The so-called "right to roam" legislation came into force in February 2005, but it is only this month that the Scottish Courts have fully considered the competing interests of access rights and a landowner's right to privacy and security in the high-profile case of Mrs Ann Gloag v Perth and Kinross Council and The Ramblers' Association.
A Scotswoman's home is her castle
Mrs Ann Gloag, the well-known businesswoman and co-founder of the Stagecoach bus company, purchased Kinfauns Castle in September 2004 as a home for herself, her husband and her elderly father, with regular visits from her extended family and friends including her many grandchildren. Kinfauns Castle is set within a 28-acre site, sitting at the top of a hill overlooking the River Tay, and is accessed from the main road linking Perth and Dundee.
At that time, the house was in a poor state of repair and Mrs Gloag made substantial improvements before she moved in the following year. This included alterations to the house, the installation of security systems and the clearance of much of the surrounding overgrown woodland area including the restoration of paths through the woods. Her future plans included a new swimming pool and leisure area and planning permission for this had been granted.
At the time of her purchase, there was rundown fencing and a drystone wall running along a large part of the boundary of the property. Mrs Gloag erected a more substantial 6 foot wire fence, topped with barbed wire, along the line of the existing fence, for which planning permission was retrospectively granted. This fence created a 12-acre enclosure which entirely surrounded the castle, including several acres of woodland, and prevented entry to the property other than by climbing the fence or entering through the main gates.
Access v privacy
The local authority and the Ramblers' Association appealed to have a section of the fence taken down, under the "right to roam" legislation, the Land Reform (Scotland) Act 2003, so that the woodland, which formed part of the area enclosed by the fence, would be open to the public.
Mrs Gloag argued that the fenced area, including the woodland, fell within an exception to the Act's right of access - Section 6 provides that access rights are not exercisable over 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".
The judge, Sheriff Michael Fletcher, commented that the Act itself gives very little assistance to those making a decision as to how much land falls within that definition other than a reference in Section 7(5) which provides that the location or other characteristics of the house should be taken into account in deciding what area of ground is sufficient for the Section 6 exception.
Sufficient land to protect reasonable privacy and enjoyment
The Sheriff therefore made a very detailed assessment, in a 28-page judgement, of the area that Mrs Gloag could reasonably expect to be considered private and therefore exempt from access rights. He looked at matters such as the siting of children's garden toys and swings, a barbecue area, her plans for expansion and the topography of the areas surrounding the castle. A site visit was arranged at which the Sheriff took time to walk around the site, taking note of the areas from which he could view parts of the garden adjacent to the castle.
Mrs Gloag argued that the fence was necessary to ensure the safety of her and her family, fearing attempts at kidnap and ransom or theft. She was also anxious about the level of privacy at the property as both herself and the high-profile guests she entertained attracted interest from the press and members of the public.
The Sheriff was sceptical of Mrs Gloag's claims that the children's play equipment and barbecue area, sited in the woodland area at the heart of the dispute, were intensively used by the family. He thought it was "highly unlikely" that a person with such security concerns would choose to site a play area in the wood, out of sight of the house. He was similarly sceptical about the barbecue area as it was affected by the constant noise from the nearby A90 dual carriageway, it was in the shade, and there were many other more suitable options for its location.
Nonetheless, the court accepted that a great deal of work had been done and was in the process of being done to the property and the site of the barbecue and play area may therefore only be temporary. The Sheriff was also of the opinion that a person of Mrs Gloag's profile needed higher than usual security due to the press and criminal interest in her activities, family and possessions. Although the Act should not be interpreted entirely subjectively, as matters would then change depending on who was living at the house, it was not unreasonable generally for persons living in this type of property to require reasonable measures of privacy and security which would require a reasonably substantial area of private ground.
Turning to the part of the statutory exception relating to enjoyment of the property, the Sheriff also came to the conclusion that a person living in a house of this nature would view their enjoyment of their house to be considerably reduced if it was not accompanied by reasonably large, private grounds. He considered that judicial knowledge included a general view about what the average person might consider important when choosing whether or not to purchase a house and concluded that the average reasonable person buying a house of this kind would consider that quite a large area of ground would be required to be sufficient for the enjoyment of the house. This would include the lawns and gardens of the house as well as areas of woodland immediately surrounding the gardens, especially where those woodlands had been developed to allow paths to crisscross them, as had been the case at Kinfauns.
95 percent are responsible access takers?
David Morris, director of the Ramblers' Association Scotland, gave evidence emphasising that only those taking access to land responsibly could do so in terms of the legislation. He went on to suggest that 95 percent of those taking access to land did so in a responsible way, following the advice in the Scottish Outdoor Access Code: guidance produced by Scottish Natural Heritage, and approved by the Scottish Parliament. But the Sheriff was critical of these claims, suggesting that some of those people who exercise access rights may not be intent on enjoying the countryside but may have "ulterior criminal or voyeuristic motives".
Indeed, the Sheriff was particularly critical of the actions of Mr Morris himself and described an episode in which Mr Morris attended Kinfauns Castle and made his way through the entrance gates and over the lawn "in the teeth of opposition by the land manager". Mr Morris was "acutely aware" that the lawned area was land excluded from the right of access by the legislation and by the Code itself. Despite this knowledge, when the police were called he handed them a copy of the Code and, erroneously suggested that his presence was a civil matter which did not concern the police, claiming to be operating in terms of the new legislation.
The Sheriff therefore found Mr Morris' evidence that 95% of people taking access follow the Code, "rather surprising", particularly when Mr Morris himself had not done so! Not only was Mr Morris not exercising access responsibly, but he was exercising access over land which he knew was excluded from the right of access in the Act, in circumstances where he had been specifically asked to leave. This, the Sheriff said, set a poor example to those who try to interpret the "right to roam" legislation responsibly: "If that were the way the Act is put into effect by a person such as the Director of the Ramblers' Association what can one expect of others whose experience of the Code and workings of the Act is much less developed?".
Misinterpretation of the Scottish Outdoor Access Code
From the evidence of the Council's staff, it was clear that they had relied heavily on the description of the type of land described in the Code as being woodland or policy land and therefore appropriate for the use of the responsible access taker. This, the Sheriff suggested, would lead them to the erroneous view that all woodland was included in the right of access. The Sheriff made it clear that the Code is a practical guide to the taking of access and not an aid to interpretation of one of the exceptions to the rights given in the Act. Advice in the Code, such as to avoid walking on closely mown grass, did not help with the decision as to what is sufficient land for the purposes of the Section 6 exception. Any suggestion that the nature of the ground itself should be decisive as to whether the land was excluded from the access right was, in his view, misconceived. It was only one of the factors for the court to take into account in coming to its decision.
Ramifications
The Ramblers' Association have said that they are considering the details of the judgement and are taking legal advice on whether to appeal the decision. However, if the decision stands, it will be interesting to see how it is applied to other "right to roam" cases currently passing through the courts such as that concerning Euan Snowie and his family's estate at Boquhan, near Kippen in west Stirlingshire.
Although it is clear that each case will require a detailed examination of the characteristics of the specific property concerned, if the relevant local authority have relied entirely on the Code in deciding where the boundary line of the access rights should be drawn, they may well find themselves falling foul of the legislation when matters come to court.