By Corrine M Sinclair LLB (Hons), Dip.L.P.

www.clegal.co.uk

(For the purposes of this article the term 'occupier' includes farmers, landowners, farm managers and anyone having control of land or premises)

PART 1 of the Land Reform (Scotland) Act 2003 allows the general public statutory access rights over land and inland water. Individuals making use of these rights have responsibilities to respect the environment, safety and occupier’s livelihoods. However, occupiers also have responsibilities to manage the land in respect of these access rights. The Scottish Outdoor Access Code provides guidance on what these responsibilities are in respect of both parties.

When it comes to individuals crossing an occupiers land they are not without a whole host of problems and considerations need to be made by occupiers to avoid any potential legal liabilities.

Access Rights to Land

Access rights can be exercised by anyone of any age at any time of day or night. The can be used for all types of recreational purposes such as horseriding, cycling, camping, educational purposes etc.

For the purposes of this article and specifically in relation to farmers, there are areas where a right of access does not apply and these are:

• Houses and gardens, and non-residential buildings and associated land;

• Land in which crops are growing (does not include the border of grass/soil where the crops are growing);

• Visitor attractions or other places which charge for entry; and

• Any land where land management is taking place such as harvesting or spraying.

N.B. A full list of other excluded land can be found within the Act and The Scottish Outdoor Access Code.

Access rights do not allow individuals to cause any form of disturbance or illegal act on the land. It does not allow individuals to hunt/shoot/fish or use any form of motorised vehicle (with the exception of motorised disability vehicles). Individuals may not collect anything from the land for commercial use such as mushrooms, berries, stones etc.

The Act does allow access to fields (with the exception of where crops are sown or the later stages of grass growth for hay and/or silage) including those with any livestock in it.

Responsibilities of those utilising access rights

Individuals exercising their rights responsibilities are required to:

• Take responsibility for their own actions and looking after the safety of themselves and others they are responsible for;

• Respect others privacy and not venture in and around dwellings and/or buildings and they must not be noisy or cause a disturbance;

• Assist in land management by avoiding places where harvesting or crop spraying is going on, not feeding livestock, leaving the land as they found it;

• Keep to any established paths and avoiding bird nesting grounds. Where it is necessary to cross nesting grounds ensure dogs are kept under control;

• Care for the environment by not dumping litter, not harming plants, birds or animals;

• Keep dogs under control by not taking it into a field where there is livestock, cleaning up after them, keeping it on a short lead in certain areas;

• Being respectful to occupiers when organising an event and speaking with them to notify them and assess what is suitable.

Occupiers’ responsibilities

Occupiers must adhere to the access rights by:

• Not interfering with those exercising their rights unless completely necessary. i.e. not deliberately build walls or fences to obstruct the general public or sow crops to deter them;

• Not locking gates unnecessarily;

• Taking reasonable precautions to ensure the public is not put at risk by their work;

• Taking steps to minimise hazards to the general public and where these are unavoidable request individuals avoid certain areas at certain times but only where justified;

• Acting reasonably when requesting individuals to avoid land management operations;

• Working with the local authority and other bodies to implement good practises;

• Utilising paths and/or tracks to manage rights of access to land;

• Taking into account access rights when implementing any land use changes on the farm;

• Avoiding “no access” or “keep out” signs where access rights apply unless providing an alternative route.

N.B. Signs may assist where there is a need to warn the public and/or instruct them to take an alternative route i.e. young livestock, electric fence or bull. Signs should be placed at every stile and gate where there is access to the field. Guidance and template signs can be found in 'Signs Guidance for Farmers and other Land Managers – Scottish Natural Heritage'.

Dogs on farmland

There are many issues associated with the walking of dogs across farming ground.

It is a common perception that a farmer can shoot a dog that is on his land but this is not strictly true and the attempt to do such may find the farmer with more problems than worried sheep.

It is a criminal offence to allow your dog or a dog in your care to worry/chase livestock. Any damage caused will therefore be at the owner/person in controls expense. The police may be called and the farmer may initiate criminal proceedings.

Worrying livestock covers loss of young through abortion, injury, chasing and/or attacking.

Dogs, suspected of worrying livestock, where there is no owner present, may be taken and kept by the police until an owner is found. The police also have the right to obtain a warrant to enter a private home to identify a dog suspected of worrying livestock.

A fine of up to £1000 may be imposed by the court on the owner of a dog caught worrying livestock along with expenses awarded to the farmer for loss and/or vets bills. Under certain circumstances (where the dog is deemed dangerously out of control) the owner could also face two years in jail and the destruction of the dog.

A farmer may shoot a dog as an act of a last resort, but this must be reported to the police within 48 hours and they must be able to prove this was the only way in which their livestock could be protected.

However, this is not without many legal implications. If the dog has already moved away from the livestock then the farmer has no defence. Dogs are considered property by law and anyone shooting one may be sued for criminal damage.

Additionally if the farmer does not kill the dog outright then they may find issues arising out of animal welfare legislation and firearms offences dependant on the conditions with which the firearms licence was granted (highly unlikely to be included). Firearms offences almost always attract severe penalties, often prison sentences.

Dogs must be kept on a short lead (two metres in length) or under close control (close to the heel and obedient to commands) when walking through farmland.

It is worth noting that guidance provided under the Scottish Outdoor Access Guide advises members of the public not to cross land where there are any young livestock but instead to go onto neighbouring fields. And where there is an open area or it is necessary to cross a field and there are young livestock, to keep the dog on a short lead of two metres or less or close control and keep away from the livestock. It also advises not to take dogs into fields of vegetables or fruit unless on a clear path, such as a core path or right of way.

Occupiers' Liability

Under the Occupiers’ Liability (Scotland) Act, occupiers have a duty of care towards anyone crossing their property. This duty of care is assessed on the level that whether they could reasonably foresee an individual would incur damage or injury. The dangers causing the damage may arise from multiple situations from the condition of the land/property. Any damage arising from an act or omission, which is reasonably foreseeable, becomes the responsibility of the occupier.

Dangers on the property do not include risks taken by the visitor knowingly and/or participating in sports, which put them at risk.

Dangers on the land that have been there historically are assumed to be known to the occupier; however, new issues may arise within a short period of time, which is beyond their control and unknown to them. They cannot be held responsible for dangers unknown to them.

Each case would be judged on its own circumstances; however, there are things occupiers can undertake to mitigate against possible accidents:

• Erect warning signs where necessary i.e. young livestock, electric fence and bulls present;

• Fence off any potential hazards which cannot be safely repaired;

• Maintain fencing, gates, stiles and boundary walls;

• Perform regular checks over the entire property they are responsible for in respect of potentially dangerous hazards and/or disrepair;

• Repair any building and/or fencing defects and hazards on the property as soon as possible.

Rights of Way

These are recognised in Scottish law as an identifiable path running from one public place to another and must have been used peacefully by the public for at least 20 years.

It is worth farmers noting the following points in respect of rights of way (Countryside (Scotland) Act):

• There are specific conditions attached to grazing bulls on public rights of way. (Section 44);

• Farmers may approach the planning authority that may authorise the construction of stiles, cattle grids and gates to ensure public safety when utilising rights of way and allowing framers to keep animals in or out. (Section 45)

DISCLAIMER - The content of this article is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice.

Notes:

Acts of Parliament

Animal Act 1971

Animal Welfare Act 2006