Mrs Ann Gloag v Perth & Kinross Council

on .

Mrs Ann Gloag v Perth & Kinross Council
Perth Sheriff Court, B111/06

First day of court hearing, 23rd October 2006

The case is an action by Mrs Ann Gloag for a ruling by the Sheriff that Kinfauns Castle and that part of its grounds (roughly a half) lying within a security fence is land excluded from access rights under section 6 of the Land Reform (Scotland) Act 2003 because it comprises sufficient adjacent land to enable persons living there to have reasonable privacy, and to ensure that their enjoyment is not unreasonably disturbed'. Perth & Kinross Council are defending the action and have proposed an alternative boundary line for exclusion of a smaller area of land from access rights. The Ramblers Association have joined in the defence of the action.

There was a site visit in the morning, and the court then proceeded to hear witnesses for Mrs Gloag in the afternoon.

A security report had been obtained by Mrs Gloag from Keith Fleming, a security adviser with Police experience, in which he made recommendations to combat burglary and kidnapping attempts. A security fence (one of a number of security measures) was erected with the aim of making it more difficult for the house and gardens to be surveyed by those planning criminal acts from areas screened by bushes and trees. Mr Fleming said the presence of the fence would tell the general public not to continue, and enable anyone within the fence to be challenged legitimately.

There was some debate about various site lines from other places, including neighbouring fields to the west which Mr Fleming thought to be relatively secure' because they were not a concealed area. The fact that the public might be permitted to walk there, or have the right to do so, was less of a danger. A chain link fence along the line suggested by the Council would permit closer and unobserved surveying of the house and garden by criminals. However, Mr Fleming conceded that a wall would prevent this and be a more secure boundary.

Mr Scott Irvine, Mrs Gloag's media adviser, gave evidence of the intense interest in Mrs Gloag (one of the first Scottish females to be extremely successful financially). He spoke of her willingness to publicise her charitable activities, but her dislike of personal publicity including into her and her family's private life. Her visitors included royalty and foreign leaders, photographs of whom would command a good price.

The Kinfauns head gardener spoke of quad bike tracks, BBQ areas and climbing frames used by Mrs Gloag's grandchildren, not all of which were confined to the excluded area proposed by the Council, and of further paths to be constructed for the enjoyment of visitors to the house. He and his colleague maintained the area within the fence including an area of grass, some of which lay within the area of land which the Council proposed should be subject to access rights.

The case was adjourned until Monday 30th October. There is a further day set aside in November, and it was thought that even more time might be required.

Comments by ScotWays:

1. The security expert had been unaware of the Land Reform (Scotland) Act 2003 when he drafted his report, though it appears that the Act came into force about the time that he wrote his report.

2. There was evidence that a view of the house could be obtained from the neighbouring estate. Could Mrs Gloag have asked for a ruling that part of that estate should be excluded, even though she does not own it? In principle, that seems possible, although in practice, even if successful, she would require the active co-operation of her neighbour for it to make any difference, since only he could forbid or permit the public to walk there.

3. There is debate about how authoritative that part of the Scottish Outdoor Access Code is which outlines where access rights apply, rather than what constitutes responsible behaviour, as referred to in section 10 of the 2003 Act. Ms Wilson for Perth & Kinross Council referred to the Code when asking about the distinction between garden grounds and policy grounds (not very significant as regards security). Mr Jones for Mrs Gloag established that a grass area which lay partly within and partly outside the boundary line proposed by the Council was cut and maintained by the gardeners. Perhaps there will be some future debate on this issue.

4. Much of the evidence related to Mrs Gloag personally. Is the test of sufficient land' in section 6(b)(iv) of the 2003 Act to be determined by the particular circumstances of the owner at the time of consideration? The Act does say that the location and other characteristics of the house' are among the factors that determine the extent of land that can be excluded from access. Is there a danger that all properties of the size of Kinfauns Castle will be deemed to require the same extent of privacy that Mrs Gloag claims she requires at Kinfauns?

5. The site visit at the previous case of Archerfield was only for the parties and their advisers, whereas it appears that the site visit in this case was unrestricted.

George Menzies, Chairman, ScotWays