The latest news from Ledgowan Estate is that the owner has distributed an access policy to residents of Achnasheen. According to this report (online here and pdf here)in the West Highland Free Press from 27 December 2013,
“The access policy states that all walkers met on Ledgowan will be asked for contact details, adding: ‘If this is not forthcoming or staff consider there is any reason for doubt they will take a photograph of the individuals and or their vehicle.’
The following points are also listed.
No-one is denied access – we abide by the law.
No-one is allowed to walk in the curtilage of our property.
gates will remain locked due to security reasons (citing thefts and keeping poachers out).”
UPDATE 24 JANUARY 2014
A copy of the letter written by Richard Simpson is now available here (507kb pdf). In one comment on this blog, John (24 January) writes that he is unaware, nobody has actually received this letter. I can confirm that at least one person has. The letter contains an alternative account of the incident which began this story (see original blog here). Dr Brown rebuts this account in this report in the West Highland Free Press. Further developments can be read by clickign on the “Ledgowan” category on right.
Thanks for keeping all informed Andy. I’m using this as a case study for my 4th year Countryside Management students in their Topical Issues module. You may soon be gaining more followers!
Simpson seems to be showing symptoms of paranoia – I suppose we should try awfy hard to be sympathetic! It is the matter of the photograph that intrigues me! No laird has, I think, any right to know who I am or whence I come, but, equally, I don’t think I can object to having my photograph taken, although I cannot be required to stand still and face the camera either!
If Simpson takes a photograph of an unidentified person, I don’t think the Data Protection legislation has any relevance, so he cannot be expected to delete it. Of course, if he goes to the SMC web site, and searches the photos of Munro compleaters, as soon as he attaches a name to a photo, DP rears its head (I think?) Will his keepers and stalkers have to carry “black books” of mug shots, so that they can report that, say, No. 16 was seen speaking to No. 97?
Do the Simpsons realise just how nutty they show them selves to be?
“Do the Simpsons realise just how nutty they show them selves to be?”
In a word – no. But then they don’t care how the rest of the world sees them.
How pathetic and small minded is this? Rather than discuss with appropriate bodies and groups to reach a common sense policy that the majority could live with they issue daft edicts and expect to be taken seriously.
Do these Simpsons think they are related to the late Duke of Windsors wife’s family. They appear to be as bizarre as Homer and his brood.
I must say this man appears to have taken leave of his senses and would agree with Ken Brown’s opinion that Simpson’s ‘policy’ seems to be showing contempt for existing legislation and the access code.
And if a walker should emulate the estates behaviour and photograph the photographer?
They are perfectly entitled to photograph – no different to photographing folk on the street, but this is rather sinister all the same. BTW Ledgowan, my plate is FU60MLS.
The curtilage comment is probably the most barbed – are they still pretending that the bridge and old road is their curtilage?
As for contact details, I will opt to say cheese and not tell them Pike.
I wonder whether it is the same though: ‘on the street’ is public as opposed to ‘private’ property … so if you photographed a celebrity on Ledgowan, I’d have thought the owner of the estate, should they be inclined, would be able to take issue. However, if they were photographed from the ‘public’ road, it would be different.
It is worth pointing out that Part I of the Land Reform (Scotland) Act 2003 confers a right of responsible access to land. Curtilage is excluded from this right and thus if you walk across a curtilage you cannot seek any refuge or authority to do so under this Act. However it is important to understand that this does not mean that it is unlawful or illegal to do so. Contrary to a number of claims over the years, the Act does not prohibit such an action. Claiming that “no-one is allowed to walk in the curtilage of our property” is mere posturing. However, it is not respectful to folk’s privacy to do so and thus one would normally refrain. The only legal remedy available is an interdict.
Actually, it *is* unlawful and illegal to walk through curtilage. That’s because it’s not sanctioned by the LR Act and therefore remains a trespass at common law. The statement ““no-one is allowed to walk in the curtilage of our property” is therefore not mere posturing, it’s an accurate statement of the law. You’re quite right that the only sanction for trespass is an interdict but it would be irresponsible to give folk the impression it’s legally permissible to walk through curtilage and is only a matter of “respect for privacy”.
Neil – I totally disagree with you. Suggest you take a look at the historical research done by Alan Blackshaw http://www.scottishaffairs.org/backiss/pdfs/sa62/Sa62_Blackshaw.pdf. See p17 where even Scottish Landowners’ Federation admitted in 1961 that there was nothing to stop someone having a picnic on a lawn in front of a house beyond taking out an interdict – which is what I was thinking of in my comments below.
So if trespass is neither illegal nor unlawful, how come you can get an interdict against it, then?
As I understand it – if the courts are satisfied that a person has been (or is likely to be) responsible for a nuisance or has caused (or is likely to cause) criminal damage.
