The ‘right to roam’ and the impact on access land

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The Countryside and Rights of Way Act 2000 (‘CROWA 2000’) extended public rights to enjoy the countryside through a new statutory right of access to:

  • Open country (mountain, moor, heath and down);
  • Registered common land; and
  • Other land dedicated for access for the purposes of CROWA 2000

These areas are collectively called “access land” and are shown on ‘conclusive’ maps maintained and periodically reviewed by the relevant “access authority” (Natural England or Natural Resources Wales – as applicable).

At present, the “right to roam” exists over only 8% of England.  A scheduled review of this, headed by Lord Agnew, has recently been shelved – a decision much criticized by groups campaigning to improve access to the countryside.  The UK government has also attracted criticism for failing to act on its previous promises make use of its powers under the Environment Act to reward farmers for improving access on their land.

Some land which qualifies to be access land and as such may or may not appear on the access land maps, is classed as Excepted Land. This is not subject to access land rights because of either its location or use.

This includes:

  • Land on which the soil is being, or has at any time within the previous twelve months been, disturbed by any ploughing or drilling undertaken for the purposes of planting or sowing crops or trees;
  • Land within 20 metres of a building used for housing livestock, not being a temporary or moveable structure;
  • Land covered by pens in use for the temporary reception or detention of livestock;
  • Land covered by buildings or the curtilage of such land;
  • Land within 20 metres of a dwelling;
  • Land used as a park or garden;
  • Land used for the getting of minerals by surface working (including quarrying);
  • Land used for the purposes of a railway or golf course;
  • Land which is coastal margin and is part of a coastal route strip;
  • Land habitually used for the training of racehorses.

Using access land

Any person is entitled to use access land for the purposes of open-air recreation so long as they do so without breaking or damaging any wall, fence, hedge, stile or gate.

However, the public right of access is essentially confined to a right of access on foot only. Horse riding, cycling, use of motor vehicles, camping and other activities are not permitted as of right (although the landowner may permit them).

Discretionary exclusions and restrictions

Subject to the giving notice on each occasion to the “relevant authority” (Natural England, Natural Resources Wales, the National Park Authority or the Forestry Commissioners) CROWA 2000 gives landowners a discretionary right to:

  • exclude or restrict access to their land for any purpose for up to 28 days each calendar year (except on certain summer Saturdays and Sundays and any bank holidays).
  • ban the taking of dogs onto their land in certain circumstances (for example, in the lambing season or to protect grouse).

Means of access

Upon giving notice, and subject to a right of appeal, the relevant access authority has power to carry out any necessary works to create or safeguard the means of access. This will usually be by agreement with the landowner.

Advice and codes of conduct

Access authorities:

  • can appoint wardens to give advice (to users and owners of access land) and secure compliance with the statutory provisions;
  • have a duty to issue a code of conduct for the guidance of users of the right of access and persons interested in access land (for example, farmers, landowners and commoners); and
  • have a duty take steps to inform the public of the extent, and means, of access to access land and their rights and obligations.

Effect of rights of access on the rights and liabilities of owners

The liability of anyone with an interest in access land is not increased by reason of the public having rights of way over the access land. Under CROWA 2000, the standard of care towards those exercising their statutory rights of access is set at the same level as that owed to trespassers.

Unless you set out to create a risk, or are reckless about whether a risk is created, you are not liable for any injury caused by:

  • any natural feature of the landscape including any tree, shrub, plant, river or stream
  • any ditch or pond, whether natural or not
  • people passing over, under or through a wall, fence or gate, except if they’re making proper use of a gate or stile

In the coastal margin next to the England Coastal Path, you’re not liable for any injury caused by any physical feature on the land, whether it’s a natural feature of the landscape or a man-made.

Deterring public use of access land

It is an offence for anyone to display any notice on, or near, or leading to access land that may deter public use of that access land.

Dogs on open access land

Owners must keep their dogs on a lead no more than 2 metres long whilst on open access land:

  • between 1 March and 31 July – to protect ground-nesting birds;
  • at all times around livestock (unless excluded altogether – see ‘Discretionary exclusions and restrictions’ above).

On land next to the England Coast Path, owners must keep their dogs under close control at all times.

For more information or assistance on any of the points addressed here, please get in touch.