SHERIFFDOM OF NORTH STRATHCLYDE AT DUNOON

Case ref.: B12/08 JUDGMENT OF SHERIFF DEREK LIVINGSTON

In the cause

ROBIN LAIRD CREELMAN & MOYRA JANE CREELMAN, spouses, residing together at Stronardron, Glendaruel, Argyll, PA22 3AD

PURSUERS

Against

ARGYLL AND BUTE COUNCIL, a Local Authority having its principal office at Kilmory, Lochgilphead, Argyll, PA31 8RT

DEFENDER

Act: Sanders, Advocate,

Alt: Robertson

DUNOON 24^th September 2009. The Sheriff having resumed consideration of the cause finds the following facts admitted or proved.

1.    The Pursuers are spouses. They live together at Stronardron, Glendaruel, Argyll, PA22 3AD and are the sole occupants of the house known as Stronardon. .

2.    The Defenders are a local authority having their principal office at Kilmory, Lochgilphead, Argyll, PA31 8RT.

3.    The Pursuers are the joint owners of properties known as Stronardron and Dunans Lodge together with land attached thereto. The subjects are bounded on the south east by the River Ruel and on the northwest by the A866. Number 5/8 of process is an Ordnance Survey site map relating to the Pursuers property. Appendix one is a copy of that production. This sets out the extent of the Pursuers titles. The said subjects consist of that area of land registered in the Land Register for Scotland under Title Number ARG1181, that area registered in the Land Registers for Scotland under Title Number ARG10374 and that area of land more particularly described in and disponed by a Disposition by Jonathan Irving Hyslop and Mrs Pranee Hyslop in favour of the Pursuers dated 30^th June 2006.

4.    The Pursuers purchased Stronardron on about 20^th October 2000. Stronardron comprises a five bedroom detached house together with an area of land. The house dates back to the early seventeenth century and it has previously been used as a hunting lodge, a farmhouse and a substantial family home.

5.    That house is currently used as a family home by the Pursuers.

6.    The property known as Dunans Lodge was purchased by the Pursuers on or about 30^th June 2004. Dunans Lodge was a former lodge house of Dunans Castle and sits at the southern end of the drive leading to Stronardron. It was bought by the Pursuers as a business and has been renovated to render it suitable for short-term letting. It was let on an assured tenancy prior to the time that the Pursuers purchased it and it had been occupied more or less continuously previously.

7.    Dunans Lodge is now used for short term holiday lets.

8.    The land attaching to Dunans Lodge and Stronardron extends in total to around six acres and it is relatively long and thin in shape. It had originally been laid out as a garden for the adjacent Dunans Castle.

9.    It takes approximately two minutes to walk from the main house at Stronardron to the southern boundary of the property at Dunans Lodge. It takes three minutes to walk from the house at Stronardron to the northern boundary and two minutes from the east to the west side of the subjects.

10. Approximately 50 meters to the south east of Stronardron there is a mausoleum which is believed to belong to the Fletcher Family.

11. Other members of the Fletcher family may be laid to rest there in the future. The mausoleum is also from time to time visited by Mrs Helen Fletcher of that family.

12. The main road from Strachur to Colintraive runs along the eastern boundary of the land belonging to the Pursuers. To the west the subjects are bounded by a river. When the Pursuers purchased Stronardron and latterly Dunans Lodge the land attached thereto was overgrown and impenetrable. The main driveway to Stronardron was impassable and had not been in use for approximately forty years. Historically the driveway from the main road to Dunans Lodge provided the access for the Castle. These arrangements were changed several decades ago so that this driveway now only accesses Stronardron and Dunans Lodge. There are no private rights of access over the driveway apart from those vested in the Fletcher family and one other limited exception. There are no parking facilities within the subjects apart from private parking for Stonardron and Dunans Lodge.

13. Only four or so of the six acres of the ground constitutes useable garden grounds being the four acres between Stonardron House and Dunan Lodge.

14. The garden area constitutes a small garden for a house of the size of Stronardron and its rural type of location.

15. When the Pursuers purchased Stronardron and latterly Dunans Lodge the track or driveway leading from the south property where Dunans Lodge is situated to the north where Stronardron is was substantially overgrown and all but impassable. The Pursuers to a substantial extent cleared that path and repaired it taking them considerable time and expense.

16. The title plans give no indication of the track bisecting the ground either south to north or east to west.

17. The said track runs up what is a long and relatively narrow piece of ground passing very close to Dunans Lodge only a few meters from the front door thereof and a part of the track is clearly visible from Stronardron House and Stronardron House can be seen from a part of the track. There are no walls or fences providing physical boundaries between the houses and the track.

18. The track passes close to two outbuildings situated to the east of the track which are used to house tools, equipment, plant and machinery for use in garden tending.

19. There is already considerable noise coming from the A886 road which runs along the western boundary of the land belonging to the Pursuers. That road provides the vehicular access to the lodge house. The western boundary of Stronardron House abuts the A886 and the noise from same is of an intrusive level and extent.

