Mrs Ann Gloag v Perth & Kinross Council
Perth Sheriff Court, B111/06
Update conclusion of evidence on days four and five of court hearing:
January 3rd and 4th 2007

The session on 3 January was mainly taken up by Perth and Kinross Council’s two witnesses: first David Stubbs, the access officer who has dealt with most of the detail of the case, then Brenda Clough who leads the Council’s countryside service. This oral evidence covered how the Council had handled the case, as well as the wider context of how the Council was acting to deliver the requirements of the new legislation. There was explanation of how the Council had identified the area within the perimeter fence where, in its opinion, access rights do apply. This explanation was supported by reference to a series of photographs, these being part of the Council’s productions. Also explained was the Council’s initial stance of recognising that rights could exist within the fence, but being prepared not to make an issue of this, until Mrs Gloag’s action led it to defend the case.

In cross-examination, Mr Michael Jones, counsel for Mrs Gloag, revealed through his questions and objections to lines of evidence led for the Council that his arguments would feature human rights issues; also that he would lead on the Act having primacy over anything said in the Code. His line of questioning challenged whether the Council had paid attention to the fears and concerns held by Mrs Gloag; whether they had taken note of the consent for a new swimming pool complex on the western side of the house; and he challenged its approach to the new recreation provisions in the southwest corner of the property. On all of this, Council staff offered robust answers, maintaining a strong line that its role is to secure consistent implementation of the Act in a balanced manner, and to defend the public interest embodied in the new legislation. This concluded the Council’s case.

At the end of the first day, David Black appeared for Ramblers Scotland to give evidence on the public interest of specimen trees on the north of the house.

On the following day, 4 January, all witnesses appeared for the Ramblers, as second defendant to the action. First, David Morris, Director Scotland for RA, was led by its counsel, John Campbell, through an account of the evolution of new access legislation. Then there was explanation of how Ramblers Scotland had become involved in the case and its subsequent actions, this being led by concern about the precedents that might be arise in its determination. Mr Morris confirmed that the Ramblers agreed with the approach being taken by the Council in identifying where access rights should apply within the perimeter fence. Then, using cases elsewhere in Scotland, he was led through evidence to illuminate the distinctive nature of the new Scottish access rights, based on embedding custom in legislation, and requiring the access-taker to exercise judgement in how rights were exercised. Evidence was also was led on how an owner had to make separate arrangements to address concerns such as security, and on the reality that access-takers had to have regard to the circumstances on the ground rather than those pertaining to the use of the house by its occupants. Counsel for Mrs Gloag asked only three factual questions in a very short cross-examination.

The second witness of the day was Alan Blackshaw. He was led through an account of his involvement in the Scottish access debate, including his researches into the history of customary access and his role in assisting the Ramblers during the evolution of the Land Reform Bill through giving evidence to Justice 2 Committee. He was followed by Alex Sutherland, senior access officer for Highland Council, who referred in evidence to the successful implementation of the Act in the north, including the resolution of concerns at Skibo. He was also asked about the issues of personal protection and how access-takers should assess the exercise of their rights. Counsel for Mrs Gloag chose not to cross-examine these two witnesses.

It had been previously agreed that closing statements would be in writing, subject only to a brief recall should Sheriff Fletcher want to seek clarification on any points arising. There is some delay at present in the production of typed transcripts, and therefore it was agreed that closing statements would be submitted a fortnight after the transcripts were available (which might be four to six weeks hence). The Sheriff confirmed that closing statements would be available to the public.

05 January 2007

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