5 minute read
Public access to woodland
LEGAL MATTERS
Public access to woodland
Kate Donachie from Brodies LLP’s insurance and risk team answers common questions about who can use your land – and what they can do there. A highly relevant topic this summer!
CAN ANYONE COME ONTO MY LAND?
In Scotland yes; the Land Reform (Scotland) Act 2003, which came into force in 2005, gives everyone rights of access over land and inland water throughout Scotland - commonly known as the ‘right to roam’. There are restrictions on what can be done on the land and what parts can be accessed but it is more permissive than the system in England and Wales, where the right to roam only extends to open access land or access land, such as mountains, moors heaths and downs. Importantly, in England and Wales, the public has no right to enter and use woodland.
WHAT CAN THEY DO ON MY LAND?
People cannot do anything that is an offence - including theft, poaching, dropping litter, and disturbing certain wildlife. People also have no right to hunt, shoot, fish or undertake any form of motorised recreation. Dogs must be kept under control and nothing should be taken from the land for commercial purposes.
Access must be exercised responsibly, which means respecting peoples’ privacy, peace of mind, helping land managers and others to work safely and effectively and caring for the environment.
Camping is allowed, so long as visitors don’t interfere with the landscape and leave nothing behind. They can also climb trees provided no damage is done, and build dens, but only using dead branches and nails cannot be driven into the wood. If there is water, unmotorised water sports are allowed.
These activities wouldn’t be permitted if they interfered with the public taking access, or your own reasonable management of the land.
CAN THEY ACCESS ANY PART OF MY LAND?
No, there are exclusions. Those include areas where crops have been sown; that is plants cultivated for agricultural or commercial purposes, including saplings. However, access around the edges of those fields is allowed and orchards, woodland and land used for growing trees are not excluded.
Private houses and the surrounding land are excluded. The extent of that land is not defined but should be sufficient to afford privacy.
Farm and industrial buildings, and the or proportionate. Actions that don’t meet that benchmark will not be allowed.
surrounding land are also excluded but again there’s no guidance as to the extent of the surrounding land. It’s likely to apply only to land that is required to operate the buildings effectively, taking into account the need to move livestock to and from a field. What is clear, however, is that an entire woodland cannot be excluded from the rights of access.
FOR EXCLUDED AREAS, HOW DO I PREVENT ACCESS?
Erect signs, gates and fences. To avoid disputes about these measures, you can seek a declarator from the court, in terms of section 28 of the 2003 Act, which would prevent anyone taking legal action against you.
WHAT IF MY LAND WAS FENCED AND GATED PRIOR TO ‘RIGHT TO ROAM’ COMING INTO FORCE?
This doesn’t allow you to restrict access. Where there’s a right to be on land, you should unlock gates and remove any signs that prevent or deter access.
WHAT IF SOMETHING I DO ON MY LAND PREVENTS OR INHIBITS ACCESS?
Land managers must manage their land and water responsibly. Any actions that prevent or inhibit access are judged objectively in accordance with what a ‘reasonable person’. would consider reasonable
AM I LIABLE IF SOMEONE IS INJURED ON MY LAND?
Land occupiers must show reasonable care to those on their land, so they don’t 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 longstanding or obvious hazard. Where a hazard is unexpected, unusual or not obvious, steps should be taken to alert people of its presence. Tree felling, for example, could be an activity to which the public should be alerted. The duty is not to ensure safety but rather to allow responsible adults to exercise caution. Accordingly, clear signage at entrance points and within the vicinity of the works is likely to fulfil that duty. However, where unaccompanied children are likely to be on the land, more care must be taken and protective measures such as fencing may be necessary.
The standard of care owed by occupiers in Scotland is similar to that owed in England and Wales. However, in Scotland there’s no distinction between people on land by invitation and those who are uninvited, whereas in England and Wales the duty owed to trespassers is less onerous.
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