20. The garden area of the house at Stronardron to its eastern side is tranquil.

21. The track from the south runs up to and past Stronardron House and is located within 13 meters or thereby of the gable conservatory located directly off the dining room of the house which can be clearly seen from the track.

22. At a number of points on the eastside of the Pursuers land there are very steep river banks which in some cases are vertical and around 7 meters high.

23. The land to the west side of the track attaches to the title of Dunans Lodge and that to east attaches to the title of Stronardron House.

24. Much of the track is covered in grass and there are noticeable lengths of very muddy ground.

25. Trees shrubs and plants at or immediately adjacent to the track have been planted, tended and are yet to achieve maturity.

26. The area of land including the two houses owned by the Pursuers are, notwithstanding the main road referred to, in a relatively secluded part of the country, where persons living would clearly expect more privacy than if living in an urban location. Within this type of location a reasonable measure of privacy involves far greater privacy than when living in an urban area.

27. As matters stand there is no safe path or means for persons to access the garden ground or walk on same without going onto the track which was formerly a driveway. In the event that entry to the track from the south will unreasonably disturb the enjoyment of those living in Dunan Lodge it would be virtually impossible to prevent even responsible access takers from entering the path through error standing the lack of a fence bordering the path.

28. The owner of Dunans Castle is a Mr Dickson Spain. He made a complaint to the Defenders regarding the Pursuers refusal to allow unfettered access over the grounds attaching to their two said properties. He has a business interest in encouraging access since such access can be used as additional attraction to any tour of Dunans Castle.

29. On 11 January 2008, Argyll and Bute Council served two formal notices on the Pursuers under the terms of Section 14 of the Land Reform (Scotland) Act 2003 (hereinafter referred as "the 2003 Act"). Copies of said notices are produced as number 6/1 of the Defenders Inventory of Productions.

30. The notices objected firstly to a sign erected saying "Private Road No Access Without Permission", which had been erected at the southern part of the track, and required removal of the sign by 5pm on 8^th February 2008 and secondly in relation to barbed wire being erected at the north of the track which it was stated was acting as a deterrent to members of the public wishing to exercise their access rights under the Act. Its removal was also required..

31. Following upon the complaint having been made regarding access having been refused the matter was referred to the Defenders Access Forum. The Defenders Access Forum reached a view upon matters based upon advice given to them by the Defenders Mr Douglas Grierson who is employed by them as an access officer.

32. Mr Grierson's duties include upholding access rights under the 2003 Act. Following upon the said complaint being made to him by Mr Spain and a visit to the Pursuers Mr Grierson considered that the said sign and barbed wire were for the main purpose of preventing or deterring access to land over which in his view access rights were exercisable. He formed that view without entering either of the houses on the land. In addition he had not been on the path which leads down from Stronardron to the access track. The Access Forum of Argyll & Bute Council were in agreement with his recommendation but no members of that Forum visited the subjects.

33. Mr Grierson had three meetings with the First Named Pursuer who he believed to be the sole owner of the property in relation to which the complaint was made. These meetings were at all times amicable and civilised.

34. The Defenders accept that not all of the ground contained within the Pursuers title could be subject to access rights under the 2003 Act. No 5/10 Of process shows the area they accept is excluded and consists of the ground to the west of the track. Appendix 2 is a copy of that production.

35. The Scottish Outdoor Access Code constitutes a Code as to how access should be exercised.

36. The Pursuers have at all times acted in good faith and in particular have at no time made changes to the property on the basis that they thought these would be advantageous for this litigation.

37. The Pursuers had a gas barbecue stolen from the grounds close to the river to the east of the track.

38. The Second Named Pursuer has concerns for her own personal safety when walking down the path from the house at Stronardron to Dunans Lodge. She utilises that path to take bedding for holiday lets to Dunans Lodge.

39. Whilst Stronardron had been previously been used as a farm and as a hunting lodge, the Pursuers bought it with the sole intention of using it as a family home and restoring its woodland gardens to their former glory for their own private use and enjoyment. It was purchased because of the peace and privacy the gardens afforded. In or around 2001 the driveway was reinstated by the Pursuers. The Pursuers have a love of trees and were keen to reinstate the woodland gardens. Over a period from the year 2000 to date the Pursuers have progressively been improving and tidying up the garden area. The area was originally laid out as an organised planted area for Dunans Castle. During the course of this process the Pursuers have sought to restore the original form and have introduced may self seeded plants and tress to allow the original species, such as azaleas, to thrive once more. They have done this for their own private use and enjoyment and have spent considerable sums of money in the process. They did not carry out these works for the benefit of the general public although, on each and every occasions when they have been asked, they have permitted members of the public to walk round the garden and to enjoy the views and to view the Fletcher Family mausoleum. The Pursuers have also commenced construction of a garage for Stronardron and have constructed a patio area for Dunans Lodge. There are shelters for the storage of several thousand pounds worth of equipment, including lawnmowers and other garden implements.

40. Both Pursuers have a huge amount of pride in the garden grounds and tending to the garden grounds is a hobby taking up a considerable amount of their leisure time.

