You may have read recently that a farmer whose land borders a stretch of the A9 has been charged with failing to prevent sheep and cattle from wandering onto the highway. A report has been passed to the Procurator Fiscal who will decide whether or not to prosecute.
We are all familiar with the occasional sighting on country roads of livestock which has broken out/found an obscure hole in a fence/wandered through an open gateway onto a road, whether simply out of curiosity or in search of that greener grass on the other side. It happens. So, what is the legal position if animals stray onto the public highway? The Animals (Scotland) Act 1987 provides that animals straying onto a highway may be detained by the authorities to prevent them causing injury or damage. However, the very fact an animal strays onto a public road is not in itself an offence under that legislation. What if damage or injury is caused by the straying animal lunching in a householder’s garden, or hitting a vehicle? The Animals Act applies strict liability if the criteria outlined in the act are met. This means the owner of the animal may be liable even without any deliberate or negligent conduct on the owner’s part.
There is a relatively recent court case concerning a vehicle colliding with a black cow in the dark in a dip on a public road where the court held that the owner of the cow was not liable. The cow had escaped through a hole in the fence. This was a private civil prosecution by an individual against the farmer for damages and the court took account of the common law position when making it’s determination. Under common law, an owner is responsible if fault or negligence can be proved. The judge in this case of the black cow concluded that the occupier of a field adjoining a highway is bound to take reasonable care that his animals do not cause damage. He added that if some unauthorised person leaves a gate open, and the owner of the animal could not reasonably be expected to have known, then that could not be negligence. This case highlights the importance of being able to demonstrate that reasonable steps – such as regularly checking fencing is stockproof, electric fencing is working etc - have been taken by the owner to prevent an animal straying and causing damage.
There has been a huge spike in the number of incidents of fly-tipping during the lockdown. It is suggested this is due partly to folk having the time to do “clear-outs” and the rubbish then being dumped illegally because recycling centres have been temporarily closed. There have also been far fewer people around these past months to witness this crime being committed. Statistics find that up to two-thirds of all farmers are affected by fly-tipping. If rubbish is dumped on private land, it is the responsibility of the landowner to then dispose of it legally. The Environmental Protection Act 1990 prohibits the disposal of waste without the necessary permit and so this may be costly if hazardous materials such as asbestos have been dumped. The rubbish may be toxic to animals or block field entrances leaving farmers with no option but to get it cleared up. If there is any evidence of who has committed the act (possibly amongst the rubbish), tempers must be held and the pursuit of the offender left to the relevant authority. If action is successful, costs may be reimbursed. Sadly, the covert nature of fly-tipping lends itself to very few successful prosecutions. All fly tipping should be reported either via the relevant local authority, the national website (Dumb Dumpers) – or if witnessed – to the police.
For further information and advice in relation to any aspect of Compulsory Purchase of land, please contact a member of the Land and Rural Business Team.
