This article first appeared in The Press and Journal on 27 June 2020.

In this month’s column, I am taking another look at the right to roam. Specifically, what can be done when access takers are exercising the right to roam using vehicles such as e-bikes and quad bikes and what remedies are available for trespass or unlawful exercising of the right to roam? 

The right to roam does not apply to motorised activities. Activities, like off-road driving or motor biking, will not be allowed unless of course the landowner gives permission, which they are not obliged to do. The only exception to this is that someone with a disability may use an adapted vehicle to enable them to exercise the right to roam. The motorised activity exception gives rise to the vexed issue of whether you can exercise the right to roam using an electric pedal bike, or e-bike.

The law is quite clear. You cannot cross land on a motorised vehicle. This would clearly exclude quad bikes. But E-bikes have a motor. Are they a motorised vehicle? The National Access Forum concluded in 2016 that because e-bikes are not regarded as “motor vehicles” for the purposes of road traffic legislation then they should not be regarded as motor vehicles for the purposes of 2003 Act. This position appears to have become the accepted view, however, this conclusion has not been tested in the courts and one cannot assume simply because the road traffic legislation reaches this conclusion, that the 2003 Act does the same – after all the 2003 Act explicitly excludes “motorised vehicles” and e-bikes do have motor. 

Looking now at remedies, what if you find someone illegally taking access over your property, such as in a land-rover or quad bike? What options are open to a landowner?

It used to be said by people who thought they were in the “know” that “there is no law against trespass in Scotland”. That was never totally correct – it is not a crime to trespass but it is (aside from the right to roam) a civil wrong. Trespass is essentially temporary intrusion into land owned by someone else. However, if you are lawfully and responsibly exercising your right to roam, this will not amount to trespass

However, someone taking access on a land-rover or on quad bikes will amount to trespass because this is not exercising the right to roam. The remedies for trespass are interdict and, if the land is damaged, compensation. Interdict would prevent the unlawful activity from carrying on in the future. The difficulty with interdict is that you cannot interdict the public at large – you need to know who the perpetrator is. There must be an apprehension that the trespass will occur again – and the court must be satisfied of this – if there is no reasonable likelihood of trespass, there is nothing to interdict. The landowner is also expected to have given a warning to the trespasser, and to monitor its effect before seeking interdict. Interdict will not be granted if the trespass is trivial.

A landowner could put up a gate that still allows access takers, including cyclists and those with buggies and on horses, but prevents motorised vehicles and this would be permitted. Putting up signs reminding access takers of their responsibilities is also a good idea, so long as this can’t be seen as a deterrent. 

So far as damage caused by the motorised vehicles is concerned, the issue is identifying the perpetrator. If they can be identified, they could be sued for compensation. A loss still has to be established and the question is whether the damage has caused any loss that can be quantified (e.g. diminution in value of the land, damage to crops, loss of profits etc). 

For more information please contact Hamish Lean, Head of Rural Property and Business, at hamish.lean@shepwedd.com.

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