggests categories that could be considered as candidate core paths. This is reinforced by the terms of section 17(d) – to which I note that Messrs Turcan Connell do not refer - which refers to “any other means” and by the terms in which the interpretation of core path is defined in the Act. I do not find that, as drafted, section 17(2) restricts the categories of land that may be designated a core path to those listed. The issues raised in the Creelmanand other cases are central to the matter of access rights and to exclusions from the general right of access. Based on my site inspection I have reached the view as a matter of fact and degree that the proposed link here would run through the land required to ensure reasonable measures of privacy for those occupying 3 cottages on the access to East Glenarm and would run directly along the edge, but not through, the curtilage of the farm steading. Thus, were the determination to be made solely on the grounds of section 6 of the Act, it is my conclusion that access rights shouldnot be exercisable in these locations. It is argued also in this instance that, while section 7(1) disapplies section 6 over any land which is a core path, it does not disapply section 6 in respect of a draft core path. Therefore where there is an infringement of section 6 and the candidate core path is not a right of way or subject to a path agreement, then the candidate core path cannot be included in the Draft Plan. The crux of this argument is that before a Core Paths Plan is adopted there are no designated core paths. Core paths shown in a draft plan thus have no status and consequently section 7(1) of the Act is not engaged; thus the exemptions contained in section 6(1) are not modified or set aside. Whilst I understand the basis of the submission I find that the premise is at odds with the purpose of the Act which, in this respect, is to draw up a plan for a system of core paths, subject to the rights and obligations contained in the Act which means that in doing so the rights set by section 6 are to be considered subject to the qualifications contained in section 7 and then against the requirements of section 17. I have referred in Chapter 1 to section 7(1) of the Act which indicates that section 6 does not prevent or restrict the exercise of access rights over any land which is a core path. This suggests to me that the designation of a core path is able to override the exemptions from access rights conferred by section 6. On that basis I see why the council consider that they are able to propose a core path in this location, but it is still necessary to consider the objections to these proposals in the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. In this instance the relationship with residential and other property engages


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Convention rights, applied in this context as indicated at paragraph 1.17 of this report. Based on my accompanied site inspection I consider that there could be significant interference with privacy and the peaceful enjoyment of possessions for owners and tenants. That interference would affect residential property and also the farm because of the physical relationship between the proposed path and the cottages and because also of the functional working relationship between the dairy lane and the operation of East Glenarm as a substantial dairy unit in its own right, albeit linked operationally to a much larger unit close by. Accordingly, I am not convinced that the exercise of access rights along a proposed core path at East Glenarm could be fairly balanced with the interests of the owners and occupiers of affected property. That is because I do not consider that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating a core path where, otherwise, access rights should not be exercisable over the land. I am less concerned about the potential conflict with agriculturaloperations at Burnfell. There the rights and obligations set by the Act and qualified by the Access Codecould allow access to be managed effectively. But, when considered against the 15 functions identified by the council I agree with the council’s initialassessment that, in overall terms, this route had no immediately obvious function, apart from contributing to a circular route by the addition of walking on public roads. I therefore concur with the Access Authority’s conclusion that it was not then, and I consider is not now, a strong candidate for designation due to its use to gather cattle on a daily basis, where the council’s policy is to avoid dairy lanes where possible. The council were concerned at the outsetabout the lack of popularsupport. It seems that support may since have increased, including a willingness to improve its condition, but that does not lead me to conclude that the shortcomings of the proposal should be set aside. I have considered whether, as suggested, these difficulties could be overcome by minor deviations within the general route corridor. However, the options suggested would in effectrequire a new linear route paralleling the dairy lane. It would itself be routed through grazing land and would cross numerousfield boundaries. I do not find that this would be likely to be an effective means of resolving the problem. In the wider area the council have resolved the difficulties with the route to Springholm giving residents in Milton the opportunity to walk off-road to take advantage of facilities in that larger village. There is a further unopposed network a short distance to the east of Milton based around Head Hill. It is not therefore the case that there is littleopportunity for off-road walking in this area on paths designated in a core paths plan. On balance I find that this proposed link would not make an important contribution to a system of paths sufficient to provide the public reasonable access, taking account also of the interests of the owners of the land and the policy framework established to allow access rights to be exercised and those interests to be protected.

Chapter 3 – Stewartry - Kenick Burn Dumfries and Galloway’s Core Paths Plan

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District: Stewartry – Kenick Burn Core Paths Numbers: Links 125, 126 and 135

Core Path Maps 56 and 81

Person whose representations raise the issue: SCR Number Name

SCR 307 John Houfe

Reporter’s recommendation: As proposed by the Access Authority amend Maps 56 and 81 to designate the proposed core path as shown on amendment map reference 307, dated 1 March 2010, contained in Document 8. The proposal and its context: Kenick Wood which is located within the Galloway Forest lies to the east of the village of Laurieston. It is a mature commercial plantation traversed by many rides and forest access tracks, some of which are way-marked and signposted. There is a picnic area and parking at the head of a core path (link 4024), which includes a circular option, leading out from the village. Opposite the parking and picnic area the Kenick Burn descends through a series of rapids and pools. A very attractive walking route has been laid out in enclosed forest to the north of the burn, returning to the south by a separate link on the banks of the burn where there are seats at view points as well as bridges. It is this route that the council wishes to promote as an amendment to the Draft Plan. The plan’s original proposals showed, within the same woodland, an extended linear route running from the public road close the rear of Laurieston Hall along the route to the north of the burn to a point some 3.5 km to the west and immediately north of Lochenbreck Cottage and south of Lochenbreck Loch. The council observe that the route “peters out in a bramble bush within a Sitka thicket”. Another link – 124 – leads off from the public road some 800 m west of the picnic area joining a network of uncontested core paths in Glengap Forest, Fuffock Hill and Disdow Wood above the Fleet Valley. Summary of the representation:

• The Kenick Burn walk is extremely attractive and very popular, but in no way

does it contribute to the wider path network. The eastern end of the path should be extended in a southerly direction along the forestry road to meet the Laurieston to Gatehouse public road.

• Before the removal of links 125 and 126 as the result of objections from FCS, these with 135 would have formed a part of a network (albeit incomplete) leading to the Fleet Valley and connecting forestry and other tracks along the western side of Woodhall Loch leading to the Glenkens.


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• Link 125 is in poor condition but that problem is recent and hardly insoluble. Link 126 is pleasant in its own right and an ideal multi-user route which, with links 135, 4023 and 4024, would contribute to an excellent and genuinely circular route from Laurieston.

• The council’s proposal provides no semblance of a long-distance connection to Gatehouse.

• The process leading to the change sought by the Council was procedurally flawed. The late stage at which FCS objected, and the council’s decision to uphold those objections after publication of the Draft Plan, means that not only do the public have no opportunity to object to the resulting changes, but they are not even aware of them calling into question meaningful public consultation.


• The council concede that link 126 was poorly mapped; it follows a section of forest road with no link to a road, car-park or path at either end of the section. The access officer failed to check all the proposed core paths in Wigtownshire and Stewartry before the Draft Plan went to press.

• Examination on site revealed the forest road to be in very poor condition and impassable at the west end. Moreover, a way-marked FCS trail which covers part of the route, starts at the car-park and appears to be the most popular route in the area.

• As in other cases, the council realigned the link onto the way-marked trail with FCS agreement and the approval of the Outdoor Access Forum.

• This change provides a sufficiency of routes in the area – a short circular walk for those driving to the start, a longer walk from the village and a long-distance connection to Gatehouse of Fleet. The link requires no major works and is already both marked and popular.

Reporter’s appraisal and conclusions: I note Mr Houfe’s reference to the procedural flaw in the council’s decision-making process. He claims that this was the result of a late objection that he considers should have been discounted. The council make no reference to any objection from FCS. Instead they volunteer that the error was the result of the access officer failing to check all of the proposed core paths on the ground before the plan went to press. This led to a path being proposed that they concede has no link to a road, car-park or path. Given the information available to me I can make no finding as to whether the council’s decision was flawed as Mr Houfe suggests. However, the Draft Plan proposal is defective and the amendment proposed is the council’s solution to that problem. The test that must now be applied is that set by section 17(3) of the Act - whether the Draft Plan as now proposed to be amended provides a system of paths “sufficient for the purpose of giving the public reasonable access throughout their area”. I find that when account is taken of links 124, 118 and 3758 to the west and south and links 4024 (and 4023) to the east that this objective would be fulfilled. Taken together these links would provide a walking route from the outskirts of Laurieston through very attractive settings within the forest to the Fleet Valley and beyond. It is that objective that Mr Houfe wishes to see


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realised and this would be achieved within the same general location, albeit on slightly different routes. I therefore find good reason to support the proposed amendment so as to give the public reasonable access, taking account of the interests of the owner of the land and the policy framework established to allow access rights to be exercised and those interests to be protected.

Chapter 3 – Stewartry – Livingstone Hill Dumfries and Galloway’s Core Paths Plan

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District: Stewartry – Livingstone Hill Core Paths Number: Link 123

Core Path Maps 81 and 83

Person or body whose representations raise the issue: SCR Number Name SCR 180 No SCR

Mr Gourlay, G M Thomson & Co per T. J. Scott QC, the Livingstone Trust Balmaghie Community Council

Reporter’s recommendation: As proposed by the Access Authority, designate link 123 as a core path. The proposal and its context: Livingstone Hill is on the west bank of Loch Ken and reached by a minor road running north from the B795 at Townhead of Greenlaw, north-west of Castle Douglas. The minor road continues to the north to serve the RSPB Loch Ken Marshes reserve and loops to the west to the A762. The proposed link is a gated water-bound access track which climbs through an immature coniferous plantation. There are few clearings, but at higher levels there are views to the south and south-east over open upland grazing. Within the woodland there are game bird feeders. There was no evidence at the site inspection of a “non-compliant” sign. Kirk Road is a minor single track road to the south of Livingstone Hill that links the western shore of Loch Ken with the B795 road at Bellymack. With link 132, which is not the subject of objection, this proposal would provide a circular walking route. Summary of the representations:

• The route runs through a forestry plantation on a forestry extraction road

making the plantation susceptible to fire. It is stock-free only in part. • The wood is used as a commercial shoot on 6 days in a year; 5 different

drives would be affected by the proposed link. Disturbance to game is not limited to those days but throughout the period from when the birds are released in June to the end of the season in February.

• The views seen from the track are available only because the wood was recently felled and re-planted. During the next 10 years the track will revert to the tunnel through woodland that existed previously.

• The public road is not a dead-end but leads from Glenlochar to Laurieston, much used by tourists as well as those accessing their farms and homes.

• The nearby Kirk Road, in separate ownership, is a better alternative. • The landowner was neither notified of, nor invited to, the Access

Authority’svisits with Balmaghie Community Council.


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• This path is a surfaced track in good condition providing a stock-free route in a livestock area. It can be used without affecting any land-management operations for the majority of the year.

• Signage when shooting is occurring will be easy to achieve and effective because the route is highly defined.

• There are beautiful views and ample parking at Kirk. • Usage is unlikely to be high due to sparse population and absence of passing

traffic as the public road is a dead-end. • Most users would thus be from the hamlet of Glenlochar or visitors to the

RSPB bird reserve at Loch Ken Marshes and unlikely to increase the fire hazard beyond what is normal in a plantation with a general right of access.

• The suggested alternative route from Laurieston village to Kirk is a legal highway. The council’s policy is not to designate roads.

• The council sees no reason to withdraw the path which is in good condition requiring only clearance at the slip gate on the boundary between the two properties, and removal of a non-compliant sign. The proposal has the support of Balmaghie Community Council.

• Sufficiency of the Draft Plan needs to be considered because there are not many other paths in the area.

Reporter’s appraisal and conclusions: With the exception of link 132, to which this proposal is connected, there are no other path proposals on the west bank of Loch Ken. Achieving sufficiency is thus an important consideration in this location. I find that links 132 and 123 would, together, be an attractive circular route from the margins of the Loch to more elevated positions where panoramic views are available on emerging from the woodland. I note the concernsabout the effects that access-takers might have. Section 2 of the Act requires that those exercising their right to take access behave responsibly. The Access Code advises that:


• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated by warning signs when special care is required or it is necessary that the public avoid an area during particular land management operations, including low-ground shooting.



In this case the risks to the commercial crop are the same as those experienced by FCS, but far from seeking restrictions that organisationleadsinpromotingresponsible


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access to its estate. Given the clear delineation of the path, management of access through signage should be effective in ensuring co-existence with the commercial shoot on 6 days in each season. I agree that the part of the route within the commercial forestry will soon be completely enclosed, but this is not an unattractive walking environment in itself. On balance I find that the proposed link would make an important contribution to a system of paths sufficient to provide the public reasonable access, taking account also of the interests of the owner of the land and the policy framework established to allow access rights to be exercised and those interests to be protected.

Chapter 3 – Stewartry – Cornharrow Dumfries and Galloway’s Core Paths Plan

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District: Stewartry - Cornharrow Core Paths Number: Link 510

Core Path Map 93

Persons whose representations raise the issue: SCR Number Name SCR 569 No SCR No SCR

Anderson Strathern LLP on behalf of the Czernin-Kinsky Scottish Company Ltd Turcan Connell, Solicitors, on behalf of Messrs Barbour, owners of Stroanpatrick Dave McFadzean

Reporter’s recommendation: Deletelink 510 from the Draft Plan and replace with an aspirationalnotationfollowing the route shown in the Draft Plan with the exception of Cornharrow where the indicative alignment should follow the route shown inProposed Amendment to draft Core Paths Plan Map 93, dated 24 September 2010, contained in Document 9. The proposal and its context: The proposed path would connect with the B729, a single track public road between Carsphairn and Moniaive. The path would be routed through immature commercial forestry along a well-made access track for some 1.5 km before reaching the cottage and steading at Cornharrow. From there the link is proposed to continue on the same well-made forest access over open moorland to join link 469. In turn that link would connect with other links running to the north and south on the flanks of Stellhead and Manquhill, eventuallyconnecting with the Southern Upland Way on the crest of the ridge. At Cornharrow the forest access road crosses a burn on a modern bridge and then bearsleftpassing through ornamental gates to runalong a short avenue and then between the steading, where the Company’s offices are located, and the house. The access road as currently in operation runs between thefront elevationof the house and a deer enclosure to meet the riverbank to the north. However, the structure of the access road continues, albeit unused, in a direct line through the garden past the rearelevation of the house to join the operational access further north. There are locked 5 bar gates at both sides of the garden where identical signs indicate: “Walkers please note there is no pedestrian accessthrough Cornharrow following this track, thank you for respectingour privacy”. It is this route that the core path is proposed to follow. It is overlooked from less than 10 m by a dozen or more windows in the house. The garden is grassed and the track elevated against flooding. The intervening island planting provides no screening since the house and windows are oriented to provide views towards the open hill landscape to the south-west.


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Two alternatives have been suggested. Route 2 (the Stroanpatrick option) follows a short detour to the west of Cornharrow crossing the burn immediately to the north of the garden and following a route up a bank, over a dyke and fence, and then over tussock grass in year-round use as grazing to a low boggy area where a further fence and 2 more burn crossings would be required to reach the forest access road to the south of the garden. Route 3 follows a much longer diversion starting at the bridge and following the burn bank around the steading and thence on to another forest access road which runs in a wide arc to meet the proposed core path 750 m north of Cornharrow. Route 3 passes a rifle shooting range and skirts deer pens. I was told at the accompanied site inspection that both Route 2 and Route 3 involve the use of land in the ownership of the Carroch Woodland Syndicate where bridge and other works would be required. The council has not consulted the Syndicate. Summary of the representations:

• The proposed path involves direct access through a private garden impinging

on the immediate curtilage of a house with a significant detrimental effect on the privacy and security of the occupants and the reasonable peaceful enjoyment of the house and garden. The tourist business based on the property no longer operates.

