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Access Rights and Privacy May 2008
Access rights and privacy
Public access rights have won out over privacy. A second case has now been decided by the Sheriff Court concerning the right to exclude people from land which would otherwise be open to the public under the Land Reform (Scotland) Act 2003, namely Snowie v Stirling Council. The same matter gave rise to much press and political debate following the decision in the case of Anne Gloag v Perth & Kinross Council which determined the limits of public access to Kinfauns Castle.
To set the scene, Euan and Claire Snowie own Boquhan Estate and Boquhan Mains near Kippen. They bought the Estate, which includes houses and approximately 70 acres of land, in 2001. The majority of the houses have well defined garden grounds (which are exempt from public access under the 2003 Act) but Mr and Mrs Snowie’s own house, Boquhan House, did not. The Estate also included a tennis court, riding stables with separate equestrian riding area, two managed driveways, garden ground, pasture and woodland. The two driveways lead from the public road, through a set of gates and pass two lodge houses to Boquhan House. In 2003 the gates through which pedestrians took access to the Estate were locked. Stirling Council requested that the gates be unlocked to enable access in terms of the Act to be taken. The Snowies did not comply and instead applied to the Sheriff Court to have the land exempted from public access rights under the same provision in the Act which Anne Gloag had used to protect her privacy at Kinfauns Castle.
Sheriff Cubie, in issuing his decision in Snowie, approved the analysis of the public access provisions of the Act, made by Sheriff Fletcher in the Gloag Case:
“In summary the Act allows responsible access to land … [other than that] which comprises, in relation to a house sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house and to ensure that their enjoyment of that house is not unreasonably disturbed.”
The heart of the matter was to determine what was “reasonable” in the context of privacy and enjoyment. This is an objective test, based on what a reasonable person living in a property of this type would require to enjoy reasonable measures of privacy. Also, the land which is excluded must be excluded for the privacy of the house itself, not for the enjoyment of its policies.
The facts and locality will determine to a large extent what is and is not reasonable. Access to Boquhan Estate was possible through adjacent farmland, and an existing public Right of Way crossed the Estate. Access had, however, decreased since the gate was locked in 2003 and those living on the Estate all said they preferred living there since the gate was locked. Nevertheless Sheriff Cubie found that any arguments relating to the security of the Estate must fail because of the existing Right of Way. This prevented any suggestion that the Estate could be made secure just by locking the gate.
Sheriff Cubie looked closely at the question of “reasonable privacy” and determined that a reasonably large area of the Estate, albeit much smaller than that contended for by the Snowies should be excluded from Access Rights, including the tennis courts and a changing area, a large rear garden and a portion of the field in front of the house. The excluded area also included an area of garden on the opposite side of a burn from Boquhan House. In all some 15 acres were excluded.
Commentary
The tests which were formulated by Sheriff Fletcher in the Gloag case and which were subject to so much negative comment in the press and Scottish Parliament at the time have been applied again by Sheriff Cubie, this time to reach a different result. We wonder if he will now be lauded from the floor of the Scottish Parliament just as Sheriff Fletcher was chastised?
The conclusion here is that areas of manicured garden ground visible from a house are likely to be excluded, that certain other features of a house, such as a tennis court, may justify exclusion but that more rural pursuits, such has stabling facilities and paddocks will not be excluded although often it will be the very availability of a secluded paddock for children that will attract a purchaser to a given house. It was not necessary to decide if the stables and paddock could be excluded under other provisions of the Act, as the Sheriff was not asked to address that point. It seems to us, however, that the Snowie family will be able to enjoy privacy at their stables and paddock under other provisions in the Act, which exclude buildings and their curtilages from access rights.
The tests set down in the Act to determine the area of land which can be excluded from public access have now been applied twice by the Sheriff Courts, one case going in favour of the landowner and the other the local authority. The question of how much land is required for reasonable privacy for any house will turn on the facts of each case. In Gloag it was considered reasonable to exclude from 11 acres of land enclosed by a security fence (which the council had itself authorised). In Snowie, there was no clear demarcation of boundaries and it was, therefore, always going to be much more difficult to determine. Nevertheless the Sheriff considered it reasonable to exclude a large area of land, mainly comprising managed gardens, but not the whole estate. The conclusion to be drawn from a comparison of the two cases is that no hard and fast rules can be drawn and that each case will be decided on its own facts and merits.
For further guidance on access rights and other matters arising from the Land Reform (Scotland) Act 2003, please refer to your usual contacts at Anderson Strathern, or to any partner in our Land Resources Department.
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