Gloag v. Perth And Kinross Council & Anor [2007] ScotSC 24 (12 June 2007)

Sheriffdom of Tayside Central and Fife at Perth

Judgement

Michael John Fletcher, Sheriff of Tayside Centre and Fife at Perth

in the cause

Mrs Ann Gloag, residing at Kinfauns Castle, Perth Pursuer

against

Perth & Kinross Council, a local authority having an office at Pullar House, 35 Kinnoull Street Perth First Defender

and

The Ramblers' Association, a charity (Reg No 1093577) and a company limited by guarantee (Co No : 4458492) having its registered office at Camelford house, 87/89 Albert Embankment, London. Second Defender

Perth, 12th June 2007.

The sheriff, having resumed consideration of the cause finds in fact:

(1) The pursuer is the heritable proprietor of the property known as Kinfauns Castle, Perth. The pursuer is the owner of other heritable property including Beaufort Castle, not far from Inverness.

(2) The pursuer is married to Mr David McCleary and she and her husband reside at Kinfauns Castle. The pursuer's father, who is elderly, also resides at the Castle in a flat created for him by the pursuer.

(3) Both the pursuer and Mr McCleary have children who are grown up and have children of their own. In all the pursuer and Mr McCleary have 12 grandchildren between them and all of the children and grandchildren live in the Perth area and regularly visit the pursuer and Mr McCleary at Kinfauns. Members of a large extended family also regularly visit and spend time with the pursuer and Mr McCleary at Kinfauns.

(4) The pursuer is a well-known businesswoman in whom there is public interest because of her successful business interests. The press takes an interest in her activities and features and articles relating to these activities appear regularly in the press. On occasions articles speculating as to who is the wealthiest businesswoman in the country feature the pursuer and interest in her business activities is more pronounced than generally.

(5) The pursuer involves herself in charitable work as does her husband. Her charitable work includes (a) a charity known as Mercy Ships which runs hospital ships in the Third World; (b) charities known as Balcraig Foundation and the Gloag Foundation which are involved with two schools and an orphanage in Nairobi. Mr McCleary works in the fund-raising office for Mercy Ships in Perth. Both are involved in their local church..

(6) The pursuer's business activities and in particular her charitable works involve her in high-profile activities entertaining celebrities and high-profile business persons at the house.

(7) In furtherance of these activities there are occasions when the pursuer encourages press interest in her activities. On other occasions the pursuer is subjected to press activity which is unwelcome and intrusive but which results from her successful business career.

(8) The pursuer purchased Kinfauns Castle in about September 2004. At that time the building was not in good repair and the pursuer carried out substantial improvements before moving in in September 2005. The work involved altering and improving the house to suit the pursuer and her family and included the fitting of new locking and unlocking arrangements, internal alarm systems, panic alarms, and closed-circuit television.

(9) It is the intention of the pursuer to build a swimming pool and leisure area to the west of the main building consisting of a swimming pool and leisure area, a deck space, a steam room, a sauna and a Jacuzzi. Planning permission has been granted for a building with windows looking south. At the time of the proof work had commenced but was suspended awaiting the result of the pursuer's application.

(10) The area of ground where the swimming pool complex is to be erected can be seen directly from the boundary of the property on the South East.

(11) Kinfauns Castle is a substantial mansion house containing 52,000 square feet of accommodation and sits in about 11 acres of ground.. The main family accommodation is on the south side of the house and the ground floor contains a library, drying room, morning room and a flat occupied by the pursuer's father. The windows of the public rooms open on to a substantial stone terrace overlooking the garden to the south of the house. The terrace contains built-in stone tables and several garden seats are installed at intervals along the terrace. The terrace is used by family members and guests. On the west side of the house is a room known as the gallery with French windows opening onto a lawn upon which children's play equipment has been placed.

(12) On the first floor are the bedrooms of the house again mainly looking south. The north side of the house contains offices on the ground floor and six flats for staff.

(13) The house contains objects of value collected by the pursuer who has an interest in Scottish art. Some of the furniture paintings and jewellery are of high value.

(14) Kinfauns Castle itself is surrounded by cultivated garden ground. There are large areas of closely mown grass, cultivated flower borders and specimen trees and bushes. These areas of lawns and flower beds are in the nature of a domestic garden. They extend to several acres and are tended by two gardeners and are subjected to cultivation appropriate to the maintenance of a garden.

(15) On the south and west of the property there is a substantial area of mature woodland, some of which is growing on steeply sloping ground so that there is no line of sight of any part of Kinfauns Castle itself for persons in most parts of the wood because of the configuration of the ground. In places as one moves towards the house through the woods sight of the house can be obtained and sight of the garden ground can be seen.

(16) When the pursuer purchased the Castle much of the woodland area was overgrown with weeds and bushes in such a way as to demonstrate that it had not been intensively cultivated. It would have been difficult to walk through the woods because of the undergrowth. Prior to the woodland being allowed to go wild there had been paths which led through woods which had become overgrown. On the instructions of the pursuer gardeners employed by her had commenced the task of removing the undergrowth and weeds and restoring the paths created through the woods. A number of such paths have already been restored including some areas of steps upon which hand rails have been fixed.

(17) The result is that some areas of the woodland are now capable of being easily walked following the path and steps. Members of the family use the paths regularly for walking and visitors including grandchildren use the paths for the riding of quad bikes and bicycles. Further work requires to be done to complete the restoration of the paths and woodland.

(18) In a corner of one of the woods, completely out of sight from the house and garden, children's garden toys including swings have been erected by the pursuer. These were put up by the pursuer a short time prior to the commencement of the proof. Any children playing on these swings would be out of sight of adults at the house and on the lawns and would be close to the boundary fence.

(19) Also in the same area of woodland is an area designated by the pursuer as an area suitable for the erection of a building suitable for a barbecue area. The site had been previously used for a building of some sort and sits near the edge of a steep slope leading ultimately down to the A90 dual carriageway. The site potentially would have a panoramic view of the River Tay and the Carse of Gowrie. Much of the view was obscured by vegetation growing on the slope or at the site itself and considerable traffic noise was apparent at the site. It is possible that pruning or trimming of the vegetation would restore the view.

(20) On the South Western boundary described in the evidence as the "horseshoe area" because of its shape, there are large bushes and mature trees. Whereas the grass on the lawn area had been cut short, the grass surrounding the large bushes and mature trees was slightly longer as if it had not been kept so short.

(21) The approach to the Castle involves passing through substantial wrought iron gates appropriate to the entrance of such an imposing building, then travelling over a substantial tarmacadam road for a distance until the front entrance of the Castle is reached. The building was at one time an hotel and there is a substantial parking area at the front entrance. On either side of the gate is a substantial stone wall for some distance, some of which was in poor condition when the pursuer bought the house but which has now been restored.

(22) The road leading from the public road to the entrance continues past the entrance outside the substantial stone wall and travels right past the Castle itself. Although on the other side of the substantial wall which can be about 21/2 metres high, the road is extremely close to the north side of the Castle. Access is available to members of the public by means of that road to the area known as Kinnoull Hill.

(23) It is probable that the north side of the Castle and parts of the garden area can be seen easily by a person standing on land above the Castle accessed by that road.

(24) It would be possible to plant bushes and trees to screen the house and garden from view from outside the ground belonging to the pursuer once they had grown to maturity, especially from the south west boundary but not from persons on the higher ground to the north.

(25) When the pursuer purchased Kinfauns Castle there was in existence for some way round the boundary of the property and for some of the way through the property itself a stob and wire fence or a drystane wall all in a poor state of repair. The pursuer decided to install a more substantial wire fence, six-foot tall and topped with barbed wire, following the line of the existing fence. She did so without applying for planning permission although planning permission was required for a fence of that type. Retrospective planning permission was subsequently granted. Taken along with existing walls at the gates the new fence entirely surrounds the property. It prevents entry to the property other than by climbing the fence or entering the property through the main gates at the front and back drives or one or two gates created in the fence. Photographs 6/3/4 and 6/3/16 are photographs of a vehicle gate and a pedestrian gate respectively. These two gates are usually locked but not always.

(26) The green line in the pursuer's plan which forms the basis of the area of ground sought to be declared exempt follows the line of the fence and encloses the whole garden ground but in addition encloses several acres of woodland ground round the southern and part of the south eastern boundaries. The line proposed by the respondents encloses garden ground but excludes all woodland ground other than specimen trees included in the garden.