• No direct route is available apart from through the garden. The owners have never tried to restrict access completely and merely ask for there to be a small diversion around the garden which would not impact on access-takers.

• The gate, walls and cattle grid at the entrance are unsuitable for pedestrian use where no parking is available and there is no provision for walkers’ litter.

• The core path access is through commercially managed woodland containing areas where trees are less than 4 years old.

• Two letters confirm that the extent of the Cornharrow garden has remained the same in the last 17 years. Both writers know the property well and have visited it regularly during that period. It was not created recently.

• The long-established Southern Upland Way is close to Cornharrow and the objectors question the need to establish another path in the vicinity.

• A better alternative is available through Stroanpatrick that would not impinge on privacy to the extent of the proposed route. The objectors consider that alternatives have not been fully explored and question why the council seem to have dropped this suggestion without explanation.

• Solicitors representing the owners of Stroanpatrick indicated their clients’ broad agreement to the diversion provided they were no longer required to have any dealings with a named member of the council’s staff in respect of any of their properties.

• Mr McFadzean refers to his use of the now blocked route for over 20 years and to its listing in local and national guides. The restrictions on access were imposed well after the inception of the Act and should be removed.


• The route has a history of recreational use confirmed in 10 submissions to the council from walkers prevented from taking unimpeded access. As well as guide books it features in council walking leaflets.


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• A mountain bothy was open on the estate but closed in 2003. The previous resident of Cornharrow had a history of altercations with the public and the route is not now used much by local people, but appears to be used by visitors.

• The route goes directly through the garden ground of the cottage. There has been no change of use applied forextension of the garden ground to the west of the track.

• The forest road will be used as an extraction route when the plantation is harvested. The council offered to fence and / or screen the forest road, but this was not acceptable. Route 3 avoiding the house and steading and involving a short flight of steps and 2 gates was rejected because of the proximity of the shooting targetand the proximity of the deer pen.

• The neighbouring landowner has informally agreed to allow Route 2 over Stroanpatrick, but has declined to confirm this in writing due to a dispute with the council. As the council is unprepared to agree to the pre-conditions set, they consider that it may never be possible to negotiate this diversion.

• The council’s submissions refer to their offer to supply 3 bridges and some fencing to facilitate this re-routing, but also state that as this involves the installation of those bridges and a detour on boggy ground, it is not considered the best route.

Reporter’s appraisal and conclusions: It was confirmed at the site inspection that the Draft Plan proposal for link 510 was maintained despite the council’s submission of a drawing titled “Proposed Amendment to draft Core Paths Plan Map 93” which shows the deletion of the route past the house at Cornharrow and its replacement with Route 2 - the Stroanpatrick deviation to the west. Apparently that drawing was submitted only to explain the background. Based on my accompanied site inspection, and my unaccompanied inspections in the wider area, I understand why the council have proposed the designation of core paths on forestry roads at Cornharrow as these would provide an all-weather stock-free route through attractive countryside and combine with other, higher level, routes to the west and north. However, the route is in remote uplandcountryside, there is no parking provision at the B729and parking in passing places would deny their use by through traffic. Apart from the registered disabled, access rights do not extend to driving over land, for example by persons seeking to park. However, the substantive issue in this objection concerns the effect on Cornharrow. The issue of access rights and specifically the exclusions from the general right of access are critical. I have drawn attention at paragraphs 1.7-1.9 of this report to the difficulty that is perceived to exist between the application of section 6 of the Act when read with section 7(1). Based on my site inspection I have reached the view as a matter of fact and degree that the proposed link at Cornharrow would run through the curtilage of house as well as through the land required to ensure reasonable measures of privacy for its occupants. The issue of whether or not the garden extends, or has been extended, to the west of the proposed route is irrelevant to that judgement; the council accept that the Draft Plan route goes directly through the garden. Thus, were the determination to be made solely on the grounds


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of section 6 of the Act, it is my conclusion that access rights shouldnot be exercisable through the garden at Cornharrow. However, section 7(1) of the Act indicates that section 6 does not prevent or restrict the exercise of access rights over any land which is a core path. This suggests that the designation of a core path is able to override the exemptions from access rights conferred by section 6. That is consistent with the Access Code. On that basis I see why the council consider that they are able to propose a core path in this location, but it is still necessary to consider the objections to these proposals in the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. In this instance the relationship with residential and other property engages Convention rights, applied in this context as indicated at paragraph 1.17 of this report. I note the council’s suggestion of screening or fencing the proposed core path, but these would be so close to the house, and so at odds with its relationship with the landscape, that both optionswould appear incongruous and also adversely affect the amenity of the residents. Thus, the effects of the route proposed cannot be mitigatedeffectively by that means. The council has put considerable effort into alternative solutions. Much of Route 2 was the subject of an agreement in principle that could not be realised because of detailed pre-conditions unconnected with its location. Were it not for the shooting range, where public access is incompatible with that range when in operation, Route 3 would provide a viable, but longer, year-round route. However, both would require works, in the case of Route 2 significantengineeringworks, to establish bridges on land that is in the ownership of a party that has not been consulted by the Access Authority. Based on my inspection I find that there would be likely to be significant interference with privacy and the peaceful enjoyment of possessions for residents at Cornharrow. Accordingly, and as proposed in the Draft Plan,I am not convinced that the exercise of access rights along a proposed core path through the gardenat Cornharrow could be fairly balanced with the interests of those living in the property. That is because I do not consider that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating a core path where, otherwise, access rights should not be exercisable over the land. The decision that has to be made by Scottish Ministers in respect of the objection is whether the proposed route should be designated when account is taken of its specific impacts, advantages and disadvantages. I consider that the disadvantages are such that the direct route proposed by the council should not be designated. However, there is clearly willingness by the Estate and one of the 2 adjoining landowners aware of the proposal to consider a small diversion around the garden that could ensure that the overall route into the hills to the north would be maintained. The principle of thatStroanpatrick (Route 2) diversionis acceptable to the landowner responsible for the majority of the land involved. In these circumstancesI consider that this should be explored as an indicativeaspirational


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proposal by the Access Authority. This diversion is shown on the council’s proposed amendment. The necessary consultation and the negotiation of a solutionthat would provide access along this route to connect with link 469 at Manquhill is properly the responsibility of the Access Authority within its duties under the Act. If accepted, this recommendation means that until a diversion at Cornharrow is agreed, and link 510 designated as a core path, access-takers would instead be reliant for a through route on links 600 and 542 which parallel the route proposed through Cornharrow, but some 1.5 km to the west. These give access to the same upland landscape to the north as may be reached though Cornharrow. It appears to me that these are sufficient for the purpose of giving the public reasonable access in the interim.

Chapter 3 – Stewartry – Barscobe Dumfries and Galloway’s Core Paths Plan

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District: Stewartry - Barscobe Core Paths Numbers: Links 85, 86, 97

Core Path Map 87

Persons whose representations raise the issue: SCR Number Name SCR 287 SCR 397 SCR 396 SCR 272 SCR 271 SCR 176* SCR 220 SCR 218 SCR 422* SCR 317 SCR 340* SCR 591 No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR *

Jenifer Emery Alistair Emery Sophie Emery Elizabeth Kelly William Kelly Mr Gourlay, G M Thomson & Co per Alistair Emery Carolyn Stocker Cyril George Stocker Alison Chapman, Convenor, The Pilgrims Way Group Robert Seaton, Brodies LLP per Alistair Emery Natalie Vardey Charles Laurie, Hewats, Solicitors and Estate Agents per Robin Jardine (In support of the Access Authority) Balmaclellan Community Council Roland Chaplain Gerry Cinderby Mr and Mrs Coupland June Hay Roddy Hermon Gordon Hill SE Hogg Ms C Jardine Sheila A Mackay Margaret Steel On 16 November 2010 Mr Emery agreed to the amendment of the Draft Plan suggested by Mr Fieldhouse on 11 November (Document B31). He endorsed the Proposed Amendment to draft Core Paths Plan Map 87, dated 17 September 2010, where links 85, 86 and 97 had been deleted. On that basis he withdrew his objection. However, in the Draft Plan submitted for Scottish Ministers’ consideration later that month the route remained a firm proposal. No amendment was proposed. The council statethat these objections also were withdrawn. As noamendment was made and the core paths proposal was not withdrawn thematters raised are considered in the summary that follows.

Reporter’s recommendation: Deletelinks85, 86 and 97 from the Draft Plan.


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The proposal and its context: The proposed route follows the single track tarmac drive serving the Barscobe Estate. It runs north from a junction with the A712 some 1 km east of Balmaclellan. There is no footpath and thus no provision for walkers and other access-takers on the A712; it is subject to the national speed limit of 60 mph. Visibility at the access is reasonable to the west, but constrained to the east. The roadside verges are necessary to ensure adequate visibility for emerging and passing traffic; no off-road parking is available. The estate road runs through a relatively enclosed, but attractive, landscape with views to the west and north-west over only a short section where a seat is positioned to take advantage. Close to the roadside grazing land dominates. Closer to the estate buildings there are stands of mature soft and hardwood trees, rhododendrons, a kitchen garden and an orchard as well as more formal planting in a series of long-established island gardens on either side of the estate road. These are connected by a network of paths. There are 6 houses on the estate, including 4 cottages, Barscobe House and Barscobe Castle, which is Category A listed. In addition the road serves the estate farm and steading. The Castle is furthest from the proposed route being some 35 m west of it. As a classical tower house it stands in isolation and its windows are open to view. The proposed link runs directly along, or within 3-5 m, of the frontages of Castle Cottage, Garden Cottage and the Bamboo House. At Barscobe House the alignment shown in the Draft Plan takes the path directly past part of the front elevation and the side of the building but it was confirmed at the site inspection (and had been presumed by Mr Emery to be the case in his submissions) that the correct routeing is on the estate road, which is largely – but not completely - separated from the house by a dense screen of evergreen planting. However, in this position the proposed link runs directly past the staff cottage. The farm and steading, which comprises several linked barns, sheds and animal enclosures lies between Garden Cottage and Barscobe Castle. The estate road is gated at this point to assist with animal handling. The proposed link thus runs directly through the steading. The estate road connects with the Old Edinburgh Road a short distance to the north-west of Barscobe Castle. It is at this point that the suggested alternatives would emerge from Mr Jardine’s land at Upper Hardland. The route on the estate road and the alternative on Mr Jardine’s land would join the well-made farm track continuing towards Barscobe Loch and Corriedoo. This is on the Barscobe Estate and was formerly a path grant-aided under the LMC scheme. Summary of the representations: Mr Emery and his legal advisers contend that the route proposed at Barscobe crosses land over which statutory access rights do not apply as it passes through the grounds of Barscobe House, Barscobe Castle, the enclosure of Barscobe Steading and the curtilage of its buildings. Even were it found that statutory access rights do apply to these parts of the proposed route it would not accord with the statutory criteria for designation of a core path at section 17(3) of the Act.


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The council’s policy The council’s proposal is at odds also with their policies in the Draft Plan and unnecessary for any of the functions listed at paragraph 3.8 because:

• There is neither public transport nor parking at the start of the route on the A712; users would have to walk on the carriageway of the A712 to reach the route which would be both unpleasant and hazardous.

• The route through the steading would be hazardous for access-takers and, if access was taken as of right, would limit the use of the steading which it is intended should intensify; planned future use could be curtailed.

• The impact on the use of Barscobe House and Barscobe Castle as private houses would be inappropriate; it would require adaptation to designate the private area, such changes would unreasonably impact on the way in which the houses are used and the setting of the A listed Castle.

• Designation – mapping and signposting – would greatly increase the number of people using the route, not all would behave responsibly; requiring landowners and occupiers to take steps to protect their interests.

Access rights

• Access rights are excluded by sections 6(b)(i) and (ii) of the Act from all land within the curtilage of non-domestic buildings and from land that forms a compound or other enclosure containing a building. Statutory access rights are excluded from farmyardsas confirmed by the Access Code.

• The council state no reason for their conclusion that the route past the steading “does not form part of the curtilage”. The steading buildings are enclosed by a wall with gates on all 4 sides; the area within the wall and gates is within the curtilage. Access rights are excluded from the enclosure around the steading buildings, sheepfold and cattle pen.

• The council argue that the steading gives the impression that it is not in use. This is immaterial to the exclusion of access rights by the Act. There is photo and video evidence (Document B13) of agricultural operations at the steading.

• The council state also that it is difficult to make a ruling on whether the proposed route is within a privacy zone and refer to the fact that the drive at Barscobe is shared between 7 dwellings as evidence of the existence of access rights. There are only 6 dwellings on the estate.

• Use of the term “privacy zone” is a misconception. The privacy of people occupying a house is only one criterion in determining whether access rights are excluded. Access rights are excluded also from “such land adjacent to a house as is sufficient to ensure the enjoyment of the house is not unreasonably disturbed.”

• In Gloag v Perth and Kinross Council (2007) it was concluded that the exclusion is to be interpreted as what a reasonable person living in a property of the type under consideration would require so as to have reasonable measures of privacy and to ensure that their enjoyment of the house was not unreasonably disturbed. In that case it was found that quite a large area of ground would be required extending to the lawns and gardens as well as the woodland immediately surrounding the gardens especially when these are


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developed in a way to allow paths to criss-cross them and for children to play. That position was confirmed in Snowie v Stirling Council.

• Document B34 shows the disposition of the estate at Barscobe. The castle wall is clearly the boundary of its managed garden; anyone purchasing it would expect the public to be excluded from that garden. Applying the Gloag case, access rights should be excluded from that area.

• The area around Barscobe House is made up of a number of different gardens interlinked by paths on either side of the proposed link. On a true understanding of the land uses, and their relationships, if the public took access as of right to these gardens and other areas, a reasonable person would conclude that this unreasonably disturbed the enjoyment of the House.

• The council’s reference to the private rights of access that apply for tenants, staff and farm employees does not mean that statutory rights will apply. The case of Creelman v Argyll and Bute Council (2009) (Document B33) decided that access rights did not apply despite the existence of a servitude private right of way over a garden. It is reasonable to expect that the public will be excluded from land adjacent to Barscobe Castle and Barscobe House even though certain individuals are able to take access along a specific route.

• Core paths through the curtilages on the Barscobe Estate cannot lawfully be designated. Section 17(2) of the Act is intended to restrict the categories of land that may be designated a core path. Where there is no public right of way, or path agreement under the Act, and where access rights do not apply, a person may not lawfully cross land, and therefore none of the categories in section 17(2) apply.

• The exclusion of access rights from land attached to a house in section 6 of the Act was specifically drafted to ensure that the Act accorded with Convention rights – to privacy (Article 8) and peaceful enjoyment of possessions (Protocol 1, Article 1). The land excluded from access rights is such as to enable reasonable measures of privacy and to ensure that enjoyment of the house and place is not unreasonably disturbed. Designation of a core path adjacent to a house to which access rights do not apply and where there is no public right of way would infringe these Convention rights.

• The proposed route is neither desirable nor does it fairly balance the exercise of access rights against the interest of owners and occupiers of the Estate.

Public right of way

• The council imply that only Mr Emery fails to recognise the Barscobe route as a public right of way. But the council state that it is not a right of way (Document B14). When built in the early 1900s it was not intended for public use; it does not appear on historic maps; and is not capable in law of becoming a public right of way for foot, horse or cycle traffic.

• It is regularly closed for farm management operations and for purposes of security. It has not been used as of right by the public.

Views expressed concerning access rights at Barscobe

• The council refer to differences of opinion as to whether the proposed link

crosses land excluded from access rights, but whether such rights apply is a matter of objective assessment of the law and its application to the facts.


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However, the balance of informed opinion which includes council officers and the Balmaclellan Community Council is that access rights do not apply along the length of the proposed link.

• Mr Emery met the council and the Outdoor Access Forum when the representative of the latter expressed the view that the proposed link ran through the curtilage of a working farm. A similar view had been expressed earlier by another representative of the Forum. Mr Emery believes that is why the council wrote (Document B26) referring to withdrawal of the proposed core path provided the general right of access was maintained. The council’s submissions fail to mention that letter or the subsequent correspondence in Documents B27 and B28.

