Scottish Sheriff Court Decisions

The evidence

[7] Euan Snowie gave evidence first, after there had been a site visit. He said that the estate had been purchased in 2001; The estate had seven properties, stables a tennis court and extensive managed driveways and garden.

[8] Mr Snowie gave evidence about his wish for privacy and for security for himself, his family and for his tenants, and for his land and horses as well as the cattle which crossed the property, and indeed the prospective walkers endangered by cattle. He was concerned about both property and personal crime.

[9] I accepted that the pursuer's concerns were genuine but his wish to restrict access so informed his evidence as to render some of it unhelpful in the determination of this matter. It seemed to me his evidence was genuinely given, but he was at pains not to say anything which might support any view of Land Reform (Scotland) Act 2003 other than his own. He regarded anybody moving around the estate as "suspicious" (see page 1/19 C of the shorthand notes and following). Mr Snowie described an incident where he met a couple with a torch and baton, which he regarded as suspicious and threatening. It was clear that the person had a stick, perhaps even a walking stick. The use of the term baton in the context of the visit was, in my view, pejorative and designed to be.

[12] The evidence about the lease of the West gates between the Snowies and the Rosses was particularly unconvincing. I am left, having heard from Mr Snowie and Dr Ross, with absolutely no idea why that lease was entered into, what the consequences of it were and what the purpose of it was. It may well be that there is a perfectly intelligible and sensible explanation for the ceding of responsibility for opening and shutting the gate by the householder, an estate owner, to someone who inhabits a house on the estate, but if it was not satisfactorily canvassed in the evidence before me. A cynical view might be that it was a way to try and avoid the notice served by Stirling Council in relation to the gate, a matter of course cured by the convening of the Ross's as parties in another action.

[14] Similarly, Mr Snowie's evidence about the requirements of his insurers was confusing and certainly did not match the pleading whereby the locking of the gate was said to be a condition of the household insurance. He had to accept that the insurers had not been told of the lease arrangement

[17] Item 24 of the defenders' production was a letter sent by Mr Snowie on behalf of both himself and the Rosses to the Council, which letter included the phrase inter alia "incidentally, it has never been the subject of public access" but he admitted under cross-examination that he had seen people walking (page 1/96 F and in particular 1/97 B); his reply on being asked why he said in the letter that it had never been the subject of public access was as follows:

"Because I didn't see it as a right of way when I bought the property. I didn't see it as right of way, I always acknowledge that the right of way was along the top and didn't understand where people were trying to get to from access, they are really just coming up past homes."

The position in this letter was of course maintained to Mr Holden and informed the Kildonan report. Mr Snowie dissembled, when being asked straightforward questions on this point; I considered that he just could not bring himself to say that he had encountered genuine recreational walkers and he did not want, in particular, to admit that he had misled Kildonan.

[18] Similarly, the evidence about horse disease (strangles) being potentially introduced to his horses by casual visitors was undermined in my view by the number of people on the site visit that walked round and through Boquhan Estate without any concern being given to the apparent biohazard caused by people entering the stables area. I heard no expert veterinary evidence about that supposed risk.

[21] Mr Snowie's position appeared to be that if someone was not courteous to him then they could not under any circumstance be a genuine recreational walker. His assessment of his "right" to exclude people seems to be crystallised at page 2/427 A and following where everything is private because he says that it is private

Dr Barbara Ross

[25] Dr Ross is the wife of Professor Lindsay Ross and the second pursuer in the related action. She gave evidence of having stayed in the west lodge for 26 years; they had suffered one break-in in 1983 or 1984, the theft of a car and various more minor thefts from the garden area; the house sits just inside the west gate; the Rosses own ground on each side of the driveway; their garden is well defined. The house can be reached by a gate through the adjacent field to the south on the B822. She confirmed that they had preferred the security offered by the locked and mechanised gates. Her evidence was also vague about the effect and benefit of the lease of the locked gates. She also conflated the vehicular and pedestrian access issues. She said that they had been bothered over the years by passers by and she felt both her security and privacy were enhanced by the restriction of access. It was plain that they valued their privacy. It was equally plain that there had been very limited incidents indeed whereby security was compromised. She accepted that their garden ground was well defined and she also accepted that access could be obtained through the field at the back of her house. Nonetheless, for her and her husband it was a matter of importance for their personal security that they retained control over the west lodge gates. She confirmed (page 2/171 D-F) that there had been a number of walkers.