(27) Nos 5/1/11.1 - 21 and 29 - 31 are photographs taken by M G Anderson, a professional Press photographer from positions approximately on the imaginary line proposed by the first defenders as the boundary of any area which might be excluded from the access provisions of the act on the basis that the area within the line might be necessary for the enjoyment of the building. The photographs were taken for the purpose of demonstrating what can be seen at least through the lens of a professional photographers camera from that line.

(28) It is likely that when the garden of the house was originally designed woodland areas were included in the design in such a way as to provide privacy to the house and garden for the enjoyment of the occupants. The house and garden was not however completely surrounded by such trees and in the "horseshoe" area where were insufficient trees to provide a privacy screen. The area where trees are more intensive is on the side of the boundary where more members of the public could be expected and the horseshoe area bounds with another private estate.

(29) The pursuer has concerns about her own safety and the safety of her family, fearing that her high profile as a prosperous businesswoman might encourage attempts at kidnap and ransom. Further the house contains valuable furniture and paintings which might be a target for professional thieves and the profile of her as a successful businesswoman causes a degree of publicity and speculation about the size of her fortune, allowing members of the public to be aware of the existence of the valuable items. For these reasons the pursuer considered it appropriate to erect the fence round the property and to protect the property using CCTV and other security devices for that purpose.

(30) The pursuer also has concerns about the safety and privacy of guests invited by her to the property and entertained there. A number of them provoke interest from the press and from members of the public. On occasions the pursuer provides entertainment for all members in the same school class as each of her grandchildren at the house and concerns have been expressed to her by parents of other children as to their safety when at the house. On such occasions the pursuer provides extra security.

(31) The fence erected by the pursuer is next to useless to prevent determined or "professional" attempts at theft or kidnap but might be useful to prevent casual intrusion into the property. Any serious attempt at preventing determined attempts at theft or kidnap would require much more sophisticated security systems including intruder detection systems and surveillance system in addition to a robust fence.

(32) The house, because of the likelihood that any occupier would be a person of substantial means, would always be likely to attract interest from the general public and also from persons with criminal intentions and would always be likely to require some security measures additional to those required by the average house.

(33) The pursuer has put in place other security measures in addition to the fence, details of which were not individually given in evidence.

Therefore finds in fact and in law:-

(1) that the land within the line marked green on the plan annexed to the application is 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 reasonably disturbed.

Therefore sustains the pursuer's second plea in law; Repels the first, second and third pleas in law for the first defenders; repels the first to eighth pleas in law for the second defenders; Finds and declares that the land at Kinfauns Castle enclosed within the line marked green on the plan annexed to this interlocutor is not land in respect of which access rights are exerciseable in terms of The Land Reform (Scotland) Act 2003; And decerns; Meantime reserves all questions of expenses: Appoints the cause to the Miscellaneous Roll of to allow the parties an opportunity to be heard on the question of expenses.

NOTE

The Evidence.

[1] The evidence came in various chapters in this case. Not much of it was seriously disputed but the inferences which were sought to be drawn from the facts were the subject of much debate. The first chapter I think covers the description of the property itself as a substantial country house surrounded by substantial grounds including lawns, flower beds landscape features such as a water feature and woodlands. I was able to form an impression about they nature of the grounds by means of an agreed pre-proof site visit and there was no dispute about the description of the property given by the witnesses. In these circumstances I do not think it can be said that there was any dispute about the findings in fact relating to the building. The pursuer had erected a fence partly round the outside of the property and partly through the property and again there was no dispute about the existence or whereabouts of that fence. There was some evidence that it followed the line of a previous fence which had fallen into disrepair. That evidence came from Mr McCleary husband of the pursuer, and was not the subject of cross-examination or comment and so I have held that the new fence followed the line of the old one.

[3 ] It is necessary to comment further about some of that evidence. First of all there was evidence relating to the use being made of what was described as the woodland area to the south of the lawns belonging to the Castle. I have described the ground in the findings in fact but it was clear that at the time of the proof work had been carried out on this woodland and at the time of my visit to the property there had been erected near the fence, in a relatively remote part of the grounds some children's play equipment including swings. Pathways had been cleared and restored to an extent, and a great deal of work had been carried out clearing undergrowth so that these woodlands gave an impression of being more intensively managed than previously they had been judging from photographs taken in the woodland at an earlier stage. In the general area there were the foundations of what was to become a wooden building used for the purpose of a barbecue area standing at the edge of a steep hill with a south easterly aspect looking over the River Tay and the Carse of Gowrie. In the evidence some criticism was made of the choice of site for that barbecue area because trees and vegetation blocked any meaningful view as things stood and there was considerable noise disturbance from the A90 dual carriageway some distance below. The suggestion was that the site was chosen in order to give the appearance of more private use of the woodland area than would actually take place because it would be unlikely that the owners of such a property would choose to hold barbecues there given the disturbance from the road. Similarly a person who claimed to be concerned about security matters including her own safety and the safety of her family particularly grandchildren would be most unlikely to choose to set up children's play equipment so near the boundary fence and in such an inaccessible part of the property and so remote from the house. Once again it was suggested that the siting of play equipment in that area was nothing more than a device to facilitate the argument that the woodland area was intensively used by the household.

[4 ] My own impression was that it was highly unlikely that a person with the concerns expressed on her behalf by the witnesses in the case in relation to security and who went to the trouble of engaging security experts to advise her on her own protection and the protection of her grandchildren would choose to erect children's play equipment in the wood and thus attract young children away from the house to that area. Similarly the choice of the elevated site in the woodland area as a barbecue site would not have recommended itself to me, affected as it was by constant noise from the dual carriageway, and shaded as it was by so many trees from the warmth of the sun. Given that the beautiful grounds of the Castle would have afforded any number of attractive sites for a barbecue it is difficult not to harbour suspicions that that site too may have been chosen simply to give the impression that the woodlands were more extensively managed than they actually were.

[5 ] Against that it is necessary to take into account the fact that the present owner of the Castle had been the owner for only a relatively short period and, the evidence demonstrated, a great deal of other work which may have been accorded a greater priority had been already carried out. Most owners, including no doubt owners of large property such as this require to prioritise major improvement works. The carrying out of clearing up work in the woodland area and the choice of site for children's play equipment and a barbecue could reasonably be said to have a lower priority than such matters as alterations within the house and the erection of a swimming pool, so that it may be illegitimate to draw a conclusion that the operations were carried out purely with the intention of influencing the court to hold that the woodland was more intensively managed than either previously it had been or it was intended in the future to be simkply based on the premise that these tasks had been carried out shortly before the proof. In the same way my own choice of barbecue site may not accord with that of the owner of the Castle.

[6 ] In all these circumstances I came to the conclusion that it was more likely than not that the children's play equipment had been sited where it was purely for the purposes of this action, to make it appear that more privacy was required in the woodland area than might otherwise have been expected. With regard to the barbecue area I regarded the choice of site as neutral, being unable to hold that it was more likely than not that it was chosen purely with a view to influencing the decision in this case. Its significance therefore arises from its existence as a building with a small curtilege area from which access would be excluded. As far as the gardening work is concerned, consisting as it does, of tidying the woodland and removing undergrowth and restoring paths, I consider it more likely than not that such work illustrated a desire to manage and "cultivate" the area of woodland rather than a cynical attempt to change the nature of the area for the purposes of this court action. The evidence of the pursuer's gardener and my observation of the work being carried out leads me to believe it is more than possible that a new owner of such a building might desire to make a tidier feature of the woodland than perhaps previous owners had thought appropriate. In these circumstances, I viewed it as a fact that the pursuer intended the woods to be used by herself and her family as suitable places for recreation and play rather than that she had "manufactured" the impression that the woods were to be used in that way for the purposes of the action.

[7 ] The second chapter of evidence related to the concerns of the pursuer relating to security. The pursuer led evidence from various experts in security including a crime prevention officer from Tayside police, two experts from security companies and also, in relation to the interest that might be shown in the pursuer by newspapers, an eminent journalist. Reference was also made to an extensive list of newspaper cuttings showing the type of article that might be written in relation to the pursuer. That evidence was designed to show that there was much interest in the activities of the pursuer in the popular press. The security experts were unanimous that the fence erected by the pursuer would not in itself succeed in preventing determined criminals bent on kidnap or theft from the property. On the other hand it was felt that some sort of boundary was required as the first line of security. Other more sophisticated measures would be required in addition. There was some discussion about whether a fence on the line proposed by the local authority would be any more or less effective than a fence on the line already erected. I accepted the evidence of Mr Fleming, Mr Ashwood and Mr Campbell that from a security point of view the fence would be more effective if erected where it was erected rather than on the line proposed by the local authority, partly because bringing the fence near house would reduce the reaction time of those at the house if there was a breach of security and partly because persons outside the fence would more readily be able to keep watch on the activities taking place in the house.