Alternative routes - The Old Edinburgh Road

• Mr Emery indicated to the council the existence of a preferable alternative

from the outset. It can be accessed from a number of different points in the village.

• The Old Edinburgh Road is route B in the plan of alternatives, Document B35. It is long-established and shown on maps of 1853 and 1910 (Document B1) and is a claimed and locally accepted public right of way. That fact is not denied by affected landowners (Documents B18 and B19). It is recognised in modern tourist information (Documents B36 and B37) and the public used the route until relatively recently (Document B20). It is supported by the Balmaclellan Community Council (Document B17) and the Pilgrims Way Group (B21). It is still possible for a person of ordinary vigour to walk it, although it is not always easy.

• The Old Edinburgh Road as it crosses the Barscobe Estate is kept free and available for public access and, at the time of Mr Emery’s original objection, was managed for access under an LMC contract. The route was endorsed by council officers (Document B9, paragraph 5) subject to obtaining permission from the landowner at Upper Hardland and the householder at Lower Hardland. It is not clear why such permission would be required because under section 17(2) of the Act the council may delineate a core path along a public right of way even where statutory access rights do not apply. If the public already have the right to use the route the comments against such use, whether concerning farm operations or privacy, are irrelevant. It appears from the representations that there may have been a policy of making access more difficult over Upper Hardland.

• The council’s officers may have been concerned about the need for landowner’s permission to undertake works to repair and maintain the public right of way, but the council has the power to do so under section 46 of the Countryside (Scotland) Act 1967 and would have power under the Land Reform (Scotland) Act 2003 to maintain any core path and keep it free from obstruction. The council also has the duty to assert, protect and keep open public rights of way and this should apply to core paths links 51, 110, 83, 62, 84, and 96 along the Old Edinburgh Road from Balmaclellan to Corriedoo via Barscobe.

• There is no standard required of a core path. It would not be difficult to reinstate stiles or gates and to remove brush to allow easier use. The basis for the council’s cost estimate of £10,000 is not understood.


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• The council’s case does not consider the positive aspects of the route including its association with the area’s Covenanting history as endorsed by the Pilgrims Way Group and its far greater attractiveness. This route fits the route selection criteria far better. It is a direct connection to the countryside from Balmaclellan where there is parking. It has none of the difficulties of access from the public road. It is a far shorter route to Corriedoo than proposed on the Barscobe Drive. As it is already a public right of way it provides a far better balance of access rights against the interests of the landowner and a better match with the criteria in section 17(3) of the Act than the council’s proposal.

• The core paths proposal simply duplicates what is already there and available for use.

Other alternatives • The other alternatives, routes A and C on Document B35, do not pass through

any area from which access rights are excluded. The routes are subject to objection from householders, but at no point does either pass through the area surrounding these houses required to ensure their privacy and that the enjoyment of the house is not disturbed. The council acknowledge this in respect of route A, but dismiss it because the surface is not as good as at Barscobe. In the absence of objective standards this is irrelevant.

• The council wrote, in terms that would inevitably elicit a negative response, to a number of householders whom they considered might be affected by the alternatives suggested by Mr Emery. His views were not sought. Even so responses - Documents B24 and B25 - support the view that the proposed route should not be designated as a core path.

The council’s offer to delete their proposal

• The council state that they “made an offer to withdraw the proposed core path

status, contingent on the route being available for wider access rights, however this was not satisfactory to Mr Emery and the offer was withdrawn”. This misrepresents Mr Emery’s discussions with the council.

• Mr Emery’s position is, and always has been, that he accepts that statutory access rights apply to the Barscobe Estate. However, those rights do not apply where excluded by the law, as indicated in his objection. In practice, obstacles are not placed in the way of access-takers because it would be impracticable to do so considering the operation of the steading and he is content to allow such access on the basis suggested in paragraphs 3.40 and 3.41 of the Access Code.

• The council’s conditional offer to delete the core path was accepted; Documents B26, B27 and B28 refer. But the council decided that the path would not be deleted (Document B29). Following discussion the council agreed to withdraw the proposed path without condition, but reminded Mr Emery of his duties under the Act (Document B14). That reminder used a form of words which satisfied both sides because it did not indicate that the council considered all parts of the proposed route to be subject to statutory access rights. To show that Mr Emery did not set out to deceive the council all of the correspondence is produced as Document B30 and B31.


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• Mr Emery again accepted withdrawal of the council’s proposed route in November 2010 (Document B31) although the council deny that this letter amounts to acceptance. At the council’s request he has twice returned a signed copy of their letter of 11 November 2010 and acknowledged his acceptance in numerous e-mails.

Withdrawal of objections

• Withdrawal of Mr Emery’s objection, and those made by others, was

inappropriate because the council did not follow the process that they had agreed. Withdrawal would mean no further involvement for Mr Emery in this inquiry, but where the paths proposal contained in the Draft Plan remained an option.

• Mr Emery was willing to drop his objection on the basis that the proposed core paths were deleted from the Draft Plan. As that was his understanding of the council’s position all of the other objectors12 to this route also withdrew their objections.

• The council did not delete the proposed core paths and instead of treating Mr Emery’s objection (and those others concerned with the same issue) as being resolved, these were forwarded to Scottish Ministers for consideration.

• Section 18(2) of the Act deals with the withdrawal of objections. Plainly the intention of the Act is that the council should be able to resolve objections. The purpose of an inquiry under the Act is to deal with unresolved objections. The council should delete the route because the objections to the designation of the Barscobe Drive have been resolved. There would then be no need for the inquiry to consider these; no party could complain or mount a challenge if the inquiry did not consider objections that had already been resolved.

Use of the core path planning process to safeguard access

• The council is acting unlawfully and improperly in seeking an authoritative ruling as to whether access rights apply. A core path inquiry is intended to determine whether or not a route should be designated, it is not the appropriate forum to decide on statutory access rights.

• The criteria for designating core paths in a core paths plan are those in section 17(3) of the Act. There is a great difference between a route designated a core path and a route over which statutory access rights should be exercised. There are many such areas which would not appropriately be designated as core paths.

• By agreeing to withdraw their proposal the council conceded that there is no need, in terms of the statutory criteria, to designate the proposed route as a core path. By pursuing the matter of access rights the council is using the threat of core path designation. But the proper course where the council consider that a landowner is in breach of the Act is to serve a notice under section 14 of the Act and to require the removal of any barrier to access.

• The acknowledgement that the council seek from Mr Emery would be worthless. Whether access rights apply is a matter of law, not opinion. As

12 As indicated in the rubric for this issue the Council provided withdrawal notices in respect of only 3 objectors to the route.


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landowner he is not empowered to make that determination and would not be in a position to bind successive owners or tenants.

• Mr Emery is unprepared to make that concession, were he to do so it could be used in a future core path planning process to designate the route.

The claim made on behalf of Mr Emery for an award of expenses against Dumfries and Galloway Council on the grounds of unreasonable behaviour is the subject of a separate report to Scottish Ministers.

Submissions by others objecting to the council’s proposal Objectors referred also to many of the arguments made by, or on behalf of, Mr Emery concerning the merits of the council’s proposal and, in addition, to:

• The content of the council’s Comment Form History is biased and inaccurate. • The proposal to use a private drive constructed in modern times for car use

runs counter to the notion of promoting the discovery of the country’s historic heritage through the upkeep of traditional rights of way and heritage paths. The Old Edinburgh Road leads directly from the Kirk at Balmaclellan to the Holy Linn pilgrimage site. It is not in any sense an alternative being the only viable route from Balmaclellan to Corriedoo.

• The route using the private road through the Estate would run through 3 unfenced curtilages; that private road serves only these properties. The assumption that, because the drive is shared, it does not have the exclusive use implied by the concept of privacy is misjudged.

• The steading is a working farm. The drive is used by farm machinery, some of which is wider than the road surface. There are many blind corners. As a motorised route it is not suitable for core path use.

• The alternative route following the line of the Old Edinburgh Road is obviously the best route for the path and affords beautiful views and would be far safer since walkers would not walk on the carriageway of the A712.

• In April 2010 the Chairman of the Community Council informed the council that “Balmaclellan Community do not wish to support the Core Paths programme.” Then, in February 2011 the Community Council formally indicated that, balancing the interests of all sections of the community, they saw no ultimate advantage and no reasonable outcome in pursuing as core paths what was an unsustainable framework as far as these routes were concerned. The conclusion expressed was that community interests in respect of the contentious routes were best served as at present with all access rights preserved by the Access Code. They indicated that they do not have concerns over access at Barscobe as the owner already recognises all access rights under the law and the Access Code. That was the basis on which the Community Council gave their support to the owner’s objection to designation of the drive as a core path. There was no need for an additional agreement as a condition for withdrawal.

Submissions supporting the council’s proposal

The Draft Plan proposals are supported and the alternative route and any variant of it is objected to by Mr Jardine and others because:


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• Whilst it seems generally acknowledged that the Old Edinburgh Road is a

public right of way, any such right that may once have existed has been lost as the result of negative prescription.

• Contrary to the views of others, the A712 is a quiet country road and the suggestion that its use by access-takers would affect road safety is mistaken. The alternatives to the council’s proposal are even less attractive and practical – the state of the ground involved, livestock hazards, the effects on privacy and the need for new tracks where none presently exist - than the Barscobe proposal.

• The Core Paths scheme is intended to encourage access to the countryside, not least to benefit health and wellbeing; Barscobe Drive is the more suitable route against that objective.

• Those alternatives traverse a working stock farm – Upper Hardland - occupied on a year-round basis in contrast to Barscobe which is a tenanted holding rather than a working farm. Mr Jardine has never consented to the re-routing of the path over his property as suggested in the council’s Comment Form History.

• Given the effect on a working farm, the loss of amenity would thus be significantly greater than the effect on Barscobe where Barscobe House is occupied only intermittently. This is emphasised by the loss of amenity and a direct effect on privacy at up to 5 other households were any of the alternative routes adopted. It is held that at Low Hardland the alternative would run less than 1 m from the back of the house, cutting through the garden and outbuildings. There never has been any path or use by walkers close to these houses in contrast to those that would be affected at Barscobe. Any similar effect on Barscobe could be resolved by re-routing over a limited stretch.

• Cattle and calves are allowed to roam freely across several fields with the bull and there are times of year when they congregate near the line of the Old Military Road. The land involved is thus used for lambing and calving in contrast to Barscobe where the fields are let for the grazing of stock owned by another. Besides potential disturbance to livestock and possible losses there would be safety issues for walkers when crossing the calving field.

• Each of the alternatives converges on a stretch of the Old Edinburgh Road east of Upper Hardland which is under water most of the year and which would need to be built up and drained to make it passable.

• Use of the private drive shared between Torwilkie, Torwilkie Steading and Torwatletie would be the subject of strong objection were it made available for horses and bicycles. There is no parking space at the junction with the A712. A contribution would be sought towards its maintenance if used by walkers and a wayleaves agreement to protect against harassment and wilful damage. The existing road would deteriorate with additional use and extra traffic would cause obstruction and a hazard.

• If there must be a core path the original plan using Barscobe Drive is the most practical and safest of the alternatives. It is an all-weather route fenced from livestock and where no additional cost would be incurred.

• The core paths policy must succeed to benefit the tourist industry. Some core path access from the south is necessary to reach the pleasant walks to the


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north. It is difficult to see how privacy could be seriously affected by a few walkers.

• In this case the owner’s fear of facing hordes of walkers is very unlikely. But the knowledge of the objection has already caused local walk leaders to refuse to use the path when previously it was used frequently and without complaint by either the estate owner or the owners of houses. It is thus important that the estate owner publicly acknowledges the existence of access rights and that no obstacles to parking are placed on the grass verges of the A712 at the driveway as was done when the path proposal was made public. The owner could be invited to pay for any diversion required to avoid walkers passing close to residences.

• The proposed path would not cause the same disruption to wildlife as the routes suggested across Hardland where there is a wide range of endangered mammal and bird species. These should not be disturbed by more walkers.

• The walk on the historic old road from Balmaclellan across the fields of Upper Hardland to Barscobe Wood and the Holy Linn has become more difficult following re-fencing when stiles have not been replaced and, more recently, by feeding cattle on it. It is sometimes impassable, but with effort it is still walked in order to keep it open as a public footpath.

• The hope that this route would be secured for future public access was not favoured by the council and it now seems possible that there will be no core path. That is a very poor result for locals who do not consider that the Community Council has adequately represented the range of opinion that exists within the community. Their letters do not represent that wider community view.

• If not a core path then there should at least be an agreement with Mr Emery to allow walking in the area without either confrontation or intimidation. In practice it is likely that the Barscobe Lane will continue to be used by locals walking, as it has in the past.

• Others consider that it would be better to drop the controversial core paths proposal and to revert to the status quo. The imposition of a core path would achieve nothing of value, other than additional expense and further polarisation of the local community and might attract additional and diverse traffic from outwith the community. The path would be unlikely to have any effect on the pattern of routes already walked by local residents.

• Mr Hogg and others have questioned the consideration of alternatives to the council’s proposal without consulting those who would be most affected, some of whom had already registered their opposition.


• The original consultation on which the routes were based produced 23 responses, 19 of which indicated that they used the route up Barscobe Drive and a further 3 used sections of the Old Edinburgh Road.

• The council acknowledge thatMr Emery was given the impression that the proposed core path through Barscobe would be dropped and also that Mr Emery contacted the council on several occasions to establish a position in which his objection might be withdrawn.


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• There are 7 dwellings at Barscobe, 6 are believed to be the property of Mr Emery. The drive is shared by all of these neighbours, their visitors and tradespeople. It does not have the exclusive use implied by the concept of privacy.

• The council consider it difficult to make a ruling on whether the route falls within a privacy zone. Council staff have different opinions, as do members of the Community Council.

• When first investigating the route the council’s access officers judged that, although not passing through the curtilage of Barscobe House and cottages, access-takers would be highly visible; it would pass through the curtilage of both Barscobe Farm and Barscobe Castle. As such it did not meet the selection criteria as a core path and should be removed from the plan. The alternative route was judged to be a right of way, already in use by the community but requiring work costing £10k to bring it up to an acceptable standard. It was described as a more interesting and enjoyable walk with very attractive features including semi-ancient trees and a stunning waterfall. A manuscript annotation indicates “this opinion subsequently revised by principal officer”.

• The council observe that the steading does not appear to be a working farm with daily tractor movements, livestock or feeding, but a storage unit used for intermittent gathering. Other proposed core paths incorporate animal handling but are acceptable on the grounds that this is an infrequent and temporary obstruction to access. The council consider that the route past the steading does not form part its curtilage.

• The alternative routes have benefits, in that they exit into the village, avoiding the A712, but also drawbacks as they impinge on the privacy, arguably to a great extent than at Barscobe, of the residents of Curlywee and/or Low Hardland; the ground is hard going and poached in places and the route runs through fields used for calving of the suckler herd and lambing. It may have merit as a potential core path, but does not provide a similar alternative to the route at Barscobe, which is accessible to a wider range of users.

• A 3rd alternative was suggested by Mr Emery, making use of the track to Torwilkie. It combines the disadvantages of walking on the public road and the rough ground and stock issues at Upper Hardland, but would not compromise privacy at any point.

• A 4th route has not been surveyed; it may be an alternative when the handling facilities are in use.

• Each of the re-routing options is subject to the same major problem requiring the co-operation of the neighbouring owner and the standard is not the equivalent of the proposal.

• In common with other privacy objections, the issues are not objective and the council acknowledge that contradictory opinions were expressed before settling on the plan proposal.

• Views on either side are strongly held and the issue is locally controversial. Communication with the Community Council has implied that there is no right of access; this has been endorsed by the vice chair of the Community Council, but now other residents claim that the Community Council is not acting democratically.


