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Was walking with the kids out on a local 'big house' estate earlier, headed down through the woods to see a waterfall. To get to the woods I had to walk along main access drive (about 1/2 mile) but turned off way before the main house. Then headed along track to the side of the old stables. This track passes a large walled garden with a gardeners cottage. No obvious alternative access to woods.
When walking back, tenant of cottage comes out and challenges me saying that I am on private land and therefore trespassing. I remind him that Scottish Outdoor Access code allows me to be there as long as I am acting responsibly, and I am being responsible, therefore I'm not doing anything wrong. He argues that he runs a commercial nursery within the walled gardens and the area is therefore a business area and I am not allowed to be there (even though I am on the track outside the walled garden). No industrial equipment, not signs of any business operating and nothing going on that we could be obstructing.
We had a bit of an argument, agreed to disagree then had a very nice chat.
I'm pretty sure I was in the right, what does the stw experts think?.
First of all, there's no law of trespass in Scotland 🙂
Except if the landowner thinks you're trespassing. 😉
Fair point but the issue is really whether or not I was within my rights rather than what (if any) offence has been committed.
If there was an obvious alternative route I would take it next time, not because I have to but because this is obviously something that annoys him.
Were you behaving responsibly? If not, he might have been able to get your for Breach of the Peace. Sounds (on the information presented) like he was just having a go at you. To be fair, if the cottage is his home, I can understand he might not want folk walking past it all the time. I'd have asked him, politely, if there was an alternative route and suggest that he might put a wee sign up pointing it out.
Have a quick look at [url= http://www.secretscotland.org.uk/index.php/Secrets/ScottishOutdoorAccessCode ]this[/url] as a starting point. I'm sure someone will be along with all the facts soon.
I think there is a law of trespass in Scotland, but its a civil offence, and he would have to prove you had caused damage, not just been there.
Whatever, in my opinion you had the right to be there.
sweepy - the 1865 Trespass law was largely over-written by the LR(S)A.
A marginal case IMO and Druidhs answer
ius probably as near to the right way to deal with this as possible.To be fair, if the cottage is his home, I can understand he might not want folk walking past it all the time. I'd have asked him, politely, if there was an alternative route and suggest that he might put a wee sign up pointing it out.
You are allowed in the big house estate - even on the balmoral estate for example. You are not allowed to walk thru the garden. defining which is which is not easy. The fact he runs a business on adjacent land is irrelevant. the main exceptions in this sort of circumstance are for privacy and security
However you did not and cannot trespass in the way you can in England - it simply does not exist in the same way in Scotland at all.
However you did not and cannot trespass in the way you can in England - it simply does not exist in the same way in Scotland at all.
Really?
Yes really don - trespass is not a criminal offence in Scotland and never has been - its a tort.
I never knew that, thanks.
TJ in knowing nothing about the law shocker! 🙄
Zulu - what are you claiming? I suggest you look up the law.
Trespass in the way it is in the law in England simply does not exist in Scotland and never has.
In Scotland you have to been doing damage to commit trespass - In England merely being there is enough. In Scotland you have a right to roam which means you cannot trespass on most of the land at all as you have a right to be there.
Edit :I have my terms "tort" and so on a bit muddled (its beena long day) but trespass in Scotland is not the same as in England at all which is the point
^ wot TJ says is right.
And we can politely ask people to leave under the access act, as we run an outdoor centre and harbour, and due to child protection issues we would ask people to leave, and have the right to ask them.
To 'tresspass' in Scotland you need to damage or 'hinder the landowners enjoyment of the land' and it is a civil offence, (I THINK this next bit, not read it proper like - unless you are in a motor vehicle)
http://www.mcofs.org.uk/access-law-and-soac.asp
*Yes really don - trespass is not a criminal offence in Scotland and never has been - its a tort.
