Saturday, 16 June 2007

Privacy Zone

Relating to the fencing off of 12 acres of Kinfauns Castle, preventing access to some native woodlands. The local council (Perth & Kinross) and The Ramblers Association said that access rights applied within the boundary. The owner, Ann Gloag, disagreed.


The Scottish Land Reform Act (link) - relevant sections...

From Part 1. Introduction, section 1.1) Statutory access rights and responsibilities

People only have these rights if they exercise them responsibly by respecting people’s privacy, safety and livelihoods, and Scotland’s environment. Equally, land managers have to manage their land and water responsibly in relation to access rights.


2.11 Access rights do not apply in the following places

Land on which there is a house, caravan, tent or other place affording a person privacy or shelter, and sufficient adjacent land to enable those living there to have reasonable measures of privacy and to ensure that their enjoyment of the house or place is not unreasonably disturbed. The extent of this land may depend on the location and characteristics of the house (see paragraphs 3.13 to 3.17).


Part 3. Exercising access rights responsibly

Respect people’s privacy and peace of mind

Houses and gardens

3.14 For this reason, the Land Reform (Scotland) Act 2003 states that you cannot exercise access rights on “sufficient adjacent land” next to a house (this also includes a caravan, tent or other place affording a person privacy or shelter). This means land sufficient to allow those living there to have reasonable measures of privacy and to ensure that their enjoyment of their house is not unreasonably disturbed22. There are two important things to remember:
you cannot exercise access rights in this area of “sufficient adjacent land” and so you need to be able to identify such areas; and
when exercising access rights close to a house or a garden, you need to respect the privacy and peace of people living there.

3.15 ‘Sufficient adjacent land’ is defined in this Code as normally being the garden around someone’s house. For most houses, this should be reasonably obvious on the ground: a formal garden next to the house and surrounded by a wall, hedge or fence. Some houses might have no garden at all or be located right next to a road, track or path. In some cases, the garden might be near to the house but not adjoining it or it might be more difficult to identify, perhaps because there is no obvious boundary such as a wall, fence or hedge. Things to look out for in judging whether an area of land close to a house is a garden or not include:
a clear boundary, such as a wall, fence, hedge or constructed bank, or a natural boundary like a river, stream or loch;


3.16 Some larger houses are surrounded by quite large areas of land referred to as the “policies” of the house. These are usually areas of grassland, parkland or woodland. Here, too, you will need to make a judgement in the light of the particular circumstances. Parts of the policies may be intensively managed for the domestic enjoyment of the house and include lawns, flowerbeds, paths, seats, sheds, water features and summerhouses. Access rights would not extend to these intensively managed areas. The wider, less intensively managed parts of the policies, such as grassland and woodlands, whether enclosed or not, would not be classed as a garden and so access rights can be exercised. In these areas of grassland, parkland or woodland, you can also exercise access rights along driveways, except where the ground becomes a garden, and pass by gatehouses and other buildings.


Now, I don't know if public rights of way have been blocked. The fence itself was given retrospective planning permission after being erected with no planning permission (BBC) - other sources say that permission was fast-tracked (The Scotsman).

Under Article 8 of the European Convention on Human Rights "Right to respect for private and family life" (link). A fence around a property gives the owner privacy.

Fair enough.

  • Full text of the Sheriff's decision (link)
  • ScotWays news (link).
  • "The Courier" from Tayside & Fife (link).
  • The Guardian (link).