[8 ] I was satisfied from the evidence given by the experts, which I accepted, that a person having the profile that Mrs Gloag has would require higher than usual security, partly because of heightened press interest in her activities and partly because of possible heightened criminal interest her family and possessions. The evidence did not show on a balance of probabilities that such an immediate risk to her personal security did in fact exist but it did demonstrate in my opinion that it was not unreasonable for the pursuer in this case to take precautions against the possibility of such risks and to be mindful of the possibility of criminal activities against her or her property.

[9 ] The third chapter of the evidence related to the use to which the property was to be put. That is to say the alteration of the use to which the wood was to be put by the work restoring paths and tidying the woods and the installation of a completely new swimming pool area and barbecue area. I have already dealt with the significance of the evidence relating to that earlier in the note. I accepted that the work was being done with the intention of using the grounds of the Castle in the way suggested by the work which had recently been done or which was in progress. The pursuer herself did not give evidence as to her plans in relation to the property and her case was criticised on the basis that it was impossible to expect the court to find in favour of the pursuer whose case focuses amongst other things on the notoriety, fear of kidnap or loss of property of the pursuer herself when the subject of these fears does not attend and give evidence herself. This is especially so when the pursuer was seeking an exceptional remedy excluding her property from the general right contained in the Land Reform (Scotland) Act 2003. I agree that it is unusual for a pursuer seeking the type of remedy sought in this case not herself to speak to her reasons for requesting it but the application has to be decided on the evidence presented from whatever source and as I shall explain later I do not think that the case turns on the individual concerns or desires of the particular occupier of the property. The failure of the pursuer to give evidence herself, while unusual, in my opinion does not make it impossible to find in favour of the pursuer if that is appropriate.

[10 ] The fourth chapter of the evidence in this case relates to the evidence given on behalf of the respondents and the Ramblers Association in relation to the operation of the Act. In some ways this was unusual evidence relating in part to the background to the passing of the Act and relating to the way it was to be operated. Although it might be said that a great deal of that evidence would normally be excluded in that it attempted to lead evidence relating to the way that the Act should be interpreted no objection was taken to that evidence and it was in fact very helpful in describing the way the Act was being operated particularly by local authorities and by interested parties such as the Ramblers Association. No objection was taken in relation to the leading of that evidence which came from Mr Edmund Stubbs, and Mrs Brenda Clough for the local authority and David Black, David Morris, Alan Blackshaw and Alex Sutherland for the Ramblers Association. There was a recognition that the Act contained some very considerable changes in statute law relating to access to land but the evidence emphasised that the changes very much followed what was seen as the common law of Scotland relating to access to land. The witnesses emphasised the reciprocal nature of the new law relating to access to land, allowing access only where it was able to be carried out responsibly and without undue damage to the land or to other persons occupying it.

[11 ] This application is based on the application of The Land Reform (Scotland) Act 2003 and it is convenient to set out shortly a summary of the background to the passing of the Act. Some time was devoted to this in the evidence. In particular evidence was given by Mr David Morris who was a director of the Ramblers Association Scotland based in Milnathort. He had begun working with the Ramblers Association in 1989 and although the title of his position had changed he had worked in the equivalent position as director ever since. Previous experience included working with the nature Conservancy Council from 1973 until 1989 when he lived in Wolverhampton. The Association had a total of 137,000 members in England and Wales and about 7600 members in Scotland.

[12 ] His interest in access issues had begun in 1989 when there were a number of high-profile cases publicised by television programmes where important access ways were being thought to be eroded particularly by foreign property owners who either did not understand the Scottish common law system which allowed responsible access to most if not all of the wild land of Scotland, or who were unwilling to allow access which had previously been tolerated without difficulty. At that time the problem had been resolved by a signed agreement setting out where access could be taken in the disputed areas and eventually in about 1994 Scottish National Heritage decided to set up an access forum which in due course led to proposals for legislation to clarify the law generally for the benefit of access takers and landowners as well as local authorities. These proposals were taken up by the Labour government and included as a manifesto commitment. For political reasons and also good legal reasons a separate Act was promulgated in the Scottish parliament for Scotland and it became the Land Reform (Scotland) Act 2003.

[13 ] The same theme was developed by Mr Alan Blackshaw whose background was in the civil service but who had a great interest in and considerable experience and skill in mountaineering both in this country and abroad and had written the standard book on the subject. His experience included chairing the Mountaineering Council, Membership of the Scottish Sports Council, membership of the Access Task Force of Scottish National Heritage and direct experience in the Alps and in the Himalayas. His general approach was that Scots law had developed over the years in a sensible way allowing access to the wild areas of Scotland provided it was exercised in the responsible in sensible way and that most landowners and access takers were able to understand and follow a practice which allowed most access to take place successfully and without serious damage. He regarded it as important that the same flexible approach should continue after legislation was passed and considered it important that the history of the development of the access laws in Scotland should be readily understood by those legislating. He was of the view that the new legislation did so successfully and did manage to regulate access to allow responsible access to everyone in a flexible way.

[14 ] This theme was continued by Mr Alex Sutherland on who was an access officer employed by Highland Council. His background was as a surveyor employed at one time as a district valuer and then as a land agent involved for instance with the creation of part of the West Highland Way. Nowadays he interested himself in such things as the Scottish rights of Way Society and a partnership organisation called Paths for All.

[15 ] Mr Sutherland also considered that the legislation was a great success. He had considered at the outset that there might be serious conflict between landowners and access takers but this had not developed nor had there been an unseemly rush of persons flooding the hills. In his view most access takers were acting responsibly and had given little cause for concern to owners of land. He gave as an example Skibo Castle which was a large house within his area which operated a business as a hotel offering luxurious and exclusive accommodation for guests from all over the world and its management had expressed some concern as to how the legislation would affect the exclusive nature of its product but discussions had been able to take place to remove these concerns and still to allow appropriate access in terms of the legislation.

[16 ] All these witnesses were at pains to explain that the basis of the legislation was to allow a completely flexible approach to access on the basis that subject to a number of specific exclusions access to land in Scotland would be allowed to everyone but provided it was taken in a responsible manner as defined in the Code prepared under the auspices of the Act. A great deal was left deliberately to the discretion of the access taker who might have a basic right of access to land but who would be left with an individual decision not to exercise that right on occasions when the circumstances of the use of the land by the land manager made it inappropriate to do so, -- for instance where growing crops were at a critical stage, where an agricultural operation was being carried out or where private activities on certain land were taking place. Provided access takers followed the Code there would never be difficulty caused by the legislation.

[17 ] I now turn to some aspects of the evidence of Mr Morris and Mr Sutherland who both gave evidence for the second defender. The tenor of their evidence was that it was a cornerstone of the legislation that anyone exercising access to land could do so only if they did so responsibly and although it may not be very important to the decision in this case they gave effusive evidence of how successful the legislation had been in avoiding conflict and obtaining appropriate access for those who wished to take it. Mr Morris explained that 95 percent of those taking access did so in a responsible way and partly because of that the difficulties anticipated by some had not materialised. He pointed out that the right to exercise access over land applied only to those who were prepared to do so responsibly and who followed the advice given in the Code. His opinion was that most genuine access takers invariably did so.

[18 ] In some ways that evidence has to be received with caution. It may well be that those access takers who are members of the Ramblers Association will for the most part be able to be relied on to take access in the way envisaged by the legislation but what of non-members of that organisation, or members of the criminal fraternity? Access to land is available to all not just "genuine access takers". Some of those people who do so may not be intent on enjoying the countryside or its wildlife but may have ulterior criminal or voyeuristic motives or perhaps simply an unhealthy curiosity about the occupants. No doubt the risk of such a possibility may be insignificant in relation to access to remote areas like the Cairngorms but where access takes place close to buildings such as dwelling houses the risk of such abuse markedly increases. When asked what a responsible land manager was to do when faced with the situation where a person taking access appeared to be doing so irresponsibly, Mr Sutherland accepted the proposition that the legislation with which this case is concerned did not concern itself with criminal activities and the ordinary criminal law of Scotland could be relied on to resolve any such difficulties should they arise.

