As the weather warms up, more people will be out enjoying the Scottish countryside – and potentially roaming across farmland.

Kate Donachie, from Brodies LLP’s insurance and risk team, answers some common questions from readers about who can use your land – and what to do if risky sports are an issue.

Can anyone come onto my land?

Yes; in Scotland the Land Reform (Scotland) Act 2003, which came into force in 2005, gives everyone rights of access over land and inland water throughout Scotland. It’s known colloquially as the ‘Right to roam’.

That right to access is not without restriction, however. There are restrictions in relation to what can be done on the land and the land which can be accessed.

What can they

do on my land?

People cannot do anything which is an offence – such as theft, breach of the peace, nuisance, poaching, allowing a dog to worry livestock, dropping litter, polluting water and disturbing certain wild birds, animals and plants.

In addition, people have no right to carry out hunting, shooting, fishing or any form of motorised recreation. Dogs must be kept under proper control and people must not take anything from the land for a commercial purpose.

More generally, access must be exercised in a responsible manner, which means respecting peoples’ privacy, peace of mind, helping land managers and others to work safely and effectively and caring for the environment.

Currently, there is no guidance that specifically excludes participation in risky activities such as tombstoning (jumping into a body of water from a cliff or high point) or downhill mountain biking. The only restriction on such activities would be where the activities interfere with other members of the public exercising access rights or your own reasonable management of the land.

What can I do to exclude people who are using the land in a prohibited way?

There isn’t an easy way to achieve this.

You can apply to court for an interdict which would prohibit the individual(s) from accessing your land. However, in order to obtain the interdict you would need good evidence of the activity, for example video footage.

Once you have obtained an interdict there can be practical difficulties in enforcing that. Notably, it is not possible to take steps to prevent access to people who are exercising the right of access responsibly, in order to exclude those who are doing so irresponsibly.

Can they come onto any part of my land?

The Act does exclude the right of access for some categories of land.

That includes land in which crops have been sown. Crops are defined as plants which are cultivated for agricultural or commercial purposes and will include saplings. However, it should be noted that access around the edges of such fields is allowed and that orchards, woodland and land used for the growing of trees is not excluded.

The presence of livestock on land will not automatically exclude land from the right of access – the mixed presence of people and animals is considered to be commonplace. Where the nature of the livestock makes it sufficiently dangerous to the public to prevent access, the area restricted will only be that which is necessary and the court will take a practical and objective approach.

Buildings used as private houses and the land around them are excluded. The extent of land around them is not defined but should be sufficient to afford privacy for use and the court will decide that on an objective basis, not on the basis of an individual’s preferences.

Farm and industrial buildings, along with the land around them, are also excluded but there’s no guidance in relation to the extent of the surrounding land excluded. It’s likely that it applies only to the land that is required to operate the buildings effectively.

Account will be taken of the need to take livestock in from the field. What is clear, however, is that it’s not possible to exclude an entire farm from the rights of access.

What if my land was already fenced and gated prior to the Act coming into force (2005)?

This will not allow you to restrict access.

The land should be used and managed in a way which respects the rights of access. Where there’s a right to cross and be on land, the only responsible action is to permit the rights to be exercised by allowing access to the area.

This will involve unlocking any gate or gates and removing any signs which prevent or deter the access.

What can I do to prevent access?

If the land is excluded in terms of the Act, signs, gates and fences can be erected.

To avoid disputes about such measures, you can ask the court to provide a declarator in terms of Section 28 of the 2003 Act which would prevent anyone taking legal action against you in the future.

What if something else I do has a side effect of preventing or inhibiting access?

In terms of the Act land managers must manage their land and water responsibly in relation to access rights.

Any actions which have the effect of preventing or inhibiting access will be judged objectively with reference to the ‘reasonable person’ rather than the subjective views of the individual land owner. Thus any actions that impede access but would not be considered reasonable or proportionate by the ‘reasonable person’ will not be allowed.

Am I liable if someone is injured on my land?

Land occupiers are obliged to show reasonable care to those on their land, so that they do not suffer injury as a result of anything done on the land, or any hazards present there. However, the occupier is unlikely to be liable if the injury occurs

to an adult because of a hazard which is longstanding and obvious. Where a hazard is unexpected, unusual or otherwise not obvious; effective steps should be taken to alert people of its presence.

The duty is not to ensure safety, but rather to allow responsible adults to exercise caution. Where unaccompanied children are likely to be on the land, more care must be taken and protective measures such as fencing may be necessary.