FINDS IN FACT AND LAW

41. The track or driveway relative to Stronardon and Dunans Lodge is sufficiently close to these two properties that persons walking on that track, whether doing so responsibly or otherwise, would interfere with the reasonable privacy of those occupying these properties The whole garden area is sufficiently limited in size that access to same would unreasonably disturb the reasonable measures of privacy that the Pursuers and those living in the properties concerned would otherwise have and that area is required for the Pursuers to ensure that their enjoyment of these houses and other places is not unreasonably disturbed.

Therefore sustains the Pursuers plea in law; repels the first and second pleas in law for the Defenders; Finds and declares that the area of land belonging to the Pursuers consisting of (i) that area of land registered in the Land Register for Scotland under Title Number ARG1181; (ii) that area of land registered in the Land Register for Scotland under Title Number ARG10374; and (iii) that area of land more particularly described in and disponed by a Disposition by Jonathan Irving Hyslop and Mrs Pranee Hyslop in favour of the Pursuers dated 30 June 2009, is land over which access rights are not exercisable pursuant to Sections 6(b)(iv) and, separatim, 6(1)(c) of the Land Reform (Scotland) Act 2003; Quashes the notice is served by Argyll & Bute Council under and in terms of Section 14 of the Land Reform (Scotland) 2003 on the Pursuers on 11^th January 2008 relating to the removal of a sign and relating to the removal of barbed wire from a gate in terms of Section 14(4) of the Land Reform (Scotland) Act 2003 and decerns; Meantime reserves all questions of expenses; Appoints the cause to a Hearing on Expenses on to allow the parties an opportunity to be heard on the question of expenses.

NOTE

LEGISLATION

[1] This is an action under the Land Reform (Scotland) Act 2003. For the purposes of this action the main relevant Sections are Section 1, Section 2, Section 6, Section 7, Section 14 and Section 28 These Sections formed the basis of the submissions in this case and for ease the relevant legislation is as follows.

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 purposes 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;

(b) in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.

(5) A "relevant educational activity" is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of-

(a) furthering the person's understanding of natural or cultural heritage; or

(b) enabling or assisting other persons to further their understanding of natural or cultural heritage.

(6) Access rights are exercisable above and below (as well as on) the surface of the land.

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

2 Access rights to be exercised responsibly

(1) A person has access rights only if they are exercised responsibly.

(2) In determining whether access rights are exercised responsibly 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-

(a) a person purporting to exercise access rights who, at the same time-

(i) engages in any of the conduct within section 9 below or within any byelaw made under section 12(1)(a)(i) below; or

(ii) does anything which undoes anything done by Scottish Natural Heritage under section 29 below,

is to be taken as not exercising those rights responsibly; and

(b) regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time-

(i) disregarding the guidance on responsible conduct set out in the Access Code and incumbent on persons exercising access rights; or

(ii) disregarding any request included or which might reasonably be implied in anything done by Scottish Natural Heritage under section 29 below.

(3) In this section the references to the responsible exercise of access rights are references to the exercise of these rights in a way which is lawful and reasonable and takes proper account of the interests of others and of the features of the land in respect of which the rights are exercised

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;

(d) to which public access is, by or under any enactment other than this Act, prohibited, excluded or restricted;

(e) which has been developed or set out-

(i) as a sports or playing field; or

(ii) for a particular recreational purpose;

(f) to which-

(i) for not fewer than 90 days in the year ending on 31st January 2001, members of the public were admitted only on payment; and

(ii) after that date, and for not fewer than 90 days in each year beginning on 1st February 2001, members of the public are, or are to be, so admitted;

(g) on which-

(i) building, civil engineering or demolition works; or

(ii) works being carried out by a statutory undertaker for the purposes of the undertaking,

are being carried out;

(h) which is used for the working of minerals by surface workings (including quarrying);

(i) in which crops have been sown or are growing;

(j) which has been specified in an order under section 11 or in byelaws under section 12 below as land in respect of which access rights are not exercisable.

(2) For the purposes of subsection (1)(a)(i) above, a bridge, tunnel, causeway, launching site, groyne, weir, boulder weir, embankment of a canalised waterway, fence, wall or anything designed to facilitate passage is not to be regarded as a structure.

7 Provisions supplementing and qualifying section 6

(1) Section 6 above does not prevent or restrict the exercise of access rights over any land which is a core path.

(2) Land which bears to be within section 6 above by virtue of a development or change of use for which planning permission was or is required under the Town and Country Planning (Scotland) Act 1997 (c. 8) shall, if-

(a) such planning permission has not been granted; or

(b) such permission was granted subject to a condition which has not been complied with,

be regarded, for the purposes of that section, as if that development or change of use had not occurred.

(3) Where planning permission for such a development or change of use of land has been granted, the land shall, for the purposes of section 6 above, be regarded, while that development or change of use is taking place in accordance with the permission, as having been developed or having had its use changed accordingly.

(4) In section 6(1)(b)(iii) above, "school" means not only a school within the meaning of section 135(1) of the Education (Scotland) Act 1980 (c. 44) but also any other institution which provides education for children below school age within the meaning of that provision.

(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)(iv) above, the location and other characteristics of the house or other place.