[19 ] Based on the evidence given in this case I wonder how reliable that proposition is? To consider that I return to the evidence of Mr Morris. He described an episode in which he attended at Kinfauns Castle to investigate the suggestion that rights of access were being obstructed by the erection of a fence put up by the pursuer. He explained that he attended at that Castle and made his way round the fence for some distance until he arrived at the main gate. As he did so the gate opened probably not to facilitate his entry but he took the opportunity to go in. At that point the ground consists of a tarmac driveway bounded on both sides by short cultivated grassland which could, I think, reasonably be described as a lawn. As he made his way into the gate a landrover could be seen coming from the direction of the Castle and the driver of that vehicle stopped and spoke to him. He explained his purpose in being there and indicated that he was intending to walk through the grounds for the purpose of trying to come to a conclusion as to whether rights of access were being impeded. The driver of the Land Rover asked him to leave the premises probably more than once but the conversation between them was entirely civilised with no raised voices and was conducted in a polite manner. Mr Morris indicated that he firmly but politely indicated that despite being asked to leave the premises he was going to continue with his walk through the grounds and the driver of the Land Rover indicated something along the lines he would have to do something about that and drove off back to the Castle.

[20 ] Mr Morris then set off on his expedition walking round the edge of the lawn as demonstrated on the plan by him and round what has been described in the evidence as the horseshoe area to the South West and then at some stage noticed a police car arriving in the back gate of the Castle so he immediately began to traverse the garden area near where there is an ornamental stream, a small bridge and some cultivated flowerbeds towards the police officers. The car contained two police officers who spoke to Mr Morris. He explained his purpose in being in the premises. He claimed to be operating in terms of the new legislation. The police officers indicated they were aware of the existence of the legislation but did not claim to have a detailed knowledge of its terms. At some stage Mr Morris asked if they had a copy of the Code and when they explained that they did not he proffered one for their future used explaining he had plenty of them. He informed the police officers that he was of the view that any dispute between him and the land manager was a civil dispute implying if not specifically saying that it had nothing to do with them, which dispute arose in terms of the new legislation. In the meantime another police car arrived at the scene with two further police officers who joined in the discussion. It was agreed by the police officers that the matter was a civil dispute and they intended to take no action in relation to Mr Morris other than to request him to give them his full name and address and other details and then they made their way to the Castle itself. Mr Morris of course was not aware of what the police officers told those in the Castle but he assumed that they told them that the matter was a civil dispute which did not concern them (the police officers). He then finished his business at the Castle and made his way back across the edge of the lawn and when he arrived back at the main gate, coincidentally, the gate opened to allow others to pass through and he made his exit.

[21 ] In some ways that evidence was rather surprising considering what Mr Morris had said about the majority of access takers. He had indicated that 95 percent of such people follow the Code. Yet he himself had taken access across land in the teeth of opposition by the land manager which he was acutely aware was land excluded from the right of access by the legislation and very certainly by the very document which he had handed over to police officers. Not only was he not exercising access responsibly in terms of the Code he was exercising access over land which he knew was excluded from the right of access contained in the legislation in circumstances when he had specifically been requested to leave. Matters become worse however because when the police officers arrived, in circumstances where prior to the legislation no doubt they would have simply asked him to leave, they were informed by him that it was not a criminal matter for them but a civil matter and they fell for it, when in truth he was probably creating a breach of the peace by refusing to leave when requested to do so in circumstances where he was exercising a right of access which he knew did not exist. In short he had chosen to ignore the very legislation that he was complimenting because it suited his purpose.

[22 ] How, then, does that affect the evidence given by both Mr Morris and Mr Sutherland about the effectiveness of the law in protecting the rights of land managers? Here there was clear evidence given by the perpetrator himself of not just the irresponsible exercise of access but the exercise of access knowing that access was being taken over land excluded from the right afforded by the Act. Furthermore when law officers arrived at the request of the land manager they found themselves rightly or wrongly unable to take measures to protect the rights of the land manager because of the claim by the access taker that any dispute was a civil one and not a criminal matter. If there were to be any doubt about the veracity and reliability of the evidence given on behalf of the pursuer that she had concerns for the security of her possessions, her family and herself if access were permitted over the land in question, it was likely to be dispelled by that set of circumstances. It may be that if the person taking access across the lawn had been someone other than Mr Morris, perhaps wearing a striped jersey and carrying a bag marked "swag", different action would have been taken by police officers but the land manager cannot be sure. Any one aware of these circumstances could hardly find themselves in agreement with the evidence of Mr Sutherland that the ordinary criminal law could be relied upon to give protection to land managers against persons not exercising access responsibly. If that were the way the Act is put into effect by a person such as the Director of the Rambler's Association what can one expect of others whose experience of the Code and workings of the Act is much less developed?

The Legislation.

[24 ] Section 1 of the Land Reform (Scotland) Act 2003 provides:

"1. Access rights

(1) Everyone has the statutory rights established by this Part of this Act.

(2) Those rights (in this Part of this Act called "access rights") are --

(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and

(b) the right to cross land.

(3) The right set out in subsection (2)(a) above may be exercised only --

(a) for recreational purposes;

(b) for the purposes of carrying on a relevant educational activity; or

(c) for the purpose of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.

(4) The reference --

(a) in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to --

(i) going into, passing over and remaining on it for any of those purposes and then leaving it; or

(ii) any combination of those;

...

(7) The land in respect of which access rights are exercisable is all land accept that specified in or under section 6 below."

[25 ] Access rights granted by the Act are available only if they are exercised responsibly in terms of section 2 of the Act. A person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person but the person would not be exercising access rights responsibly if he engaged in conduct excluded by section 9 of the Act including crossing land in breach of interdict, being on land for a criminal purpose or for hunting shooting of fishing. Similarly disregarding the guidance on responsible conduct set out in the Access Code incumbent on persons exercising access rights would not be exercising access rights responsibly.

[26 ] Section 6 of the Act sets out land over which access rights are not exercisable. It provides as follows:

6. Land over which access rights not exercisable

(1) The land in respect of which access rights are not exercisable is land --

(a) to the extent that there is on it --

(i) a building or other structure or works, plant or fixed machinery;

(ii) a caravan, tent or other place affording a person privacy or shelter;

(b) which --

(i) forms the curtilage of a building which is not a house or of a group of buildings none of which is a house;

(ii) forms a compound or other enclosure containing any such structure, works, plant or fixed machinery as is referred to in paragraph (a)(i) above;

(iii) consists of land contiguous to and used for the purposes of a school; or

(iv) comprises, in relation to a house or any of the places mentioned in paragraph (a)(ii) above, sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed;

(c) to which, not being land within paragraph (b)(iv) above, two or more persons have rights in common and which is used by those persons as a private garden;

..."

[27 ] Section 7(5) of the Act provides that

"(5) There are included among the factors which go to determine what extent of land is sufficient for the purposes mentioned in section 6(1)(b)(vi) above, the location and other characteristics of the house or other place.

[28 ] Section 10 of the Act provides for the drawing up of a "Scottish Outdoor Access Code" as follows:

10. The Scottish Outdoor Access Code

(1) It is the duty of Scottish Natural Heritage to draw up and issue a Code, to be known as the Scottish Outdoor Access Code, setting out, in relation to access rights, guidance as to the circumstances in which --

(a) those exercising these rights are to be regarded as doing so in a way which is or is not responsible;

(b) persons are to be regarded as carrying on activities, otherwise than in the course of exercising access rights, in a way which is likely to affect the exercise of these rights by other persons;

(c) owners of land in respect of which these rights are exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is or is not responsible;

(d) owners of land in respect of which these rights are not exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is likely to affect the exercise of these rights on land which is contiguous to that land."

[29 ] In summary the Act allows responsible access to all land other than specified types of land which are excluded in the Act. These types include all buildings and certain land immediately surrounding buildings including the curtilage of a building which is not a house and importantly in this case, 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 that house is not unreasonably disturbed.

[30 ] Section 28 of the Act makes it competent for the sheriff to declare areas of land to be land in respect of which access rights are or are not exercisable. It is in the following terms so far as is relevant to this case:

"28. Judicial determination of existence and extent of access rights and rights of way.

(1) It is competent, on summary application made to the sheriff, for the sheriff --

(a) to declare that the land specified in the application is or, as the case may be, is not land in respect of which access rights are exercisable;

(b) to declare --

(i) whether a person who has exercised or purported to exercise access rights has exercised those rights responsibly for the purposes of section 2 above;

(ii) whether the owner of land in respect of which access rights are exercisable is using, managing or conducting the ownership of the land in a way which is, for the purposes of section 3 above, responsible.

