The following is a summary of the decision by Sheriff Michael Fletcher in the Perth Sheriff Court on 12th June 2007.

Mrs Gloag bought Kinfauns Castle, a former hotel, and renovated it for her own residential use. Work had begun on a swimming pool and leisure area to the west of the house. Kinfauns castle is a substantial mansion with a terrace on its south side, which is the side used by the family, with offices and staff accommodation on the North side.

There is cultivated garden ground round the house with large areas of closely mown lawns, flower boarders and specimen trees and bushes, all in the nature of a domestic garden. There are also large bushes and mature trees on the area shaped like a horse shoe where the grass was cut but not as closely as the lawns. All this extends to 11 acres.

There is also a substantial area of woodland on the south and west of the garden ground. Some of this is on steeply sloping ground. The woodland had become overgrown with weeds and bushes as had the paths within them, but both were now being cleared and restored. The woodland was probably designed to provide privacy for the occupants of the house and gardens, the trees being intensive where more members of the public could be expected. [The area involved seems from the map annexed to the judgment to be about 4 acres.]

The north side of the house, and some of the garden can probably be seen by persons on the public road on the top of Kinnoull Hill.

The house, because the occupier would likely be of substantial means, would be likely to attract the interest of the public, and of criminals.

Mrs Gloag, concerned about the safety of herself and her family, and possible attempts to steal the valuable contents in the house, built a security fence surrounding the house and part of her property, so entrance can only be taken through the main gates and pedestrian gates or by climbing over the fence. The fence would not keep out determined criminals, other measures being necessary for that. It might, however, prevent casual intrusion. The fence follows a stob and wire fence or a drystone dyke some way round the property owned by Mrs Gloag, and for some way through the property. The new fence however also runs to the south of the woodlands including them within the perimeter.

The fence required planning permission, and after it had been built this was obtained retrospectively by Mrs Gloag. She then applied to the Court under the Land Reform (Scotland) Act 2003, Section 28(1)(a), to have the area within the fence declared to be exempt from access rights. She claimed it was land adjacent to Kinfauns Castle sufficient to enable those living there to have reasonable measures of privacy in the house, and to ensure their enjoyment of it was not unreasonably disturbed. This exemption is contained in Section 6(1)(b)(iv) of the Act, and one of the determining factors is the location and other characteristics of the house (Section 7(5) of the Act).

The Sheriff held that Section 6 referred to a fictitious occupant of Kinfauns and not to Mrs Gloag the actual occupant. He had, therefore, to analyse the characteristics of Kinfauns Castle and the surrounding ground.

Any person who was likely to purchase such a house would only do so if they had a substantial area round the house for their private use. A reasonable person would expect a reasonably substantial area of ground (the Sheriff later referred to quite a large area of ground) would be required to provide reasonable measures of privacy and the enjoyment of the house. As the Act gave little assistance he had to rely to some extent on judicial knowledge, but the evidence in the case also led to the view he had reached.

The area required for the enjoyment of a house like Kinfauns would contain lawns and gardens and immediately surrounding woodlands, especially when the latter were being criss-crossed by paths and used for children to play in. As for security, if one ignored Mrs Gloag’s own wealth, and the valuables in the house, it was legitimate to conclude that whoever bought Kinfauns Castle would have to have considerable resources and would be likely to possess valuable objects. The evidence in the case showed both the need for a barrier to indicate where security measures began, and that the most suitable location was its existing location. Concern about security could prevent the occupant from having their enjoyment of the house ensured.

The fact that the fence followed the line of a previous fence showed that it was not placed along a purely arbitrary line, but one which a previous occupant had considered was required to secure their privacy and enjoyment of the property. The restoration of former paths, as against their creation, suggested that they had originally been created for the enjoyment of the amenity of the house.

The fact that much of the house can be viewed from outside should not diminish the amount of ground sufficient for privacy and enjoyment of the house.

All parties had agreed that the 2003 Act was not incompatible with the European Convention of Human Rights. The Sheriff said that the Act required the Court to find what was sufficient land for privacy and enjoyment of the house and if it was wrong that could be put right (presumably on appeal). There was no need to refer to the Convention.

Perth & Kinross Council had proposed a different line for the fence excluding the edge of the horseshoe, a narrow wooded area on the east bordering a track, and the woodland at the south and southwest.

The question arose whether this line had been determined by relying on the wording in the Code at 3.13- 3.16. Although it was argued that the Code had been used to help decide on what land was adjacent to the house, the Sheriff held that the evidence of the Council Officers, and the line they proposed, showed they regarded the Code as extremely important in deciding whether the woodland areas should be included, and whether grass being short or long had a bearing. In a laudable attempt to create consistency, the information in the Code was being used to gauge what was sufficient ground. That, he said, was the wrong approach in deciding what was sufficient ground, although in looking at the characteristics of the house, the topography of the surrounding ground did have to be considered.

The Ramblers Association led evidence that the legislation allowed a flexible approach, leaving much to the discretion of the access taker whether or not to proceed. Provided the Code was followed there would not be difficulty. The practical experience following the Act was that conflict was being avoided, and 95% of access takers did so responsibly, but that where a person was taking access irresponsibly the legislation did not concern itself with criminal activities and that the ordinary criminal law could be relied on to resolve such difficulties.

The Sheriff found this evidence that the high ideals of the Act would be followed by the vast majority of access takers to have been contradicted by the evidence of Dave Morris of the Ramblers Association. He had taken access at Kinfauns over land which he knew to be excluded from the Act, refused the request of the land manager to leave, and claimed to the police that he was operating in terms of the new legislation, and that it was a purely civil matter The Sheriff considered that these actions were not just irresponsible but “probably creating a breach of the peace”.

Counsel for the Ramblers suggested that the legislation created generalised mutual rights and obligations relating to access, and departure from these had to have a compelling reason. The Sheriff said that the court had no discretion to take the rights of the access taker into account or to decide whether there should be a right of access or not. The court has to decide the amount of ground required. It is Parliament that has decreed there are no access rights on it.

The Act did not provide that there is an onus on the occupant of the house to justify the exclusion of access rights, failing which they will apply. In fact the occupant is entitled to sufficient land to ensure that their enjoyment in the house is not unreasonably disturbed. It is for the Courts to determine what that is.

The Court decided that the land which was the subject of Mrs Gloag’s application fell within the description of sufficient land to enable persons living there to have reasonable measures of privacy in the house known as Kinfauns Castle and to ensure that their enjoyment of that house is not unreasonably disturbed.

Comments by ScotWays

The decision in this case raised a number of interesting points.

1. Section 6(1)(b)(iv) postulates a fictitious occupant of the house and not the particular occupant of the house for the time being.

2. The court is required to consider the characteristics of the house and its location in considering the extent of the area of land which the Act excludes from access rights. As there is little guidance in the Act, judicial knowledge may well have a part to play.

3. Para 3.13 3.16 of the Scottish Outdoor Access Code does not determine what land is included in access rights although the topography of the land will have to be considered.

4. The 2003 Act is not incompatible with the European Convention of Human Rights, and since the Act requires the Court to establish what is sufficient land to enjoy privacy and enjoyment there is no need to refer to the Convention.

5. There is no onus on the occupant to justify the land they wish to be excluded. It is for the Court to determine its extent.

The Sheriff commented about the circumstances in which he considered that irresponsible access-taking might verge on being a breach of the peace.

The Ramblers Association have decided not to appeal the decision but have criticised it and some of the Sheriff\’s comments.

The decision is now available on the Scottish Courts Service web site at:

GM, ScotWays, 18 June 2007