Mr and Mrs Snowie v Stirling Council and the Ramblers Association
Mr and Mrs Ross v Stirling Council and the Ramblers Association
These were linked appeals from the decision of Sheriff Cubie given on 23rd April 2008, that the gate at the West Lodge entry to the Boquhan Estate should be left unlocked, and his judicial determination of the area of land adjacent to the house which should be exempted from public access rights in order that persons residing there have reasonable measures of privacy and to ensure that their enjoyment of the house is not unreasonably disturbed (in accordance with section 6(1)(b)(iv) of the Land Reform (Scotland) Act 2003).
Counsel for the Rosses and Snowies (Mr John Campbell QC) did not dispute the Sheriff’s findings in fact, but argued, firstly, that the Sheriff had not correctly interpreted section 6(1)(b)(iv) of the 2003 Act. He said that the Sheriff had to consider the particular people living there at the time in question, and he had not done this. Nor had he considered the people living in the tenanted houses, nor the houses’ characteristics.
Secondly, he argued that the area of land which the Sheriff had excluded had been determined arbitrarily: there was no logical explanation as to how the decision had been reached. Also, he had conflated the Ross and Snowie cases, commenting on security of the estate in the Ross case, when that was not relevant.
The remedy he sought was for the Court to quash the judgement and remit the matter back to the Sheriff to apply the correct interpretation of section 6(1)(b)(iv).
Counsel for Stirling Council (Mr Andrew Smith QC) said that the Sheriff had made an extensive site visit, had listened to the wishes expressed by the Snowies and Rosses, and had come to a decision on what was required for ‘persons’ living in the house, as the Act required, and not ‘the persons’ as had been argued. The reasons for selecting the exempted area were explained in the judgement.
Counsel for the Ramblers Association adopted the position of Counsel for Stirling Council.
The Court asked Mr Campbell to address them further on how, if the findings in fact were not challenged, the case could be remitted back to the Sheriff. However, Mr Campbell withdrew the Appeal on behalf of the Snowies and Rosses, and so this issue was not addressed.
Expenses (costs) were awarded in favour of Stirling Council and the Ramblers Association.
Some interesting points were raised by Counsel and Judges.
Does the Act require an entirely objective test of the land to be excluded for enjoyment and privacy? Clearly the concept of ‘reasonable’ measures and ‘unreasonable’ disturbance indicate an objective test. Gloag said it does, and Snowie followed that. Both cases looked at the expectations of the sort of person who would be expected to buy the house in question, but not going so far as to consider the wishes of the particular persons who lived there.
In this case, as in Gloag, considerable evidence was led on the issue of security. Although not referred to as such in section 6(1)(b)(iv), a feeling of security is one of the factors which is encompassed in the enjoyment of a house (Gloag, para 55).
Counsel for Stirling Council defended the findings in fact by Sheriff Cubie that the Rosses’ garden, and the gardens of the tenanted houses, were well defined garden areas which could not be ‘misunderstood’, and would be ‘recognised’ by any reasonable access taker. He referred to the advice to the public in the Access Code that gardens should be avoided.
One of the judges raised the issue of whether there was any record of land excluded from access rights as a result of court decisions. It was noted that the only way that people could find out about this was by reference to the judgement on the Courts Service web site, which might include a map of the excluded land. The relevant local authority might also include details on their own web site.
19 January 2010