The action arose as a result of an appeal to the Sheriff Court against a Notice under section 14 of the Land Reform (Scotland) Act 2003 served on Mr and Mrs Snowie (the Snowies) by Stirling Council. The notice required them to open at least one pedestrian gate for access to the Estate.. The Snowies also applied for a declarator under section 28 of the Act that specified land was excluded from the exercise of access rights because it comprised “sufficient adjacent land to enable persons living in Boquhan House and cottages to have reasonable measures of privacy in those houses,and to ensure their enjoyment of them was not unreasonably disturbed” (Section 6(1)(b)(iv)). The Ramblers Association joined the action as an interested party, as second defenders.

The final court hearing was held on Monday 5th November 2007. All submissions have now been lodged, and are summarised below. The Sheriff stated that he would make his judgement “in due course”.

Submission for the Pursuers by John Campbell QC
Professor and Mrs Ross (the Rosses) had a lease of the West Lodge on the Estate and had brought a separate action. This submission was made jointly on behalf of the Snowies and the Rosses as the same issues applied in both actions.

In relation to the section 14 notice, the following points were made:
– It was wrong to start with an assumption that all land was subject to access rights; some land was excluded from the outset, under the terms of s.6 of the Act.
– In the particular circumstances, the definition of curtilage’ was of no relevance as it relates only to buildings that are not houses.
– A plan had been prepared showing the area of land that they considered should be excluded from access for privacy and enjoyment of houses including 5 houses for which the Snowies were responsible but which were occupied by others, and the West Lodge occupied by the Rosses.
– The wording of section 6 provided for a high standard of privacy and enjoyment of houses, as shown by the use of the verb to ensure’.
– The gate that the Council required to be left open was within the control of the Rosses. An electronic lock had been fitted.
– What is a reasonable exclusion area should be seen primarily from the viewpoint of the occupiers of the land, and their needs considered. The approach of the Act is to customise the exclusion area according to the needs of the people living in the particular house. The fact that Stirling Council had not investigated the Estate occupants’ needs in relation to privacy and enjoyment of their houses was a fatal flaw in the service of the Section 14 notice.

In relation to the application for a declarator under section 28, the following points were made:
– Guidance on what land is excluded is given in section 7 location and other characteristics of the house.
– Reasonable privacy and enjoyment involves exclusion of the immediate areas around the Rosses’ house and the 5 other houses on the estate.
– In the case of the Snowies’ house, account has to be taken of its size which is a characteristic’ for the purposes of section 7.
– There is no objective standard for reasonable privacy’ it depends on the particular circumstances of the people living in the house.
– Sheriff Fletcher had taken the correct approach to interpretation of excluded land in the Gloag case.
– Enjoyment’ of the house involved feeling secure within its grounds, which required the gates to be locked. This was particularly important to Mr Snowie who was at increased risk from criminal activity.
– The Access Code had no relevance in deciding the extent of land excluded from access rights. It is a code of conduct and sufficient land cannot be defined by conduct.
– Privacy and enjoyment do not only extend to the house itself, but also to its environs depending on the particular house.

Submission for first defenders Stirling Council by Andrew Smith QC
– The onus is on the Pursuers to show what land is excluded from access. The starting point under the Act is that all land is available for access and qualifications on the right have to be seen against this principle
– The right of the owner to reasonable’ measures of privacy and no unreasonable’ disturbance of enjoyment must be determined objectively.
– If there are any areas of land which should be available for access rights within the area affected by the locked gates, then the section 14 notice should stand. It was accepted that there would be areas of land excluded from access within the Estate boundaries, and the court was asked to clarify what these areas were.
– In relation to exclusion of curtilage’ around buildings, there is no definition of curtilage’ in the Act and it is ill-defined in case law, but it was contended that it was no more than was reasonable and necessary for the proper enjoyment of the buildings on the land. It would not, for example, include a long drive way.
– There was undisputed evidence of access routes being used by the public in the past without any problem and this demonstrated that there could be co-existence of public rights of access with private rights of property on Boquhan Estate.
– The garden round the Rosses’ house was sufficient to protect their privacy. Inhabitants of gate houses should expect people to be passing regularly. They had lived there for many years without the gates being locked. Total exclusion of the public would be unrealistic.
– The areas being offered for access by the Snowies were insufficient and unsuitable.
– The European Convention of Human Rights added nothing to the situation because Section 6(1)(b)(iv) provided for the Convention Rights.

The submission sets out the following proposed findings in fact and law:
1. The locking of the pedestrian side gate at the West Lodge constitutes an obstruction of legitimate rights of access for the public.
2. On the assumption that the public observe the guidance in the Access Code, access being afforded through the gate will not unreasonably interfere with the rights of privacy or enjoyment of the subjects owned by either the Snowies or the Rosses.
3. The area delineated on the plan produced by the defenders affords sufficient land from which they are entitled to exclude the public, which will protect the pursuers’ rights of privacy and enjoyment.
4. In addition to the areas delineated on the said plan, other areas would be excluded from general rights of access by the public. These are such that the provisions of the Access Code and the Act itself define what is and is not accessible land.
The test of what affords reasonable privacy and permits reasonable enjoyment of the subjects is an objective one. Whilst the nature of the subjects has to be accounted for, the individual expectations of the occupiers are irrelevant. To that extent the evidence of Mr.Holden (a security consultant) is totally irrelevant. Much of the evidence of Mr Snowie and Dr Ross was similarly irrelevant.

Submission on behalf of the Second Defenders the Ramblers’ Association
The submission of the Ramblers’ Association endorsed that of Stirling Council and claimed that the excluded area should be limited to the area shown in the map prepared by Stirling Council. The following additional points were made on behalf of the Ramblers’ Association:
1. The land excluded by Section 6(1)(b)(iv) related only to the house and not the whole estate. The land had to be adjacent to, i.e. restricted to the immediate confines of the house, and be required to provide reasonable privacy and undisturbed enjoyment. The Act recognises there will be some disturbance but it must not be unreasonable. Where there are other buildings these have their own, separate, areas of exclusion either as separate residences or on the basis of curtilage’ under s.6(1)(b)(i).
2. The change in the wording in the Bill from “sufficient adjacent or associated land to enable persons living there to have undisturbed enjoyment of the whole ” supported this interpretation.
3. As well as location and other characteristics of the house factors set out in para 3.13-3.18 in the Code should be taken into account.
4. The Act and Code place obligations on landowners and land managers not to unreasonably interfere with the exercise of access taken in accordance with the Access Code, and the actions of the Pursuers must be examined against their duty to use, manage and conduct ownership of Boquhan Estate in a way that respects access rights.
5. It was submitted that there was little within the judgement in the Gloag case to assist the current case.
6. Land management there is no provision within section 6 for excluding land for land management purposes. It is up to the pursuers to manage their land to take account of access rights, using the guidance in the Code and with additional guidance from local authorities and SNH.
7. It is for the access taker to take access so long as they are satisfied that they are doing so responsibly.

The second defenders contested the evidence given by the pursuers in relation to the reasons for exclusion of land on the basis of privacy and security. Evidence had shown that there had been previous access to the Estate before the gates were locked. Such access did not have to be for any particular purpose. It had included dog walking, cycling and using the Estate as a thoroughfare to gain access elsewhere. The pursuers had indicated the existence of alternative access routes, but such routes would have no impact on whether access rights were exercisable elsewhere.

16 November 2007