EWAN AND CLAIRE SNOWIE
STIRLING COUNCIL and
THE RAMBLERS ASSOCIATION
LINDSAY AND BARBARA ROSS
Mr and Mrs Snowie own Boquhan House and grounds extending to 70 acres, which is south of the A811 Drymen to Stirling road.
One drive runs from the Boquhan House to join the A811 at the East Lodge and another to join the B822 at the West Lodge.
The line of a Roman road, now a
pedestrian public right of way, runs past the south of the grounds, acting as part of the southern boundary for a short stretch.
The Snowies restored the gates
at each Lodge; a double gate giving vehicular access and operated electrically, and a pedestrian gate on either side of the double gates. The pedestrian gate at the quieter
western end was locked, but not the eastern one, which opened on to the busy A811.
This prevented public access and, following complaints from the public,
Stirling Council requested the Snowies to open the gate to permit the exercise of access rights through it. After unsuccessful discussions the Council served a notice under Section 14 of the Land Reform (Scotland) Act 2003, calling on the Snowies to keep the pedestrian gate open. The Snowies then leased the gates to Professor and Dr Ross who owned West Lodge, and subsequently the Council also served a notice under Section 14 on the Rosses.
The Snowies appealed that notice, and also asked for the whole 70 acres, including both drives, to be declared land to which rights of responsible access did not apply. The Snowies revised this claim to 40 acres during the case. They claimed that this was required to enable them to have reasonable measures of privacy in Boquhan House and to ensure that their enjoyment of the house was not unreasonably disturbed (under Sec. 6(1)(b)(iv) of the Act).
The Rosses appealed the notice, and also asked for the solum of the West Lodge gates to be similarly excluded from access rights to achieve those same objectives with regard to West Lodge. If either the request of the Snowies or the request of the Rosses had been granted Access would not be possible through the pedestrian gate.
Evidence was led about the Snowies’ concerns about the security of themselves, and their children and their tenants. In the Kinfauns Case (Ann Gloag v Perth and Kinross Council, Perth 12th June 2007) security was linked to the enjoyment of the house. People in big houses are likely to be more of a target for theft and attack, and their enjoyment of the house would depend on their knowing that the premises were secure.
The Sheriff accepted that Mr Snowie’s concerns about security were genuine, but thought them exaggerated. Mr Snowie regarded anyone moving about the estate as suspicious; he had met a couple with a torch and “baton” one evening, and had felt it threatening. The Sheriff, while not commenting on the reasonableness of this reaction, considered the use of the word “baton“was pejorative and intended to be so.
Mr Holden, had used “baton” in his security report, but when asked to describe it by the Sheriff (during a moment of mutual incomprehension), Mr Holden described a baton as a square piece of wood, and the possibility came to mind that he might have been referring to a batten.
Mr Holden was criticised for not mentioning, in his report, a right of way across the east drive through Boquhan Home Farm. The existence of such a right of way was denied by Mr Graham, the farmer, and Mr Holden might not have been told of it. It is recorded in CROW, however, and an enquiry would have revealed the situation.
Ultimately the Sheriff, having also covered other aspects of the security report, considered that it was commissioned and produced to bolster Mr Snowie’s position in the litigation, and was unreliable. It did not have the required degree of objectivity.
After considering the evidence about the lease of the gates at West Lodge which gave the Rosses responsibility for locking the pedestrian gate, the Sheriff could find no practical purpose for the lease.
The statement that locking the gate was an insurance requirement was not substantiated.
The Sheriff concluded that locking the gate did not make the estate secure, since access could be taken through the East Lodge gate, through the farm, through the fields west of the west gate, through the back garden of the Rosses or across other parts of the perimeter. There were farm workers from the neighbouring farm entering the estate, tenants and those going to the stables.
Although Mr Snowie claimed the estate had never been the subject of public access, he knew of youths drinking at the back of the garden, and had met the couple with the “baton”. The sheriff thought that he knew he had met genuine recreational walkers, (Mr Snowie had said he would allow bona fide walkers into parts of the estate. That term excluded the discourteous).
Evidence of use by walkers and cyclists was given by a nearby resident, by a tenant of an estate cottage, by a tenant of the farm, and by Mrs Ross. The Sheriff referred to “regular and frequent” access.
Mr Snowie seemed to be saying that he was entitled to determine what was private, and it was clear that he had bought the house and estate as a private retreat.
The Sheriff then considered the case of the tenants. He did not think their privacy would be compromised. There might be cases where tenants’ rights to privacy and enjoyment might be one of the characteristics justifying a larger area of exclusion.
The analysis of the law.
