Forest Enterprise Scotland (FES), the Managers of Scotland's National Forest Estate, have issued guidance to help their staff work closely with farmers to tackle the problem of stray livestock causing damage on the National Forest Estate. It has been estimated that £250,000 of damage has been done to young trees in the past year alone. As well as financial damage to land and crops, additional concerns have been raised over biosecurity risks, in particular the spread of tree diseases and sheep scab caused by feral sheep, as well as general animal welfare concerns. FES has advised that it does not wish to be confrontational when dealing with farmers, and has acknowledged that fence maintenance can be both expensive and physically challenging due to the terrain. However, it has also been made clear that a robust attitude to enforcement will be taken. The guidance is supported by the Sheep Scab Industry Group as well as Police Scotland, the Scottish Government and other industry bodies such as the National Farmers Union Scotland and the National Sheep Association.
Under the Animals (Scotland) Act 1987, owners are responsible for damage caused by stray animals. This liability is ‘strict’ meaning there can be no excuse or avoidance. The owner of the land onto which an animal has strayed has the right to detain the animal in order to prevent injury or damage by it. The detainer must take reasonable care of the animal, and either return it to its owner without delay, or notify the owner or police.
Under common law, farmers must take reasonable care to prevent an animal straying, which would involve steps such as ensuring all fences are in stock-proof condition.
Since 2005 (following the Land Reform (Scotland) Act 2003) outdoor access for all became enshrined in law, however trespass by farmed livestock is not covered by the ‘right to roam’. There are also calls for action to be taken by the Scottish Government to address the issue of fencing between large tracts of government owned farming land and private forestry land.
It is clear that farmers must take steps to ensure that their livestock are safely contained within the appropriate boundaries in light of the new emphasis on accountability that FES is promoting. The cost of fencing may be less that that incurred by the damage caused by straying livestock on neighbours’ land.