Joseph Holden

[30] The information contained in the report seemed to have been entirely based upon what he had been told by the pursuer, with the exception of the crime statistics upon which he relied to which I will return. For example, he did not make enquiries about the disease "strangles", but took Mr Snowie's report of what the vet had said; he made no real enquiry but made observations in the report about the danger presented by this disease.

[31] The report did make a number of sensible and useful recommendations as security precautions, although little that would have not occurred to the layman; however, in relation to the value of the rest of the report I felt that Mr Holden did no more than maintain a patina of objectivity; he did not make a good impression. There were a number of reasons for reaching that conclusion.

[32] In the first place he was inexperienced in this particular role. This was the first time he had given evidence in this capacity and was in relation to his first report.

[33] Secondly, he relied on statistics which were out of date and sought to extrapolate misinformation from them; he relied on the Crime report of 2000, when there was one from at least 2005/2006. His report invited the reader to multiply recorded crime by three to obtain real crime figure, a suggestion he had to (rightly in my view) depart from when it was pointed out to him; when confronted by up to date figure he sought refuge in evidence of a conversation with the chief constable at a social event as to the "real" statistics. Additionally, he appeared to equiperate a low detection rate with a high crime rate, at one stage seeming to suggest that groups of criminals scoured the crime statistics to determine the lowest detection rates.

[34] Thirdly he had jumped to conclusions about the drunkenness of the access takers spoken to by Mr Snowie and in relation to the frequency of such incidents. He also as I have recorded had used the word "baton" in evidence and in his report in circumstances when it can only have been to characterise it as a weapon; his attempts to suggest baton was a neutral word was disingenuous. He sought to portray all access takers as not genuine.

[35] Fourthly, he thought that someone climbing into a field or across a wall through a hedge in the countryside would be sufficiently noteworthy to cause anyone viewing it to alert the police (3/11 C). I preferred the account of Mr Morris (at 4/155D) whereby he gave evidence that it was accepted by the government that it was a "perfectly normal part of the exercising of statutory access rights."

[36] Finally he did not think to record in his report that a right of way crossed the east drive way. In circumstances where he had chosen to record the miniscule and peripheral risk caused by the storage of fertiliser (saying "It would be a wonder if I had not included it in a security audit" at 3/69 C), I found it extraordinary that he omitted this reference to a right of way. Either he did not appreciate its importance, or he did and deliberately omitted it as it did not sit well with the thrust of the report. Either explanation undermines materially the usefulness of the report.

[37] When he was being cross examined, perfectly properly and fairly, about this omission he dissembled before trying to suggest that the defender's counsel was "sniggering and shaking his head" (At 3/71 F) , a comment both unwarranted and unworthy. At the very least Mr Holden showed a sensitivity which would not accord with his years' experience in the police force. At most, he was involved in a strategy which tried to avoid answering questions which he felt might be unhelpful to the pursuer.

[38] I considered whether all of these criticisms could be explained by his lack of experience, but the impression of favouring the Snowies is fortified by the fact that each of his acts and omissions had the effect of bolstering the Snowies' position. If these were a catalogue of naïve and careless errors made by an inexperienced security consultant, one might expect that some resulted in a worsening of the Snowies' position but, from mis-remembering the date of the burglary suffered by the Rosses to the anecdotal evidence of the chief constable's "true" crime figures, to the omission of the right of way (but inclusion of the fertiliser risk and the risk of strangles being introduced), the whole of his evidence was given in a way that demonstrated a commitment to giving evidence entirely favourable to the pursuers, whatever the factual position. I find the evidence of the perceived security threat to be wholly unreliable.

