Land Resources Contacts

Alasdair Fox                              Partner, Land Resources

Direct Dial:
0131 625 7227

Email:
alasdair.fox @andersonstrathern.co.uk

Jim Drysdale                              Partner, Land Resources

Direct Dial:
0131 625 7228

Email:
jim.drysdale @andersonstrathern.co.uk

John Mitchell                              Partner, Land Resources

Direct Dial:
0131 625 8025

Email:
john.mitchell @andersonstrathern.co.uk

Access Rights - Privacy and Enjoyment of Houses

Postscript

Further to our ezine dated 21 June 2007, you may have read that the Ramblers’ Association has decided not to appeal the decision of the Sheriff in the case of Mrs Anne Gloag v Perth & Kinross Council and the Association.

In reaching that decision the Association has taken into account the fact (in which they are absolutely correct) that the decision of one Sheriff is not binding on another.  That said, the Gloag case is certain to be used as illustration in future applications to Sheriffs for determination of the existence and extent of access rights.  It is a very detailed and well argued decision.

The Ramblers’ Association has also criticised the Sheriff for failing to give greater weight to the Scottish Outdoor Access Code, criticism which, in our opinion, is unjustified given that the Land Reform (Scotland) Act 2003:-

very clearly places the duty to determine, on application, whether access rights exist or, if so, to what extent, on the Sheriff; and

provides, specifically, that the Scottish Outdoor Access Code is for “guidance” (the very word used in the legislation).

It seems to us, therefore, that the Sheriff has reflected the intentions of the Scottish Parliament on these issues.

The Association now, apparently, proposes to lobby the Scottish Parliament to amend the Act to give the Scottish Outdoor Access Code greater weight in the determination of issues such as the extent to which house owners should be allowed to enjoy privacy.  To do so would seem to us to fetter the discretion (which the Scottish Parliament clearly intended to confer) on Sheriff Courts in a matter which can properly only be dealt with, as a matter of interpretation of statute, on a case by case basis.

For further guidance on Access Rights and other matters arising from the Land Reform (Scotland) Act 2003 please refer to your usual contact in Anderson Strathern or to any partner in our Land Resources Department.