Supplementary memorandum submitted by
the Country Land and Business Association (DMB 04a)
LIVESTOCK AND THE PUBLIC
LIVESTOCK IN
GENERAL
Under section 2 of the Animals Act 1971, the
keeper of an animal is liable for damages if it injures another
person, provided that the keeper was aware of the animal's tendency
to cause injury. In the unreported county court case of Birch
v Mills [1995] a solicitor was exercising his dogs on short leads
on a public right of way. He was injured when a herd of Charolais
cows charged at the dogs. A similar incident had occurred a few
weeks earlier and had been reported to the farm manager. The defendant
was therefore held liable.
A keeper does not have to have knowledge of
the particular animal behaving in a certain way in particular
circumstances; it is sufficient that he knows that the species
normally behaves that way. Stephen Crabb MP's recent private member's
bill (supported by the CLA) sought to amend the section to reflect
its original intention, by providing a defence where the keeper
of the animal when the incident took place shows that there was
no particular reason to expect that the particular circumstances
that provoked the conditional characteristic in the animal would
arise at that time. However, as the courts currently interpret
the section, the keeper is equally liable when for example a horse
shies at a plastic bag (a continuing, generalised risk that the
keeper knows may occur at some time, but does not know when),
as when the incident involves a cow with calves, or a horse in
a field next to a shoot (where there is a heightened, specific
risk over a specific period of time that the keeper knows will
increase the possibility of the animal displaying dangerous behaviour
during that period).
Under section 5 of the 1971 Act, liability does
not arise if the damage is wholly the fault of the injured person.
If the injured person was a trespasser, the liability only arises
if the animal was unreasonably kept on the premises to protect
people or property.
If the keeper does not have knowledge of the
animal's tendency to cause injury, liability will depend on the
law of negligence. To succeed in a case of negligence, a claimant
would have to show that the defendant had a duty to him to take
care, that he failed in that duty and that the injury or damage
resulted from that failure.
BULLS
Under s 59 of the Wildlife and Countryside Act
1981, it is an offence for an occupier to keep a bull in a field
crossed by a right of way (defined in section 66 as a footpath,
bridleway, or byway open to all traffic). However, no offence
will be committed if the bull is either:
— less than 10 months old; or
— not of a recognised dairy breed
and is at large with cows or heifers.
Dairy breeds are Ayrshire, British Friesian,
British Holstein, Dairy Shorthorn, Guernsey, Jersey and Kerry.
Section 59 takes precedence over any bye-laws in case of conflict.
Even if the bull comes within the exception,
section 3 of the Health and Safety at Work Act 1974 places an
obligation on employers and self-employed persons not to put at
risk the health and safety of persons not in their employment.
Breach of the duty is an offence.
The Health and Safety Executive recommends that
a notice warning that a bull is present should be displayed at
access points to the field. However the notice should be removed
when the bull is not in the field as the notice would then be
misleading. Under section 57 of the National Parks and Access
to the Countryside Act 1949, it is an offence to display a notice
containing any false or misleading statement likely to deter the
public from using a public path or restricted byway.
COUNTRYSIDE AND
RIGHTS OF
WAY ACT
2000 ("CROW")
If an animal injures someone or causes damage
on CROW access land as on any other land, the occupier may be
liable under the Animals Act 1971, or in general negligence, as
above.
Section 22 of CROW allows landowners to apply
to restrict or exclude access to certain areas for a maximum of
28 days in any year. This could be used in cases of concern about
danger to the public from bulls or suckler cows, for example.
COMPULSORY CREATION
OF PUBLIC
RIGHTS OF
WAY
This short paper aims to clarify the positioning
relation to compulsory public rights of way creation under the
Highways Act 1980. These are existing powers that are used by
access authorities where the creation of public rights of way
are justified. More recently the legal documentation has facilitated
for "roll back" of the path on eroding coasts.
S 25 of the Highways Act provides for the voluntary
creation of a public right of way where agreement can be reached
with the landowner. These are called Path Creation Agreements.
S 26 of the Highways Act provides for compulsory
public right of way creation. These are called Path Creation Orders.
Path Creation Orders (s 26 of the Highways Act)
Access authorities and the Secretary of State
have power to make orders for the creation of footpaths, bridleways
and restricted byways. It must appear to the authority that there
is a need for the route and it must be expedient to create the
path having regard to:
(i) the extend to which it would add to the
convenience or enjoyment of a substantial section of the public
or of local residents; and
(ii) the effect which the creation order
would have on the rights of those with an interest in land, taking
into account the provisions for compensation.
The Path Creation Order may be subject to limitations
and/or conditions or it may be granted unconditionally. After
the order is made it must either be confirmed by the authority,
or where there are objections by the Secretary of State.
Where objections are made then the matter is
referred to the Secretary of State and whilst the matter is dealt
with by the Planning Inspectorate, the final decision is made
on behalf of the Secretary of State. The final decision must have
regard also to the Rights of Way Improvement Plan.
S 28 provides for compensation to be paid to
the landowner only if the value of his land has been depreciated
or if he has suffered damage by being disturbed in his enjoyment
of the land, by the coming into effect of the order. Disputes
on the amount of compensation are decided by the Lands Tribunal.
COMMENT
There appears to be nothing in Natural England's
summary evidence as to why Path Creation Orders could not be used.
In their oral evidence they did not acknowledgement that these
could be used even as a method of getting access through parks
and gardens. The reality of course is that they can be used anywhere
to create new Public Rights of Way.
Country Land and Business Association
June 2008
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