The Sheriff adopted the analysis of the law contained in the Kinfauns case. He agreed that the reasonable privacy test is not specific to the particular people living in the house in question, otherwise the land excluded might alter with a new occupant. The test is an objective one about the sort of person who might purchase the house in question. They would only proceed if there was a reasonable area around the house that could be used by them privately. That did not mean they were enjoying the policies, but enjoying the house itself.
Decision in Snowie
The land claimed for exclusion by the Snowies was excessive. It was plain the driveways did not need to be secure for any privacy, nor for the security of the house.
The sheriff said that “it is reasonable for persons such as the Snowies “to have an area round the house which can truly be regarded as private.This should include both sides of the burn, the tennis court and changing area, and some of the managed gardens extending to near the riding area. He thought it reasonable for persons in the house to have privacy visiting those places.
The Act refers to land “adjacent” to the house and the sheriff felt the driveways were not sufficiently adjacent to Boquhan House.
The appeal against the notice requiring the gate to be unlocked was dismissed, and the area determined as necessary for privacy and enjoyment indicated by the sheriff on the map attached to the interlocutor.
The decision was an endorsement of the decision in Gloag in the following ways:
The area to which access rights were determined not to apply was roughly proportionate to the sizes of the houses, (12.6 Boquhan; 14.5 Kinfauns).
The detailed analysis of the legislation in Gloag was adopted. The only factors to be taken into consideration in making that determination include the location and other characteristics of the house. No mention was made of the Code as being a consideration to be taken into account.
The test of sufficient land for privacy and enjoyment was such as was reasonably required not by the actual resident but the kind of person who would normally live there.
A reasonably substantial area was required for Kinfauans and Boquhan for the enjoyment of the house itself, and not just the enjoyment of the grounds.
In addition the Sheriff indicated that privacy should extend to the adjacent tennis court and changing area. This was not a situation like Kinfauns where the Sheriff decided on an area which was already clearly defined so this may be a pointer for the future.
Decision in Ross
Much of the decision in Snowie was repeated verbatim, but obviously there were different features.
In 26 years the Rosses had experienced one break-in, the theft of a car, and some minor thefts from the garden area. The Rosses house could be reached from the field to the west of West Lodge, and then through a gate in their fence and hedge, so locking the pedestrian gates did not give them security.
The Rosses valued their privacy. Their garden ground, which was on either side of the driveway, was well defined and there was a distance between their front door and the driveway. The Sheriff found as a fact that West Lodge has sufficient land in the defined garden areas at both sides of the driveway to enable the Rosses to have reasonable measures of privacy or to ensure their enjoyment is not unreasonably disturbed. There is accordingly no requirement for other ground at the gate to be excluded.
West Lodge is in a scenic location, but the purpose of giving sufficient land is to allow enjoyment of the house and not the garden. “The Rosses are entitled to have an area of ground around the house, which is for their use “. The Sheriff then decided that the Rosses’ application merited no exclusion of any ground.
To exclude the strip of the West driveway would have the additional effect of excluding access over the Snowies’ ground.
Any apparent contradiction between various pronouncements can be explained by the fact that under section 28 the sheriff may declare land specified in the application to be subject, or not subject, to access rights. The only land specified in the application was the solum of the gate.
The Sheriff said that the Rosses’ garden and ground were well defined and distinct, and reasonable access takers would have no difficulty in recognising them. The inference to be drawn is that going into the garden and other ground would be irresponsible because it interfered unreasonably with the privacy and enjoyment rights of the Rosses, and so, under section 2 (2) there would be no access rights exercisable there. Thus in practical terms the Sheriff effectively excluded the West Lodge land from access rights without making a formal determination under section 28. The Summary of the case suggests as much.
But in Snowie was there anything to stop the Sheriff declaring that the gardens of Mr Wheeler, and some other tenants, were excluded, given that they were within the area specified in the Snowies’ application? Instead he said that each tenant “has a well defined garden area. No reasonable access taker could misunderstand the ground attaching to each of the tenant properties. Similar Section 2(2) considerations apply.
What kind of access is now available? The sheriff said that unless otherwise specified a reference in his judgment to access is to pedestrian access. Can cyclists and horse riders exercise access rights? It would appear that when the Sheriff refers to rights of access he means the full statutory rights, and not just of pedestrians. Logically the type of access permitted is such as can be exercised responsibly.
West Lodge was a gate house. The case shows that the question of privacy and enjoyment is the main consideration with location and other characteristics in mind. West Lodge is a reasonably substantial gate house, with garden on both sides of the driveway. Although enjoyment of some of the garden might be affected by passage along the drive, the enjoyment of the house was not sufficiently disturbed to justify preventing that passage.
George Menzies, ScotWays, 02 June 2008