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• The council state that their “principle [sic] objective is to safeguard access to the Barscobe Drive whether through core path designation or an acknowledged right of access” (Documents B8 and B29). But a “private, no entry” sign has been erected which has the effect of preventing access. The council offered to withdraw the proposed core path contingent on the public being allowed to access the entire estate, including the drive, under the general right of access, but this was not acceptable to Mr Emery because he considers that the drive is not a right of way with a general right of access.

• The offer was withdrawn, but the council invited Mr Emery to acknowledge that “the general right of access on the Barscobe Estate remains as outlined under the Act and, as such the objectors would not cause obstructions likely to deter members of the public from exercising their rights responsibly”.

• The council suggested to Mr Emery in December 2010 that the proposal to withdraw the core path designation within the context of a general right of access applying to the drive and the rest of the estate “is a suggested amendment to the draft plan”13. This was said to be their recommendation which the Scottish Ministers may, or may not direct the council to adopt.

Reporter’s appraisal and conclusions: Based on my accompanied site inspection, and my unaccompaniedinspections in the wider area, I understand why the council have proposed the designation of core paths on the estate road at Barscobe. Thesewould provide an all-weather stock-free route through attractive countryside in an area where stock farming predominates. However, there are drawbacks. The route is detached from the village at Balmaclellan and its use wouldbedependent on walkingalong the carriageway of the A712, where there is no footpath and no parking provision at the estate entrance. Of greater importance is the relationship between the proposed route and property on the estate; that important consideration is considered below. Before deciding the merits of the council’s proposals, it is first necessary to consider the legal issues raised on Mr Emery’s behalf. I note that some parties claim that the estate road serving Barscobe is a right of way, butthe Access Authority do not. The question of whether, or not, there is a right of way is not for me to determine. However, the suggested absence of a right of way is regarded as an important consideration, amongst others, in the submission that section 17(2) of the Act restricts the categories of land that can be designated as a core path. However, I take the view that section 17(2) is not prescriptive in the sense claimed. The section states that “such a system of paths mayinclude”, in other words it suggests categories that could be considered as candidate core paths. This is reinforced by the terms of section 17(d) which refers to “any other means” and by the terms in which the interpretation of core path is defined in the Act. I do not find that, as drafted, section 17(2) restricts the categories of land that may be designated a core path to those listed.Thus, this section of the Act does not preclude the designation of the core paths proposed by the Council.

13 In June 2011 Dumfries and Galloway Council submitted revised proposed amendments and corrections, these replaced earlier submissions that were withdrawn. The links proposed at Barscobe are not included as amendments or corrections in that re-submission.


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Theissue of access rights and specifically the submissions concerning exclusions from the general right of access are critical.I have drawn attention at paragraphs 1.7-1.9 of this report to the difficulty that is perceived to exist between the application of section 6 of the Act when read with section 7(1). I note the terms in which Mr Emery agreed to the amendment that was promoted by the council but, based on my site inspection, I have reached the view as a matter of fact and degree that the proposed links at Barscobe would run through the curtilage of theactive farm steading, as well as through the land required to ensure reasonable measures of privacy for those occupying 4 cottages, Barscobe House and, to a lesser extent, Barscobe Castle. I note that the last is some distance from the proposed route and not much further from the former LMC path, to which there is no objection. But being a classical tower it stands alone and unscreened. Its windows are therefore open to view and it depends for the success of its setting on its relative isolation. Thus, were the determination to be made solely on the grounds of section 6 of the Act, it is my conclusion that access rights shouldnot be exercisable in these locations. However, section 7(1) of the Act indicates that section 6 does not prevent or restrict the exercise of access rights over any landwhich is a core path. This suggests that the designation of a core path is able to override the exemptions from access rights conferred by section 6. That is consistent with the Access Code which, in relation to farmyards (at paragraph 3.40), states, as envisaged by section 6 of the Act, that access rights do not apply but then instructs access-takers that where a core path is routed through a farmyard this can be followed at any time. On that basis I see why the council consider that they are able to propose core paths in this location, but it is still necessary to consider the objections to these proposals in the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. In this instance the relationship with residential and other property engagesConvention rights, applied in this context as indicated at paragraph1.17 of this report. Based on my accompanied inspection I consider that there could be significant interference with privacy and the peaceful enjoyment of possessions for owners and tenants not only in residential property, but also the farm. I note that a similar conclusion was reached, but later set aside, by council officers in the initial stages of the core path planning process. Accordingly, I am not convinced that the exercise of access rights along a proposed core path at Barscobe could be fairly balanced with the interests of the owners and occupiers of affected property. That is because I do not consider that the balance of advantage that has to be consideredin applying section 17(3) of the Act justifies designating core paths where, otherwise, access rights shouldnot beexercisable over the land. I have considered whether these difficulties could be overcome by minor deviations within the general route corridor, but find that thesewould be unlikely to beeffective in resolving the problem. As indicated at paragraph 1.5 I have decided that submissions made by third parties that have been the subject of continuing and concerned dialogue with the Access Authority should be considered consistently, and not effectively cherry picked as has


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been suggested. These submissions include proposals for, and reactions to, alternative routeings not involving the estate road at Barscobe. Based on my inspections I find that these have drawbacks as indicated by parties. But there are also considerable advantages over the proposal at Barscobe, not least that the route would lead out from the centre of Balmaclellan in respect of routes B and C following an alignment with strong historical associations. There are also significantly better views over attractive countryside than are available from the more visually constrained route through the estate. The decision that has to be made by Scottish Ministers in respect of the objection to the proposed route at Barscobe is not whether an alternative should be pursued to this controversial proposal on land in different ownerships, but whether the proposed route through Barscobe should be designated when account is taken of its specific impacts, advantages and disadvantages. I find no scope in the circumstances here to substitute an alternative, because,as has been drawn to my attention,parties with an interest have flagged their concernaboutinadequateconsultation concerning the re-routeing that is proposed and its consequences for them. Theinterests of those other parties could thus be prejudiced by substitution without appropriate consultation. That consultation is properly the responsibility of the Access Authority within its duties under the Act. The council’s submissions indicate that they now recommendto Scottish Ministers that the core path designation could be dropped provided a general right of access is found to apply to the drive and the rest of the estate. The fact that this is not included in the documentation specifically applying to amendments is immaterial given that the position of parties is fully described and that none of those with an interest arising within the Barscobe Estate may be considered to be unaware of what is involved. The council’s secondary position is thus that, should that general right of access be found not to apply, a core path should be designated as shown in the Draft Plan. Mr Emery’s position is clear. He was prepared to agree to the terms put to him by Mr Fieldhouse (Document B31) that would have resulted in withdrawal of his objection and met the council’s then stated objective.As indicated, I have found, in respect of the estate drive,that the balance of advantage that has to be considered in applying section 17(3) of the Act does not justify designating core paths in this location; and alsothat adetermination made solely on the grounds of section 6 of the Act should preclude the exercise of access rights in the specified locations.

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Chapter 4

Nithsdale


• Cairn Valley • Closeburn • Irongray


Chapter 4 – Nithsdale – Cairn Valley Dumfries and Galloway’s Core Paths Plan

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District: Nithsdale – Cairn Valley (Crossford to Gilmerston) Core Paths Numbers: None, additional paths

Core Paths Maps 92, 119

Persons or body whose representations raise the issue: SCR Number Name SCR 283 SCR 284 SCR 289 SCR 339 SCR 425 SCR 426 SCR 427 SCR 428 SCR 429 SCR 430 SCR 431 SCR 432 SCR 433 SCR 454 SCR 455 SCR 456 SCR 457 SCR 458 SCR 459 SCR 460 SCR 461 SCR 462 SCR 463 SCR 464 SCR 465 SCR 466 SCR 467 SCR 468 Land Managers SCR 585 SCR 586 SCR 587 SCR 588

Margaret Gray Mary Waugh Dumfries Running Club per S Graham (Secretary) David Marshall Frances Lowry Jim Godfrey James L. Anderson Brian Johnstone Bernard Stokes Pam Mitchell Kenneth Middlemiss J. M. Lowery Colin Mitchell Frank Skachill Mrs J Cook Susan Southgate Ria Hill Phillip G. Rice Helen Robertson David Rae Jolene Farrell Rian Hill Nancy Hill Mary Dunlop Robert Dunlop Iain Dunlop Mr and Mrs Terry Spellman Jane Taylor Objections to the routes’ inclusion George WW Hering Messrs Harper, Robertson and Shannon, Solicitors, per Phillip Wharton Simon Barnes Mr A Mackintosh


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Reporter’s recommendation: The route from Crossford to Gilmerston proposed by the Access Authority should not be designated as an addition to the Draft Plan. The proposals and their context: The objections concerning non-inclusion of the routes from Lagg Farm to Swyre, Straith to Bankhead and Breconside to Glenlough have been withdrawn. Even so, I assessed the routes at Lagg and Straith so as to gain a better understanding of where, in the council’s opinion, the designation of core paths would adversely impact the privacy and curtilage of residentsand thus be land over which access rights should not be exercised. The routes from Kirkbride to Hillhead and Demperston to Laggan are proposed as core paths with land manager agreement, following objections against their non-inclusion. These 2 routes were included in the council’s resubmission of amendments and corrections and are thus considered in Chapter 6 of this report. The route from Crossford to Gilmerston is the only plan proposal within this location that is subject to continuing objection against its designation. It runs from the minor public road at Riggfoot along a largely tarmac access track to the steading at Gilmerston where there is a farm house, agricultural sheds, hard-standings and livery stables. The route passes directly in front of windows in the frontage of the house and through a narrow gap in the farmyard before climbing on to the fenced former railway embankment to run north up the Cairn Valley for more than 6 km. For most of its length the former railway is above the fields with a short part at grade; some is in cutting. The surface is in part extremely wet with some sections now forming part of the wider drainage system and, where also grazed by livestock or used as a feeding station, the surface is badly poached. It is used also for bale storage, for field access andlivestock movement and runs through an area used for horse jumping. It is not throughout an all-weather route. There is no longer any way–marking or sign-posting at Gilmerston (the council’s case shows a sign in place in April 2010). That part of the route was a path designated under the LMC scheme, but there is a finger post at Coatston. The B729 road runs through the Cairn Valley parallel to the proposed route. It is a cycle byway and a bus route. Summary of the representations: Objections were submitted by 28 parties to the omission of 6 routes: Breconside to Glenlough; Kirkbride to Hillhead; Lagg Farm to Swyre; Demperston to Laggan; Straith to Bankhead; and Crossford to Gilmerston on the grounds that:

• The suggested additional routes would link better with other planned and existing paths and allow users to get more from the countryside benefiting the


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health and well-being of residents and tourists. Vulnerable users would be better protected from the effects of traffic. Walkers and riders would thus be discouraged from straying onto farmland, even though they are entitled to do so, creating a better relationship with landowners.

• In particular the former railway line from Gilmerston to Crossford, following a line of communication in existence for more than 100 years, avoids the busy B729 road where there are no verges on which to walk or ride and which gives access to other walks and forests. It has the potential to be combined with quiet country lanes to make a scenic circular walk adding to amenity, access and attraction for locals and tourists alike.

• Off-road running is becoming increasingly popular and extensions of the routes presently available would improve safety though avoiding the road network and allow access to countryside

Landowners consulted on these proposals objected on the grounds that:

• The council’s consultation was deficient in not canvassing the interests of 3 owners at Slatehouse, Stewarton and Gilmerston respectively; in the case of the last it was the tenant who was consulted. The objections are not indicative of strong community support and it is regarded as extraordinary that the council did not consult Dunscore Community Council.

• The intended route through Gilmerston would pass directly by the back door and windows of Gilmerston Farm House where there is no fence and already problems with invasion of privacy and trespass. These effects are at odds with the right of responsible access to the countryside.

• The stables at Gilmerston are not open to the public, but are let to 2 individuals who alone have rights of access. An elderly resident, registered blind and disabled, relies on the dogs barking to warn of strangers in the yard. The effect of unsupervised access would both cause her distress and result in her becoming housebound. The landowner has generously suggested an alternative route around the wood and behind the stables at the rear of the property. This should be investigated.

• At Snade Farm the former railway is used for year-round grazing by cows with calves and ewes with lambs. Periodically a bull runs with the cows and it would not be possible to place a bull in the field were the path designated. It is also dangerous for anyone to walk amongst cows and their calves. The land is not an historical footpath but an essential part of the holding giving grazing and shelter for livestock. Mr Wharton contends that its use as a footpath would reduce payment entitlements, as has happened elsewhere. There have already been problems with dogs worrying sheep and horses being exercised in the fields.

• The former railway floods during the winter and requires remedial works. This conflicts with the council’s position that only gates and signs would be required. If not improved, users of the path would use adjoining fields to avoid this area.

• At Boreland Farm the old railway is the only hardstanding on the holding and is used for bale storage for 8 months each year effectively blocking the path. In addition 4 of the jumps in a cross country course are on the old line and there is a concern that riders using the path could use these jumps and injure themselves, laying the farm open to compensation claims. The area of land


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involved may have to be deducted from the size of the eligible holding, thus reducing financial support. At the moment walkers use common sense to avoid the obstacles, but upgrading and formalisation could cause both financial and physical problems.

• At Snade Mill Farm a 20 acre field that would be accessed by the public is occupied from spring to autumn by cows and calves with a consequent danger to any member of the public accessing the land. Indemnity is sought against consequential claims arising from the council’s proposal.


• On investigation one of the 6 routes, Crossford to Gilmerston, fitted the core paths selection criteria. Because the route attracted objections from 4 landowners the proposal to include it in the Draft Plan was treated as an unwithdrawn objection issue.

• Of the balance of 5 routes, Kirkbride to Hillhead and Demperston to Laggan are proposed as core path amendments with land manager agreement.

• The routes from Lagg Farm to Swyre and Straith to Bankhead are both private roads where the designation of core paths would adversely impact the privacy and curtilage of the residents. As the link from Breconside to Glenlough is an adopted public road it cannot have dual designation as a core path.

• Apart from those where core path status is proposed, the balance did not match selection criteria and objectors to non-inclusion were informed of this and invited to withdraw their objections. Of the total, 25 withdrew their objections; 3 failed to respond14 and were treated by the council as withdrawn.

• The Cairn Valley Light Railway closed more than 64 years ago and for most of its length the Crossford to Gilmerston link follows the old track bed on a mix of grass and hardcore surfaces.

• The council point to the strong community support with 28 objections arguing for inclusion of the route. These indicate that public access is taking place and that a managed solution is required.

• Notification letters were hand-delivered to 19 properties in the area including Slatehouse and Stewarton. The tenant at Gilmerston has the responsibility of contacting the owner to advise of correspondence affecting the property.

• At Gilmerston the proposed path follows the same 1.79 km route that was created by the landowner under the LMC Scheme. An additional 0.5 km of the route from Coatston Cottage has been formalised and sign-posted.

• The council acknowledge that the route passes through the steading at Gilmerston but where public access has been encouraged by the creation of a publicly financed path. An alternative route down the embankment on to the old railway line would be possible only at considerable expense.

• The council has no plans to fence or surface the route, thus the productive land will not be reduced in size. There is no reason for payments from the Scottish Government to be reduced.

14 Objectors were asked to indicate whether they wished to withdraw their objection as the result of the investigation or to have it maintained. Where no answer was received a final letter was sent by recorded delivery asking again. The council said that if no answer was received within 21 days the objection would be treated as withdrawn.


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• The issue of potential conflict with grazing cows and their calves can be resolved with access management plans. At Snade Farm walkers could be diverted, when necessary, along the public road past Boreland Cottages to re-join the former railway at Coatston - but fields holding livestock are publicly accessible under the Act. At Snade Mill Farm the integrity of an existing dyke can be safeguarded against the effects of diversion when grazing animals are present. A gap could be left alongside any storage on the former railway to allow access.

