Land owners and occupiers in Scotland can often feel a conflict between the duties imposed by the Occupiers Liability (Scotland) Act 1960 and the Health & Safety at Work etc Act 1974 on the one hand and the rights granted by the Land Reform (Scotland) Act 2003 on the other.
This can be particularly acute for businesses operating in the forestry sector, where the land is both attractive to visitors, and dangerous because of the work that is carried out there. In recent years the issue has become more vexed in the summer months because of the rise in "wild camping", where visitors pitch tents on land, without formal campsites or permission, and often without regard for the impact on the natural environment or the dangers campers face from other activity on the land.
In England, the Court of Appeal has recently held that the public can camp on Dartmoor. We look at what is allowed and how to balance the competing demands of access and safety.
Is wild camping allowed?
The law in Scotland differs to that in England and Wales.
In Scotland, the Land Reform (Scotland) Act 2003 means that visitors can camp on privately owned land, but they are obliged to do so responsibly. This broadly means leaving the site as it is found and being mindful of nearby residents, animals and crops. Visitors cannot camp in the areas excluded from access rights and in addition, they are not permitted to camp in enclosed fields or on golf courses.
As well as those general exceptions, due to overuse, some areas in the Loch Lomond and Trossachs National Park have bylaws in place which restrict the location and number of wild campers.
In England and Wales, there is no general right to take access over privately owned land, however there are some areas to which access is afforded. On Dartmoor the public have access to certain areas of privately owned land for "open air recreation" by operation of the Dartmoor Commons Act 1985.
In the recent case of Darwall and another v Dartmoor National Park Authority [2023] EWCA Civ 927; [2023] PLSCS 131, the Court of Appeal held that open air recreation includes overnight camping and so visitors can camp on some areas of private land without permission.
This decision is likely to impact on other land over which there is a right to take access but where it has previously been believed that camping overnight is not included. It would be sensible to confirm the position in relation to any land over which you have control.
What can I be liable for?
The Occupiers Liability (Scotland) Act 1960 imposes civil liability for hazards on your land, if someone is injured and you haven't met your duties, you could be sued for damages. The 1960 Act requires that occupiers take reasonable care to avoid loss or injury. As a general rule, occupiers aren't liable for harm caused by obvious dangers, for example cliff edges, but can be liable for unexpected hazards, such as obscured ditches and for failure to maintain structures such as fencing.
In the context of wild camping, there is no duty to provide facilities nor to facilitate access to areas for camping. Instead, it is the campers who are obliged to ensure that their use does not cause pollution or littering.
The Health & Safety at Work etc Act 1974 imposes a duty on employer to do what is reasonably practicable to avoid risks to the health and safety of the public. You cannot be sued for damages just because you have breached this duty, but you could be investigated by the HSE and face criminal prosecution. The standard of care is higher than that imposed by the 1960 Act but relates only to your business operations, not the natural features of the land.
In the forestry context, you could be in breach of your duties if someone is injured by a falling tree during felling operations, or because they came too close to plant or equipment. The nature of these activities means it can be impossible to maintain safety while allowing unrestricted access over the land.
Can I prevent access?
It's not possible to entirely exclude the public from forestry land. However, there are exceptions and it's also possible to exclude members of the public from certain areas of your land on a temporary basis.
The 2003 Act does not grant access to land surrounding and associated with non-domestic buildings, structures, works, plant and fixed machinery, this means that the public can be excluded from yards containing machinery and plant and also from areas on the land where there is permanent fixed machinery or plant.
Where work is only carried out from time to time in an area, you can only restrict access to the extent that it is reasonable to do so to ensure people's safety.
If you do impose temporary restrictions, you should provide information about the areas which are restricted and, if possible, signpost alternative routes. The Scottish Outdoor Access code advises that, if possible, work which will exclude the public from taking access should be planned for times when public use is likely to be at its lowest. It is also recommended that access is allowed, if safe, when work has stopped for a temporary period, for example at weekends.
Ultimately, you can only exclude people when, to the extent, and for as long as is reasonably necessary to ensure safety. If the work could be done in another way, or at another time which would reduce the amount of land closed off or the period for which it is not accessible, then that alternative approach needs to be taken. In any event, the purpose must be a genuine land management requirement.
Some landowners have found that by providing guidance to would be campers, such as highlighting the best places to camp, and the capacity of such areas, along with communicating their expectations in relation to litter and human waste, the behaviour of campers is improved and their impact lessened. It is however a fine balance between improving behaviour and being seen to encourage camping where you might rather it didn't happen at all.
In conclusion
You have a duty to take care for the safety of members of the public coming onto your land; the access granted by the 2003 Act and other provisions applying to land in England and Wales do not remove that obligation. However, you are entitled to restrict access, where that is proportionate and necessary to ensure safety.
We recently wrote in Confor about the tension between access rights and occupiers' liability and now consider the issue in light of wild camping a topical issue?
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