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The Ramblers and Perth & Kinross Council
face legal costs of £200,000 after failing in
their case to get public access to grounds
surrounding Kinfauns Castle, Perthshire
James Irvine
Teviot Scientific, Cultybraggan Farm, Comrie,
Perthshire
Filed 16 Jul 07
©www.land-care.org.uk
The Land Reform (Scotland) Act 2003 was an act
conceived largely out of prejudice by a government that was predominately
run by politicians from the West Central Belt of Scotland, which
had little understanding of rural matters and an extraordinary unwillingness
to learn about them. The result was poor legislation made worse
by its poor drafting. Apart from a few bad instances, access to
Scotland's countryside has never been a serious problem. But the
Act has certainly created plenty serious problems.
One of these has been highlighted in the case
brought jointly by the Ramblers Association and by Perth & Kinross
Council against Ann Gloag, with regard to the high security fence
she had put round her castle. Kinfauns Castle, which is now her
main residence, is situated two miles east of the city of Perth
and close to the A90 Aberdeen to Perth dual carriageway.
The total grounds surrounding the castle amount
to some 26 acres, which is about the size of a couple of moderately
sized fields in Scottish southern-upland farming terms, laid out
mainly in attractive and well planned woodlands and lawns. To maintain
her privacy, the Stagecoach Transport tycoon had the fence constructed
so as to exclude some 4 acres around the castle from public access.
There are abundant walking facilities with full public access in
Perthshire and close to Perth. Indeed, there are still some 22 acres
of her estate that provide full public access. So why on earth did
the Ramblers, and especially Perth & Kinross Council, think
it appropriate to use this as a test case?
Areas of land that are not open to public access
are unsurprisingly people's gardens and the curtilage of a house.
Was it that they wanted to limit as tightly as possible what was
meant by a "garden" or the "curtilage" of a
house? Was their case founded on envy: that some folk had big houses
with big gardens and big curtilage?
One of the arguments used against Mrs Gloag was
that the public should have access to some trees of special interest
that were within the fenced off area. Certainly in the past, before
such a Land Reform Act was ever thought of, those with a particular
interest in such trees only had to ask the owner and they would
be invited to come and see them. Why have all the special trees
in Scotland to be available for all to come and see at any time
of day or night, irrespective of breaching the owner's privacy and
security? There seems to me to be something quite inherently nasty
about such an attitude. And it seems to me that it is particularly
inappropriate that an organisation paid for by the taxpayer, such
as Perth & Kinross Council, should be party to it.
Fortunately, Ann Gloag has an estimated fortune
of some £400milion. She could afford to stand up to the possible
legal costs of defending such a combined attack by a large, self-seeking
and infamously aggressive lobby group and a publicly funded government
body. But what if the property owner had been of more modest means?
The Ramblers and the Council would have presumably hoped to bully
the owner into complying with their ever expanding and uncompromising
demands.
The drafters of the Land Reform (Scotland) Act
2003 would have been well aware of the high incidence of crime in
the countryside. Indeed, as the authorities try to clamp down on
crime in the cities, urban based criminals are increasingly targeting
rural areas. Yet the crazy Land Reform Act, with its adjoining Scottish
Outdoor Access Code, naively leaves to the person taking access
to "behave responsibly", knowing full well that there
is no effective way of policing it, and that most of the public
have little knowledge of rural affairs and therefore of the logic
of responsible behaviour in the countryside.
As a Council Tax payer in Perthshire, I much resent
my taxes being used in this manner.
Mrs Gloag, who previously lived in a council house
and worked as a nurse, has stated that she intends to donate her
legal costs to charity: specifically, that the £200,000 be
split equally between Rachel House in Kinross (which is Scotland's
first children's hospice) and The Princess Royal Trust for Carers
(Scotland).
While not everyone may respect the methods that
the Stagecoach company used to gain its dominant commercial position,
involving numerous monopoly Inquiries on the way, Mrs Gloag has
to be congratulated for standing up for her privacy and security
against an aggressive and uncompromising lobby group, which at least
in the past has had too close a relationship with government and
its agencies. Hopefully, the new Scottish Executive may take a more
balanced view.
It must be a matter for much concern as to why
Perth & Kinross Council got itself involved in risking so much
of its council tax money on such a venture, when it claims to be
so short of cash for key services. At the very least, the money
could have been used to improve access facilities to the hundreds
of miles of undisputed rights of may that have existed in this beautiful
county for a very long time: indeed, long before the essentially
unnecessary Act was ever dreamt of.
©www.land-care.org.uk
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