• The council’s walk-through survey did not identify any major barriers to designation that could not be remedied by the installation of site specific facilities, such as self-closing gates. Any flooding issues would be addressed were the land to be designated as a core path but access-takers know that walks may be both wet and muddy. There are many routes across the region that are closed occasionally by high water levels.

• The route meets the criteria of a core path. It would create an attractive path for the community and improve access sufficiency.

Reporter’s appraisal and conclusions: This link is an addition to the Draft Plan in response to objections. Based on my site inspections I understand the level of public support for this route which runs through attractive countryside. For much, but by no means all, it is fenced from grazing animals. However, there are drawbacks. The route is detached from nearby communities at Dunscore and also Moniaive, requiring users to walk on the carriageway of relatively busy country roads – even to reach the bus route - because parking at the side ofthe public road side is very limited close to Gilmerston and unavailable at Crossford. Apart from the registered disabled, access rights do not extend to driving over land, for example by persons seeking to park there. Of greater importance is the relationship between the proposed route and interests of importance along its length. The proposal and its likely consequences have thus to be considered in the context set by the Act and against the provisions of the Access Code. I have drawn attention at paragraphs 1.7-1.9 of this report to the difficulty that is perceived to exist between the application of section 6 of the Act when read with section 7(1). The tenant of the land at Gilmerston is in a particularly difficult position in that the landowner evidently entered into an LMC agreement that financed the way-marking and sign-posting of a route that is the same as that now proposed for the start of the core path. Thus, the principle of public access along that route was endorsed albeit not under the core paths scheme. It is not suggested in the council’s submissions that the LMC agreement that was entered into is the equivalent of an agreement under section 21 of the Act and I note that the council do not suggest that it is a right of way. In any event it appears that the LMC scheme was time-limited; the subsidy paid has expired and with it the way-marking has been removed.I have reached the view as a matter of fact and degree that the proposed route to Crossford would run through the curtilage of the active farm steading at Gilmerston, as well as through the land required to ensure reasonable measures of privacy for those occupying the farm house. Based on these conclusions, and applying section 6 of the Act, I find that access rights shouldnot be exercisable at Gilmerston. I note that


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the proposed path would run close to other property over its length, but none is in the same extremely close relationship. However, section 7(1) of the Act indicates that section 6 does not prevent or restrict the exercise of access rights over any land which is a core path. This suggests that the designation of a core path is able to override the exemptions from access rights conferred by section 6. That is consistent with the Access Code which, in relation to farmyards (at paragraph 3.40), states, as envisaged by section 6 of the Act, that access rights do not apply but then instructs access-takers that where a core path is routed through a farmyard this can be followed at any time. On that basis I see why the council consider that they are able to propose the core path in this location, but it is still necessary to consider the objection to this aspect of the proposal in the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. In this instance the relationship with residential and other property engages Convention rights, applied in this context as indicated at paragraph 1.17 of this report. Based on my inspection I consider that there could be significant interference with privacy and the peaceful enjoyment of possessions in respect of the steading and house at Gilmerston. Accordingly, I am not convinced that the exercise of access rights along a proposed core path at Gilmerston could be fairly balanced with the interests of the owners and occupiers of affected property. That is because I do not consider that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating a core path where, otherwise, access rights shouldnot be exercisable over the land. It is therefore my conclusion that it would not be appropriate to designate a core path through the steading at Gilmerston.There is the possibility that these difficulties could be overcome if the landowner’ssuggestion of an alternative route around the wood and behind the stables at the rear of the property were to be found both feasible and reasonable by the Access Authority. However, that conclusion does not represent the end of the matter. I note the submissions but find no conclusiveevidence that the council’sconsultationconcerning this additional proposal was defective. The former track bed to the north of Gilmerston is fenced for almost 2 km and there is thus little potential for conflict with farm animals on this section unless these are being moved using the former railway – which throughout has clearly become an important element in the management of the fields on eachside. I understand the concerns raised by the 3 farmers to the north where the former track bed is not generally fenced. Section 2 of the Act requires that those exercising their right to take access behave responsibly; those indulging in the kind of antisocial behaviour that is mentioned involving dogs and horses forfeit their rights. The Access Code advises that:



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• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated by warning signs when special care is required or it is necessary that the public avoid an area during particular land management operations, such as running a bull or during and following calving and lambing. The council recognise that a temporary detour might be required and have suggested the route.



Thus the issues that are of concern are addressed by both the law and the Access Code approved by the Scottish Parliament. As there is no intention to alter the disposition of agricultural land uses by removing land to become a segregated fenced path, there should be no effect on payment entitlements. The council recognise also the potential drainage difficulties which, in my experience, suggest that this would not be a year-round route without improvement. Works would be necessary to ensure the absence of damage to fences by access-takers deviatinginto adjoining fields. Any works that are undertaken would have the potential to benefit Snade Farm. For the reasons given I do not consider that it would be appropriate to designate a core path through the steading at Gilmerston. As there iscurrently no other means of reaching the balance of the route from the south and there are difficulties with drainage that require resolution, I consider that designation would not be appropriate unless, and until, these matters are resolved.

Chapter 4 – Nithsdale - Closeburn Dumfries and Galloway’s Core Paths Plan

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District: Nithsdale - Closeburn Core Paths Number: None, additional paths

Core Paths Map 121

Persons whose representations raise the issue: SCR Number Name SCR 290 SCR 589 SCR 590

Mr Mike Steele, Secretary, Closeburn Community Council Mr and Mrs Murphy, GM Thomson & Co, per R M Weir

Reporter’s recommendation: Amend the Draft Plan as proposed by the Access Authority as shown on Proposed Amendment to the Draft Core Paths Plan Map 121, reference 290/589/560, dated 28 September 2010, contained in Document 11. The proposal and its context: Closeburn is a small community south of Thornhill on the A76 road. The proposed path is in 2 parts located to the east of most of the village and on the eastern side of both the trunk road and the railway. A northern leg of approximately 1 km would run across fields west from a point between the Cemetery and a modern livery stable to Laundry Cottage; at its eastern end it follows a field track. That point is connected to Closeburn Mains to the south by a water-bound access track. The route then strikes off west and turns south along a fenced concrete track over a distance of 1.2 km leading to the historical centre of the village at Hightrees near Closeburn Primary School. With the addition of a 0.75 km leg along a minor public road from the Cemetery to the School it would form a circular route. Summary of the representations: Closeburn Community Council requested that the route be included in the core path scheme:

• It is marked on OS maps and is a popular route for residents and visitors walking around the square from Closeburn School to Croalchapel and back. Walkers in Closeburn have very few paths that are not on minor roads so this route is very valuable.

Objections were made on the grounds that:

• The northerly route from the new cemetery to Closeburn Laundry Cottage is a field track used for farm access and the winter feeding of livestock on hard standing. It is thus unsuitable for year round access. The eastern end of it is


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a private drive, not open to the public. It may once have been a footpath across the fields, but is no longer used.

• The eastern of the 2 fields affected is used for running bulls and thus is not compatible with the assertion of a right of way.

• The track crosses an area that is to be proposed for mineral extraction. It is the screening consultation connected with it that is the driver for the proposed path. Designation as a core path is thus inappropriate.

• The southerly route is the private fenced road to Closeburn Mains, a private house. It is subject to servitude rights of access by many properties and is used by the public for dog walking.

• Proposals for mineral extraction may also affect this route. • The landowner does not object to responsible access, he tolerates

irresponsible access too, but the land use conflicts render designation as a core path premature.

• The paths do not link a public place to another public place, nor are these an important link for the local community. No part of the route has been maintained by the council and, as the council have indicated in their response to SCR 18015, if any part is a right of way then it cannot become a core path.

• Proposals for core paths should have been submitted in 2006 and objections to them lodged during 2009, this later proposal is inappropriate and its competence is questionable. The objector’s agent expressed surprise that visits were arranged by the council with third parties without referring to or inviting the landowners.


• The request by Closeburn Community Council indicates clear community support. The route is also supported by the Outdoor Access Forum.

• The route contributes to sufficiency, as no other core paths are proposed for Closeburn. It follows in part an existing track shown on OS maps and there is evidence that the track is used. No surfacing would be required and the council would install and maintain new access gates and signs.

• There are no privacy or curtilage issues. The health and safety concerns held to follow from the routeing through livestock grazing fields are not accepted to be valid objections by the council.

• There is no planning application for mineral extraction; if large scale extraction is contemplated public access should be safeguarded now.

• The council believe, based on the evidence of 12 local residents, that the route may meet the prescription for a right of way and also that the route meets the criteria of a core path. Either could be pursued but the council decided that it should be designated a core path and added to the Draft Plan.

Reporter’s appraisal and conclusions: This link is an addition to the Draft Plan in response to objections 15 The reference is to the council’s submissions concerning link 123 at Livingstone Hill in Stewartry, page 70 of this report. There the council refer to their policy that highways should not be designated as core paths.


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Based on my site inspections I understand the public support for these routes which provide opportunitiesto access attractive countryside from the village within an area where the Access Authority has no other core path proposals. I note the argument that this proposalshould have been included in the council’s earlier formal consultation. The fact is that these links have been proposed as the consequence of representations made against the Draft Plan on grounds that the scheme proposed did notmake sufficient provision for reasonable access. It is the council’s position that the consultation undertaken concerning all additions to the plan has been both appropriate and sufficient to canvas the views of affected parties. In common with all other proposals these paths, and their likely consequences, have thus to be considered in the context set by the Act and against the provisions of the Access Code. I find that the land involved is land over which access rights are exercisable, none of the exceptions within the terms of section 6 of the Act are invoked. The council do not assert that rights of way are involved and instead seek to rest on core path designation. The objector raising that issue is confused as to the council’s position, but in any event section 17(2) of the Act is clear that a right of way is a candidate for consideration as a core path. Section 17(d) of the Act allows other routes, or other means by which persons may cross land, to be put forward as candidate core paths. I consider that that definition includes the tracks that are involved in these proposals. The objections to designation thus fall to be considered within the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. I note in that context that the objections contain no suggestion that there would be any interference with privacy and the peaceful enjoyment of possessions. I understand the concerns about the effects on farming. Section 2 of the Act requires that those exercising their right to take access behave responsibly. The Access Code, which has been approved by the Scottish Parliament,anticipated these concerns and advises that:


• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated by warning signs when special care is required or it is necessary that the public avoid an area during particular land management operations, such as running a bull or during and following calving.




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Thus the issues that are of concern are addressed by both the law and the Access Code; measures are available and are recommendedto manage those concerns. There is no evidence of the objectors’ alleged concerns about the effect on future development proposals for mineral extraction. The council has provided no indication of the statutory Development Plan allocations that could have a bearing on the prospects of success of such proposals. Section 13(1) of the Act imposes the duty on councils to assert and keep open routes over which access rights may reasonably be exercised. This would appear to include the proposed core paths in their existing state. In addition, the Government guidance states that access rights and core paths will be material considerations in development planning and determining planning applications (page 46). This was reinforced by Scottish Government Planning Policy issued in February 2010 which advises that planning authorities should consider access issues and should protect core paths and other important routes when deciding planning applications. Thus, national policy indicates that access rights, including those enabled over the system of core paths, are to be protected in allowing other worthwhile development proposals. I find that the proposed links would make an important contribution to a system of paths sufficient to provide the public reasonable access, taking account also of the interests of the owner of the landand the policy framework established to allow access rights to be exercised and those interests to be protected. I thus consider that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating core paths in this location.

Chapter 4 – Nithsdale - Irongray Dumfries and Galloway’s Core Paths Plan

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District: Nithsdale – Irongray Core Paths Numbers: Links 1789 and 1823

Core Paths Map 116


Mr George Gourlay, GM Thomson & Coper Messrs A B Young

Reporter’s recommendation: Reclassify links 1789 and 1823 as aspirationalon Proposed Amendment to the draft Core Paths Plan Map 116, reference 182, dated 28 September 2010, contained in Document 11. The proposal and its context: This proposed link follows the north bank of the Cluden Water running to Irongray Bridge from the termination of link 1800 close to East Cluden. With that link and another it would complete the 3.8 km route from Newbridge to Irongray where there is extensive parking associated with the attractive church at Kirkpatrick Irongray. This objection relates to the final 1.8 km of the route where there is no path. The difference in relative levels effectively restrictseasy access at Irongray Bridge. On the north bank the improved pasture between that bridge and the river bend to the north of Roundhead Plantation is protected by an attractive high stone wall topped in places by mature hardwood trees which forms an effective flood levée. The council propose to amend the route from that river bend, where drains and burns from the north run into the Cluden, so as to skirt Roundhead Plantation. The path would run to the north of a low hill in arable cultivation. The route would re-join the river bank at Holyn Bush Pool, east of the river gauge. There are new stiles and steps on the south bank of the Cluden Water at Irongray Bridge and to the south of Roundhead Plantation, close to the river gauge. It is at this point that the path joins the minor road along the south bank of the river, which is signposted as a national cycle byway. It is evident that this informal route along the river bank is used by walkers. Summary of the representation:

• There is no existing path on this route. • Even anglers are unable to get along one section of the bank due to trees,

bog and deep pits; they wade the river instead. • If the intention is to encourage walkers along the river bank, the south bank is

a much better bet. • The route is unsafe, not viable and should be deleted; the objector does not

agree with the deviation proposed at Roundhead Plantation.


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• New path development may exacerbate an existing problem of illegal fishing.


• The start of the route at Newbridge is a landscaped and formalised entrance to freely accessible river bank for approximately 2 km where it is not subject to objection by land managers. There is community support for this extension which would be an attractive riverside walk linking Newbridge with Irongray and, with other paths, create a route to the centre of Dumfries and beyond.

• The objective is to facilitate access, not to provide a surfaced path. The council would clear vegetation and erect self-closing gates and small bridges where appropriate.

• The Council has addressed the safety and viability objections by suggesting a diversion at Roundhead Plantation where the drainage of the route renders it unsuitable. This would take the path around the wet section from Holyn Bush Pool towards Nether Gribton, crossing an existing bridge over the burn. The land manager has been asked to suggest an alternative, but declined to do so or to consider the council’s suggestion. As such, the council consider that no valid objections have been submitted.

• Designation as a core path is irrelevant to the issue of illegal fishing; access rights do not extend to lawful fishing.

• The land is open for public access under the Act; the Outdoor Access Forum supports the route’s inclusion in the draft plan; and the route – with the amendment at Roundhead Plantation - meets the criteria of a core path.

Reporter’s appraisal and conclusions: I find thatthe land involved is land over which access rights are exercisable, none of the exemptions within the termsof section 6 of the Act are invoked. It is not suggested that a right of way is involved, and the objections to designation fall to be considered within the context set by section 17(3)(c) of the Act. The council’s objective of establishing a link to theunopposedcore paths along the northbank of the river is understandable and worthy of support. However, they have recognised that a substantial detour to the north would be required to avoid the difficult ground conditions close to the plantation. I noted at my site inspection the attractions of the path along part of the south bank where the access-taker is on the edge of the water,has unrestricted views of the attractive countryside to both north and south and is accommodated by stiles and steps. That is why it was commended in the objection. However, it would not extend other unopposed links and would be dependent on the use of several kilometres of public roads to reach them. The council refer to the need to clear vegetation and erect self-closing gates and small bridges where appropriate. My site inspection suggests that these works could be relatively onerous, given that substantial steps would also be required at Irongray Bridge. In balancing the exercise of access rights with the interests of the owner I consider it necessary to be assured that the appropriate physical arrangements are committed to ensure that those attracted to use a designated path are not put at risk. The advantage of a connecting route from Dumfries out into this attractive countryside is worthy of support and should not be lost, but the investment required


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to bring this proposal to fruition suggests to me that the path should be re-designated as aspirational, being a designated route that is likely to take more than 2 years to achieve. Provided these difficulties are resolved I findthat the proposed link would make an important contribution to a system of paths sufficient to provide the public reasonable access, taking account also of the interests of the owner of the landand the policy framework established to allow access rights to be exercised and those interests to be protected.