..."

[31 In this case the pursuer applies to the court for a declarator that land specified in the application is not land in respect of which access rights are exercisable. She founds on the exception contained in section 6(1)(b)(iv) and the question in the case becomes how much ground could be said to be sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house and to ensure that their enjoyment of that house is not unreasonably disturbed. The Act itself gives very little assistance to those making a decision as to how much land falls within that definition. The only reference to any factors which should be taken into consideration that I can find is contained in section 7(5) of the Act which enacts that the factors which go to determine what extent of land is sufficient for the purposes mentioned in that subsection include the location and other characteristics of the house or other place. I interpret that as meaning that one should take into account the location and other characteristics of the house when deciding what area of ground is sufficient for the purposes of the subsection.

The Scottish Outdoor Access Code

[32 ] The respondents led evidence from officials whose job it is to advise and counsel on the operation of the respective rights and obligations contained in the Act. For instance Mr Stubbs described what he considered his duties under the Act to be and gave illustrations of how he fulfilled them. Some time was spent on describing the philosophy in the Act and the steps that require to be taken both by access takers and by land managers to make sure that responsible exercise of access to all land covered by access rights was able to be taken. While that evidence was interesting and helpful in understanding the concept of the Act in my opinion it was not directly relevant to the question which I had to decide. Further it had the effect of diverting attention on to the question of whether the decision which requires to be made in this case, namely whether the ground specified in the application is excluded by reason of the fact that it "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 that house is not unreasonably disturbed", should be decided with reference to the advice and guidance set out in the Code or should be decided in some different way.

[33 ] The pursuer argues in closing submissions that the Code is entirely irrelevant to the decision of the question and that the respondents and the Ramblers Association focused too firmly on the factors which might be used to advise access takers as to how to exercise their right responsibly rather than focusing, as they should have, on the question of what area of ground was sufficient for the purposes set out in the section 6(1)(b)(iv) exception. Counsel for the pursuer makes reference to the evidence of the witnesses led by the respondents and criticises it on the basis that the line suggested by the respondents for the boundary of any ground to be excluded in terms of the exception, was fixed by reference to the ground features referred to in the Code such as policy 'woodlands' and the difference between 'rough grass' and 'lawn' and ignored such things as the fact that the fence followed for most of its length an historic boundary. He submits that the respondents exercised no judgement in fixing their demarcation line other than considering how the changing topography could be described by reference to the terminology used in the Access Code and that was not the proper approach to the interpretation of section 6 of the Act.

[34 ] In reply to that Counsel for the respondents submitted that the evidence from Mr Stubbs and Mrs Clough was designed to explain the nature of considerations of relevance to the questions that arise under the terms of section 6(1)(b)(iv) of the Act. They gave careful consideration to the particular circumstances of the case and it was incorrect to suggest that the respondents regarded the Code as being determinative. It was referred to by the officers on a practical level. The topography was referred to for the purpose of acting as indicators of the land which was to be regarded as 'adjacent' to the house. The historic boundary had been fixed upon the basis of ownership prior to the Act coming into force and was not relevant to the question of what land was 'sufficient'. Counsel for the Ramblers Association associated himself with the approach taken by the respondents' officers in their assessment of the factual situation on the basis that the approach was objective, apparently dictated by the Code and appeared to strike a reasonable balance in terms of the acreage acknowledged as necessary for the reasonable enjoyment of the house. In that respect we could take it that it is the position that the Code should be used as an aid to come to a decision as to what land is 'sufficient'.

[35 ] It is important in my view to look at the section setting up the Code. It directs that it is the duty of Scottish Natural Heritage to draw up and issue the Code which is to set out in relation to access rights guidance as to certain matters. First of all it requires guidance to be promulgated as to the circumstances in which those exercising access rights are to be regarded as doing so in a way which is or is not responsible; secondly it requires guidance for persons who are to be regarded as carry on activities, otherwise than in the course of exercising access rights, in a way which is likely to affect the exercise of these rights by other persons; thirdly it requires guidance as to the circumstances in which owners of land in respect of which these rights are exercisable are to be regarded as using and managing, or otherwise conducting the ownership of it, in a way which is or is not responsible; and finally it requires guidance as to the circumstances in which owners of land in respect of which these rights are not exercisable are to be regarded as using and managing or otherwise conducting the ownership of it, in a way which is likely to affect the exercise of these rights on land which is contiguous to that land. On examination it is clear that the Code is to give help and guidance on the one hand to the people taking access and on the other hand to those over whose land access is to be taken as to how to act responsibly in relation to the rights given by the Act. Importantly, in this context, there is no mention of the Code being a tool for the interpretation of any other part of the Act and in particular of section 6. Indeed, looking at the terms of the Code it is clear that it is prepared as a practical guide to the taking or giving of access rather than an aid to interpretation of one of the exceptions to the rights given in the Act. The whole basis of the Code is to assist persons actually taking access or persons over whose land access is taken in terms of the Act to work out how they should behave in relation to the rights set out in the Act. It would also be used in court proceedings in relation to any declaration under section 28(1)(b).

[36 ] In my opinion while it might be going too far to hold that the Code is entirely irrelevant as suggested by Counsel for the pursuer, it cannot be said that the advice and guidance given by the Code is a direct help to the interpretation of section 6. Such things as the advice not to go too close to a building used as a house and to avoid walking on grass which was closely mown and to avoid disturbing persons working or otherwise using the land does not help with the interpretation of what is sufficient for the purposes set out in section 6. Any suggestion that the nature of the ground itself should be decisive as to whether the land should be excluded from the rights of access is in my view misconceived. However it is important to remember that the Act requires the court to take into account the location and other characteristics of the house and in doing so the court is bound to consider the nature of the land surrounding the house and so in that context the topography would be a matter for consideration.

Discussion.

[37 ] Counsel for the first-named respondents argued in response to the suggestion made by Counsel for the pursuer that the witnesses for the Council laid too much emphasis on what was said in the Code, in fact regarding it as determinative, that it was inappropriate to suggest that the Council regarded the Code as determinative but rather they referred to it on a practical level using the physical features referred to in evidence as indicators of the land which was to be regarded as "adjacent" to the house. I must say that my general impression of the evidence of the witnesses for the Council was that they did regard the Code as, if not entirely determinative, at least extremely important in deciding for instance whether the woodland surrounding part of the property should be included or whether the end of the land deemed sufficient should be where the lawn comes to an end. In particular Mr Stubbs made numerous references to the Code in relation to his deliberations as to where the line should be drawn and indeed when asked in evidence in chief to what extent he considered guidance in the Code relating to the issue of sufficient adjacent land to be relevant to these proceedings his answer was that it was "extremely relevant". Later he was referred to paragraph 3.17 where it was said specific guidance was given in relation to the possibility of being too close to a house or garden and again he indicated that the considerations contained in the Code were taken into account by him when carrying out his assessment saying that it would be very useful for him and his colleagues in trying to draw a line as to where they thought the boundary should be. Later there are several passages of evidence when he discusses amongst other things; the difference in the quality of the grass on the lawn as opposed to the longer grass beyond the lawn or to areas where the ground was not so extensively cultivated so as to be able to be described as woodland or policy ground rather than garden. In my opinion it was clear that in a laudable attempt to create some consistency in local authority decisions those charged with responsibility of making the Act work were applying the information given in the Code to enable them to form their view of what was sufficient ground for the purpose of section 6.

[38 ] Despite the argument to the contrary on behalf of the respondents, there was in my view a general theme running through the evidence of the witnesses called by the respondents that the description of the type of land described in the Code, as being woodland or policy land and therefore as being appropriate for the use of responsible access takers, was somehow useful in this case in deciding the extent of land to be regarded as sufficient for the purposes of section 6. It cannot be coincidental that the line produced on the plan as the boundaries of the ground said to be sufficient for the purposes of section 6 round the edge of what could be described as a lawn or the beginning of the woodland and excluded the narrow strip of ground at the horseshoe on the basis that the grass was not so closely mown as the lawn. The general impression from that evidence was that the approach of the respondents when they considered what land should be excluded if any, was that the approach advocated by the Code to the types of land which responsible access takers should avoid should be used at least partly to come to a conclusion as to what land should be excluded from the right of access. Thus all the garden ground, that is ground intensively cultivated and most of the lawn was included, while all the woodland was excluded whether or not it had been cleared and the paths restored. In my view that is not the proper approach to a decision by the court as to what ground should be declared to be excluded from the right of access and it may have led the respondents to come to an inappropriate conclusion as to how much land was sufficient for the purposes of the section.

