The Law - statutory restrictions
The principal legislation governing muirburn is the Hill Farming Act 1946 as amended by the Wildlife and Natural Environment (Scotland) Act 2011 and the Climate Change (Scotland) Act 2009. The legislation covers the burning of all vegetation on moorland, including plants such as gorse. It does not refer just to the burning of heather. Parts of the Wildlife & Countryside Act 1981, the Nature Conservation (Scotland) Act 2004, the Roads (Scotland) Act 1984, the Clean Air Act 1993, the Health & Safety at Work Act 1974 and the Fire (Scotland) Act 2005, among others, may also apply. Negligence in carrying out muirburn could result in liability to civil damages.
In Scotland, muirburn is permitted only between 1st October and 15th April inclusive, at all altitudes. This may be extended to 30th April only on the authority of the landowner. Generally, the Scottish Government does not encourage burning after the 15th of April. A muirburn licence may be granted to allow burning outside the muirburn season for the following purposes only: conserving, restoring, enhancing or managing the natural environment; research; or public safety. Details of how to apply for a licence to burn outside the muirburn season are available from Scottish Natural Heritage ( http://www.snh.gov.uk/protecting-scotlands-nature/species-licensing/muirburn-licensing/).
Before carrying out muirburn a person must notify the landowner, and occupiers of land within 1 km of the proposed muirburn site of their intention to burn during the coming muirburn season. Notification must be in writing (this includes email and text messaging where agreed by neighbours) and should be given after the end of the previous muirburn season but not later than 7 days before burning. If they request further information on the dates, location and approximate extent of proposed muirburn, this information must be given no later than the end of the day before burning. Notification does not need to be given to those who have indicated in writing that they do not want to be notified of any intention to make muirburn. Where there are 10 or more occupiers of land situated within 1 km of the site notification may be made by placing a notice in at least one newspaper circulating in the area.
Changes in agricultural support are increasing the importance of this Code. The cross compliance requirements of the Single Farm Payment ( SFP) require moorland to be maintained in Good Agricultural and Environmental Condition ( GAEC), and the Muirburn Code will be used as the standard expected of managers. The Code applies to farmers and all moorland managers and forms part of the compliance requirements for Single Farm Payments. The Code applies to all areas, regardless of altitude or type of vegetation. It should not be seen as applying only to grouse moors, as the guidance applies equally to the management of all vegetation by fire.
All of the following actions are offences, which could result in prosecution.
- Burning outwith the statutory burning season (unless under licence from Scottish Natural Heritage) [Hill Farming Act 1946, s23].
- Burning at night, between 1 hour after sunset and 1 hour before sunrise [Hill Farming Act 1946, s25].
- Leaving a fire unattended [Hill Farming Act 1946, s25].
- Being unable to control a fire or having not made provision for its proper control [Hill Farming Act 1946, s25].
- Causing damage to any woodland [Hill Farming Act 1946, s25].
- Causing damage to neighbours' property [Hill Farming Act 1946, s25].
- Causing damage to a scheduled monument [Ancient Monuments and Archaeological Areas Act 1979, s2(2)a].
- Failing to take fire safety measures in respect of harm caused by fire. Fire (Scotland) Act 2005, Part 3, s53 & s54.
- Carrying out burning on a Site of Special Scientific Interest, without consent from Scottish Natural Heritage, if burning has been notified as an 'Operation Requiring Consent' [Nature Conservation (Scotland) Act 2004, s19].
- Intentional or reckless harassment of birds listed in Schedule A1 of the Wildlife and Countryside Act 1981.
- Intentional or reckless damage to the natural features of a Site of Special Scientific Interest [Nature Conservation (Scotland) Act 2004, s19].
- Intentionally or recklessly disturbing or destroying the nests, eggs or young of breeding birds [Wildlife & Countryside Act 1981 (as amended), s1, Schedule 1 and Schedule A1].
- Omitting to give the landowner, or occupiers of land within 1 km of the proposed muirburn site, written notice of your intention to burn during the coming muirburn season. Notice must be given after the end of the previous season and at least 7 days before burning. [Hill Farming Act 1946, s26].
- Omitting to give further information, if requested, by the landowner or neighbouring occupiers (within 1 km) of the dates, location and approximate extent of intended muirburn, not later than the end of the day before burning.
- Lighting a fire, or allowing a fire to spread, within 30 m of a road so as to damage the road or endanger traffic on it, without lawful authority or reasonable excuse [Roads (Scotland) Act 1984, s100(c)].
- Creating smoke that is a nuisance to inhabitants of the neighbourhood [Clean Air Act 1993, s17, refers to an offence under the Public Health (Scotland) Act 1897].
- Endangering anyone's health or safety, including members of the public [Healthand Safety at Work etc. Act 1974, s2 and s3, Management of Health and Safety At Work Regulations 1999 S.I. 3242].
A tenant has the right to carry out muirburn "for the purpose of conserving or improving" the land, but if the lease makes provisions controlling muirburn then the tenant must give the landlord at least 28 days written notice. If the landlord is dissatisfied with the proposed muirburn the landlord, or factor, must give notice of the grounds for dissatisfaction within 7 days and refer the matter to the Scottish Government Rural Payments & Inspections Directorate for a decision. Representations may be made to the Scottish Government by either party.
The use of cutting or swiping machinery, used as a substitute for burning, is not subject to the same statutory seasonal limits as muirburn. However, an offence would be committed under Part 1 of the Wildlife & Countryside Act 1981 if cutting or swiping intentionally resulted in the death or injury of wild birds. It should not be used after the 15th April, and throughout the summer months, when ground-nesting birds will be present. The use of cutting machinery on a Site of Special Scientific Interest may also be an offence if the use of vehicles has been identified as an 'Operation Requiring Consent' (Nature Conservation (Scotland) Act 2004) and a consent for their use has not been given by SNH. Other legal obligations relating to the safe use of machinery will apply.