REASONABLE landowners and occupiers need not fear the outcome of a recent court case on access rights, according to Perth solicitor and agricultural specialist Alastair Anderson, of Anderson, Beaton, Lamond, writes farming editor Ewan Pate.

“The right of the owner of a house to exclude access from sufficient adjacent land to ensure a reasonable measure of privacy as established in the case determined in 2007 in Perth Sheriff Court regarding the Kinfauns Castle estate of Mrs Anne Gloag has not been eroded by the recent judgment in Stirling Sheriff Court in respect of Boquhan House and Estate owned by Mr and Mrs Euan Snowie,” said Mr Anderson.

In this latest judgment, the second only on the so-called “right to roam” introduced by the Land Reform (Scotland) Act 2003, Sheriff A. M. Cubie held that Mr and Mrs Snowie had applied to exclude the public from “far too much” land, some 40 acres of the 70-acre estate.

Nevertheless, he did hold that their privacy should extend to a considerable area around the main house.

Defining the extent of that area will be of interest to both those who occupy rural properties and those who seek access.

Mr Anderson said, “Sheriff Cubie upholds the judgment of Perth Sheriff Michael Fletcher, but points out several differences between Kinfauns and Boquhan.

“To paraphrase these, Kinfauns was an 11-acre fenced, compact estate surrounding the castle occupied exclusively by Mrs Gloag and her immediate family or employees.

“Boquhan Estate, on the other hand, comprises the main house, plus a house separately owned by another couple who have themselves raised a separate action similar to that raised by Mr and Mrs Snowie and a further six houses all with defined gardens and which are the subject of third party tenancies.

“Boquhan Home Farm, separately owned, bounds the estate and enjoys access rights over the estate for the twice daily ritual of bringing the pedigree herd of milk cattle in for milking.

“There are also riding stables and an equestrian area to which further access requires to be taken.

“Unlike Kinfauns there was independent evidence of long-term access being taken over the Boquhan Estate for cycling, dog walking and general exercising.

“That estate is open on two sides to county roads and bounded on a third by a right-of-way.

“There was no evidence of such intrusion or openness nor indeed any requirement for such at Kinfauns, where nearby there is a large area of parkland at Kinnoull Hill.

“However, there was a right-of-way passing close to the castle which was not to be interrupted.”

What is of interest to country dwellers is the extent of the land which Sheriff Cubie determines is appropriate for access exclusion.

Unlike the other properties at Boquhan, near Kippen, there is no obvious garden definition to Mr and Mrs Snowie’s main house and Sheriff Cubie in his judgment described it as “including land on both sides of the Boquhan Burn and the tennis court and changing area as well as some of the managed gardens extending to the rear of the riding area.”

He also refers to car parking areas, shrubberies and parts of a field close to the house.

“Clearly this is a substantial piece of land which apparently extends to approximately 15 acres,” said Mr Anderson.

“One salutary part of the judgment is that it clarifies that the test in defining land excluded from “the right to roam,” adjacent to a house is objective and relates to the house and not the resident/ owner for the time being.

“Thus an obsessively secretive owner or one scared of kidnap, as appeared in the Mrs Gloag case, or burglary as with the Snowie case, is not entitled to have their particular or personal fears protected.

“To sum up, the law remains that anyone owning a property such as Kinfauns Castle or Boquhan House is entitled to exclude access takers from a ‘material area around the house’ to secure the enjoyment of the house.

“It should be borne in mind that both these cases deal only with houses. There are other possible exclusions covering buildings or other structures, works, plant or fixed machinery and the curtilage of a building which is not a house or a group of buildings, none of which is a house, or even a compound or other enclosure containing any structure, works, plants or fixed machinery.”

No pleadings in this direction were made in the Snowie case but one can imagine that there might have been success had there been such pleadings in relation to the riding stables and perhaps even the riding area.