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Chapter 5

Annandale & Eskdale


• Kirkwood Estate, Dalton • Kirkhill, Dalton • Additional routes


Chapter 5 –Annandale & Eskdale – Kirkwood, Dalton Dumfries and Galloway’s Core Paths Plan

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District: Annandale & Eskdale – Kirkwood Estate, Dalton Core Paths Numbers: Links 1003, 1006, 1018, 1020, 1021

Core Paths Map 134

Persons whose representations raise the issue: SCR Number Name SCR 38 SCR 3 SCR 8 SCR 99 SCR 170 SCR 327

Mr A Steel Mr and Mrs Rennie Mr and Mrs Delaney Mr S Barber Mr P Williamson Miss A Morrison

Reporter’s recommendation: Delete links 1003, 1006, 1018, 1020 and 1021 from the Draft Plan. The proposal and its context: The proposed core path runs from West Lodge where there is a junction with a minor road,and through the estate past 5 houses formed around and within the former stables, to leave the estate at South Lodge where the estate road is gated. Kirkwood Cottages are advertised nearby, but there is no indication of a charge for access to the estate. For most of its length the estate road is in good condition and well-surfaced, but a short length to the south of the stables is wet in poor weather. Much of it runs through an avenue of mature trees, but there are views over pasture and arable land at several points.The proposed path would be seen only in distant views from the ground floor of Kirkwood House, but at Kirkwood Cottages the proposed path is routed along the rear garden boundary of 3linked houses (their frontage is directly onto the stables courtyard). There is a low garden fence marking the curtilage, but access-takers would have clear views into rear gardens and also into the rear windows of the houses from a distance of some 5 - 8 m. The village of Dalton is some 300 m from the South Lodge and 2 km from West Lodge. There is no possibility of parking safely on the road side at either lodge house. Despite the fact that the Annandale Way passes along the minor road at West Lodge that road is narrow and bounded close to the access by a high stone wall on one side and a dense thicket and woodland on the other. There are no verges on which to take refuge. The minor road passing South Lodge is narrow with blind bends. Both are less than ideal as walking routes. Summary of the representations:

• Rather than meeting the functions of the Draft Plan (Para 3.8), the proposals

directly conflict with several of the objectives.


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• Each of these links should be deleted, there is an excess of paths sufficient to give reasonable outdoor access in the area including the Annandale Way.

• This proposal was imposed before meetings requested by the land manager had taken place. This private driveway, which goes through the privacy zone of several properties, should not be designated as a core path. It is outside the competence of the council to propose it as such given that Article 6 of ECHR supersedes the Act on these matters.

• It does not represent a partnership and instead works against owners who have developed a diversification project that contributes to access provision.

• There are concerns over disturbance to the privacy and enjoyment of Kirkwood House, which includes 2 flats, and 8 other properties, some of which are within 5 m of a proposed path. Some are occupied full-time, some are holiday lets. Residents would feel more vulnerable, whether in occupation permanently or whilst on holiday, and the assertion that temporary occupation has any relevance to the expectation of reasonable privacy is challenged.

• The exclusions contained in section 6 (1)(f) of the Act should be applied. Before 2001 there was a charge for entry to the Estate applying on more than 90 days in each year and there has been ever since; that charge remains. The route was, and is, walked only by those who have paid to do so or who have requested that right in advance.

• General access would ruin not only privacy and tranquillity, but also damage the natural environment disturbing wildlife and conflicting with conservation objectives. Wildlife watching, nature study and outdoor activities take place on the estate and are part of the attraction for guests using the holiday cottages who contribute also to the wider tourist economy.

• The business of Kirkwood depends on those attractions, visitor numbers would be decreased and the objective of diversification compromised. Those conclusions are supported by objectors who are attracted to holiday on the estate because of its seclusion, privacy and security and who question whether these qualities would exist were open access available.


• At the initial core paths consultation 6 of the 15 people attending (40%) requested access to this route. It would facilitate a circular walk or ride from Dalton village and adds to the overall sufficiency of the plan.

• A “paid entry” attraction (a clearly defined area requiring a ticket or permit for entry) would be exempt from access under the Act, but the Estate is not such an attraction.

• The only payment is from temporary holiday cottage lets and outdoor pursuit training. Core paths are available for year-round use by the public and cannot be omitted on grounds of interference with temporary holiday lets.

• In this case access rights still exist on the land surrounding the holiday cottages, excluding their gardens. The various schools and training on the Estate would be unaffected as these activities do not fall within access rights.

• The distance to the lodge houses from the proposed core path is similar to that from the public road. The estate road serves a number of properties and the farm; it is not the equivalent of a private access to a single house. The


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private area around each of the 3 dwellings is clearly demarcated and there would be no undue invasion of their privacy or for Kirkwood House.

• The land owner canvassed support from holiday-makers staying at his holiday cottages to support exemption of the Estate from access rights.

Reporter’s appraisal and conclusions: Based on my site inspection I understand the council’sdecision to seek to designate core paths through the Kirkwood Estate as these would provide the option of access on a stock-free routein an area dominated by cattle farming. However, the proposal has negative aspects too; the route is detached from the village at Dalton and its use would be dependent on using the carriageway of relatively busy rural roads (when I inspected them in winter) where the visibility is poor, traffic speeds are high and there is neither a footpath nor safe off-road parking provision at either South Lodge or West Lodge. Thus, its use as a circular route from the village of Dalton could only be achieved by traversingsome 2.5 km on a public road with these drawbacks. As the safety of access-takers is involved, these are significant considerations and are to be set against any argument that the route is justified on grounds of sufficiency. The council do notsuggest that this route is a right of way;instead their decision to seek designationresults from the support of 6 of the 15 people attendingthe initial core paths consultation. In this case the submissionsconcerning access rights and exclusions from the general right of access over this route through the estate are critical. I have drawn attention at paragraphs 1.7-1.9 of this report to the difficulty that is perceived to exist between the application of section 6 of the Act when read with section 7(1). In this case I find no convincing evidence to suggest that the Estate is a paying visitor attraction in the normally accepted sense. The issue so far as section 6 is concerned thus turns on the effect on residential privacy. Based on my site inspection I have reached the view as a matter of fact and degree that the proposed links would be unlikely to affect Kirkwood House. However, that is not the case elsewhere on the Estate where I consider that links would be routed through the land required to ensure reasonable measures of privacy for those occupying 3 of the Kirkwood Cottagesand, to a lesser extent, West and South Lodge. In the case of those lodge houses both are indeed as close to the public road as they are to the proposed core path, but the land within their curtilage required to ensure reasonable measures of privacy for their occupants would, being at the side and rear, be compromised. In my view it makes no difference that some of these properties may be let as holiday homes; occupants are entitled to the same expectation of reasonablemeasures of privacy whatever the tenancyarrangement. Were the determination to be made solely on the grounds of section 6 of the Act it is my conclusion that access rights shouldnot beexercisable in these locations. However, section 7(1) of the Act indicates that section 6 does not prevent or restrict the exercise of access rights over any land which is a core path. This suggests that the designation of a core path is able to override the exemptions from access rights conferred by section 6. On that basis I see why the council consider that they are able to propose core paths in this location, but it is still necessary to consider the objections to these proposals in the context set by section 17(3) of the Act. That section provides that, in drawing up the plan, the council shall have regard to the likelihood that persons exercising access rights will do so by using core paths; and


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the need to balance the exercise of those rights and the interests of the owner of the land in respect of which those rights are exercisable. In this instance the relationship with residential and other property engages Convention rights, applied in this context as indicated at paragraph 1.17 of this report. It is in that way that Convention rights should be considered, thus I do not share the view that Article 6 of ECHR “supersedes” the Act. I have indicated that there could be a significant interference with reasonable measures of privacy and thus the peaceful enjoyment of possessions for the Estate’s owners and tenants. This leads me to the conclusion that, notwithstanding the qualification contained in section 7 of the Act, the exercise of access rights along core paths at Kirkwood could not be fairly balanced with the interests of the owners and occupiers of affected property. That is because I do not consider that the balance of advantage that has to be considered in applying section 17(3) of the Act justifies designating core paths where, otherwise, access rights shouldnot be exercisable over the land. No alternatives are suggested in the submissions but I have anywayconsidered whether these difficulties could be overcome by minor deviations within the general route corridor. Based on my inspection I find that these would be unlikely to be effective in resolving the problemat either Lodge House or at Kirkwood Cottages.

Chapter 5 –Annandale & Eskdale – Kirkhill, Dalton Dumfries and Galloway’s Core Paths Plan

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District: Annandale & Eskdale – Kirkhill, Dalton Core Paths Numbers: Links 1011, 1016, 3397, 3399, 3413, 3414

Core Paths Map 133


W Gourlay, GM Thomson & Co per Valmar Investment & Holding Co NV

Reporter’s recommendation: As proposed by the Access Authority, designate links1011, 1016, 3397, 3399, 3413, and 3414as core paths. The proposal and its context: This proposed route of some 2.25 km involves 6 connected links running to Holmains from the metalled single track road serving the steading and isolated cottages at Kirkhill. It follows an attractive upland valley through grazing land past stands of mature trees to meet the Annandale Way at Holmains and also other core paths leading north-east. The Annandale Way is a sign-posted long-distance route which, at this point, runs parallel and to the east of this group of proposed core paths. The alternative suggested by the objector would broadly parallel the proposed route, but to the west running from the minor public road along an immature shelter belt at Butterwhat Moss and thence along to the shoulder of Baillie Hill to descend from Holmains Moor to Holmains. The initial stage of the route is on a gated well-made farm track; the later stages are over open moorland. Summary of the representation:

• The route is an LMC path, where subsidy expired in 2011, but the only

expense incurred was for temporary signage. It was purely a means to claim subsidy at minimal cost.

• At the end of the public road the route starts in a working farm and the farmhouse garden and then passes through fields where cows, their calves and bulls graze. It is also at the core of a commercial shoot.

• Were it a right of way there would be no requirement to designate it a core path; it has never been maintained by the council.

• The route of the Annandale Way across Kirkhill was fixed to avoid the potential for conflict with farming and commercial shooting. It provides sufficient designated access to Holmains, particularly when allied with the right of way from Holmains to Woodlandsbank. There is no point in a dual designation. Any signage should follow the Annandale Way, rather than the farm track.


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• If an alternative is required, the right of way from Holmains to Rockhall should instead be used.

• There is no need for the alterative to be constructed to a standard capable of vehicular use as is the route proposed in the plan. That is not a valid reason to reject that alternative. It would allow greater public enjoyment of the open views into Nithsdale and Annandale; gates on the route are functioning. Whilst it does pass through a cattle feed area, it does not impinge on the working steading at Kirkhill.


• The proposed core path is of good quality having being improved by the way

of an LMC for a number of years. • It is suitably way-marked and has functioning gates. • The path is also identified as right of way recorded on the Council’s database. • The alternative would require significant construction to be of a similar quality

to the route proposed. • The proposed path would facilitate circular walks from several local villages

including Dalton and Hightae and would enable the local community and visitors to walk part of the Annandale Way and return without need to walk longer sections.

Reporter’s appraisal and conclusions: The proposed core paths follow a right of way that also was signposted under a grant scheme, since recently expired. I find therefore that the principle of public access is established and, in terms of section 17(2) of the Act, the route fulfils the right of way criterion as a candidate for core path designation. Being a public road the council’s proposal does notinvolvedesignation of the farm access road as a core path. The route starts close to the steading and farmhouse, but their physical relationshipswith the proposed route mean that neither is affecteddirectly. Based on my site inspection I am satisfied that the proposed paths would not be routed through the land required to ensure reasonable measures of privacy for those occupyingany of the cottages or the farm. It would not affect the operation of the steading. Accordingly, I conclude that access rights should be exercisable over the land involved in the council’s proposal. In common with the Annandale Way, the proposed paths would be routed through veryattractive countryside and, taken together, would allow a circular route to be followed that would add to the attractions and contribute to sufficiency in this area. I note the argument that,given the existence of that long distance route close by, there is no need for this additionwhich would take access-takers onto land where cows, their calves and bulls graze and which is also at the core of a commercial shoot. However, that also was the case when the same route was way-marked as an LMC path and apparently could then be accommodated without affecting the working of the farm or the estate. Section 2 of the Act requires that those exercising their right to take access behaveresponsibly. The Access Code advises that:


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• Access-takers should adapt their behaviour to prevailing circumstances (paragraph 3.9). Those circumstances could be indicated bywarning signs when special care is required or it is necessary that the publicavoid an area during particular land management operations including low-groundshooting.


• The Access Code refers as well to the long-standing legal principle that a person taking access will generally be held to have acceptedany obvious risk or risks that are inherent in the activities that they are undertaking.

I have considered the alternativethat has been suggested by the objector and recognise that it would have attractions. It would avoid any possibility of conflict with the operation of the farm and estate and it would have the same advantage for local sufficiency.However, I agree with the council that at least that part over the open moorland wouldrequiresignificantconstruction to be of a similar quality to the route proposed which has been improved over the years under subsidy and which has functioning gates. When considered in the context set by section 17(3) of the Act andtakingaccount of the interests of the landowner as expressed in the objections I conclude that the balance of advantage does not lie in the deletion of the proposed core paths from the Draft Plan.

Chapter 5 –Annandale & Eskdale – Additional routes Dumfries and Galloway’s Core Paths Plan

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District Annandale & Eskdale – Additional routes Core Paths Numbers: None, additional paths

Core Paths Maps 134, 138 and 140


V Woodgee

Reporter’s recommendation: As proposed by the Access Authority these routes should not be designated as additional core paths in the draft plan. The proposal and its context: These proposals relate to forest access roads and farm tracks within 2 areas, mainly comprising commercial forestry. The first is centred on Birkshaw Forest, 3 km south-west of Lockerbie and the second on Auchenroddan Forest, some 3 km south-east of Johnstonebridge and east of the A74(M). In Birkshaw the proposed circular track with an outlier to the east and north totalling some 3.25 km would run mainly through commercial forestry, most of which is mature and some has been clear-felled. It would connect to link 4637, which is not the subject of objection and could connect also to link 2592. The proposal at Auchenroddan amounts to some 5 km in a loose T formation with outliers to the north-west and east at its head. Again, most of the proposed route would be within commercial forestry, although at the northern end there are panoramic views over attractive open countryside. The Draft Plan makes provision for 4 links (1903, 1879, 1884, 2600) running in a north-south direction through the forest and to which this proposal would be attached at the southern end and also close to the northern extremity. Summary of the representations:

• These key routes were identified in the Lockerbie community consultation but

not included in the Core Paths Plan. • Hazelbank to Ravenscleugh; Newbigging to Auchenroddan; and Murrayfield

to Scroggs are each existing tracks with a long history of multi-use access. Each is popular and used daily and should be included in the plan.

• The tracks within Birkshaw forest are probably more popular than any others around Lockerbie and have greater status than some that have been included in the plan.

Chapter 5 –Annandale & Eskdale – Additional routes Dumfries and Galloway’s Core Paths Plan

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• The Outdoor Access Forum member representing horse riding considers that designation of the suggested routes is unnecessary; each is open to use under the Act. Inclusion would not benefit the sufficiency of the plan.

• The suggested route through Auchenroddan effectively duplicates link 2600. The additional path would provide a circular route through a dense coniferous plantation, but this is already useable. It was filtered out of the assessment due to the low level of public support.

• Core path status was not requested by the public for either Hazelbank to Ravenscleugh or Murrayfield to Scroggs.

• Within Birkshaw Forest, links 2592 and 4637 were identified during public consultation and met the requirement for designation as core paths. With the exception of Birkshaw Forest each of these suggested routes has been added to the council’s “wider network” and if there is sufficient support may be added to the plan at the next review following consultation with land owners.

