(785) RIGHT TO ROAM ALLOWED: THE SNOWIE CASE
After a long silence since the evidence was heard in the autumn of 2007, the judgement of Sheriff Andrew Cubie in the latest right to roam case was finally published on 23 April 2008. Unlike the Ann Gloag case (see No 650), this time the right of access was upheld and the claim to privacy rejected: Snowie v Stirling Council and the Ramblers Association, accessible at http://www.scotcourts.gov.uk/opinions/snowie.html. The land in question is the 70-acre estate of Boquhan in Stirlingshire, which is owned by Mr Euan Snowie. Evidence showed that access was regularly taken by members of the public before Mr Snowie purchased the property in 2001 and erected barriers to prevent its public use. Following Sheriff Fletcher in the Gloag case, Sheriff Cubie held that the test of privacy was an objective one, dependent on the characteristics of the property rather than of the proprietor for the time being, and went on:
“[56] Again I agree with Sheriff Fletcher in that anyone contemplating the purchase of a house such as Kinfauns Castle or in this case Boquhan House would not consider doing so if the house itself and its grounds (and by that I mean a material area around 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 secure their 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.
[57] Taking that into account, I consider that the land sought to be excluded on behalf of the Pursuers is far too much. It is plain that the driveways do not require to be secure for any privacy. The estate is in effect surrounded by dairy farm pasture which is used on a daily basis with the consequent movement of cattle. The estate can be entered through the farm. Accordingly the estate's security is to an extent compromised. When I also consider the public right of way and the two public roads which are adjacent to the estate together with the number of tenants, and the access taken in relation to the stables it is clear that the security of the estate would not be compromised by the opening of a pedestrian gate at the West lodge.
[58] In determining the area in terms of the Act, it is reasonable for the persons such as the pursuers to have an area of ground around the house which can truly be regarded as private, and that should include ground on each side of the Boquhan burn and the tennis court and changing area as well as some of the managed gardens, extending to near the riding area. …
[59] To that end I have determined with use of a map (link to the map) the area of land over which I consider it appropriate to give the protection afforded by the Act. As can be seen, that extends to substantial portion to the front of the property, preserving the car park area and part of the field at the front, the whole of the rear garden, as bounded by the shrubbery together with a portion of the garden from the tennis courts to the back at the west side of the Boquhan Burn, extending to the west as far as the riding area as I think it is reasonable for there to be a degree of both privacy and enjoyment for persons in the house when visiting the garden area, tennis court or changing room.
[60] I do not consider that the driveways can be considered sufficiently adjacent to the house.
There is also a judgement to similar effect in a related case about the privacy claims of two residents in the estate: Ross v Stirling Council, accessible at http://www.scotcourts.gov.uk/opinions/ross.html.