Wildfire Management – what can landowners do to reduce the risk of wildfires and potential criminal liability?

Last year saw hundreds of grass fires in the UK and the largest wildfire in Scotland. These recent news headlines, together with devastating wildfires in Europe and beyond have shone a light on the duties for landowners (or those with control over land) to mitigate the risk of wildfires, as well as what repercussions there might be for businesses and individuals who fail to do so.

The risk of wildfires is increasing due to factors such as climate change, drier weather and increased access to nature with the public exercising their "right to roam".

Wildfires, destroying land and ecosystems, can also have a huge economic and reputational impact on landowners. There is also the real risk to the local public exposed to, and emergency service personnel, who may have to tackle, such fires.

Criminal Repercussions for Wildfires

The criminal repercussions from a wildfire are also far-reaching. We have seen criminal cases brought in Scotland and abroad where land has been destroyed by wildfires, even if caused unintentionally.

Whilst a number of charges are pending across Europe, there has already been a successful prosecution of a Greek landowner who was found guilty after burning branches in his garden and causing a fire that killed 104 people. 21 others, including politicians and the fire service personnel, also faced trial for not organising evacuations or doing more to prevent the deaths.

Scottish criminal law is sufficiently flexible that a charge could arise in a number of ways e.g. a charge could be brought for a common law offence of culpable and reckless conduct or under the Health and Safety at Work Act 1974, depending on the particular circumstances. Common law offences can be punishable by custodial sentences, if deemed appropriate, up to life imprisonment. With health and safety offences attracting periods of up to two years imprisonment.

The new Muirburn Licensing Regime

There are a number of ways in which a landowner can seek to manage and mitigate the risk of wildfires. One of those is to fight fire with fire – that is to deliberately burn parts of their land, a process known as muirburn. It involves the setting of fire to, or burning of any heath or muir. The benefit of muirburn as a means of managing the risk of wildfire is that, by controlled burning, the 'fuel-load' of vegetation is reduced.

Readers will be aware that the Wildlife Management and Muirburn (Scotland) Act 2024 seeks to implement stricter regulation of muirburn practices. It introduces a new licensing regime for muirburn which ensures that muirburn is only carried out by suitably trained individuals and in a way that does not interfere with biodiversity, net zero emission targets or causes risk to individuals or the public. The licensing regime, still to come into force but expected to do so before the 2025 muirburn season (which runs from 1 October to 15 April in Scotland) will come with a Code of Practice and an approved training course aimed at those who are responsible for and involved with carrying out the activity.

Considerations for Muirburn and preventing wildfires – what can you reasonably be expected to do?

The law requires landowners and employers to do what is reasonably practicable to reduce the risk of harm to employees and the public. Reasonable actions might include:

Having a thorough risk assessment for wildfires specific to the type of land and activities that may occur on it. It is important to note that wildfires are rarely caused solely by nature. Humans, whether deliberately or by negligence, are normally the cause of them. So, if there is a higher chance of the public being on the land, a risk assessment should reflect that.
Creating a specific risk assessment for muirburn itself which covers employees carrying out the work and assessing if any people or animals are expected to be in the region of controlled areas;
Having a wildfire action or management plan which looks at methods of preventing or reducing the spread of a potential fire such as using firebreaks and, with the appropriate license, muirburn. All employers should also have in place a fire safety management plan; and
Using relevant guidance and sources, such as the SFRS advice to ensure compliance with legal obligations.

In the event of a potential prosecution following a fire, being able to show the steps taken to manage the risks of wildfire on your land and by ensuring that you have complied with the relevant guidance and legislation will be vital.