[39] I dwell on Mr Holden's' evidence for two reasons; in the first place it is clear from the Gloag judgement (Ann Gloag -v- Perth and Kinross Council, Sheriff Michael Fletcher at Perth 12th June 2007) that the independent security evidence was material in relation to the ultimate decision in so far as it related to the property, the type of person likely to own such a property and the risks to security and privacy which such persons might face; in the second place Mr Holden was, on one view, the only wholly independent witness from whom the court heard. (Mr Morris, whilst having no direct connection with this case can hardly be described as disinterested.) However he failed to approach the matter with the objectivity which the court is entitled to expect from a purportedly independent expert.

[40] The report was clearly prepared with view to the litigation, and Mr Holden was determined that both the report and he would be entirely supportive of Mr Snowie.

Mr Robert Wheelan

[41] Mr Wheelan had been a tenant in 1 Garden cottage for a period of 30 years. He gave evidence that he had his own well defined garden but that he had found the position better since the gates had been locked

Mr Robert Graham

[42] Mr Graham was an impressive and interesting witness, but ultimately of limited relevance (and that is no reflection on the witness). The useful evidence related to the coming and going of his cattle over and through the estate, the fact that an open pedestrian gate would not be likely to lead to escaping cattle, the dangers in dealing with a Limousin cow in calf or with a calf at foot.

Mr Don Robertson

[43] Mr Robertson was the tenant of East lodge and had been for four years. He also spoke about the traffic through the estate

Mr Richard Barron

[44] Richard Barron gave evidence for the first defenders. He is employed by the first defenders as a senior access officer and had responsibility for the Land reform access anticipated by the Act. It was clear that the council's interest was provoked by a number of complaints. A lot of the evidence seemed to stray into his interpretation of the Act and the access code. It was clear that there was little thought given to the act in the period between contact first being made and the action being raised; effectively Mr Barron accepted that no real thought had been give to the area which would give reasonable enjoyment; however in my view that does not vitiate matters; the court has a responsibility to proceed on the basis of the evidence led and submissions made. The views of the council are of limited relevance at the time of the hearing.

Mrs Quita Lewis

[45] Mrs Lewis gave evidence of having been visiting on the estate for a period of thirty years both on foot and on bicycle. She described herself as both a regular and a frequent visitor over that period until the gates were locked, frustrating such visits. She had not though to contact the pursuers directly to resolve matters.

Mrs Marion McGloin

[46] Mrs McGloin was Mrs Lewis's sister in law and lived in the home farm cottages. She also spoke of frequent and regular walks over the estate, which eventually came to end when the gate was locked. She had had to climb out of the estate at the west gate on one occasion. She had not contacted the Snowies directly.

Mr David Morris

[47] Mr Morris gave evidence for the second defenders. He is the Director of the Ramblers' Association in Scotland and has been since 1989. He campaigns for greater access to the countryside. He gave evidence in general terms about the background to the Act, the access code and in relation to the kind of access which was allowed at the Balmoral estate. Whilst general, the evidence was helpful for example to contrast with that of Mr Holden in connection with the climbing of fences as a normal feature of access-taking.

The law

[48] I adopt verbatim the analysis of the law contained in Sheriff Fletcher's judgement in Gloag at paragraph [24] and following ... as follows

The Legislation.

[24] Section 1 of the Land Reform (Scotland) Act 2003 provides:

"1. Access rights

(1) Everyone has the statutory rights established by this Part of this Act.

(2) Those rights (in this Part of this Act called "access rights") are --

(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and

(b) the right to cross land.

