Round two for the Right to Roam Privacy Exemption

Locked gates

27th May 2008

Locked gates
In a previous issue (Open Door 29 June 2007), we commented on the case of Mrs Ann Gloag v Perth and Kinross Council and The Ramblers Association, which concerned the "right to roam" legislation and the conflict between the rights of access takers and landowners' rights to privacy and security. In that case, after taking into consideration the location and other characteristics of Mrs Gloag's property, the court held that Mrs Gloag was entitled to fence off a substantial area of private ground surrounding her property over which access rights could not be taken.

The issue of the right to exclude access to land which would otherwise be open to responsible access takers, in order to protect the rights of landowners to privacy and enjoyment of their property, was recently considered for a second time in the case of Snowie v Stirling Council and The Ramblers Association.

Euan and Claire Snowie own the Boquhan Estate near Kippen in Stirlingshire, and live at Boquhan House. The 70 acre Estate includes a number of dwellinghouses as well as a tennis court, riding stables with a separate equestrian riding area, managed driveways and a mixture of garden ground and woodland. In 2003, the couple tried to block access to the Estate by locking a set of gates at the western boundary of the Estate near the B822. Prior to this, there had been regular and frequent access to the Estate for walking, cycling or dog walking, as well as additional use by drivers, both before and after Mr and Mrs Snowie bought the property in 2001. By locking the gates, Mr and Mrs Snowie prevented legitimate access being taken to the Estate, but, unlike Mrs Gloag who fenced off her home, the Snowies did not render the premises secure since an existing right of way across the Estate could still be entered through the hedge adjacent to the gates or through any breaks in the boundary fences.

Complaints to the Council
Stirling Council's interest in Boquhan Estate was provoked by complaints from prospective access takers about the locking of the gate, but their attempts to resolve the issue with the Snowies failed. The Council issued Mr and Mrs Snowie with a written notice alleging a contravention of the Land Reform (Scotland) Act 2003, the "right to roam legislation". Mr and Mrs Snowie did not comply with the notice and applied to the Sheriff Court to have their land exempted from public access rights under the 2003 Act.

Section 6 of the 2003 Act sets out the exemption. It 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 Act itself gives little assistance to those determining the extent of adjacent land which should fall within the exemption. The only reference to other factors to be taken into consideration is Section 7(5) of the Act which provides that the "location and other characteristics" of the property may be taken into account.

Who decides what is "reasonable" privacy?
In this case, Stirling Sheriff Court considered that the area of land the Snowies sought to have excluded from the Act was excessive, and decided that it was not necessary for the gates to be locked to protect the Snowies' privacy and enjoyment of the Estate. Mr and Mrs Snowie claimed to have concerns over security, but the court held that there were already adequate security measures in place, without the requirement for access to the Estate to be blocked. The Snowies suggested that they should be the judges as to what was "reasonable" in the context of a decision about measures of privacy and enjoyment, but the Sheriff rejected this, deciding that the test must be an objective rather than a subjective one.

The Sheriff accepted that anyone contemplating the purchase of a house such as Boquhan House would not consider doing so unless the house and its grounds could be used privately, and that this would require a fairly substantial area of private ground. However, the Estate was surrounded by dairy farm pasture which was used on a daily basis and provided a means of access to the Estate. This meant that security was already compromised to an extent, and the court considered that the opening of the pedestrian gate in question would not further compromise the Snowies' security.

The court decided that it was sufficient for the Snowies to have an area of ground to the front of the property including a car park area, the whole of the rear garden as bounded by shrubbery, and a portion of the tennis courts to the back of the property excluded from the land over which access rights could be exercised in order to protect their privacy and enjoyment of the property. The Sheriff considered that any reasonable access taker would have no difficulty in recognising what was private garden ground within the Estate, and felt there was no justification to exclude access from the driveways in the Estate.

One all? Not when you look at the detail
Although, at first glance, the decision appears to be at odds with the decision in Mrs Gloag's case, the different outcomes in these cases can be explained by the different facts and circumstances, and not a difference in the courts' approach. In both cases, the court undertook a detailed consideration of the location and other characteristics of the properties and applied an objective test to determine how much land should be excluded from the general right to take access in order to give the landowners "reasonable" privacy and enjoyment of their properties. In Mrs Gloag's case, she had erected a six foot wire fence to create a 12 acre enclosure within her much larger estate. This fence provided a convenient and clear demarcation of the land over which access rights should not be exercised. By contrast, there were no distinctive boundaries in the Snowies' case, so the court had to decide where the boundaries should be drawn after assessing the whole Estate.

In both cases, the courts were concerned with the needs of a reasonable person living in a property of the type in question when determining how much of the estate should be designated as private land, and not with the specific and subjective concerns of the landowners pursuing the case. While the decisions provide further guidance as to how the courts will interpret the right to roam legislation, it is clear that in the future each case will depend on the particular facts and circumstances of the property in question.

To view the full text of the decision, please click here.