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Myth of the Week

It is an oft-repeated myth that there are no trespassing laws in Scotland.  This is simply not true.  Trespass is a civil wrong, called a delict in Scots legal terminology.

The origins of civil trespassing laws in Scotland go back centuries.  A court decision from 1791 in the case of Livingstone v Earl of Breadalbane states that “…every man is the proprietor of his grounds, and entitled to the exclusive possession of them… No man can claim a road or passage through another man’s property… without a servitude… for amusement of any kind, however necessary for health…”

Accident Lawyer AberdeenYou may think that this ancient case does not bear much relevance to modern living, but a person’s right to the full exercise of their property is protected by Protocol 1, Article 1 of the European Convention on Human Rights.  Although the court decision from 1791 is old, it accurately states the law.   

However, the waters were muddied by the introduction of what is commonly known as “the right to roam.”  Public access rights were created by the Land Reform (Scotland) Act 2003.  This Act provides the public the right to be on and cross most land and inland water in Scotland in a responsible manner.  However, public access rights do not apply to the following places: 

  • Houses, gardens and non-residential buildings and associated land
  • Land in which crops are growing
  • Land next to a school and used by the school
  • Sports or playing fields (where exercising access rights would interfere with their use)
  • Airfields, railways, quarries, construction sites and military bases
  • Visitor attractions or other places which charge for entry

For a more extensive list of places where public access rights do and do not apply, see the Scottish Outdoor Access Code.

Where a member of the public accesses land which is not covered by public access rights, they are trespassing.  A court can therefore make an order to prevent trespassers from entering the land.  Breach of such a court order could become a criminal offence.  

However, land owners also have responsibilities.  If a member of the public is injured while exercising their public access rights, the land manager or owner could be liable for injuries sustained if they did not take adequate precautions to protect those on their land.

If you have concerns about trespassing, we recommend reading the Scottish Outdoor Access Code which provides guidance to landowners and members of the public.  

Blog by Iain Corbett, Accident Lawyer Aberdeen

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