(3) The right set out in subsection (2) (a) above may be exercised only --

(a) for recreational purposes;

(b) for the purposes of carrying on a relevant educational activity; or

(c) for the purpose of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

(4) The reference --

(a) in subsection (2) (a) above to being on land for any of the purposes set out in subsection (3) above is a reference to --

(i) going into, passing over and remaining on it for any of those purposes and then leaving it; or

(ii) any combination of those;

...

(7) The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below."

[25] Access rights granted by the Act are available only if they are exercised responsibly in terms of section 2 of the Act. A person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person but the person would not be exercising access rights responsibly if he engaged in conduct excluded by section 9 of the Act including crossing land in breach of interdict, being on land for a criminal purpose or for hunting shooting of fishing. Similarly disregarding the guidance on responsible conduct set out in the Access Code incumbent on persons exercising access rights would not be exercising access rights responsibly.

[26] Section 6 of the Act sets out land over which access rights are not exercisable. It provides as follows:

6. Land over which access rights not exercisable

(1) The land in respect of which access rights are not exercisable is land --

(a) to the extent that there is on it --

(i) a building or other structure or works, plant or fixed machinery;

(ii) a caravan, tent or other place affording a person privacy or shelter;

(b) which --

(i) forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

(ii) forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

(iii) consists of land contiguous to and used for the purposes of a school; or

(iv) comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

(c) to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden;

..."

[27] Section 7(5) of the Act provides that

"(5) There are included among the factors which go to determine what extent of land is sufficient for the purposes mentioned in section 6(1)(b)(vi) above, the location and other characteristics of the house or other place.

[28] Section 10 of the Act provides for the drawing up of a "Scottish Outdoor Access Code" as follows:

10. The Scottish Outdoor Access Code

(1) It is the duty of Scottish Natural Heritage to draw up and issue a Code, to be known as the Scottish Outdoor Access Code, setting out, in relation to access rights, guidance as to the circumstances in which --

(a) those exercising these rights are to be regarded as doing so in a way which is or is not responsible;

(b) persons are to be regarded as carrying on activities, otherwise than in the course of exercising access rights, in a way which is likely to affect the exercise of these rights by other persons;

(c) owners of land in respect of which these rights are exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is or is not responsible;

(d) owners of land in respect of which these rights are not exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is likely to affect the exercise of these rights on land which is contiguous to that land."

[29] In summary the Act allows responsible access to all land other than specified types of land which are excluded in the Act. These types include all buildings and certain land immediately surrounding buildings including the curtilage of a building which is not a house and importantly in this case, 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.

[30] Section 28 of the Act makes it competent for the sheriff to declare areas of land to be land in respect of which access rights are or are not exercisable. It is in the following terms so far as is relevant to this case:

"28. Judicial determination of existence and extent of access rights and rights of way.

(1) It is competent, on summary application made to the sheriff, for the sheriff --

(a) to declare that the land specified in the application is or, as the case may be, is not land in respect of which access rights are exercisable;

(b) to declare --

(i) whether a person who has exercised or purported to exercise access rights has exercised those rights responsibly for the purposes of section 2 above;

(ii) whether the owner of land in respect of which access rights are exercisable is using, managing or conducting the ownership of the land in a way which is, for the purposes of section 3 above, responsible.

..."

[31 In this case the pursuer applies to the court for a declarator that land specified in the application is not land in respect of which access rights are exercisable. She founds on the exception contained in section 6(1)(b)(iv) and the question in the case becomes how much ground could be said to be 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 Act itself gives very little assistance to those making a decision as to how much land falls within that definition. The only reference to any factors which should be taken into consideration that I can find is contained in section 7(5) of the Act which enacts that the factors which go to determine what extent of land is sufficient for the purposes mentioned in that subsection include the location and other characteristics of the house or other place. I interpret that as meaning that one should take into account the location and other characteristics of the house when deciding what area of ground is sufficient for the purposes of the subsection."

