Keeping Out Trespassers

The Pokemon Go craze seems to be subsiding, but during its height some players were hunting Pokemon in dangerous places, including in some cases disused mines, leading to significant rescue operations. In Cornwall, Poldark fans have also been wandering around clifftop mine workings hoping to find Ross digging for tin with his shirt off!

All of this does highlight the responsibilities mineral rights owners and mineral operators (as applicable) have to keep uninvited members of the public away from mineral working hazards. Legal duties apply to both mines and quarries, whether currently operational or abandoned, but in this article I have focussed on the duties of quarry operators.

General duty & the Quarries Regulations 1999

The starting point is the general duty employers have under section 3 of the Health and Safety at Work Act 1974 to ensure, so far as reasonably practical, the safety of those not in their employment. In relation to working quarries this is supplemented by the Quarries Regulations 1999. Regulation 16 deals with barriers and it requires that where “appropriate” a barrier suitable for the purpose of discouraging trespass is placed around the boundary of the quarry. The barrier must also be properly maintained.

The regulations are supplemented by the accompanying approved code of practice “Health and Safety at Quarries” (“APOC”), and this provides further guidance in respect of Regulation 16. There is also an information sheet issued by the Quarries National Joint Advisory Committee on the issue of barriers (Information Sheet GS3 – Guidance on the Provision of Boundary or Perimeter Barriers at Quarries). Both sets of guidance help unpack various elements of Regulation 16, including the key issues of assessing “where appropriate” and what is a “suitable barrier”:

“Where appropriate”

The APOC comments that barriers will be appropriate where it is reasonably foreseeable that members of the public, including children, are likely to trespass on the site and can suffer injury if they do so. It is suggested the barrier should always be provided at quarry boundaries which are near to schools, colleges, shops or significant numbers of homes. Quarry operators also need to consider whether there is a footpath or other public right of way running through or near to any part of the quarry that may link to a housing estate or a school, and if there is any evidence of previous trespass or of children playing nearby.

“Suitable barrier”

What is considered to be a suitable barrier will depend on the risk assessment. The guidance suggests where the quarry is in a rural area where the risk of public access is low that boundary hedges, trenches and mounds may be sufficient to act as barriers (and the QNJAC note recognises that it may not be reasonably practicable to fence all of the land owned or operated at very large quarries). Having said that, even if the quarry is remote, if there is evidence of trespass then a higher standard of barrier may well be appropriate. For example where there is evidence of regular or frequent trespass by children, and there is significant risk to those children, metal poling fences may be required. It may well also be that different parts of the site require different standards of barrier, so for example processing plant areas or areas with moving vehicles may need to be more securely fenced off and clearly signed than other areas.

Continuing obligations

Operators need to consider their obligations on a continuing basis.  This is not limited to ensuring that there is an appropriate level of inspection and maintenance, but should also include reviewing the requirement for barriers and the level of security in light of evidence of entry onto the quarry. The APOC emphasises the need for the adequacy of arrangements to be carefully reconsidered if there is evidence of children playing on or near the site.

In addition to the obligations of the Quarries Regulations 1999, section 151 of the Quarries Act 1954 provides that a quarry (whether it is being worked or not) which is not provided with an efficient and properly-maintained barrier, designed and constructed so as to prevent any person from accidentally falling into the quarry and by reason of its accessibility from a road or a place of public resort constitutes a danger to members of the public, will constitute a statutory nuisance under the Environmental Protection Act 1990.

Section 151 can be enforced by the local authority who can serve an abatement notice requiring the nuisance to be remedied. Failure to comply with an abatement notice can lead to the owner of the quarry being prosecuted and fined. Moreover, councils can take action to carry out works to abate the nuisance and then recover the costs of those works from the owner of the quarry.

Obligations to trespassers

These specific statutory duties are on top of the general duty of care all quarry operators (and other occupiers of land) have for someone who trespasses onto their site. Obligations to trespassers are more limited than those owed to invited visitors but essentially an occupier may have (if certain conditions are fulfilled, including whether the occupier knows of the danger on the land) a duty of care to a trespasser. This relates to any risk of the trespasser suffering injury on the premises due to a danger, which is caused by the state of the premises or things done – or omitted to be done – on them.

If the duty arises, then the nature of the duty is to take such care as is reasonable in all the circumstances to see that the trespasser does not suffer injury on the premises by reason of the danger concerned. As a result, occupiers can be under a duty to fence off the land or the dangerous feature, or to erect warning notices or both. However, if the trespasser willingly accepts known risks, the general rule is that there is no duty on the occupier of the land.

So whether someone trespasses near a quarry searching for Pokemon, or for any other reason, it is important that quarry owners and operators understand their responsibilities.

Simon Trahair-Davies is a partner, and head of the mining and minerals team at Stephens Scown LLP in the UK. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised once again by independent guides to the law Legal 500 and Chambers. Simon can be contacted on 01872 265100 or email