The decision in the Snowie case is published today (23rd April 2008).
The Court’s own summary is set out below. The full decision is on the Scottish Courts Service web site on the following link: http://www.scotcourts.gov.uk/opinions/snowie.html You will see that the Sheriff upheld the Council’s claim that the locked gate was an obstruction to access, and restricted the amount of land excluded from access to the land adjacent to the Snowies’ house.
A further hearing on 13th May will consider the question of expenses and any orders necessary to give effect to the decision.
We’ll be preparing a ScotWays commentary in due course.
COURT SUMMARY FOLLOWS:
Following an application by Mr and Mrs Snowie to exclude a substantial part of their estate from public access, Sheriff Andrew Cubie has decided that only certain land adjacent to Boquhan House, Kippen, Stirlingshire is land on which access under the Land Reform (Scotland) Act 2003 may not be granted. This area is deemed sufficient to enable persons living in the house to have reasonable measures of privacy and to ensure that their enjoyment of the house is not unreasonably disturbed.
In September 2001 Mr and Mrs Snowie became the proprietors of Boquhan House and the grounds which extend to 70 acres. The estate is bounded to the south by the public footpath between Kippen and Gargunnock, to the north by the A811 Drymen to Stirling road, to the west by the B822 Kippen Station to Kippen road and to the east by farmland. The property has at the north, west and east sides, fields belonging to Boquhan Home Farm in respect of which access is required over parts of both driveways which run through the estate. There is also traffic on the estate arising from the seven dwelling houses, the stables, and from the rights of way enjoyed by Boquhan Home Farm.
Access to the estate is provided by gates at the East lodge, reached from the A811 and at the West lodge, off the B822. These gates were initially manually operated but during the course of 2003 were mechanised by the Snowies so that the main vehicular gates are operated electronically and remotely. At or about that time the pedestrian gates at the West lodge were locked, thus preventing public access from that point.
The Snowies were the key holders. In or around August 2006 the Snowies and the Rosses, who own the West Lodge, entered into a lease whereby responsibility for the gates at the west lodge was vested in the Rosses. There was no apparent reason, either in relation to security or insurance, that explained the lease arrangement.
Both before and after the Snowies purchased the estate people enjoyed regular access, whether using the grounds as a shortcut to the right of way from Kippen to Gargunnock, for walking dogs, walking for pleasure or cycling. The locking of the pedestrian west gate prevented such access, including legitimate pedestrian access. Access could be taken through the hedge on the fields to the west of the west gate and entering through the Ross’ back garden or at any break in the fence. The estate can also be accessed through Boquhan Home Farm or through the east gate.
Stirling Council received complaints from prospective access takers about the locking of the west gate and the consequent prevention of access. There was then correspondence and meetings involving the Council, the Snowies and the Rosses. Attempts to resolve matters by agreement were fruitless. The Council insisted that the west gate pedestrian access was re-instated. The Snowies and the Rosses declined to open the gate so Stirling Council issued the Snowies with a written notice alleging a contravention of Section 23 of the Act [should read section 14 – SROWAS] on 8 March 2006. The Rosses were served with a separate but related notice in relation to the locked gate after the existence of the lease was disclosed.
The Act provides that access rights are not exercisable over land which “comprises in relation to a house…sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house…and to ensure that their enjoyment of the house …is not unreasonably disturbed”
In their submission the Snowies claimed that they had concerns about their security but no satisfactory independent evidence in relation to this matter was presented to the court.
Sheriff Cubie decided that it is not necessary that the west gates be locked to enable the Snowies to have reasonable measures of privacy or to ensure that their enjoyment is not unreasonably disturbed. It is also not necessary that the gate be locked for insurance purposes or for security purposes. Thus the application by Mr and Mrs Snowie to absolve them from any requirement to unlock the pedestrian gates at the west lodge or to ensure that the gate remained open was dismissed.
In relation to the balance of their application to exclude a substantial part of their estate from public access, only certain land adjacent to the house was held to be land over which access rights are not exercisable. This area of land is identified on the attached map (marked by the shaded grid).
The Rosses’ application was dismissed in its entirety on the basis that the west gate should remain open and that there was no land adjacent to the west lodge, other than the defined garden, over which access rights should not be exercisable.
A hearing has been fixed to take place on the 13th May 2008 to determine what if any order requires to be made to give effect to the court’s decision and to deal with all questions of expenses.
NOTE
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.
The full Judgment is now available at this location: http://www.scotcourts.gov.uk/opinions/snowie.html