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

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

The court held that the land within the green line on the plan is sufficient to provide reasonable privacy and undisturbed enjoyment for the occupants of Kinfauns Castle, taking into account the size, use, and characteristics of the property, as well as the security and privacy needs of the pursuer. The Code is not determinative of the statutory exception, and the actual circumstances and characteristics of the property are paramount.

Citation
[2007] ScotSC 24
Parties
Pursuer: Mrs Ann Gloag; First Defender: Perth & Kinross Council; Second Defender: The Ramblers' Association
Jurisdiction
Scotland
Judgment Date
12 June 2007
Procedural Posture
Summary Application for Declarator Under Land Reform (scotland) Act 2003 / Judgment After Proof
Outcome
Declarator granted in favour of the pursuer.
Legal Topics
Land Reform (scotland) Act 2003, Access Rights, Privacy and Enjoyment of Dwelling, Interpretation of Statutory Exceptions, Scottish Outdoor Access Code
Property Law Administrative Law Human Rights Land Reform (scotland) Act 2003 Access Rights Privacy and Enjoyment of Dwelling Interpretation of Statutory Exceptions Scottish Outdoor Access Code

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Parties

Mrs Ann Gloag

Pursuer

Perth & Kinross Council

First Defender

The Ramblers' Association

Second Defender

Procedural Posture

Summary Application for Declarator Under Land Reform (scotland) Act 2003 / Judgment After Proof

Legal Issues

  1. 1 Whether the land surrounding Kinfauns Castle is 'sufficient adjacent land' to be excluded from statutory access rights under section 6(1)(b)(iv) of the Land Reform (Scotland) Act 2003.
  2. 2 Whether the Scottish Outdoor Access Code is determinative or merely advisory in interpreting the statutory exception.
  3. 3 What factors are relevant in determining 'reasonable measures of privacy' and 'unreasonable disturbance' for the purposes of the Act.

Ratio Decidendi

The court held that the land within the green line on the plan is sufficient to provide reasonable privacy and undisturbed enjoyment for the occupants of Kinfauns Castle, taking into account the size, use, and characteristics of the property, as well as the security and privacy needs of the pursuer. The Code is not determinative of the statutory exception, and the actual circumstances and characteristics of the property are paramount.

Court Disposition

Declarator granted in favour of the pursuer.

Orders

  • The land at Kinfauns Castle enclosed within the green line on the annexed plan is not land in respect of which access rights are exercisable under the Land Reform (Scotland) Act 2003.
  • All questions of expenses reserved.