Reporter’s appraisal and conclusions: Before publishing the Draft Plan and inviting formal comments,the Access Authorityundertook a comprehensive programme of consultation with every community so as to gauge public support for routes that they used, or wished to use, for non-motorised access including walking, cycling and horse riding. There followed an informalconsultation and a further round of meetings with interested parties. The fundamental criteria for further consideration as candidatecore paths were the support of more than 33% of the public involved in the initial consultation and that the route was primarily off-road. Although off-road, the council discounted these routes suggested as additions to the Draft Plan because the criterion of public support was not met. This contrasts with thetotal of 6 links that are included for designation in these 2 locationsreflecting the level of public support for them. None of those links is the subject of objection. There is always the risk that those with an interest may not have made their views known at the appropriate time. But the Access Authority’s proposals were scrutinised by the Outdoor Access Forum discharging their responsibility under section 25(2) of the Act of advising the local authority and any other person or body about access rights, rights of way and the drawing up of a core path plan. Based on my site inspection I find that the suggested additional links are on land over which access rights should beexercisable. Each is thus likely to be available for public use. Being largely within commercial forest the routes are also clearly defined. Their potential use and availability for it would therefore seem unlikely to be affected should these be designated as core paths, or not. The only substantive difference following designationwould likely be the addition of finger signs. On balanceand even though the public support criterion is not met, I conclude that none of the options is so attractive that designation is justified. I also find that the Draft Plan proposals meet the criterion of sufficiency in this area and there is thus no reason for the designation of additional routes.

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Chapter 6

Amendments and corrections

In June 2011 Dumfries and Galloway Council submitted final revised proposed amendments and correctionsreplacing earlier submissions. These comprised: Amendments requesting an addition to the plan that was agreed with the objector who withdrew their objection on that basis:

• Borgue • Bridge of Dee • Kirkpatrick Durham • Milton – Springholm to Milton Loch • Kirkconnel Flow • Cairn Valley

Corrections from aspirational to core path status, with the agreement of land managers:

• Larbrax • Barclye • Cairnsmore of Carsphairn

Chapter 6 – Borgue - Amendment Dumfries and Galloway’s Core Paths Plan

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Location: Borgue Core Paths Number: None, additional path

Core Paths Map: 73

Amendment reference: 257

Person whose representations raise the issue: SCR Number Name

SCR 257 No SCR No SCR

Ian Steele Mr Gillespie - owner Mr Brown - owner

Reporter’s recommendation: As proposed by the Access Authority designate the proposed core path shown on Proposed Amendment to draft Core Paths Plan Map 73, reference 257, dated 15 March 2010. The proposal and its context: This proposed path is located within the very attractive windswept elevated coastal landscape to the south of Borgue. It runs over a distance of 0.8 km between 2 minor no-through roads each of which leads south towards the coast. The route is on a farm track throughout which gives access to Chapelton Cottages and the steading at Low Chapelton and that first part of the route runs alongside stands of mature trees. The balance to the west climbs towards the open fell landscape which is in grazing use before joining the minor road serving Muncraig. Summary of the representation:

• This is a popular and well-used route that should have been included in the Draft Plan.


• The council inspected the route and spoke to users, one of whom had used it throughout her 80 year life.

• Owners were contacted along with neighbouring proprietors and no objections were received to designation.

• Mr Steele’s objection was withdrawn on the understanding that the route was proposed for designation.

Reporter’s appraisal and conclusions: Even though proposed following consideration of a representation submitted in response to the formal consultation there are good reasons to believe that the later

Chapter 6 – Borgue - Amendment Dumfries and Galloway’s Core Paths Plan

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consultationsundertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has land owner agreement; there are no outstanding objections; and it would add to the sufficiency of provision within this area. Consequently, I do not find grounds to question the council’s assessment as Access Authority that this route should be included as an amendment of the Draft Plan.

Chapter 6 – Bridge of Dee - Amendment Dumfries and Galloway’s Core Paths Plan

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Location: Bridge of Dee Core Paths Number: None, additional path.

Core Paths Map: 79

Amendment reference: 179, 388


SCR 388 SCR 179 No SCR

Carolyn Dunlop, NFU Scotland, per Ronnie Wilson Mr Gourlay, of GM Thomson& Co, per Ronnie Wilson Mr Thomson

Reporter’s recommendation: As proposed by the Access Authority designate the proposed core path shown on Proposed Amendment to draft Core Paths Plan Map 79, reference 179 & 388, dated 11 August 2010. The proposal and its context: This link of 0.5 km follows a well-trodden, way-marked path from a finger post sign “To Rhonehouse” from the banks of the River Dee. At this point the former road serves a single cottage before narrowing to a footpath along the river bank. The proposed link climbs south through a short section of woodland where it is fenced on both sides and then crosses a livestock field alongside a stone dyke to join a short section of farm track before reaching the Old Military Road that leads into Rhonehouse. Summary of the representations:

• Representations were made, successfully, against another proposed link 112 which led the council to withdraw that proposal.


• The objections made to the council’s original proposal were sustained on the basis that the link formed no connections within the local area and that there was little or no use of the proposed route.

• On further investigation the council discovered that the path from Loop Cottage to Rhonehouse is the route most used by the local community. The council propose its designation with the agreement of the landowner in order to contribute to the overall sufficiency of the Draft Plan.

Reporter’s appraisal and conclusions: Even though proposed following consideration of a representation submitted in response to the formal consultation there are good reasons to believe that the later

Chapter 6 – Bridge of Dee - Amendment Dumfries and Galloway’s Core Paths Plan

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consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has land owner agreement; there are no outstanding objections; and it would add to the sufficiency of provision within this area. Consequently, I do not find grounds to question the council’s assessment as Access Authority that this route should be included as an amendment of the Draft Plan.

Chapter 6 – Kirkpatrick Durham - Amendment Dumfries and Galloway’s Core Paths Plan

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Location: Kirkpatrick Durham Core Paths Number: None, additional paths

Core Paths Map: 84


Persons or body whose representations raise the issue: SCR Number Name SCR 113 No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR No SCR

Mr Goodwin Mr Wilson Mrs Corrie Mr Craig Mr Thomson Sir John Thomson Mr Black Mr Dickson, KPD Recreation Ground Committee Mr Corrie Mr Bijl Mr and Mrs Maxwell Mr Harrod Mr Ferguson Mr Fingland

Reporter’s recommendation: As proposed by the Access Authority designate the proposed core paths shown on Proposed Amendment to draft Core Paths Plan Map 84, reference 113, dated 11 August 2010. The proposal and its context: The Access Authority have proposed 2 core paths at Kirkpatrick Durham. The first, a short 0.4 km loop around the informal recreation ground, is located in the south-eastern quadrant of the area around the village crossroads. It leads out from the heart of the community on a metalled track giving way to grass separated from adjoining fields by stone walls and fencing. There are attractive views from the proposed path towards the village and over open farm land to the east and south. The second proposed additional path is a long distance route running some 6 km from the centre of Kirkpatrick Durham north-west to a termination at Merkland at the head of the Glenlair Valley. In its initial stages the proposed path follows a metalled farm track serving isolated farm steadings and houses climbing over attractive countryside towards the shoulder of Walton Hill, an open fell landscape. The route descends relatively steeply from there to cross the B749 road and thence over the Urr Water on an attractive ancient stone bridge carrying a minor road. From that mid-point of the route the proposed path climbs the slopes above the Glenlair Burn

Chapter 6 – Kirkpatrick Durham - Amendment Dumfries and Galloway’s Core Paths Plan

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and tracks along the contours through mature woodland and thence into open grazing land before reaching the track serving Hillside, ending at Merkland. The surrounding landscape is throughout attractive and is in grazing use. Summary of the representations:

• The route should have been designated in the Draft Plan. There is insufficient access in the wider Kirkpatrick Durham and Corsock area due to the scatter of small communities.


• The council identified many potential routes but none passed the test of achieving the support of more than 33% of the local community.

• The council made a number of site visits and 3 potential routes were identified – the Kirkpatrick Durham to Corsock route, a short loop around the recreation ground and a longer circuit through the property known as “the Wilderness”. The last was the subject of objection, and was dropped.

• The only other objection condemned the Act and its consequences in broad terms. It did not relate to specific proposals.

• There were no objections to the 2 routes now proposed. These give a short, all-ability, route in the village and a longer route which, using minor roads, links Kirkpatrick Durham with Corsock.

• This amendment addresses the lack of sufficiency in the area.

Reporter’s appraisal and conclusions: Even though proposed following consideration of a representation submitted in response to the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposals have land owner agreement; there are no outstanding objections to the specific proposals; and these would add to the sufficiency of provision within this area. Consequently, I do not find grounds to question the council’s assessment as Access Authority that these routes should be included as an amendment of the Draft Plan.

Chapter 6 – Springholm to Milton - Amendment Dumfries and Galloway’s Core Paths Plan

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Location: Springholm to Milton Loch Core Paths Number: None, additional path

Core Paths Maps: 84, 113

Amendment reference: 410, 437, 438, 441, 442, 443

Persons whose representations raise the issue: SCR Number Name SCR 441 SCR 410 SCR 437 SCR 438 SCR 443 SCR 442

Kenneth Murchie Mrs Barrick Valerie Middleton MC Middleton Mark and Anna White Joe Smith

Reporter’s recommendation: As proposed by the Access Authority designate the proposed core path shown on Proposed Amendment to draft Core Paths Plan Maps84 & 113, reference 410, 437, 438, 441, 442 and 443 dated 29 September 2010. The proposal and its context: The proposed path runs from the village of Springholm where there is a village hall, shop, school and pub,some 3.5 km to the east at Milton Loch. Most of the proposed link, which is elevated and affords excellent views of the surrounding countryside, runs along established tracks between well maintained stone walls. A short central section is overgrown and also impeded by temporary storage. In part it suffers from poor drainage. Above the loch and close to Fell Farm the track is on the southern margin of a larger field in use for grazing. There access-takers are warned of the dangers when cows are present with calves. Summary of the representations:

• The hamlets of Milton, Burnbrae and Burnside need opportunities for safer off-road walking segregated from traffic on narrow lanes. There are few such options in the area, but every small community needs these to avoid driving to find a safe place to walk and to avoid also the possibility of alienating the young from their local environment. This would benefit health and welfare as well as tourism and the wider area. It would also benefit landowners because walkers are conscious of their responsibilities and would alert landowners of animals in danger or distress.

• The path is held by the Urr Community Council and several local residents to be a right of way.

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• As a core path it wouldcontribute to a safe walking route that is used regularly by pedestrians, dog walkers, horse riders and cyclists.


• The community considers that this local track that is largely walled on both

sides and thus stock-free should have been included in the Draft Plan. • It would link the community of Milton to the services available at Springholm

and, although partly in poor condition, it is not used for gathering dairy cattle. As there is no opposition from landowners the council propose to amend the Draft Plan to designate the route.

Reporter’s appraisal and conclusions: Even though proposed following consideration of representations submitted in response to the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has land owner agreement; there are no outstanding objections; it would add a safe walking route in attractive countryside contributing to the sufficiency of provision;and meeting the objectives of those who suggested that the plan be amended by its addition. Consequently, I do not find grounds to question the council’s assessment as Access Authority that this route should be included as an amendment of the Draft Plan.

Chapter 6 – Kirkconnel Flow - Amendment Dumfries and Galloway’s Core Paths Plan

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Location: Kirkconnel Flow Core Paths Number: None, additional path

Core Paths Map: 114


Body whose representations raise the issue: SCR Number Name

SCR 571 Chris Miles, per Scottish Natural Heritage, Dumfries

Reporter’s recommendation: As proposed by the Access Authority designate the proposed core path shown on Proposed Amendment to draft Core Paths Plan Map 114, reference 571, dated 28 September 2010. The proposal and its context: This National Nature Reserve administered by Scottish Natural Heritage is a short distance from the A710 New Abbey road south of Dumfries. It is a restored raised bog populated by mosses and other wet-loving plants. The reserve is served by a car park and the network of existing paths has both interpretative display boards and seating at strategic points. The proposed core path of some 2.0 km would run south-east from an existing way-marked path to join Gibbonhill Road. The path is proposed to be routed through clearings and the woodland edge on most of the western and southern margin of the bog. Summary of the representation:

• SNH plan to build a new path on this National Nature Reserve and suggest that this should be an addition to the Draft Plan.


• The council accept the need for this amendment to be made. • The SNH representation was withdrawn on the understanding that the route

was proposed for designation.

Reporter’s appraisal and conclusions: Even though proposed following consideration of a representation submitted in response to the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has land owner agreement; there are no outstanding objections; and it would add to the sufficiency of provision within this area

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complementing the investment that has been made by SNH in restoring this important reserve. Consequently, I do not find grounds to question the council’s assessment as Access Authority that this route should be included as an amendment of the Draft Plan.

Chapter 6 – Cairn Valley - Amendment Dumfries and Galloway’s Core Paths Plan

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Location: Cairn Valley – Demperston to Laggan Core Paths Number: None, additional path

Core Paths Map: 119

Amendment reference:

283, 284, 289, 339, 425, 426, 427, 428, 429, 430, 431, 432, 433, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468

Persons or body whose representations raise the issue: SCR Number Name SCR 283 SCR 284 SCR 289 SCR 339 SCR 425 SCR 426 SCR 427 SCR 428 SCR 429 SCR 430 SCR 431 SCR 432 SCR 433 SCR 454 SCR 455 SCR 456 SCR 457 SCR 458 SCR 459 SCR 460 SCR 461 SCR 462 SCR 463 SCR 464 SCR 465 SCR 466 SCR 467 SCR 468

Margaret Gray Mary Waugh Dumfries Running Club per S Graham (Secretary) David Marshall Frances Lowry Jim Godfrey James L. Anderson Brian Johnstone Bernard Stokes Pam Mitchell Kenneth Middlemiss J. M. Lowery Colin Mitchell Frank Skachill Mrs J Cook Susan Southgate Ria Hill Phillip G. Rice Helen Robertson David Rae Jolene Farrell Rian Hill Nancy Hill Mary Dunlop Robert Dunlop Iain Dunlop Mr and Mrs Terry Spellman Jane Taylor

Reporter’s recommendation: As proposed by the Access Authority designate the proposed core path shown on Proposed Amendment to draft Core Paths Plan Map 119, reference 283, 284, 289, 339, 425, 426, 427, 428, 429, 430, 431, 432, 433, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468; dated 30 June 2011.


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The proposal and its context: This path proposal is located in the countryside to the north-east of Dunscore. It is connected to the village close to its centre by link 4431 which runs south-west from Demperston. The path, of approximately 2 km, would link Brockhill Stone on the open hill slopes in the north-west with Demperston, where it is routed to avoid the steading, and then lead on to Laggan in the valley to the south-east. From the path there are views over an attractive well-tended livestock farming landscape. Summary of the representations:

• Objections were submitted by 28 parties to the omission of this route and 5 others.

• The objectors argue that the suggested additions to the Draft Plan would link better with other planned and existing paths and allow users to get more from the countryside benefiting the health and well-being of residents and tourists. Vulnerable users would be better protected from the effects of traffic. Walkers and riders would be discouraged from straying onto farmland, even though they are entitled to do so, creating a better relationship with landowners.


• The council propose to amend the plan because the suggested route meets core paths selection criteria and because agreement has been reached with the landowner.

Reporter’s appraisal and conclusions: Even though proposed following consideration of representations submitted in response to the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has land owner agreement; there are no outstanding objections and the support of a considerable number of local residents. It would add to the sufficiency of provision within this area contributing to the variety of attractive routes into the countryside from Dunscore. Consequently, I do not find grounds to question the council’s assessment as Access Authority that this route should be included as an amendment of the Draft Plan.