(6) For the purposes of section 6(1)(d) above, access rights do not extend to the land to which public access is prohibited, excluded or restricted only to the extent of the prohibition, exclusion or restriction.

(7) Section 6(1)(e) above prevents the exercise of access rights over land to which it applies only if-

(a) the land is being used for the purpose for which it has been developed or set out and, in the case of land which is not a sports or playing field, the exercise of those rights would interfere with the recreational use to which the land is being put;

(b) the land is a golf green, bowling green, cricket square, lawn tennis court or other similar area on which grass is grown and prepared for a particular recreational purpose; or

(c) in the case of land which is a sports or playing field, the surface of the land is comprised of synthetic grass, acrylic, resin or rubber granule.

(8) For the purposes of section 6(1)(e) above, land which has been developed or set out for a particular recreational purpose does not include land on which groynes have been constructed, deepening of pools has been undertaken, fishing platforms have been erected, or where other works for the purposes of fishing have taken place.

(9) Section 6(1)(f) above does not prevent or restrict the exercise of access rights over land to which it applies by any person who forms part of a class of persons who are not, on the days taken into account for the purposes of determining whether that provision applies in relation to the land, required to pay to gain admittance to the land.

(10) For the purposes of section 6(1)(i) above land on which crops are growing-

(a) includes land on which grass is being grown for hay and silage which is at such a late stage of growth that it is likely to be damaged by the exercise of access rights in respect of the land in which it is growing, but otherwise does not include grassland;

(b) does not include headrigs, endrigs or other margins of fields in which crops are growing,

and "crops" means plants which are cultivated for agricultural, forestry or commercial purposes.

14 Prohibition signs, obstructions, dangerous impediments etc.

(1) The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so-

(a) put up any sign or notice;

(b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation;

(c) position or leave at large any animal;

(d) carry out any agricultural or other operation on the land; or

(e) take, or fail to take, any other action.

(2) Where the local authority consider that anything has been done in contravention of subsection (1) above they may, by written notice served on the owner of the land, require that such remedial action as is specified in the notice be taken by the owner of the land within such reasonable time as is so specified.

(3) If the owner fails to comply with such a notice, the local authority may-

(a) remove the sign or notice; or, as the case may be,

(b) take the remedial action specified in the notice served under subsection (2) above,

and, in either case, may recover from the owner such reasonable costs as they have incurred by acting under this subsection.

(4) An owner on whom a notice has been so served may, by summary application made to the sheriff, appeal against it.

(5) Rules of Court shall provide-

(a) for public notice of the making of summary applications for the purposes of this section;

(b) for enabling persons interested in the exercise of access rights over the land to which a summary application relates, and persons or bodies representative of such persons, to be parties to the proceedings;

(c) for limiting the number of persons and bodies who may be such parties.

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.

(2) It is competent, on summary application made to the sheriff, for the sheriff to declare whether a path, bridleway or other means of crossing land specified in the application is, or is not, a right of way by foot, horseback, pedal cycle or any combination of those.

(3) The proceedings for a declaration under subsection (1) or (2) above are those for an action of declarator initiated by summary application to the sheriff.

(4) A summary application for a declaration shall be served on the local authority.

(5) The local authority are entitled to be a party to proceedings for a declaration.

(6) Where the person seeking a declaration is the owner of the land, it is not necessary to serve the application on any person but the local authority.

(7) In any other case, the person seeking the declaration shall serve the application on the owner of the land.

(8) Rules of court shall provide-

(a) for the circumstances in which (including any time periods within which) a summary application may be made for the purposes of this section;

(b) for public notice of the making of summary applications for the purposes of this section;

(c) for enabling persons interested in the exercise of access rights over specific land or, as the case may be, in the existence of a right of way over specific land and persons or bodies representative of such persons to be parties to the proceedings;

(d) for limiting the number of persons and bodies who may be such parties.

(9) This section is without prejudice to any remedy otherwise available in respect of rights conferred and duties imposed by or under this Part of this Act.

BACKGROUND

[2] This Summary Application was brought by the Pursuers in terms of Section 14(4) and Section 28(1)(a) of the 2003 Act. The Application consists of a number of craves but ultimately the issue is whether or not any part of the ground owned by the Pursuers on which both the properties known as Stronardron and Dunans Lodge are built are excepted from what might be termed the default right of access contained in Section 1(2) of that Act.

[3] As can be seen by Section 1(7) essentially the Act starts off by providing a right of access unless one of the exceptions contained in Section 6 of the Act is applicable.

[4] Section 6 provides various exceptions. There is no dispute at all between the parties that access could not be granted to buildings standing the very clear terms of Section 6(1) (a)(i) and the dispute here comes down as to what if any of the Pursuers land goes beyond "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".

[5] The only guidance given by the 2003 Act in relation to the meaning of this subsection is contained in Section 7 (5) of the same Act which provides "There are included among the factors which go to determine what extent of land is sufficient for purposes mentioned in Section 6(1)(b)(iv) above, the location and other characteristics of the house or other place."