I accept and adopt the helpful analysis of the law from that case which relates to the same issue.

[49] This matter proceeded by way of written submission. No party wished to add anything to the written submission

[50] One relatively minor point arises; Counsel for Stirling Council made detailed Submissions about the meaning of curtilage. In the circumstances I prefer the Submission on behalf of the Pursuers that the question of curtilage is only relevant in relation to a building "which is not a house" in terms of Section 6(1)(b)(i); although it is not necessary for me in the determination of this matter to define curtilage, it would I think be difficult to conclude that for example the driveway has formed part of the curtilage of the house.

[51] The real crux of the matter is the test to be applied when assessing what is "reasonable" in the context of a decision about measures of privacy and enjoyment in terms of s 6(1)(b)(iv) of the Act. In the written Submission for the pursuer (Paragraph 33) it is asserted;

"reasonable privacy is not an objective standard".

The Submission equiperates flexibility with the introduction of a measure of subjective judgement. The Submission continues;

"since there is no definition of "reasonable privacy" or "enjoyment of that house" or "unreasonable disturbance", a decision maker must exercise that judgement in the circumstances".

The Submission continues;

"reasonable privacy is a standard to be measured ... by the standards of the persons affected in the house in which the privacy is sought ..." That is the proper "person specific" and "location specific" standard according to the words of the Act, and is how it should be applied here."

[52] I cannot agree with that Submission. It seems to me that the Court is obliged, in interpreting this part of Section 6, to determine what a reasonable person living in a property of the type under consideration would require to have to enjoy reasonable measures of privacy and to ensure enjoyment of the house was not unreasonably disturbed. That is an objective test.

"[Section 6] ... makes reference to sufficient adjacent land to enable "persons living there" rather than "the person living there" which implies to me that the legislators had in mind not that the Courts would take into account the individual proprietor for the time being but would have in mind generally the persons living there."

[54] I agree with that observation. In my opinion, if the test were subjective, that would lead to the possibility of repeated applications being made depending on the particular views, concerns, family circumstances and even prejudices of any particular proprietor, which cannot be the purpose of the Act. I regard the test as an objective one, which factors in the particular characteristics of the property.

[55] In this case the only relevant provision is Section 6(1)(b)(iv). The factors in determining the extent of land is sufficient include the location and other characteristics of the house.

[56] Again I agree with Sheriff Fletcher in that anyone contemplating the purchase of a house such as Kinfauns Castle or in this case Boquhan House would not consider doing so if the house itself and its grounds (and by that I mean a material area around the house) were not able to be used by them privately. The reasonable person would consider that reasonable measures of privacy for that house and sufficient adjacent land secure their enjoyment of the house was not unreasonably disturbed would require a reasonably substantial area of ground. The purpose of excluding the ground from the rights of access contained in the Act would not be to secure the enjoyment of the "policies" for the occupants of the house, but to secure the enjoyment of the house itself.

[57] Taking that into account, I consider that the land sought to be excluded on behalf of the Pursuers is far too much. It is plain that the driveways do not require to be secure for any privacy. The estate is in effect surrounded by dairy farm pasture which is used on a daily basis with the consequent movement of cattle. The estate can be entered through the farm. Accordingly the estate's security is to an extent compromised. When I also consider the public right of way and the two public roads which are adjacent to the estate together with the number of tenants, and the access taken in relation to the stables it is clear that the security of the estate would not be compromised by the opening of a pedestrian gate at the West lodge.

[58] In determining the area in terms of the Act, it is reasonable for the persons such as the pursuers to have an area of ground around the house which can truly be regarded as private, and that should include ground on each side of the Boquhan burn and the tennis court and changing area as well as some of the managed gardens, extending to near the riding area. My sympathy with the Mr Snowie's position in relation to maintaining the integrity of the estate by allowing no access at all is tempered by the fact that his purported concern for his tenant did not extend to those across the A811