[39 ] In his closing submissions Counsel for the Ramblers Association suggested that the legislation created a generalised, wide-ranging series of mutual rights and obligations in relation to access to and over land however it was held and used, from which departure should only be sanctioned in compelling and carefully prescribed circumstances and this case did not in his submission demonstrate such circumstances. Later Counsel submitted that the approach of the act is reciprocal, or mutual and any decision as to whether or not land was to be excluded from 'access land' had to take into account the rights of the access taker as well as the rights of the landowner. I do not demur from the need to take into account both sets of rights but think it is important to remember that the decision to exclude land from the rights contained in the Act is not one given to the court but is set out in legislation in section 6. It is not for the court to decide whether land falling under section 6(1)(b)(iv) should be excluded from the rights of access, for Parliament has decided that it should be excluded. All the court is required to do is decide the extent of the land already excluded by Parliament. The declaration by the court is not a declaration that certain ground should be excluded, that was the decision of Parliament, but rather merely what is the extent of the ground excluded. Clearly it would not have been possible for Parliament to have made a decision in relation to each house as to how much ground was sufficient nor was it possible for them to categorise each type of house as requiring a certain amount of ground and so it was left to the courts in the individual circumstances of each case to decide what is sufficient. There is no discretion given to the courts as to whether land is excluded if the circumstances fit the exceptions set out in section 6 but the only discretion given to the courts is to decide subject to section 7(5) what land is sufficient for the purposes contained in the exception.

[40 ] In some ways Counsel for the first respondents falls into the same trap. In her submission she argues that the reliance placed by the pursuer on the previous fence line upon which the new fence had in part been built, as the historic boundary was misplaced because the historic boundary was fixed prior to the 2003 Act coming into force and was based on sole ownership. That argument implies that the court has some discretion in deciding whether there should be a right of access to the ground round the house or not rather than acknowledging that Parliament has prescribed that there should be no such right over "sufficient ground" and the court simply has a duty to declare how much land is sufficient.

[41 ] Thus the argument that departure should be sanctioned only in compelling and carefully prescribed circumstances, and that the reciprocal approach favoured by the Act meant that the rights of the access taker as well as the rights of the landowner must be taken into account is to some extent misconceived because since sufficient adjacent land for the purposes set out in the section is excluded by Parliament from the right of access there can be no access taker, only a potential access taker depending on the extent of the ground deemed to be sufficient, not because of a declarator made by the court but because Parliament says so.

[42 ] It was also argued by Counsel for the Ramblers Association that the owner of a house could not take advantage of the exception unless he could demonstrate that the exception was necessary for the enjoyment of the house and that the question came to be, was the exclusion of any person to the limit of the fence as it now stands necessary for the enjoyment of the house? Again one has to consider the terms of the exception. The first thing one notices is that there is no mention of necessity to show that the exclusion is required. What the second part of the section does say is that ground "which comprises sufficient adjacent land... to ensure that their enjoyment of that house is not unreasonably disturbed" is excluded from the right. It seems to me that the emphasis contained in that part of the section is, so to speak in favour of the landowner rather than the access taker. By that I mean the court is enjoined to allow exemption or perhaps more correctly the landowner is entitled to- sufficient land to be excluded to ensure (my emphasis) that their enjoyment of the house is not unreasonably disturbed. In my view that places a different emphasis on the need for the exclusion of the right of access than is suggested by the argument that one has to look to see how much land is necessary for the enjoyment of the house. The choice of that language suggests a more liberal approach to the amount of land to be excluded than the wording suggested by Counsel for the Ramblers Association.

[43 ] Counsel for both respondents argued that the pursuer's case was periled on her individual self interest in that her evidence centred on characteristics which would apply particularly to her rather than to most other people. Such things as her personal notoriety, her entertainment of VIP guests, her family and her valuable possessions were emphasised as requiring special consideration in relation to privacy and protection. It was said that that emphasis on personal characteristics could not be an appropriate consideration when coming to a decision as to what was sufficient land for the purposes of the exemption. Such personal characteristics were unlikely to be exhibited in any subsequent owner and such emphasis would result in the necessity regularly to change the size of ground excluded to take into account different owners' individual circumstances and Parliament could never have intended that. There was no provision for any subsequent owner to make application to the courts for a variation of the amount of ground based on their individual circumstances which would have been necessary if the courts were supposed to take into account the circumstances of the individual proprietor of the time being. If that were so it was illegitimate to take into account such things as the security implications relating particularly to the pursuer or her desire to entertain persons who attract more than usual press interest. It would not be appropriate to increase the size of the land considered to be sufficient for the purposes mentioned in the exemption because the individual owner for the time being happened to have special requirements. If security and other similar considerations were placed on one side there was no need certainly for any land in excess of the area suggested by the respondents.

[44 ] On the other hand the pursuer argued that it was essential to take into account the individual circumstances of the owner and quite impossible to decide what area of land was sufficient for their enjoyment without taking into account their individual circumstances. It would be necessary to consider the views of the occupants of the house for the time being so as to ascertain what would interfere with their enjoyment of the house. That was so because of the terms of the section referring as it did to "their enjoyment" which clearly meant the enjoyment of the occupants of the house for the time being.. Failure to do so would be a contravention of the pursuer's Convention rights. The Convention recognised individual rights in relation to a person's private and family life and his home and depended entirely on their individual style of living and circumstances. The allowing of access over the land which was the subject of the application would constitute an interference with the right of private and family life and so it was important to take her circumstances into account in deciding how much land was sufficient for the purposes of section 6.

[45 ] Again one has to take notice of the wording of section 6. First of all it makes reference to sufficient adjacent land to enable "persons living there" rather than "the persons living there" which implies to me that the legislature had in mind not that the courts would take into account the individual proprietor for the time being but would have in mind generally the persons living there. Further the subsection allows exception from access rights to enable persons living there to have "reasonable measures of privacy" in that house and to ensure that their enjoyment of that house or place was not "unreasonably" disturbed. The introduction of the words "reasonable" and "unreasonably" lead me to the conclusion that the court is expected to take into account the needs of a fictitious "reasonable occupant ", perhaps the Scottish equivalent of the man on the Clapham Omnibus or perhaps more aptly in this context the man (or woman) with the Chelsea tractor. I agree with Counsel for the Ramblers Association that Parliament could not have intended that the courts would require to ascertain the needs of the proprietor for the time being in such a property and then cater for them individually. In my opinion in interpreting this part of section 6 courts would have in mind what a reasonable person living in a property of the type under consideration would require, to have reasonable measures of privacy and to ensure their enjoyment of that house was not unreasonably disturbed.

[46 ] Counsel for the respondents argued that if one looked at the evidence of Mr McCleary it could be seen that what was really at stake as far as he was concerned on behalf of the pursuer was to try to secure privacy not in the house but in the whole of the area contained within the fence, some of which was described by them as policy ground. So the argument was that by selecting such a large area of ground to be included in the area of ground excluded from access rights, the pursuer was trying to secure privacy in these grounds rather than to secure the privacy of the house and the Act did not provide for that. Reference was made to some of his evidence in particular. Counsel for the pursuer on the other hand argued that the exclusion of the ground was required to enable persons living there to have reasonable measures of privacy in the house and to ensure that their enjoyment of the house was not unreasonably disturbed. Enjoyment of the house included the ability to use the grounds round the house privately.

[47 ] I agree with Counsel for the pursuer that the evidence in this case shows that persons living in a house of this kind located as it is in the country would consider that their enjoyment of that house would be considerably reduced if the house was not located in reasonably large grounds which were private. I think one can take from the evidence and applying judicial knowledge and commonsense that persons capable of and interested in purchasing a house of the kind which is the subject of these proceedings as their own private house would not consider doing so if the house itself and its grounds, and by that I mean a substantial area round the house were not able to be used by them privately. The reasonable person would consider that reasonable measures of privacy for that house and sufficient adjacent land to secure that the enjoyment of the house was not unreasonably disturbed would require a reasonably substantial area of ground. The purpose of excluding the ground from the rights of access contained in the Act would not be to secure the enjoyment of the "policies" for the occupants of the house but to secure the enjoyment of the house itself which I do not think can be separated in the way suggested by Counsel for the second named respondent.