[6] The Pursuers are the owners of the land on which the houses known as Stronardron and Dunans Lodge are situated as well as these houses. The extent of their titles is not in dispute and this action follows upon the Defenders serving notices under Section 14 of the 2003 Act for the removal of a sign erected at the southern end of the track saying "Private Road No Access Without Permission" and for the removal of barbed wire which was erected at the north west part of the track. These notices were appealed though this action and in addition the Pursuers sought declarator in terms of Section 28 of the Act that access rights were not exercisable over the land.

[7] The Parties helpfully arranged for me to visit the locus. That visit does not form any part of the evidence in this case but it obviously did assist me in understanding the evidence.

[8] The Defenders did not dispute that some of the land owned by the Pursuers was not subject to access rights basically being the land to the west of the track but the parties were in dispute as to whether the remainder of the land (other than the buildings on it) went beyond "sufficient adjacent land to enable persons living there to have reasonable measurers of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed."

[9] Findings in fact numbers 4,6,8,9,10,12, 29 and 39 repeat the terms of the joint minute of admissions lodged by the parties.

THE EVIDENCE

[10] A number of witnesses gave evidence here. The evidence here was not materially in dispute and ultimately what matters come down to is, based upon the facts in this case what if any part of the Pursuers land falls within the exception set out in Section 6(1)(b)(iv). The Defenders conceded for the purpose of this action that the area hatched in red in Production 5/10 should be excluded from access rights. That area is essentially the area to the west of the track which bisects, in the non technical sense, the Pursuers land. There was also a substantial joint minute of admissions lodged which forms a substantial amount of my findings in fact.

[11] Robin Laird Creelman one of the two Pursuers in this case firstly gave evidence. He explained how they had moved to the main house at Stronardron on 20^th October 2000. They had subsequently acquired the three bedroom Dunans Lodge which is to the south-west of the property. The whole acreage of the land attached to the two properties is about 6 acres of which a fairly substantial amount is on a slope and is of little use. To the north east of the property is Dunans Castle which is about 200 hundred yards across the river from the house at Stronardron it is a two minute walk to the Castle and a three minute walk from that house to the northern boundary of the property. There is also a mausoleum within the acreage owned by the Pursuers where the Fletcher family are buried and which is still in use. Prior to taking entry the driveway had not been in use for some forty years but both Pursuers had spent substantial amounts of time and energy in creating a track and in starting to tame the fairly wild garden ground. The Pursuers had purchased this house in a rural location for somewhere to live and for privacy. Mr Creelman himself spent one to two days a week in the garden. He and his wife have a love of trees and spent about £10,000 renovating the driveway as well as carrying out work such as removing self-seeded plants. They took particular pride in the trees on the property.

[12] This dispute had started as a result of the Pursuers refusing the owner of the neighbouring property at Dunans Castle permission to use their land for a commercial venture. It seemed that Mr Dickson Spain the owner thereof wanted to take visitors to his castle through the Pursuers land as part of a tour. When the Pursuers intimated they were not agreeable to this Mr Dickson Spain had stated, "There is always land reform". Mr Creelman believed that that Mr Dickson Spain had made a complaint to the Defenders who had then carried certain investigations and gone ahead with the service of the notices.

[13] Mr Creelman had no concern about the public having access to the property provided there was supervision. He did say however that from time to time they had had the odd unauthorised visitor and during that time a barbecue had been stolen which was situated to the east of the path and he had seen a boy coming out of his workshop which is situated on the land which is slightly to east of the track..

[14] Mr Creelman spoke to a number of matters which are the subject of a Joint Minute of Admissions and which I do not need to therefore go into.

[15] Mr Creelman described the gardens of the property as a life project.

[16] He gave evidence that to the east of the path but still within his property is land which has a vertical drop straight into the River Ruel.

[17] Mr Creelman gave evidence that his enjoyment of the property would be affected were access rights were to exist over the track and the land to the east of that.

[18] In cross examination Mr Creelman admitted that one side of Stronardron is nearer to the main road than the other is to the track. The house had been double glazed and that prevented noise problems. Whilst he accepted that at various points on the path the house could not been seen particularly when coming from the north the house could be seen from where the letter T is marked in Production Number 5/10. The Lodge could also been seen from the bottom of the path. There were few visitors at the moment but that might well change if groups were coming from Dunans Castle.

[19] The gas barbecue belonging to the Pursuers was stolen in about 2006 from the ground to the east of the track near to the river.

[20] Mr Creelman stated that the only way to get to Stronardron was by car with the exception of the odd school bus on which the public did have a right to travel. There was no parking available.

[21] He had a workshop close to the track and machinery in his workshop.

[22] Mr Creelmans evidence was not seriously challenged. As is indicated elsewhere what was in dispute was the inference to be drawn from the evidence given by him and the other witnesses.

[23] The next witness was Mrs Moyra Creelman who is also a Pursuer in this case. She and Mr Creelman are spouses. Again her evidence was not disputed from a factual point of view.

[24] She explained that the track ran from the main road at the south to the bridge at the north west and at the bridge there was a gate with barbed wire.