I find the new wind turbine desecration of the nearby Corriemoilie Forest at least as offensive
Very sinister and weird behaviour.
What does this man have to hide?
Re padlocked gates, what about the health and safety aspect? I mentioned this on a previous blog of Andy’s but what if emergency services needed quick access to an injured walker/ member of staff/ guest?
Helicopter. We are quite advanced in the Highlands, you know.
Thanks Andy. You’re right that entering the curtilage of a property is not an offence, nor is it irresponsible per se, but you do so on the basis of custom and tradition rather than under a statutory right of access. You ‘could’ have a picnic on their front garden and all they could do would be to seek an interdict to stop you personally from coming back.
However …, this news story is disturbing on so many levels, not least as it highlights the poor relations between residents of Achnasheen and the estate. If you live in Achnasheen there aren’t many places to go out for a walk from your front door which don’t involve walking through part of this estate. I’d probably feel so intimidated and unwelcome that I just wouldn’t bother – a victory for bullying behaviour.
If the estate really has suffered from incidents of theft, etc, that has nothing to do with access taken responsibly by members of the public, and the two things should not be confused. There are remedies in law to deal with theft but I see no obligation for walkers to give their personal details to an employee of the estate. The Simpsons seem totally uncaring of their responsibilities under the Land Reform Act to facilitate access on their land, and I find it hard to understand why the local authority is having such difficulty in sorting this out – issues on this estate have been taking up so much of their time.
“unlawful & illegal” ? Where Homer and his team chose to draw their curtilage is a matter of debate. I don’t think curtilage for the purposes of Capital Gains Tax or Inheritance Tax is the same as curtilage for the purposes of the LR(S)A ’03. I’d say it can be unlawful (you have no right) to cross the curtilage, but that it is NOT illegal (the Fiscal can’t prosecute you) to do so!
As I understand it we don’t have ‘trespass’ in Scotland (at least not in the same way as English law). The latter is known as the tying-the-shoe-lace law i.e. one can walk through a right of way but not loiter for any reason (other than to, for example, tie one’s shoelace) or else it would be trespass (i.e. no picnics/sketching/camping etc. I believe in Scotland for trespass to occur ‘damage’ has to take place. That is why the ‘right’ is not a right to roam (as in England) but a right to ‘responsible’ access. Responsible would not include putting the owners in a state of fear or alarm by, for example, encroaching on the privacy of their house or garden, being in their farmyard etc. Curtilages are defined as the immediate area close to a house or dwelling – which is only common decency to avoid. The term does not refer to any part of the wider estate though as the owner may be intimating here.
Photography issues go both ways. Under the 2003 act photography is a “permitted activity” on any land that is deemed public under the act – for private or commercial use (although commercial use of peoples images without a model release limits use to documentry or news). So any one can photograph anyone else, and publish it for a wide variety of uses. So if you are on the Ledgowan Esate, the proprietors can take photographs of you. But you can also take photographs of them, at any time, doing what ever any estate worker does in the normal disgarge of their duties. With a zoom lens from a distance, from outwith or within the curtilage of their property.
Normal discretion would of course apply to any photographs taken of any domestic properties or people going about their business in the immediate environs of those properties. The issue here is harrasment. Unlike E&W harrasment is not a criminal offence, but a civil matter. However the use of a long lens to photograph someone in their house or immediate garden could be construded as harrasment and could be pursued as a breach of the peace.
I guess the message here is if someone photographs you on the hill, even without asking, they are within their rights. So smile and just photograph them right back, and their vehicles, and their number plates. And if you want to use a zoom lens to photograph other walkers, or estate workers, or estate owners outwith the immediate environs of their house or lodges, thats OK as long as the snaps are used for private, documentry use or news.
Google ” UK Photographers rights” for a helpful 2011 factsheet on the issue.
The key issue here is if someone takes a photo of you in a public place, they are well within their rights. But if you snap back, you are also within your rights. A good photographic record of estate activities may be helpful n the future. Its up to you if you want to give your name and address, of course, but you want to ask anyone snapping you for theirs.
My layman’s understanding of the term ‘curtilage’ (OK, as a very-ex planner and user of Google) is that there is no absolute definition of the word in Scots Law. It might be interesting to hear from the Simpsons what their definition is of ‘the curtilage of our property.’ The area that they then, rightly or wrongly, expect people to stay off would be clear.
Incidentally, the sole use of the word in the Land Reform Act 2003 is ‘Land over which access rights not exercisable (1) The land in respect of which access rights are not exercisable is land – … (b) which – (i) forms the curtilage of a building which is not a house or of a group of buildings none of which is a house.’ Anyone able to decode that particular piece of parliamentary gobbledygook?
