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26th July 2015

Straying Animals and Fence Boundaries

Straying animals can cause problems for owners and neighbouring landowners. The Animals Act 1971 imposes obligations on the ‘keeper’ of animals and gives rights to landowners in respect of straying animals. For domestic and farm animals the owner will be liable for damage caused and will have to compensate the landowner if he knew, or ought to have known, that the animal was likely to be dangerous and cause damage.

However, no liability will arise if:

1. The damage is wholly or partly the fault of the person suffering it

2. Livestock are lawfully on the highway but stray onto adjoining land

3. The damage would not have occurred if the landowner had complied with his duty to fence.

The keeper must take reasonable care to ensure damage is not caused by animals straying onto a highway. Adequate fencing in place would suggest that reasonable care has been taken. An exception to this is where an animal has strayed from unfenced common land or where fencing is not customary and the owner has a right to place animals on that land. A criminal offence is committed under the Highways Act 1980 where livestock is found straying onto, or at the side of, the highway.

The landowner has the right to detain any trespassing livestock provided that he gives notice to the police and the owner (if known) within 48 hours. The landowner may sell the livestock if the owner does not pay for damage caused within 14 days.

The Control of Horses Act 2015 introduces a new procedure for the detention or disposal of horses. Horses can now be disposed of 96 hours after detention (if the owner does not reclaim the horse or pay the damages due), rather than 14 days. Disposal can include humane destruction, sale or disposal in another way, such as giving the horse to charity. This aims to tackle the growing problem of fly-grazing horses.

Therefore to avoid liability, or risk livestock being detained or sold, adequate fencing ought to be maintained to prevent animals straying.

For more information please contact Robert McLellan on 01223 447430 or click here to email Robert. For more information on our Litigation services please visit our Dispute Resolution & Litigation page. This article also appeared in the August edition of the NFU British Farmer and Grower magazine.

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