[48 ] I am alert to the fact that there is a danger that that one might stray from the bounds of judicial knowledge into the bounds of private knowledge when trying to evaluate the evidence in the case. I say that because I consider that judicial knowledge in this case includes a general view about what the average person might consider important when choosing whether or not to purchase a house. Such things as the aspect of the house, whether it faces north or south, whether it is surrounded by other houses, the size of its rooms and generally its accommodation would be important but so would whether the garden is private or overlooked, whether it is large or small, whether it is sheltered and whether it affords privacy for private activities such as sunbathing or picnicking or eating al fresco. Applying that judicial knowledge generally to this case one I think can come to the conclusion that the average reasonable person purchasing a house of this kind would consider that quite a large area of ground would be required to be sufficient for the enjoyment of the house and that would include such things as the lawns and the gardens of the house as well as in my opinion areas of the woodland immediately surrounding the gardens especially when these woodlands are developed in a way to allow paths to crisscross them and steps to be built in them and considering that they can be used according to the evidence for children to play in. That would accord with the type of evidence given by Mr McCleary whose evidence in general indicated a desire by the current occupiers for privacy of that type.

[49 ] I also consider that it is instructive to look at the other exemptions allowed by Parliament to the access rights provided by the Act. In particular one sees in section 6(1)(c) that any land not included in subparagraph (b)(iv) to which two or more persons have rights in common and which is used by those persons as a private garden is exempted. Presumably that applies for example to gardens such as Queen Street Gardens in Edinburgh. Significantly there is no connection between the gardens owned in that way and any house so the privacy extends to the use of the garden in these circumstances. Further, there is no limit on the size of the garden in such circumstances. All that is required is that the ground has to be used as a private garden. Further no restriction is made in relation to the nature of the garden ground as to whether it is woodland or lawn or flowerbed. It seems to be that if Parliament had thought it appropriate to exclude gardens unconnected with a house and to which two or more people have rights, presumably to protect the privacy of that garden it would be unlikely that it was considered that garden areas round private houses should not also have privacy and it may be that it was thought appropriate to do so by connecting it to the privacy of the house as an adjunct of the amenity of the building.

Decision.

[50 ] How then should the court approach the task of deciding what is sufficient adjacent land to enable persons living in this house to have reasonable measures privacy in that house and to ensure that their enjoyment of that house is not unreasonably disturbed? The first considerations are those contained in section 7 of the Act namely the location of the property and other characteristics of the house or place. The first thing I should say about these provisions are that the Act makes it clear that they are not the only factors to be taken into account to determine what extent of land is sufficient. There are quite clearly envisaged other factors relevant to the particular property which should be taken into account. The second observation is that helpful though the provisions are, they are extremely general and no help is given as to what is meant for instance by "other characteristics".

[51 ] As far as location is concerned it is quite clear that the house is located in the country not too far from the main road high on a promontory above the Carse of Gowrie overlooking the River Tay. Amongst its other characteristics are the fact that it is an exceptional country mansion house of high architectural merit. It is of a substantial size being one of the larger country mansion houses in Perthshire and indeed probably in Scotland. It is of a very substantial value such that only a small number of persons would be able to afford to own it and run it as a private house. The nature of the building and its prominence would point to a larger rather than smaller area of ground being required to be sufficient for the purposes of section 6 of the Act.

[52 ] As I said below I consider that it is appropriate to take into account the reasonable persons living there and to consider what area of ground would be sufficient to allow them to have reasonable measures privacy. The only evidence in the case relating to persons living in the house came of course from the witnesses for the pursuer and in particular Mr McCleary. A great deal of evidence was also led from security experts explaining the need for a large private area of ground to facilitate security measures in relation to the pursuer. I have already come to the conclusion that it is inappropriate to base the decision on the requirements of the individual proprietor for the time being but that does not mean that one cannot take into account the evidence relating to the security of the premises.

[53 ] While I accept that it is quite possible that the average proprietor of Kinfauns Castle might not have the resources or the tastes or the interests of the pursuer in this case it is I think legitimate to infer from the nature of the premises and in particular its value and cost to run that any person using the premises as a private house would require to have very substantial resources. It is also legitimate to infer from the evidence that such a person would be likely to be the possessor of valuable objects of some kind be it furniture or pictures or jewellery or at least to infer that outsiders including those of a criminal disposition might think that the owner of the Castle would have valuable possessions. If that is so then any such proprietor would have concerns as to whether their premises were secure and thus the evidence relating to security assumes some significance. It may be that the reasonable proprietor of the Castle might not have the same finely tuned concerns about security that were offered in evidence on behalf of the pursuer and might not require elaborate precautions such as tamper detectors and other electronic devices, but I think it can be inferred from the evidence that any owner would have greater or lesser security concerns more highly developed than most other householders in the country.

[54 ] It was clear from the evidence given by the security experts on behalf of the pursuer that the starting point from a security point of view was the fence which began the controversy in relation to this property. It was clear that it could not be said that the fence was a complete deterrent to persons bent on kidnap or theft but it seemed to be accepted by the experts that there was the need for some sort of barrier to indicate where the security measures began. Where more intensive security was required it would be expected that that would be supplemented by electronic devices such as tamper detectors or CCTV. Some discussion in the evidence took place as to whether it mattered whether the fence was in the position selected by the pursuer or the position selected by the respondents. The experts giving evidence preferred the former position, it might be said perhaps not surprisingly, but although they were cross-examined on the necessity for the fence being so far away and indeed on whether it was sensible to have it out of sight of the house, no contrary evidence was led and they maintained their position that it was better to have some distance between the perimeter fence and the house for security reasons. As I have said of course such elaborate security arrangements might not be thought necessary by every proprietor but I consider it reasonable to take the view that most would have some concerns and to accept the evidence of the experts that the most suitable location from security point of view of the fence would be where the pursuer had erected it.

[55 ] No one in my view would have their enjoyment of their private house ensured if they were concerned about the security of the premises either from the point of view of theft or some sort of attack. If I am correct that most inhabitants of such a house would be persons with substantial assets then I consider that all such persons would have some concerns about security and it would be expected that their enjoyment of the house would be able to be ensured only if they were happy that the security of the premises was taken care of.

[56 ] Another consideration arising from the characteristics of the house seems to me to arise from the evidence again unchallenged of Mr McCleary that the fence erected by the pursuer was erected following at least for some of the way but probably for most of the way a fence which was already in existence albeit in poor condition. Mr McCleary described it as what I think could be described as a stob and wire fence with perhaps two wires and about waist height. Such a fence could not be described in any respect as a security fence but it is significant in my view that the fence was not one which surrounded the whole of the property owned by the owners of the Castle but travelled at least part of the way through the property so that property owned by the Castle was both inside and outside the fence. Counsel for the respondents argued that there was no significance in the fact that there was a fence there partly because it was erected at a time when it was perfectly possible to own land privately. I consider that it is legitimate to take into account that the fence was built on the line of an original fence, or more precisely a previous fence. It is clear that the fence would not have prevented anyone who desired to do so from entering the premises but standing its condition it was probably erected at a time when the existence of such a fence would indicate to the vast majority of people that they were coming to land owned privately. When one is trying to assess what is sufficient land adjacent to the house to afford reasonable measures of privacy in the house and to ensure the enjoyment of the persons living there is not unreasonably disturbed it seems to me to be not unreasonable to take into account the boundaries established by persons not influenced in any way by the new rights created by Parliament in relation to access across private property at least as an adminicle of evidence. It is I think legitimate consider that such boundaries were placed there on the basis that persons considered that ground within the boundary would be required to secure their privacy and enjoyment of the property especially when the fence was not erected automatically on the boundary of the land owned by the house. For these reasons I have taken the line of the fence as being a pointer to what might be considered by persons occupying the house as reasonably required for the enjoyment of the house.

[57 ] Another consideration in my opinion in relation to whether the enjoyment of persons living in the house would be ensured is the use to which the adjacent ground is put. Taking into account the characteristics of the property set out above, I think one would be able to infer from the evidence led in the case that anyone living there would expect a reasonably substantial area of ground surrounding the house before they would consider that their enjoyment would be ensured and it would be not unreasonable for them to consider that the kind of pathways restored for the purposes that they were said to have been restored by the pursuer should be included in ground sufficient to ensure the enjoyment of the persons living in the house. Again I consider it to be important that these pathways were being restored rather than created because I consider that it is appropriate to view the creation of these paths in the woodland sometime in the past as being created for the enjoyment of the house as part of its amenity. Taking into account the characteristics of the house it would I think he not unreasonable for persons living in such a property to regard such amenities as required for their enjoyment of property.