Well, [u]for a start[/u], trespass is not a criminal offence in England and Wales, and never has been - its a Tort (in scotland, it would be a delict, not a tort)
As in England, trespass in Scotland is a civil wrong, (in both jurisdictions, it can sometimes also constitute a criminal offence, e.g. trespass with a firearm)
TandemJeremy - MemberEdit :I have my terms "tort" and so on a bit muddled (its beena long day) but trespass in Scotland is not the same as in England at all which is the point
TJ, It is usually fairly easy to define the curtilage of a dwelling (the bit you have no right to be in) - its usually walled/fenced/hedged in - and for "big house gardens" is very likely to be well maintained. Common sense really.
Frank - I'd say it sounds like you were doing nothing wrong. If it were me I'd ping an email to the relevant council's access officer - which will help him understand if there is a common problem or if this was a one off.
Matt - asking someone to leave is tantamount to restricting their access (even if you do it politely). The "child protection issues" are your problem (and quite frankly pretty much nonsense). However if your outdoor centre falls within the definition of a school then the LRA(S) does not apply.
Poly - indeed common sense is a great help.
we would ask people to leave, and have the right to ask them.
Right to ask - and they have a right to ignore us or act responsibly and get out what is basically a 7 acre garden - all mown, walls and fences, activities etc.
see my link to MCofS for:
If a sign, or any other form of request, gives good, accurate and responsible advice then we should act responsibly by following the advice. To ignore it would be considered irresponsible, but we believe that it is not irresponsible to ignore a confusing, inaccurate or misleading sign, if you are confident that it is irresponsible.
on curtilage ( great word) IIRC there is no binding case law as such yet - Anne Gloag applied to the courts to have the entire estate or a large area declared her private garden so access rights did not apply - but the decision was made in a lower court so not binding and not appealed (yet again IIRC)so as not to set precident. the queen has a much smaller area at Balmoral than Gloag I believe
Another case at Archerfeild - again settled without yet setting precedent
http://www.ramblers.org.uk/scotland/ourwork_scotland/access/casestudies/archerfield-may06
Actually, until 1694 trespassing was considered a criminal offence in Englend with a fine issued for the breach of peace.
Since then it has been, as in Scotland, a tort.
I don't know when TJ defected North but I assume it was post 1694.
Tell politely to F£ck off and mind his own business..and to go and watch Braveheart.
That's what I would do..... being a born Highlander 😉
Usually the decision about the extent of curtilage can be determined by a site visit from the relevant local authority access officer (which used to be my job 🙂 ). But otherwise, look for areas that have been 'tended' (eg mowed grass), with a clear boundary. Which it sounds as though you did. However, it's also worth giving thought to whether you feel you are intruding on someone's privacy (for example maybe they want a 'wild' area rather than a garden, in which case just give them some consideration and steer clear).
When there is a dispute, often the best way forward is to indicate a preferred route (eg a sign) - but be aware that it might not be on the more accessible track.
Matt, I would contest that asking someone to leave an area they have a right to access is a breach of Section 14.1e of the LRA(S).
[i](1)The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or [b]deterring[/b] any person entitled to exercise these rights from doing so—
...
(e)take, or fail to take, any other action.[/i]
(bold is my emphasis)
FYI - the MCoS don't create the law - they are merely providing advice to their members on how they think they should behave in various situations.
Higgo, I'm afraid thats a misunderstanding of the gravity of the word trespass, whereby here we would be discussing a trespass of "entering land without right or permission" - a "trespass" in old law would include a trespass against the person, or one of a great many other trespasses, such as damming a stream to prevent water flowing on properly, or a dog crapping in your garden - it would still however involve a [u]civil[/u] writ under common law, and the court may issue a judgement of [i]quod capiatur pro fine[/i] (which was abolished in 1694) - which is in effect an ex-officio fine for a breach of the peace (a common law offence) but its not really the same as being a criminal offence, as it relied entirely upon the "victim" issuing a civil writ taken at common law, rather than the crown acting to punish a misdemeanour of its own volition 8)
FWIW, there are a great many areas in both jurisdictions where trespass would still be a criminal offence under various statutes, such as Railway, MOD or BNFL land.