[25] Mrs Creelman referred to the track and the garden to the east side of that. She very much regarded that as theirs. She and her husband gardened it. They had systematically cleared sections from the Lodge upwards. They had cleared debris, taken away trees and this was her project. When they had moved into Stonardron the track was not passable. There had been debris there for forty years. The garden was her husband's and her own main leisure interest.

[26] They had also spent some time focusing on the Fletcher mausoleum clearing out the debris and maintaining the area around it.

[27] She stated that Mrs Helen Fletcher of the Fletcher family had had a stroke and she walks with a zimmer. Mrs Fletcher visits the mausoleum from time to time.

[28] She mentioned how when Mr Dickson Spain became a neighbour in 2002 they had walked him round their property and had given him a meal and wine. Mr Dickson Spain wanted to use their garden as part of a shared venture with tour parties coming from his castle to their land. They had refused and had told him that they really enjoyed their privacy. Mrs Creelman spoke of how she would often go for a walk in the grounds. She spoke about how for people walking on the land, there were dangerous steep slopes and untarmaced soggy ground with steep banks and no fences.

[29] Mrs Creelman never met Mr Grierson when he visited or when the statutory notices were served upon her husband. She was aware of what was going on.

[30] In cross examination Mrs Creelman emphasised that what free time she has she spends in her garden and that what she was doing was gardening rather than woodland management. Again her evidence was not seriously challenged.

[31] The next witness to give evidence was Jonathan Irving Hyslop. He had been the previous owner of the house at Stronardron. He referred to the fact that the track from the lodge was unusable in 1997 as most of the track was washed away and deeply rutted. Since the Creelmans had moved in they had made a proper driveway and they had made more of a garden. Dunans Lodge had been derelict when he had owned the Castle. He recalled the mausoleum being used in 1995 at Colonel Fletchers funeral. In his transactions with the Creelmans he had found them to be always honest and trustworthy. The Creelmans were simply acquaintances rather than friends however.

[32] The next witness to give evidence was Jack McKinney, a chartered surveyor who spoke to his report Number 11 of Process. That contained his investigations and findings. He stated that if a person went up the path beside Dunans Lodge that person passed within 7 meters of the wall of the Lodge and that the privacy of those in the Lodge would be lost entirely with people walking up and down, were access to be granted to the track. There was no wall or other barrier and people would be able to see into the lodge. The area between the track and the river was garden ground which had been tended by the Pursuers. At the river itself there was vertical drops of 7 meters or thereby and he saw this as unusual and dangerous terrain.

[33] The outbuildings on the land could only be accessed from the track and if a person was walking the length of the path that person would pass them.

[34] His view was that this was by no means an unusually large area ground for a house of this nature in that location. Indeed he took the view that this was a small garden area for the size of the house in a rural area. He was of the view that any access granted would lead to the public wandering wittingly or unwittingly towards Stronardron.

[35] Mr McKinney was of the view that whilst if the area here had been square it might well be that the house would have been more remote and access rights could have been granted this was a long thin piece of ground with houses at both ends and it would simply be impossible to grant access without privacy being affected.

[36] Mr McKinney accepted that Stronardron could be seen from the main road. However this was normally by passing vehicles. In contrast the garden area here was narrow and limited and both Stronardron and Dunans Lodge could be seen from the track.. The track was only about 13 metres away from the gable conservatory of Stronardron and there was a clear uninterrupted view from the track. Mr McKinney's evidence was not factually challenged albeit his opinion that access rights should not be granted to a garden even if it was a mile long in size was.

[37] The Defenders' Douglas Grierson gave evidence. He is an Access Officer with Argyll & Bute Council and has a degree in Countryside Management.

[38] He confirmed that the impetus for this whole matter came from Mr Dickson Spain and following upon this Mr Grierson he arranged to meet Mr Creelman on site. He explained that the Council always wished to try to come an amicable resolution of these matters.

[39] As far as the mausoleum was concerned he accepted that that was in the area where access was being sought by the Council and referred to the fact that there is a provision in the 2003 Act for exemption orders for up to 6 days in relation to access rights and this could be applied for in the event that there was a funeral at the mausoleum.

[40] In cross examination Mr Grierson admitted that the Access Forum had never visited the property but had simply made a decision based upon his recommendation. They had however had sight of a report from him which had numerous photographs and maps. The Forum was simply an advisory body. It had 22 people in it. 10 members constituted a quorum. Number 5/9 of Process had been prepared by Mr Grierson. Number 5/10 had also come from the Council showing what access rights were sought by the Council and it was his view that the Creelman's would have a degree of privacy if the access sought by the Council was granted.

[41] Mr Grierson accepted he had not been in Stronardron House nor on the track leading immediately to it and the nearest he had got to Stronardron House was about 20 meters away on the main track.

[42] Mr Grierson emphasised that the way the legislation was framed the right to access was only if access was exercised responsibly.

[43] Mr Grierson also accepted that he had made errors regarding who was actually the owner of the property and had assumed Mr Creelman to be the sole owner.