[58 ] The description of the property or at least of the garden area paints a picture of a typical country mansion house in that immediately next to the house there are areas of lawn, cultivated flowerbeds and the like and at least on some of the boundaries are mature trees and woodland. One can think of many examples of large country houses with similar arrangements for its amenity ground. I think it is legitimate to conclude that judicial knowledge and common sense allows one to consider that such houses were developed in that way to afford a substantial area of ground providing privacy and enjoyment for those fortunate enough to be able to occupy them. The trees surrounding the garden provided shelter but probably more importantly they provided privacy but they could do so in my view only if they were able to be regarded as private property because if persons could freely enter the woodland areas they would be able to view the house and photographic it as described in the evidence for the pursuer and the respondents . It is clear from the terms of section 6 Parliament did not intend to take away the right of private individuals to have privacy in the house as special arrangements are made for that in section 6 nor did they intend to remove the right privately to enjoy a private house. In this case the evidence showed that not complete privacy would be provided since much of the house and garden can be viewed from outside the land owned by the Castle but I do not think that that means that the land sufficient for the purposes contained in section 6 should be diminished.

[59 ] An argument was presented that the line of the fence erected by the pursuer was chosen randomly in that it was erected through the land owned by the pursuer rather than round the perimeter of the land owned by the pursuer and therefore there was no logical reason why the amount of ground contained within the fence should be the appropriate amount of ground for the purposes of the section 6 exemption and there was no reason why a declarator should be granted in these terms. Much the same of course could be said about the line chosen by the respondents unless it is appropriate to choose the amount of ground included in the exemption based on the ground features contained in the Code. In the first place that argument fails to take into account the evidence that the fence was erected on the line of a previous fence. Also I consider that Parliament deliberately left the size of the ground exempted vague and if necessary to be fixed by the court. It is inevitable in these circumstances that some sort of arbitrary line would require to be fixed by the courts. Setting aside for the moment the woodland area we have the unfortunate position here where the court has had to arbitrate between two lines, one set by the pursuer and one by the respondents which were something in the region of 15 to 20 feet apart for some distance and where the argument centred on whether the pursuer's grass was cut shorter on one side of the line than the other. Certainly if that had been the only argument it would I think have been extremely unfortunate. Even the woodland area is a relatively small area when one thinks of Scotland's total area but of course is very important when it involves the land surrounding one's own house. In any event it might be said that one line is no more appropriate or inappropriate than the other, but what is certain is that a reasonably substantial area of ground standing the nature of the property is excluded from access rights by the terms of section 6.

[60 ] Thus for all these reasons I have come to the conclusion that a declarator in the terms sought by the pursuer should be granted. In my opinion it encompasses sufficient adjacent ground to enable persons living there to have reasonable measures of privacy in that house and to ensure that their enjoyment of that house is not unreasonably disturbed. The enjoyment of the house in my view depends on an extremely large number of factors but it could not be ensured by a smaller area of adjacent ground such as the one suggested by the respondents taking into account the location and characteristics of the house.

[61 ] That is sufficient for the decision but Counsel for the pursuer presented an argument based on The European Convention on Human Rights. It was accepted that the statute was not incompatible with the Convention but it was suggested that since the legislation had to be read and given effect do in a way which was compatible with Convention rights, in a manner which was practical and effective and since each family life was different from the next and one home was different from any other home it was essential to take into account the individual requirements of the individual residents of the house. Everyone was entitled to respect for his private life and family life and his home and in order to provide respect it was necessary when deciding what land was sufficient for the purposes of section 6 to take into account the pursuer's personal circumstances. Otherwise Article 8 would be contravened.

[62 ] Further Article 8 of the Convention provided that there should be no interference by a public authority with the exercise of the rights which are guaranteed accept such as was in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. It will be seen that the reasons for interfering by a public authority with the exercise of these rights does not include providing access rights to others over ground encompassing a person's home and so to do so would constitute an interference with her right which was incompatible with the Convention. The access rights provided by the Act could not be said to be a Convention right in favour of those people who might wish to exercise it and so their rights could not be weighed in the balance against the Convention rights in favour of the pursuer.

[63 ] Article 1 of Protocol 1 of the Convention was engaged by the obligation which the Act imposed on proprietors of land to tolerate the presence on their land of persons enjoying access rights and he cited Chassagnou v France (2000) 29 EHHR 615. As a result it followed that I was obliged to give effect to the Act in a manner which struck a fair balance between the interests of the proprietor and the "general interest" and there must be a reasonable relationship of proportionality between the means employed and the aim pursued by the legislation. Thus in determining an application under section 28 the court had to have regard to what the home owner contended was sufficient land adjacent to the house for the purposes of the exemption and where there was credible and reliable evidence that a particular use of a particular part of the land adjacent to the house contributed to the enjoyment of the house of those living in it, and that for uninvited strangers to have free access to that area of land would disturb that enjoyment, and a declarator should be pronounced in the terms sought unless the court was satisfied that the home owner was being unreasonable in seeking it.

[64 ] Counsel for the first respondents answered these arguments by pointing out that the (private life) definition of the pursuer placed great emphasis on the particular circumstances of the pursuer and her family and that was an excessively subjective approach which in any event failed to take into account the requirement for balancing exercise. The case cited by the pursuer to support the ' indisputable imperative' argument, Chassagnou v France, was dealing with Article 11 not Article 1 of Protocol 1.

[65 ] I have dealt with Counsel's arguments in relation to the Convention briefly because my decision was in favour of the pursuer without the need to resort to Convention rights. Standing that it is accepted that the Act is not incompatible with the Convention, these rights come into play only when a decision is being made about how much ground is sufficient for the purposes of the exemption and only if a decision was being made which denied the pursuer sufficient ground for the purposes of the exemption. In other words it would only apply if a decision was being made to find the amount of ground less than sufficient for these purposes. The decision is one which might be wrong because the court might have found insufficient land for the purposes set out in the Act to be appropriate but that would not be a contravention of the Convention because it would already be a contravention of the Act itself. If the ground found by the court to be sufficient was correct there would be no contravention either of the Act or of the Convention. I appreciate that that has turned into a circular argument but it does seem to me that once it is accepted that the Act is not incompatible with Convention rights and assuming that the court makes a decision which was correct in relation to sufficiency there would be no contravention of the Convention and on the other hand if the court were wrong about sufficiency that decision can be put right without reference to the Convention because it would be a contravention of the 2003 Act.

[66 ] I do not wish to depart from this case without expressing my appreciation for the careful preparation undertaken by Counsel for all parties and the considerable assistance which I have been given by the careful submissions given in writing. I am however disappointed to note that there is expressed some concern on the part of the respondents about the procedure relating to the site visit which took place at the beginning of the evidence. It is said that it was noted by those representing the respondents that the representative of the pursuer who accompanied me during the visit was seen to "subject me to a commentary" during the visit.

[67 ] In the first place I should make it clear that I accepted the invitation to attend the site visit because I considered that it might facilitate the taking of evidence by allowing me to have a picture of the matters which were explored in the evidence and to avoid unnecessary explanation about things which could more readily be described by a visit. It was as I understood it agreed by all parties that that should take place. I did make it absolutely clear however that I did not intend to hear any submissions or representations by anybody at the site and that beyond my observation of the land no evidence would be taken. I intended that to be clearly understood and was resolutely of the view that no one would be allowed an opportunity to address me and in particular no one would be allowed to address me out with the presence of others in relation to the case. It is particularly disappointing if there were concerns about this matter that no one saw fit to raise them during a total of five days of evidence so that any possible concerns could be allayed. I assume it was also noted that whatever was being said to me by the solicitor for the pursuer was not being noted by me and at this stage I can remember very little of what it was that was said to me other than comments about slippery or awkward ground, one inquiry as to whether I wished to make my way up the rather steep footpath and steps leading from the area the bottom of the woods near the fence to the part of the grounds near where the "horseshoe" part of the boundary or to choose an easier route and a suggestion that I should make my way onto the front Terrace to finish the tour. I was also provided with an invitation to view the inside of the building if I thought that was necessary, a request which I declined. It should be clear that in deciding the case I took into account my observation of the grounds as I made to the site visit but nothing that was said to me during the site visit was regarded by me as evidence or as submission.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Gloag v. Perth And Kinross Council & Anor [2007] ScotSC 24 (12 June 2007) URL: http://www.bailii.org/scot/cases/ScotSC/2007/24.html Cite as: [2007] ScotSC 24

Scottish Sheriff Court Decisions