 I was in the Scottish Borders this last month and hit upon a question that the few locals I met didn't seem to know the answer to. Wishing to hike up and mountain-board down several beautiful hills in the cheviots I was (in theory anyway) in several cases prevented from doing this by miles of continuous barbed wire fencing that I didn't remember from the year before last. One hill was completely surrounded by it. Most had padlocked gates.
Considering the right to roam thing, how did I stand, legally, clambering over the fence (not a stile in sight) onto the hills? I chose my hills carefully with no trace of a lamb neither my feet nor the mountainboard doing any damage to the grass and where I could I asked permission first. One farmer said I could climb over as long as I didn't damage anything but another said I couldn't. Neither owned the hills I was on.
Anyone know for sure?
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 Depends which side of the Cheviots you were on... but as you said 'Scottish Borders', then let's assume you were on the Scottish side. In that case, everything you need to know is here, but for the life of me, I've no idea what a 'mountainboard' is, and I wouldn't be at all surprised if it was the sort of thing that wasn't allowed.
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I reckon a mountain-board is allowed being non-motorised. If a horse drawn carriage is allowed then anything goes! As far as fence climbing is concerned, if there a gate you should use it. If it is padlocked you shoud still use it by climbing it at the hinged end. Only if there is no other means should you climb the fencing ensuring there is no damage. Hence both farmers were wrong!
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A mountainboard is a mountain skateboard - like this. You can't complain about fencing anymore than you can complain about rivers or ridges or rocky outcrops or cliffs; get over them without damaging them, or walk round - there's usually a stile or a gate somewhere. Tell the local access officer if you feel your walk has been unreasonably restricted. The Access Code can be summarised as "Don't be an arse".
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| Edited: 04/05/11 16:32 |
Thanks Paddy, very informative linky.
This is mountain boarding:
http://www.youtube.com/watch?v=4oRgfgZDSmg
I wasn't worried about the mountainboard being allowed or it damaging the hills, as it's practically zero impact and in any case the abundant and evident quad and jeep tracks and sheep erosion all over the hills I was boarding on put my mind at rest. Gates were few and far between and no stiles either so the only way in was over the fence which felt uncomfortable (previous conditioning in england maybe) because I had the family with me (normally I wouldn't worry too much; if invited to do so, I just leave).
ALS . not complaining in the slightest. In fact access in general was very easy. The fences were very obviously to keep the sheep in not people out, but if in doubt...
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Maybe there are different rules in Scotland and England but the principles the same. I believe that cycling isn't given the same freedom as walking. Mountain boarding could be said to be in the middle and wouldn't have been considered when laws were passed. Use common sense. The fences are there for a good reason and agriculture must have priority over recreation. The existance of tracks is not an excuse to make more. Again agricultural use has a different set rules. In effect accept that what you want just might not be viable and go else where. Having said all that use common sense. If you must climb a fence. Thats MUST not want to, do it by a post, 1 foot either side. Pick a post that won't move. Deviate if you must. A mile out of your way is better than damaging something. Make sure the wire is left as it was found, not sagging. Really it should be better than found .A touch of 2 minute maintainence by every user would go a long way to keeping others happy. Above all don't (not that I am suggesting you are) go on about "rights" . Consider responsibilities. Rant over and not really directed at the OP
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 Maybe there are different rules in Scotland and England but the principles the same.
Very different. 
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 In England and Wales you can run, walk climb etc under open access land, but not cycle, ride, etc., which would include mountain boarding. This becomes trespass.
In Scotland you do have ride to do all those things Under land reform act.
Land owners can put fences up willy nilly ... It's becoming a moot issue on Kinder of all places!
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I was under the impression (perhaps wrongly) that not having a right to be there only equals trespass if the landowner or an appointed agent asks you to leave and you refuse.
Being there isn't actually an offence in and of itself.
However, having said this, I do believe the "dont be an arse" to be the way forward...
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| Edited: 14/05/11 00:53 |
Trespass in England and Wales is not, in most cases, a crime but a civil wrong or a tort. The only remedy that the landholder has is to require you to leave. If you refuse he may use reasonable force to eject you. Landholders can take out an injunction to prevent persistent trespassers from entering their land other than on a right of way.
In certain circumstances, trespass is a crime e.g. on a railway and on designated Crown land as well as land belonging either to the sovereign or the heir to the throne. There are other occasions where trespass is a criminal offence but it is most unlikely that well-behaved walkers would run foul of them.
Hugh
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Regarding sensitive military sites... I've always wanted to take a photograph of one of those signs that says... "Within the strict meaning of the Official Secrets Act, photography is forbidden!"
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@ Mr Hoppy
This is an example of that not being true - under CROW you can walk, run etc. anywhere within the designated open access land, but when you cycle or board you are outwith the CROW legislation so it becomes trespass
Your trespass is being their ilegally - otherwise 'it's only trespass if you get caught' which would be weird
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Mr Hoppy
You are quite right!
I should have written 'Landholders can take out an injunction to prevent persistent trespassers from entering their land other than on a right of way or on access land on those days (strictly defined) when access is closed.'
Thanks for pointing this out.
Hugh
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| Edited: 15/05/11 09:59 |
Way back - preCROW so I stand to be corrected as things may have changed - the issue of trespass etc was explained to me by an agricultural lawyer. Trespass only strictly occurs if the trespasser has been asked to remove themselves (or are in contravention of a court order - injunction in this case). Thats not to say that trespass doesnt occur in the legal sense - just how does the landowner/occupier enforce something they dont witness and know about? If the trespasser refuses to leave, then the landowner/occupier has no right to make that person move - but has to call the law (Police) to effect the removal. There is no penalty for "trespass" itself - just for any damage caused during the trespass. Is this still the position?
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GOM wrote:
<Trespass only strictly occurs if the trespasser has been asked to remove themselves (or are in contravention of a court order - injunction in this case)>
This is not correct. Trespass is an illegal act, presumably under the common law, but it is not a crime and carries no penalties.
<just how does the landowner/occupier enforce something they dont witness and know about?>
Well, there is no remedy for either an illegal act or a crime if there is no evidence or witnesses. In the case of trespass, although it is illegal, providing no damage has been caused then, if the landholder knows nothing about it, no harm has been done.
<If the trespasser refuses to leave, then the landowner/occupier has no right to make that person move - but has to call the law (Police) to effect the removal.>
Not so! According to the standard legal text 'Rights of Way; a Guide to Law and Practice' a landholder does have the right to use reasonable force to eject a trespasser who refuses to leave the property when asked. You have the same right if someone enters your garden without permission and refuses to leave. The police do not have to be involved. The authors do not state any statutory authority for this statement so I assume that it falls under the provisions of the common law.
Hugh
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Um...define reasonable force (maybe thats where the advice of get the Police comes from)
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Reasonable force means using just sufficient force to make the trespasser leave. If excessive force is used the landholder could be charged, by the police, with assault and battery.
Hugh
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