Farms and trespassing: know your rights

Mark Woodman, solicitor at DAS Law, looks at what farmers need to know about trespassing.

21st June 2021

What is trespassing?

The legal term for trespassing is unlawful entry of one person on to another person’s property. If expressed or written permission is not given by the landowner, then anyone who is caught on this land without permission is trespassing.

Can I remove a trespasser from my property?

If someone is considered to be trespassing, the first call of action is to ask them to leave. If the person refuses, then a landowner is allowed to use ‘reasonable force’ to remove them. However, what ‘reasonable force’ means depends on the situation; landowners are not, for example, permitted to use weapons to remove a trespasser - this would be deemed excessive force and would likely constitute assault. Many landowners have been prosecuted for using excessive force so this right must be exercised with caution.

What is the punishment for trespassing?

The punishment for trespassing is dependent upon the severity of the offence. Trespassing is generally considered a civil offence with police having no authority to arrest a trespasser but they may help you remove them.

If the trespasser is accused of aggravated trespassing, then the maximum punishment is three months’ imprisonment, whereas first-time offenders are likely to receive a fine between £200-£300. If the trespasser is accused of trespassing with the intent to commit theft, then the punishment can be up to seven years’ imprisonment.

When does a farmer owe a duty of care?

With regard to duty of care, farmers must turn to the Occupiers Liability Act 1984 which sets out the position with regard to trespassers. This includes people who stray from the right of way onto adjoining land. But the level of liability a farmer owes a person on his land depends on the reason they are there.

When holding livestock in fields adjacent to public rights of way, farmers must be alert to the dangers cattle and other animals can pose to members of the public, and the risks that may arise from even apparently docile animals. The occupier owes a duty to trespassers if he:

  • Is aware of the danger;
  • Knows or has reasonable grounds to believe a person may get in the vicinity of the danger; and
  • Should reasonably be expected to offer the person some protection.

In terms of what livestock are allowed, farmers are banned from keeping specified breeds of dairy bull in fields crossed by a public right of way. These include Holstein, Fresian, Ayrshire, Dairy Shorthorn, Jersey, Guernsey and Kerry. It must also be noted that beef bulls over ten months old can only be kept in fields crossed by public rights of way if they are kept with cows and heifers.

A full assessment of those risks must be made, and, ideally, recorded, and appropriate action taken to minimise that risk. This may mean a variety of measures, from locating cattle in different fields, permanent or temporary fencing, the provision of signs or the relocation of feed areas away from public access.

How do rights of way affect matters?

Whilst there remains a low level of liability where people are using the right of way, if a person wanders from the legal route a farmer may then owe a higher duty of care because they have become a trespasser. It is important to clearly signpost rights of way to encourage walkers to stick to the route.

Note that there is no automatic right to walk across agricultural or other private land, even if someone thinks doing so wouldn’t cause any damage. That being said, there is a 'right to roam' over certain areas of land under the Countryside and Rights of Way Act 2000, which include:

  • Any land shown on a map as ‘open country’;
  • Registered common land (parts of the New Forest);
  • Land which is higher than 600m above sea level; and
  • Dedicated land.

Despite the above, there are also areas of land that someone cannot simply wander across, including some land which may be shown as ‘open access’ on a map, but is actually private and the only way you can roam across it is to use dedicated footpaths, bridleways and rights of way.  

What about ‘right to roam’? What rights do the landowners have?

The right to roam lets someone go onto open access land for the purpose of open-air recreation (such as walking). It doesn’t give someone the right to do what they want on that land, or cause any damage to hedgerows, fences or walls. In England and Wales, it also does not give someone the right to ‘wild camp’.

If someone breaches any conditions (including allowing a dog to run free around livestock), then they can be treated as a trespasser. This will mean the landowner has the right to stop them from going onto their land (even if it’s elsewhere) for 72 hours after they have been asked to leave.

There are also a certain number of restrictions, even on open access land. So, while someone is only allowed to access the land on foot, there is no right to make a fire. It is also advisable to avoid contact with livestock.

It can be very difficult to stop people from accessing your land if there are footpaths and public access points going across it. You can restrict access for up to 28 days a year, which is often the case during lambing season or at other critical times during the year, so that livestock are not at risk of being disturbed. It is also possible to restrict access for dog walkers over moorland where game birds are bred and shot.

However, what you cannot do is put up ‘No Trespassing’ signs on access land, or any sign that’s designed to deter the public from walking through access land. You also cannot use threatening behaviour or deliberately put the public at risk, for example by putting up barbed wire at public access points.

What are the rules around fencing?

A farmer or landowner cannot use fencing to prevent a person using a public right of way or they face being taken to court for causing an obstruction. They are, however, able to fence land to prevent unauthorised access. Temporary fencing may be used to separate land from a right of way so long as the path remains open for the public to use.

If you do not agree with unauthorised access, you should take action to prevent it. Acquiescence can lead to public rights being acquired.

Can I move a public footpath?

A farmer can make a request to the highway authority to divert a path, but because there is no obligation to process applications to change the route of the path it often can – and does – take a while before an application is looked at.

The new route must be enjoyable and convenient for the public, so farmers are advised to think about the surface of the path and how easy it is to walk on, the number of gates, and how pleasant the new route would be to walk compared to the existing one.

What about dogs?

According to reports earlier this year, the cost of dog attacks on livestock increased by over 10 percent to £1.3 million in 2020. Although there is no specific legal right to take a dog on a public right of way, it is likely that, should it ever be challenged, a dog would be considered to be a ‘usual accompaniment’ to a walker and consequently that a walker is entitled to take a dog with them on a public right of way.

However, that entitlement exists only in relation to the line of the path, and only if the dog is accompanying the walker. Therefore, a dog which is unaccompanied, or which an owner allows to run around off the line of the path, commits trespass against the owner of the land.

Landowners are able to apply for the exclusion of dogs from fields where sheep are kept at lambing time, as long as the enclosure is smaller than 15 ha (37 acres).

If a walker does not comply with the restrictions on access and rules concerning dogs, then they have no entitlement to be on that land and are effectively a trespasser. The landowner can therefore ask that person to leave the land.

When should a dog be on a lead?

Where land is mapped as open access land under the Countryside and Rights of Way Act 2000 a dog only needs to be kept on a short lead of fixed length of no more than two metres:

  • From March 1 to July 31;
  • At any time of year where a dog is in the vicinity of livestock.

But if the Countryside and Rights of Way Act 2000 land is crossed by a public footpath, the rules change. Here, where a walker uses a public right of way to cross open access land, only the right of way rules apply. This means if the dog owner follows the line of the public footpath on the land, there is no statutory requirement for him to have his dog on a lead.

Can a farmer shoot a dog that is threatening their livestock?

There is a provision in the Animals Act 1971 that allows the farmer to shoot a dog which attacks or chases his livestock. Where a field is home to sheep or other livestock, a dog must be on a lead or under close control.

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Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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