[44] The witnesses who gave evidence were not really challenged. Indeed it was suggested by the parties agents that the findings in fact that they had agreed were sufficient for me to come to a decision. I consider a little more is necessary. I am of the view that all of the witnesses gave their evidence honestly and the facts were not in dispute but rather what inference had to be drawn here.

PURSUERS SUBMISSIONS

[45] Both parties helpfully lodged written submissions here. On behalf of the Pursuers it was accepted that certain points which had been made when this action was raised by them were not relevant and in particular it was conceded the question of diminution in value of the property if access rights were granted was not an issue as was the dates of purchase of the property and expenditure upon the land.

[46] In a very full submission Mr Sanders for the Pursuers pointed out that Mr McKinney's evidence was unchallenged and that six acres is in fact a small garden for a house of this size and in relation to the location. The matter was further complicated by the Fletchers mausoleum being within the subjects. All of the evidence pointed to the fact that the track was until recent times substantially overgrown and all but impassable until the Pursuers purchased the subjects. Only four acres of the subjects were useable and particularly towards the river the ground sloped steeply. The track runs up along a relatively narrow piece of land passing very close to the Lodge and part of the track is clearly visible from Stronardron House and vice versa. It also passes very close to other buildings including a garage. The noise from the main road means that there is a natural tendency to use that part that part of the property which is away from the main road. The house is one of five bedrooms and the degree of privacy might be expected for a five bedroom house or lodge in rural Argyllshire was greater than might be expected in a city.. He pointed out that anyone accessing the subjects and using the track would pass very close to the Lodge, Stronardron House, the mausoleum, the storage hut to the right of the track looking up the track and the garage or structure at the top of the track up near the Telford Bridge. Were access to be allowed as claimed by the Defenders the Pursuers privacy would not be respected.

[47] Mr Sanders accepted that the test set out in section was an objective one and pointed out that there were no substantial high fences or locked security gates. This was the smallest area that had been considered by the Courts in terms of the 2003 Act.

[48] Mr Sanders submitted that there were issues here being the security and safety of the Creelmans and the security and safety of visitors. He referred to the unchallenged evidence that there had been theft and to Mrs Creelmans evidence that she sometimes walked up and down the track with bedding etc.

[49] Mr Sanders also referred to the extent to the duty of care under the Occupiers Liability (Scotland) Act 1960 Section 5(2).

[50] He also referred to various authorities namely

Tulley v The Highland Council 2009 CSIH 31A

Gloag v Perth and Kinross Council 2007 SCLR 530

Snowie v Stirling Council 2008 SLT (Sheriff Court) 61.

[51] To some extent these cases are all of limited assistance in that they all are dealing with much larger estates and different circumstances but he submitted that following the analysis of both Sheriffs Fletcher and Cubie in Gloag and Snowie respectively the test is objective in that in interpreting Section 6 the Court is obliged to determine what a reasonable person living in a property of the type under consideration would require to have reasonable measures of privacy and to ensure enjoyment of the house was not unreasonably disturbed. The view that a subjective test would lead to the possibility of repeated applications being made was correct. He submitted that a person buying a property of this type and in such a location would be expected to at least have an appreciation and liking for gardens standing the fact that the garden ground is what makes the property. The Snowie case is under appeal and it is understood that an Inner House Appeal has been assigned for early 2010.

DEFENDERS SUBMISSIONS

[52] Mr Robertson first of all referred to the legislation quoting Sections 1, 2, 6 and 7 of the Act. He pointed out that someone who was not acting responsibly did not have a statutory right of access and accepted Sheriffs Fletcher's and Cubie's analysis that the test is an objective one. He pointed out that the criteria set out in Section 7(5) of location and other characteristics were not exhaustive.

[53] Mr Robertson went on to criticise the evidence of Mr McKinney as far as regarding garden area, no matter how large that garden area might be, as part of the land comprising sufficient adjacent land for privacy is going too far pointing out that Mr McKinney had even indicated that if the garden ground went for another mile then the private area could extend that far if the owner elected to have a garden there.

[54] Mr Robertson accepted that the size of the house was a characteristic and compared the size of the house in this case at Stronardron containing five or six bedrooms to a very substantial castle in the Gloag case. He pointed out that the proximity of the public road meant that Stronardron was not secluded and further the location of the house at Stronardron mean that someone could walk down the access track from the gate in the north for some distance until they could see the house. They could get as far as the letter "T" in the word track as is shown in Production 5/10. Coming from the south end they could get as far as the point where the map shows a change in colouring from yellow to green. Looking to the land on the south east between the bridge across the River Ruel and the mausoleum much of that land was at a level below the access track therefore because of the screening of the vegetation it was difficult to see the house from the track. He based all of this upon the evidence of Mr Creelman. He conceded that anyone contemplating the purchase of a large house would expect a reasonable area of ground attaching to it for their privacy and enjoyment of the house. He submitted what was to be expected had to be based upon the fictitious reasonable occupant.

[55] Mr Robertson then referred to the Lodge at the south end of the access track and conceded that that would have to be taken into account. He stated that what had to be looked at was not only the proximity to the track but also the proximity to the public road. He conceded that the access track was very close to the ground of the house. His position in essence was that the factors I ought to be taking into account in making the assessment included the size of the house, the proximity to the public road, the relationship to the surrounding land/topography as well as their proximity to the access track.

