Rights of Responsible Access Update 9/11/09
The Land Reform (Scotland) Act 2003 enshrined in statute a right to use other people's land to "roam". A number of exceptions were included to define land over which the right to roam can not be exercised, such as the garden of a house, but how large an area could this be? Section 6(1)(b)(iv) of the 2003 Act provides that:- “land in respect of which access rights are not exercisable is land 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".
This sub-section has, of course, already been considered in Gloag v Perth & Kinross Council and Snowie v Stirling Council. It has recently cropped up again in Creelman v Argyll and Bute Council. This litigation was between the owners of a house in the countryside and the local council disputing whether access should be allowed through the house’s garden.
The facts
Mr and Mrs Creelman own a 5 bedroom 17th century house lying adjacent to the former drive to Dunans Castle in Argyll. They also own the former Castle gatehouse, Dunans Lodge, which they use for holiday lets. These two houses sit at either end of a narrow strip of amenity woodland extending to some 6 acres. Their woodland garden was cut in two by the former Castle driveway which passed close to both houses. The driveway had been blocked at one end and at the other was a sign stating "Private Road - No Access without Permission”.
The owner of Dunans Castle wished to include Mr and Mrs Creelman’s garden in a tour he offered to paying visitors to the Castle. Mr and Mrs Creelman refused to co-operate and the Castle owner referred the matter to Argyll and Bute Council on the basis that he should have the “right to roam” in their garden anyway. The Council served notices requiring the road to be unblocked and the sign removed under section 14 of the Land Reform (Scotland) Act 2003. Mr and Mrs Creelman applied to the Sheriff Court for an order exempting all their land from the “right to roam” under the 2003 Act and quashing the Council’s notices.
The decision
The Sheriff determined, on the facts, that all the ground owned by Mr and Mrs Creelman should be exempt from the “right to roam".
The Sheriff confirmed (following Gloag and Snowie) that each case had to be decided on its own facts and circumstances. He paid particular attention to the second part of section 6(1)(b)(iv) which states that sufficient land must be excluded from (the “right to roam”) to “ensure … [the owner’s] enjoyment … is not unreasonably disturbed.” The Sheriff confirmed that this was an objective test and that if anyone who owned a house (not just the actual owner) was justified in having reasonable concerns about security, this, “would affect their enjoyment,” of the property. Mr and Mrs Creelman had previously had a gas barbeque stolen from their garden ground and there were sheds with expensive equipment stored in them on the land over which the Council wished the “right to roam” to be exercised. It followed that the security of the sheds could be enhanced if access was not allowed round them.
The Sheriff also made interesting comments in a wider point. He indicated that it was within judicial knowledge that the County of Argyll provided ample open space in which ramblers could walk, and indeed he seemed to attach weight to the fact that the request to investigate matters originated from a neighbour rather than from “the general rambling community." As there were no “disaffected walkers” complaining that they could not take access through the woodland garden the removal of access rights over this 6 acres would not materially affect the ability to go walking in Argyll as a whole.
Commentary on the 'Right to Roam'.
The Sheriff’s decision in this case reinforces that each case on whether land is excluded from the “right to roam” will be decided on its own facts. The specific reference to security issues in relation to “ensuring” enjoyment and the indication that access rights are likely to be upheld only where there is a wider demand for access from members of the public, and not simply where it would suit a couple of private individuals, are welcome.
Further information
For further information on this or any access/land resources issue, please contact Alasdair Fox or Douglas Reid or your usual contact within Anderson Strathern.
This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.
