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Access Rights and Privacy June 2008
Access rights and privacy
Another case has been decided regarding public rights of access under the Land Reform (Scotland) Act 2003; Ross v Stirling Council. This case ran in parallel with Snowie v Stirling Council in which the Court decided the areas over which public access is to be permitted at Boquhan Estate, near Kippen. The decision by Sheriff Cubie in Ross is almost word for word the same as that in Snowie. (To see our eZine re this case, dated 2 May 2008, click here)
The facts in Ross follow those of the Snowie case. Briefly, Professor and Dr Ross are the owners of the West Lodge House on Boquhan Estate. The Lodge sits beside the gates to Boquhan Estate and its garden ground straddles the driveway. Professor and Dr Ross held a lease of the gates at Boquhan, which had been locked to prevent access. They were served with a notice by Stirling Council requiring them to unlock the gates to allow public access. The Rosses applied to the Sheriff Court for an order exempting the portion of the driveway which lies between the two areas of garden ground. This was refused by Sheriff Cubie.
Ross adds little to the law concerning public rights of access. Sheriff Cubie found that the Lodge had a well-defined area of garden ground, albeit that this straddled the driveway, and that (given the size and character of the Lodge) this garden ground was sufficient to afford reasonable privacy for the West Lodge. To that extent the decision in Ross follows that in Snowie and the earlier case of Gloag v Perth and Kinross Council. However Sheriff Cubie went on to say that it would not be reasonable to exclude the driveway lying between the two areas of garden ground because, to do so, would frustrate legitimate access rights further along the driveway to Boquhan Estate.
Commentary
While the decision in Ross is consistent with the previous decisions on public access relative to assessing what area of land is needed to afford reasonable privacy for a house, it went further. In stating that the Rosses could not obtain an order excluding rights of access, because such an exclusion had been refused to the Snowies, the Sheriff has introduced something else to consider. That is, even if an area of ground would otherwise be excluded from access rights in order to afford reasonable privacy (and this would seem logical if the two areas of garden either side of it were excluded), the fact that this would have the effect of blocking legitimate access to some other area of land is enough to justify refusal of an application to exclude access. We suggest that such a test does not seem to be supported by the 2003 Act which requires an objective assessment of what is necessary to ensure the reasonable privacy of a house.
That said, our conclusion remains that no hard and fast rules can be drawn to determine to what extent public access can be restricted and that each case falls to 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 Dept.
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