[56} Mr Robertson pointed out that a number of factors had been raised by the Pursuers which he submitted were irrelevant. I will only run through these briefly since as I understand it the Pursuers conceded these factors were irrelevant. These were diminution in value of the property if access rights were given, date of purchase of the property and expenditure upon the land.

[57] He accepted that security was an issue but that was an objective issue and pointed out that with the house being close to the main road intruders could come in from the main road as well as from the track. He pointed out that the barbecue had been stolen from the area overlooking the River Ruel and Telford Bridge and some stones were also taken. He did however state that this was a personal neighbour dispute.

[58] He made the point that irresponsible access would not be an issue standing the terms of the Act and the whole concept that a person exercising irresponsible access had no right to be on the land. He submitted that as far as public liability was concerned there should really be no change in the landlords liability since obvious hazards were not an issue. He asked that the court did not build a large buffer zone around a house simply because persons might not exercise access responsibly.

[59] Mr Robertson's position was that the statutory right of access should not apply over the area outlined in red on 5/10 of process. He considered this would be sufficient to allow those living in both Stronardron and Dunans Lodge to have reasonable measures of privacy whilst allowing members of the public to enter the gate at the north end and walk the length of the access track as well as taking access to all the Pursuers land between access track and the River Ruel. Where a private ceremony was taking place at the mausoleum exemption rights could be sought under Section 11 of the 2003 Act.

DECISION

[60] I have not found this a particularly easy case to decide. However it did not seem to me to be disputed that the ground owned by the Pursuers is adjacent land. The question therefore is whether they require to prevent access to all of this to have reasonable measures of privacy in the house and to ensure that enjoyment of the houses is not unreasonably disturbed.

[61] It seems to me that what I have to do is start here with the access track. The access track runs close to Dunans Lodge. It is only about 13 meters or so away from the house at Stronardron. I cannot see how having people walking up and down that path can possibly afford reasonable privacy at these points. Persons using the path can see into the two houses at various points on the path.

[62] Equally I do not think it realistic in any way to consider that, as the land presently stands, there will be anything other than an invasion of the Pursuers privacy if individuals come down the track from the north. They are not going to turn off at the letter "T" as shown in production 5/8 from where the house at Stronardron can be seen. There is no obvious route for them to do that.

[63] Even if I am wrong about that I also have to take into account the terms of Section 7(5). Whilst I do not agree with Mr McKinney's suggestion that however much garden ground a property has, even if it runs to a further mile, is land upon which owners are entitled to privacy it does seem to me that Mr McKinney's unchallenged evidence was that the land here was small for a house the size of Stronardron in that type of locality. It seems to me that that is one of the criteria I have to look at in terms of Section 7(5). It has only six acres, two of which are not useable, and there are two properties to which this land relates.

[64] I agree also that I have to look at the fictitious reasonable occupant here. However whilst such a person might not be as enthusiastic as the Pursuers I think it equally unlikely that anyone would move into such a property who had no regard for the garden at all. It could of course happen. However looking at it objectively it seems to me likely that anyone moving into a property of this nature would do so for privacy and for the use of the garden.

[65] There are of course two properties. Those holidaying in Dunans Lodge would not expect to have passers by coming within a few metres of the house.

[66] It does seem to me that were I to grant access rights to any part of the adjacent land that would affect the Pursuers reasonable privacy within what might be said to be their reasonable garden area. Factors include the relatively small area of the ground, the proximity of the track to the houses, the rural nature of the area and the likelihood that any owner will to some extent value the garden area.

[67] I also have to take into account that the Act uses the word "ensure" in relation to the Pursuers enjoyment of the house or place is not unreasonably disturbed. There are two out buildings on the property containing machinery and other possessions. There is no suggestion that these have been built, unlike in the Gloag and Snowie cases, for the purposes of this action. I have little doubt that the Pursuers would have reasonable concerns about security which would affect their enjoyment of the property were access rights to be allowed.

[68] It was not suggested to me in submissions that when looking for reasonable measures of privacy for the Pursuers I should also look at the reasonable rights of ramblers which would be lost if I granted the orders sought by the Pursuers. Accordingly I have not taken that into account in my Judgment but I would say in passing that from judicial knowledge Argyllshire is a large rural area in which there are many opportunities for ramblers to roam. Indeed it is far to say that in this case the impetus does not seem to have come from disaffected walkers but from a neighbour who wanted to use the Pursuers land for business purposes. In these circumstances I might well have had some difficulty in being convinced that there was a demand for roaming rights over the ground or that the loss of these could be said to be particularly prejudicial for those who enjoy walking in the Argyll area.

[69] In the circumstances I am satisfied that the land here is land over which access rights are not exercisable taking into account Section 6(1)(b)(iv) and also Section 7(5). I will therefore grant the orders sought by the Pursuers in terms of Craves 1,2 and 3.

[70] As requested by parties I am fixing a hearing on expenses here.

APPENDIX 1

APPENDIX 2