Curtilage is a term used by Historic Scotland when Listing buildings A, B or C(S) grades, when the curtilages can also be listed in addition to the main house. In this instance it would appear to be taken to mean the built structures which are not the main house e.g. stables, byres, outhouses, walled gardens etc. I am certain these are not the areas hill walkers are drawn to in the course of a day’s walk. Of course, one would hope that any resident would assist a walker(s) in a genuine emergency – even the Simpsons……
There is a complication here. There has been a lot of trouble since Simpson turned up, with the old road and bridge. He claims it is “curtilage”, the road is however still adopted and the council state that it is still a public road, although stopped up for vehicular use.
I get the impression that that battle is still being fought. No doubt every attempt will be made to “house block” useful ways in.
My experience in the far west is that some urbanites define everything as being within their rights, be it trudging over crofts, nosing round houses, driving their Chelsea tractors down access roads, leaving smouldering camp fires behind and sometimes even sheep mauled by dogs. Actually, it’s only a small minority who does that. The vast majority behaves perfectly well. But that minority leaves a very bad taste in the mouth. Perhaps it would be helpful not just to slam the evil landlords all the time. I have no independent knowledge about the Simpsons’ case, but usually there are two sides to every story. I can well imagine that the Simpsons might be driven potty by some self-appointed and righteous upholders of what they perceive to be the law – with no regard to the rights, and interests, of landowners.
Reiner, I can assure you – from close personal knowledge of this case – that it is the estate who have been behaving irresponsibly with regard to their obligations as land managers. The dispute over access started when local Achnaseen people complained to highland Council that the estate were obstructing their right of responsible access. The inhabitants of Achnasheen (population 50) can hardly be described as urbanites, and anyone who permitted thier dog to maul a sheep would not be tolerated in the community.
I’ve just been alerted to the fact that this issue of Ledgowan is bubbling up again and feel that as one of the couple accosted by Richard Simpson last Autumn I should contribute a word or two.
It almost certainly is true that a small minority of visitors behave in a deplorably irresponsible manner in the Scottish countryside, though I’ve seen little evidence of that. However, I certainly want to exclude ourselves from that category. We’ve walked the hills of Scotland for decades – with our well-trained dogs – without ever previously being accosted in such an aggressive and intimidating manner. The Ledgowan estate does not merit a defense in the above terms and, in light of our own experience, I’m tempted to suggest that they have been the authors of their own misfortunes.
To back that up, I have been very active in the Highlands for 35 years and have yet to have an unpleasant encounter with any landowner or manager – plenty of pleasant ones though.
My point is, that if terrible things are happening here, they are happening on everyone’s estate and more so the nearer Inverness or the Central Belt you get. However you find few other estates taking this aggressive attitude. Why is Ledgowan a special criminal magnet?
The specific dispute over curtilage with regard to Ledgowan focuses on the stretch of the old single track main road (A890) – now bypassed – between the Ledgowan Hotel and the old bridge.
This still has the status of an adopted public highway as Highland Council wanted to retain it as a walking/cycling route between the Hotel and the village. Because it passes close to the Lodge
the Simpsons were trying to claim it as their curtilage by blocking access and erecting intimidating signs. the Council were not impressed and – after much arguing with the estate – sent
someone in to remove the obstructions (which they did with police officers present to ensure no nonsense).
As to curtilage in general, there is no hard and fast definition of what is regarded as “reasonable” for access purposes, something that members of Local Access Forums are well used to debating.
The general principle is that a large country house may be expected to have a more extensive curtilage than, say, a small cottage, but each case is different. Ultimately individual cases may
have to have their curtilages defined by the courts, as happened in the case of Kinfauns castle in Perthshire.
Locked gates are not permitted in the code. Access is open to walkers, cyclists and horse riders – and people in (powered or unpowered) wheelchairs. Locked gates do not allow this.
The Local Outdoor Access Forum is the normal channel to try to mediate but the local Access Officer has the duty to enforce the Act.
I wish that local Access Officers in the Borders had that understanding of their duty.
When I was involved in helping to put together Part 1 of the Land Reform Act I tried to get a definition of curtilage as it was obviously going to cause problems in the future. My suggestion at that time was that it should relate to the area which the local authority valuer would consider appropriate to the property banding for council tax. I am not surprised that this continues to be a problem with our new largely successful access system. We struggled manfully with the representatives of the land owners and their factors and I always remember their claims that access rights would precipitate an outbreak of rural crime well that seems to have been mainly from their side of the house!
Plus devaluation of property well they shut up on that one when Scottish landed estates were shown to have out performed any other stock market investments.
Part of the problem with new land owners from outwith Scotland is that they may not realise that the only thing which they own outright is the scrap of paper on which their title is recorded. They only have an “interest” in our land which is not the “fee simple absolute” south of the border and that of course is one of the fundamental differences between our respective legal systems.