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Location: Cairn Valley - Kirkbride to Hillhead Core Paths Number: None, additional path

Core Paths Map: 119

Amendment reference:

283, 284, 289, 339, 425, 426, 427, 428, 429, 430, 431, 432, 433, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468

Persons or body whose representations raise the issue: SCR Number Name SCR 283 SCR 284 SCR 289 SCR 339 SCR 425 SCR 426 SCR 427 SCR 428 SCR 429 SCR 430 SCR 431 SCR 432 SCR 433 SCR 454 SCR 455 SCR 456 SCR 457 SCR 458 SCR 459 SCR 460 SCR 461 SCR 462 SCR 463 SCR 464 SCR 465 SCR 466 SCR 467 SCR 468

Margaret Gray Mary Waugh Dumfries Running Club per S Graham (Secretary David Marshall Frances Lowry Jim Godfrey James L. Anderson Brian Johnstone Bernard Stokes Pam Mitchell Kenneth Middlemiss J. M. Lowery Colin Mitchell Frank Skachill Mrs J Cook Susan Southgate Ria Hill Phillip G. Rice Helen Robertson David Rae Jolene Farrell Rian Hill Nancy Hill Mary Dunlop Robert Dunlop Iain Dunlop Mr and Mrs Terry Spellman Jane Taylor

Reporter’s recommendation: As proposed by the Access Authority designate the proposed core path shown on Proposed Amendment to draft Core Paths Plan Map 119, reference 283, 284, 289, 339, 425, 426, 427, 428, 429, 430, 431, 432, 433, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468; dated 30 June 2011.


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The proposal and its context:

This freestanding 3-legged path proposal of approximately 1.8 km is located on the northern and western slopes of Kirkbride Hill, some 3 km north-east of Dunscore. At its southern point the path would run on an existing track from the steading at Kirkbride north towards Kirkbride Moss and thence to join the minor road close to Auchenage. The third leg would run from Kirkbride Moss to the east to join the track serving Hillhead from the east. There are, throughout, superb panoramic views over stunning hill landscapes. Summary of the representations:

• Objections were submitted by 28 parties to the omission of this route and 5

others. • The objectors argue that the suggested additions to the Draft Plan would link

better with other planned and existing paths and allow users to get more from the countryside benefiting the health and well-being of residents and tourists. Vulnerable users would be better protected from the effects of traffic. Walkers and riders would be discouraged from straying onto farmland, even though they are entitled to do so, creating a better relationship with landowners.


• The council propose to amend the plan because the suggested link meets core paths selection criteria and because agreement has been reached with the landowner.

Reporter’s appraisal and conclusions: Even though proposed following consideration of representations submitted in response to the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has land owner agreement; there are no outstanding objections and there is the support of a considerable number of local residents. It would add to the sufficiency of provision within this area, contributing to the variety of paths in this attractivecountryside. Consequently, I do not find grounds to question the council’s assessment as Access Authority that this route should be included as an amendment of the Draft Plan.

Chapter 6 – Larbrax - Correction Dumfries and Galloway’s Core Paths Plan

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Location: Larbrax Core Paths Number: Link 4095

Core Paths Map: 9

Amendment reference: Wig 11

Landowner consulted: SCR Number Name

No SCR Mr Fisher

Reporter’s recommendation: As proposed by the Access Authority correct link 4095 from aspirational to proposed core path as shown on Proposed Amendment to draft Core Paths Plan Map 9, reference Wig 11, dated 6 December 2011. This replaces an earlier proposed amendment with the same reference dated 21 September 2010. The proposal and its context: This link of some 2.5 km runs along the upper shore and headland overlooking Larbrax Bay. It connects a network of other committed links (2426, 2429, 2427 etc.) to the north with others (4095 and 4100) to the south. It is an important component of the coastal path on the west coast of the Rhins of Galloway. Summary of the case made by Dumfries and Galloway Council:

• A section of the longer coastal route from Larbrax shore north to Meikle Galdenoch was erroneously marked as aspirational in the Draft Plan. The council has agreed with the landowner that the aspirational status should be changed to proposed core path.

Reporter’s appraisal and conclusions: Even though this change of status was proposed following the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has the agreement of the land owner; there are no outstanding objections; and as an importantcomponent of the coastal path it would add to the sufficiency of provision within this area. Consequently, I do not find grounds to question the council’s assessment as Access Authority that the status of this route should be correctedin the Draft Plan.

Chapter 6 – Barclye - Correction Dumfries and Galloway’s Core Paths Plan

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Location: Barclye Core Paths Number: Links 4019, 4020

Core Paths Maps: 39 and 40

Amendment reference: Wig 17


No SCR RSPB Barclye

Reporter’s recommendation: As proposed by the Access Authority correct links 4019 and 4020 from aspirational to proposed core paths as shown on Proposed Amendment to draft Core Paths Plan Map 39 & 40, reference Wig 17, dated 22 September 2010. The proposal and its context: Link 4019 runs from a car park within the RSPB reserve at Wood of Cree and is signposted and way-marked as the Knockman Wood Trail. Link 4020 amounting to 1.25 km, which would be connected to link 4019 above the steading at Barclye, is shown as aspirational on the Draft Plan. The proposal would take the core path across open moorland and into Knockman Wood close to the head of the ridge where there are panoramic views of the Cree Valley. It would connect with other core paths on forest tracks. Summary of the case made by Dumfries and Galloway Council:

• This route lies between RSPB paths and paths at Wood of Cree. It does not presently exist and was assessed to be aspirational. However, RSPB who own the land have indicated that development of the route is planned. The aspirational status should thus be changed to proposed core path.

Reporter’s appraisal and conclusions: Even though this change of status was proposed following the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has the agreement of the land owner; there are no outstanding objections; and it would add to the sufficiency of provision within this area capitalising on the investment by RSPB. Consequently, I do not find grounds to question the council’s assessment as Access Authority that the status of this route should be corrected in the Draft Plan.

Chapter 6 – Cairnsmore of Carsphairn - Correction Dumfries and Galloway’s Core Paths Plan

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Location: Cairnsmore of Carsphairn Core Paths Number: 468 and 487

Core Paths Maps: 67 and 69

Amendment reference: Sty 6


No SCR Anna Campbell

Reporter’s recommendations: As proposed by the Access Authority correct links 468 and487 from aspirational to proposed core paths as shown on Proposed Amendment to draft Core Paths Plan Map 67 & 69, reference Sty 6, dated 16 April 2010. The proposal and its context: The proposed core paths are located on open hill land to the north of Carsphairn. Totalling some 3.5 km these would run on a gated metalled track from the cottage at Bridge-end, where there is roadside parking, up the valley of the Water of Deugh and then on to the shoulder of Willieanna and then Dunool Hill. Summary of the case made by Dumfries and Galloway Council: The route is a popular hill walk that has been improved. It was given aspirational status because a bridge on the route required replacement and this was the stumbling block to designation as a core path. Its replacement has now been agreed. The aspirational status should thus be changed to proposed core path. Reporter’s appraisal and conclusions: Even though this change of status was proposed following the formal consultation there are good reasons to believe that the later consultations undertaken by the council have captured the views of those with an interest in affected land, thus avoiding the possibility of prejudice. The council has indicated that the proposal has the agreement of the land owner; there are no outstanding objections; and it would add to the sufficiency of provision within this area. Consequently, I do not find grounds to question the council’s assessment as Access Authority that the status of this route should be corrected in the Draft Plan.

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Appendix 1: Summary of recommendations Location Link Recommendation Wigtownshire: Logan Fish Pond 4810 Designate link 4810 as a core path from the council car park to the bungalow

“Sandy Neuk”. Delete link 4810 from the Draft Plan as proposed, and as proposed to be amended, from Sandy Neuk to the Boathouse. Replace the deleted section with an indicative aspirational notation over an amended route from Sandy Neuk climbing to the west to run along the head of the slope above the Marine Life Centre and descending by the estate wall to the boathouse

Port Logan Coastal Path 2253 Designate link 2253 as a core path as shown on the Proposed Amendment to Draft Core Paths Plan Map 3, reference 2253, 2254, dated 31 May 2010, contained in Document 5

Coastal Path 2254 Designate link 2254 as a core path and amend the Draft Plan to remove the Mulhill spur as shown on Proposed Amendment to draft Core Paths Plan Map 3, reference 2253, dated 31 May 2010, contained in Document 5

Logan Mains to Port Gill 2266 Designate link 2266 as a core path Drochduil School 3088, 4055 Deletethat part of link 4055/3088 that crosses the railway Killantringan to Portslogan 2415, 4100, 4101 Delete the aspirational link 4101, replace with the amended core paths proposal

shown on Proposed Amendment to draft Core Paths Plan Map 7 Killantringan to Portslogan,dated 11 August 2011

Balloch Wood 2171 Designate link 2171 as a core path Broadstone 3556 Delete link 3556,replace with the amended proposal shown on Proposed

Amendment to draft Core Paths Plan Map 10 Broadstone,dated 26 April 2010, contained in Document 6

Lovers’ Lane Additional(4124, 4125, now 421)

Amendto designate links 4124 and 4125 (no link 421) as core paths as shown on Lovers’ Lane Proposed amendment to draft Core Paths Plan Map, dated 24 November 2010

Appendix 1 – Summary of Recommendations Dumfries and Galloway’s Core Paths Plan

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Boreland Plantation 4021 Amend to designate link 4021 as a core path as shown Proposed Amendment to draft Core Paths Plan Map 40, reference Boreland Plantation, dated 30 September 2010, contained in Document 6

Stewartry: The Stell to Back Newton Additional Additional link should not be designated as a core path. Milton Additional Additional link should not be designated as a core path. Kenick Burn 125, 126 and 135 Amend to designate core path shown on Proposed Amendment to the Draft Core

Paths Plan Maps 56 and 81, reference 307, dated 1 March 2010, contained in Document 8

Livingstone Hill 123 Designate Link 123 as a core path Cornharrow 510 Delete link 510 from the Draft Plan and replace with an indicative aspirational

notation following the route shown in the Draft Plan with the exception of Cornharrow where the indicative alignment should follow the route inProposed Amendment to draft Core Paths Plan Map 93, dated 24 September 2010, contained in Document 9

Barscobe 85, 86 and 97 Delete links 85, 86 and 97 Nithsdale: Cairn Valley Additional Additional link from Crossford to Gilmerston should not be designated as a core

path Closeburn Additional Amend to designate core paths shown on Proposed Amendment to the Draft

Core Paths Plan Map 121, reference 290/589/560, dated 28 September 2010, contained in Document 11

Irongray 1789 and 1823 Reclassify links 1789 and 1823 as aspirational on Proposed Amendment to the draft Core Paths Plan Map 116, reference 182, dated 28 September 2010, contained in Document 11


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Annandale & Eskdale: Kirkwood Estate 1003, 1006, 1018,

1020 and 1021 Delete links 1003, 1006, 1018, 1020 and 1021

Kirkhill 1011, 1016, 3397, 3399, 3413, 3414

Designate links1011, 1016, 3397, 3399, 3413, 3414as core paths

Additional routes Additional Additional links should not be designated as core paths. Amendments: Borgue Additional Designate core path shown on Proposed Amendment to draft Core Paths Plan

Map 73, reference 257, dated 15 March 2010, contained in submission of June 2011

Bridge of Dee Additional Designate core path shown on Proposed Amendment to draft Core Paths Plan Map 79, reference 179 & 388, dated 11 August 2010, contained in submission of June 2011

Kirkpatrick Durham Additional Designate core paths shown on Proposed Amendment to draft Core Paths Plan Map 84, reference 113, dated 11 August 2010, contained in submission of June 2011

Springholm to Milton Loch Additional Designate core path shown on Proposed Amendment to draft Core Paths Plan Maps 84 & 113, reference 410, 437, 438, 441, 442 and 443 dated 29 September 2010, contained in submission of June 2011

Kirkconnel Flow Additional Designate core path shown on Proposed Amendment to draft Core Paths Plan Map 114, reference 571, dated 28 September 2010, in submission of June 2011

Demperston to Laggan Additional Designate core path shown on Proposed Amendment to draft Core Paths Plan Map 119, reference 283, 284, 289, 339, 425, 426, 427, 428, 429, 430, 431, 432, 433, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468; dated 30 June 2011, contained in submission of June 2011

Kirkbride to Hillhead Additional Designate core path shown on Proposed Amendment to draft Core Paths Plan Map 119, reference 283, 284, 289, 339, 425, 426, 427, 428, 429, 430, 431, 432, 433, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468; dated 30 June 2011, contained in submission of June 2011


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Corrections: Larbrax 4095 Correct Map 9 to change link 4095 from aspirational to proposed core path as

shown on drawing Wig 11, dated 6 December 2011 Barclye 4019, 4020 Correct Maps 39 and 40 to change links 4019 and 4020 from aspirational to

proposed core path as shown on drawing Wig 17, dated 22 September 2010, contained in submission of June 2011

Cairnsmore of Carsphairn 468 and 487 Correct Maps 67 and 69 to change links 468 and 487 from aspirational to proposed core path shown on drawing Sty 6, dated 16 April 2010, contained in submission of June 2011

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Appendix 2 Accompanied site inspections Unfortunately accompanied site inspections proposed in December inStewartrywere abandoned due to adverse weather. Revised arrangements were then subject to the unavailability of parties compounded by postal delays.

Barscobe: Attendance at the accompanied site inspection on 17 January 2012 SCR Number Name SCR 397 SCR 176 SCR 422 SCR 591 No SCR No SCR No SCR No SCR No SCR No SCR Dumfries and Galloway Council

Alistair Emery, representing also: Jenifer EmerySCR 287; Sophie Emery SCR 396; Elizabeth Kelly SCR 272; William Kelly SCR 271; Carolyn Stocker SCR 220; Cyril George Stocker SCR 218; Natalie Vardey SCR340 Mr Gourlay, G M Thomson & Co per Alistair Emery; Alison Chapman, Convenor, The Pilgrims Way Group Mr and Mrs Jardine Mr Brayshaw, for Balmaclellan Community Council Roland Chaplain June Hay Roddy Hermon Mr and Mrs Hogg Margaret Steel Simon Fieldhouse Jo Mercer

Milton to Glenarm: Attendance at the accompanied site inspection on 18 January 2012 SCR Number Name SCR 581 SCR 437 SCR 438 SCR 443 SCR 442 SCR 410 No SCR No SCR Dumfries and Galloway Council

Mr Barbour; Mr Callander Snr. and Mr Callander Jnr. Valerie Middleton M.C. Middleton Mark and Anna White Mr and Mrs Joe Smith Mrs K Barrick Adrian Smith Callum Smith Simon Fieldhouse Jo Mercer

Appendix 2 – Accompanied site inspections Dumfries and Galloway’s Core Paths Plan

D & G CPP-12 143

Port Logan Fish Pond and Port Logan Coastal Path: Attendance at the accompanied site inspection on 2 February 2012 SCR Number Name SCR 221) SCR 222) SCR 322) SCR 324) SCR 325) SCR 328) SCR 398) SCR 399) No SCR No SCR No SCR Dumfries and Galloway Council

Miss Daynes Mrs Miller Mr Miller Mr Bower Mr and Mrs Peebles Mr and Mrs Jones Ms McIntyre Simon Fieldhouse Karen Morley

Cornharrow: Attendance at the accompanied site inspection on 21 February 2012 SCR Number Name SCR 569 Dumfries and Galloway Council

Mr Hetherington, Operations Director, Czernin-Kinsky, Scottish Company Ltd Mr Tryon, Forest Manager Ms Parnell Simon Fieldhouse Jo Mercer

Appendix 2 – Accompanied site inspections Dumfries and Galloway’s Core Paths Plan

D & G CPP-12 144

Stell to Back Newton: Attendance at the accompanied site inspection on 6 March 2012 SCR Number Name SCR 103 SCR 32 SCR 582 SCR 583 No SCR No SCR Dumfries and Galloway Council

Tania Gardner Mr & Mrs Gelder Mr Dunlop Mr Craig Marguerite Lee Ms Dunlop NFU Scotland, in support of Mr Dunlop Simon Fieldhouse Jo Mercer

D G CPP-12 PRINT - Dumfries and Gallowayegenda.dumgal.gov.uk/aksdumgal/images/att27515.pdfo...

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