We have recently seen a marked increase in queries from clients, particularly those operating in the rural sector, in relation to disputes about trespass and interplay with the rights of responsible access under the Land Reform (Scotland) Act 2003. This article re-examines the current law and explores some of the questions we are most regularly asked.
Is there a law of trespass in Scotland?
It is a myth that the law of trespass does not exist in Scotland. The law of trespass is underpinned by both common law principles and statute, in particular the Trespass (Scotland) Act 1865. Not only is it a civil wrong, trespassing can also give rise to criminal liability.
A landowner has the right to exclusive possession of their property. Trespass is entering or remaining on someone's land without permission – including rivers and lochs. The intrusion may be persons, animals, or sometimes even things.
Interplay with Land Reform (Scotland) Act 2003
More recently, the law of trespass in Scotland has had to co-exist with the rights afforded to the public by the Land Reform (Scotland) Act 2003. The legislation grants the public a right of access to land for educational, recreational, and limited commercial purposes. However, this is conditional on the right being exercised responsibly.
The 2003 Act and the Scottish Outdoor Access Code set out both the legal position and guidance on exercising rights of access in the countryside responsibly and respectably. This led to the 1865 Act being amended to avoid the exercise of rights of access under the 2003 Act from constituting a trespass offence.
Issues often seen in practice
Motorised vehicles
One issue that often arises is people riding quadbikes on rural land. The right of responsible access cannot be exercised in a motorised vehicle (except for one that has been adapted for someone who has a disability). As such, being on land without permission in a quad bike or other motorised vehicle (e.g. a campervan or motorhome) may constitute trespass.
E-Bikes are a particularly vexed issue, please find our article on the right of responsible access and e-bikes here for further information.
Wild camping
Access rights under the 2003 Act extend to wild camping. The Scottish Outdoor Access Code defines wild camping as "lightweight, done in small numbers and only for two or three nights in any one place" and provides comprehensive guidance as to what responsible access means in practice.
It should however be kept in mind that the Code is guidance, and not a definite statement of the law. A failure to follow the code will not necessarily render the access unlawful but if access is found to be irresponsible, then it may constitute trespass and be subject to the remedies noted below.
A fuller article discussing wild camping is available here.
Dogs and other animals
The Animals (Scotland) Act 1987 summarises specific rules where trespass is by animals.
The keeper of the animal is expected to take all reasonable steps to prevent trespass by their animals. If an animal strays onto land, then the owner of the land may be entitled to detain it in order to prevent injury or damage. If injury or damage is caused by a straying animal, then the owner of the animal may be strictly liable – showing fault will not be necessary to find the owner liable.
Defences
There are defences open to a trespass claim. The person committing the alleged act could argue that the landowner has consented, or that they are exercising some form of right. This may be the right of responsible access in terms of the Land Reform (Scotland) Act 2003, or alternatively there may also be servitude rights or public rights of way which justify temporary intrusion.
Intrusion may also be allowed by statute. The most common example is civil aviation statutes which permit aircraft to fly over land. It may also be that there is a judicial warrant authorising the trespass, such as sheriff officers being allowed to enter property to enforce a court decree. There may also be a defence that the act was in the public interest, e.g. to extinguish a fire or another such emergency.
Remedies
If someone enters a property without the lawful authority of the landowner or refuses to leave the property, then this may constitute a criminal offence under the 1865 Act. On summary conviction, an individual may be found liable to a fine not exceeding £200 and face up to 14 days imprisonment.
In the context of civil liability, the usual remedy at common law is interdict which, if obtained, prevents the trespasser coming back onto the land. Damages can be sought if there has been damage as a result of the trespass. Orders may also be sought under Section 28 of the 2003 Act for declarator that access is irresponsible and for interdict.
To obtain interdict, you need to be able to identify the perpetrators – you cannot interdict the general public at large and this limits interdict as a remedy for trespass. Interdict is also not granted automatically just because there has been trespass or irresponsible access. There must be a reasonable apprehension that the trespass will continue, and the intention of the trespasser will be considered by the court, too.
In the case of Winans v Macrae in 1885, a shooting tenant with a lease of 200,000 acres was refused an interdict to prevent a cottar's pet lamb coming onto his land to graze. So, whilst trespass is by its nature a temporary intrusion, it is important to consider whether interdict is a remedy the courts are likely to order in the circumstances, as triviality is borne in mind by the courts.
With regards to animals, seeking removal and interdict of animals who have strayed onto land, or have been abandoned, is possible but careful consideration should be given to animal welfare requirements and issues around animal passports. If access with an animal, such as a dog walker, is taking place irresponsibly, for example if the animal is worrying sheep, a declarator under Section 28 of the 2003 Act and interdict may be possible.
Summary
Although the public has a right to responsible access to the countryside, this does not amount to an "access all areas" pass. Therefore, the law of trespass still has its place in safeguarding landowners against those who disregard their obligations in exercising responsible access based on the 2003 Act and legitimate but irresponsible access.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.