If I was challenged I hope I’d have the presence of mind to reply in a friendly way and ask the questioner for their name in return. Not easy though!
What a great thread and what knowledgeable posters, though I could do without the needless and derogatory term “urbanites”. Young John Muir was an urbanite if you think about it.
Roger White hit on an interesting point above which is that statutory access rights don’t extend to the “curtilages” only of buildings which are not houses. This is because houses have their own separate exclusion zone, namely (section 6(1)(b)(iv)), “sufficient adjacent land to enable persons living there to have reasonable measures of privacy … and to ensure that their enjoyment of that house … is not unreasonably disturbed.”
As I recall when the Act was going through parliament (Alex Sutherland may wish to confirm or dispute this), it was felt that, in relation to houses, neither “curtilage” nor “garden” would provide a big enough exclusion zone so the more extensive – but necessarily somewhat vague – formula of “sufficient adjacent land [etc]” was adopted.
I think curtilages are like elephants – difficult to define but easy to identify when you meet one. The same is not quite so true of “sufficient adjacent land [etc]” but hopefully a degree of common sense will prevail.
Of course, as others have commented, the thing that narks Ledgowan is that a public right of way (the old A890) runs so close to the lodge that you can peer into the drawing room. I know this because I did it last month. To get close enough to look into drawing rooms would undoubtedly put you within “sufficient adjacent land” and thus beyond the pale of statutory access rights but a public right of way trumps that.
The niceties of the law are one thing, dealing sensibly with a situation is another and the Simpsons are making total arses of themselves with this confrontational approach. Totally counter-productive when a bit of courtesy and charm could go a lot further. A telling comment I heard locally when I was in the neighbourhood recently was “It’s a shame because they’re such a good family.” Make of that what you will but the implication I took was that the acquisition of Ledgowan was the first thing that’s ever brought them into disrepute. I have no knowledge whether that may be true or not.
Andy– Re ledgowen estate,
I know a lot of people in Achnasheen and as far as I am aware NOBODY has received a letter !!!
On one or two of “Bart’s” remarks in WHFP, How many other estates around Achnasheen have to take photos of hill walkers etc.? On one neighbouring estate the way to a Munro is past the estate manager’s house on a good day he would get no work done apart from taking photos.
Thieves and poachers should be reported to the police. I wonder how many Bart has caught his way?
RE. “ keep dogs on lead or heel” , Has Bart trained all HIS cattle, sheep, deer and Argo’s not to go over nests etc. and how many are nesting on his bulldozed tracks ? I was told by him when walking on his track that I was interfering with estate business (a Sunday in March)
RE. Photos— I have now purchased 2 face masks, one of Bart and one of Homer Simpson which we will wear when going for a walk on Ledgowen Estate.
Curtilage— I hope that Highland Council read this as they fought him with this old road which as far as I know the council own and have told him that it must stay open. Although he would love to close it and is trying hard to do so. With all the money that Bart paid for this estate you would have thought he could have afforded a lawyer to check his deeds etc. Before Bart took over Ledgowen I never walked over the old bridge and past the house .
However I agree that you should never walk through a Curtilage if there is a way round. I like my privacy too.
Bart’s and family best thing to do would be to move to another estate miles from anywhere ( try South America )
john – South America isn’t miles from anywhere. It’s bang at the heart of … South America. Why would you wish this lot on a continent that has had enough of its own exploitation? 😉
Rodger. It’s miles from Achnasheen
Although it was a few years ago now the new Scottish Parliament’s wide ranging consultation process on the new legislation was then and still is far ahead of anything that would have come out of Westminster. From memory we waded through more than 400 tabled amendments (and that was just part 1 the access component of the bill) but at the end of the day the final words were left with the individual sometimes referred to as “Bill Drafter” the overworked lawyer who had to string it all together in a final version.
To the best of my knowledge it was believed that “curtilage” was to be the catch all yet undefined safeguard for privacy around dwelling houses. What it also did was to highlight the importance of any existing rights of way which were clearly within that zone. It also raises the interesting question of whether any new right of way can acquire that status through use over the prescriptive period if it passes through post 2003 curtilage land.
The important point for any bypassed old road is to watch that when your local authority removes it from the list of highways it does not extinguish non motorised access rights particularly as the land under many of our older roads was never bought by the highways authority and simply reverts to the historic landowner when it ceases to be a public road.
Is there a data protection issue here? The estate is collecting data, images and information about visitors for professional and business reasons. Is the information stored securely and appropriately, is it accessible to those with legal rights of access? Is it continuous CCTV? Is it stored by date?
A whole can if worms potentially if done incorrectly and not something to be undertaken lightly if it appears to be an active campaign on the estate’s part to gather info on visitors with a legitimate right of access to the countryside.
This is not a trivial matter.