The Right To Roam: Balancing Landowners’ Interests and Public Access

Esther Woolford, partner, solicitor advocate and head of the agriculture sector team at Clarke Willmott examines the current status of the Right to Roam.

In ancient times communal open land was essential for local communities to sustain themselves. However, from the 1750s a series of enclosure Bills were enacted by Parliament closing off over one fifth of the total area of England.

Whilst the enclosure bills were controversial, legal control of the land enabled landowners to innovate and improve agricultural efficiency.

In 1932, a mass trespass took place at the highest point of the Peak District, where 400 activists protested for greater access to the countryside. This sparked a public debate and the inception of the Ramblers Association. The Association’s campaigns in the 1940s led the Labour government to implement the National Parks and Access to the Countryside Act 1949, which introduced National Parks and AONBs.

Public access to land was extended again by Labour following the introduction of the Countryside and Rights of Way Act 2000 (“CRoW”), which established a Right to Roam across around 10 per cent of land in England and Wales. In 2003, Scotland went one step further following The Land Reform (Scotland) Act which implemented a statutory right of access to most land and waterways.

Current debate

The Right to Roam has been brought back into the public debate following recent rumblings from Labour about extending rights for ramblers across England and Wales.

In June 2019, the Labour Party commissioned an independent report titled “Land for the Many: Changing the way our fundamental asset is used, owned and governed.” The Report claimed that connection to green space is fundamental for our physical and mental health. Crucially, the Report proposed that the CRoW Act should be extended “to grant a Right to Roam across all uncultivated land and waterways, excluding gardens and other limited exceptions”.

We await the release of Labours new manifesto ahead of the next General Election to understand the extent (if at all) the party proposes to extend the Right to Roam. However, Labour’s “Clean Energy” mission hints that the party intends to take CRoW “further, growing nature-rich habitats like wetlands and forests… for families to explore and wildlife to thrive”. Therefore, landowners and the public alike will want clarity as to what this policy will look like.

Crucially, we anticipate our farming and landowning clients will be anxious about the prospect of opening up their land to ramblers beyond footpaths and wild campers and the health and safety concerns this may raise. Whilst the details of Labour’s potential policy are merely speculative, we can examine the rules in Scotland to gain an understanding of what it may entail.

Right to Roam in Scotland

As stated above, in 2003, the Scottish Parliament implemented a statutory right of access to most land and water in Scotland for recreational purposes. There is no requirement for individuals to seek permission from the landowner to access these areas. However, these rights are not unrestricted and the Scottish Outdoor Access Code provides detailed guidance on the exercise of the Right to Roam. The key provisions of the Code which may be of interest to our clients are as follows:

• Houses and gardens: Access rights do not extend to houses and gardens including vegetable and fruit gardens well away from the property.

• Farmyards: Access rights do not extend to farmyards. However, if a core path goes through a farmyard this can be followed. If a reasonable alternative route is signposted this should be used.

• Farm animals: Access rights enable the public to enter fields with animals, but they should keep a safe distance and observe the Code’s guidance if walking dogs. Landowners should keep animals known to be dangerous away from well-used routes or signpost an alternative.

• Dog walkers: Should not approach or linger around wildlife and dogs should be kept in sight and under control. Landowners should assess relevant risks and use signs to highlight issues if required.

• Fields with crops: Ramblers should use paths and stick to the margins of fields or unsown ground. Landowners should leave uncultivated margins to assist the responsible exercise of access rights.

• Following the introduction of the Right to Roam in Scotland, the Health and Safety Executive has released specific guidance in respect of cattle and public access. The suggested precautions involve selecting areas less frequented for cattle calving or when calves are present, along with establishing clearly marked paths to direct public access along routes which are best integrated with livestock management. There is current HSE guidance for dairy and beef farmers to risk assess placing cattle in fields with a public right of way. We anticipate that the type of risk assessments which currently apply to footpaths will be extended, though we wait to see how.

Conclusion

The trend since the inception of the Ramblers Association in 1935 has been towards increased access to the countryside for members of the public. The public debate continues about greater freedom of access, requiring politicians to balance the wellbeing of the public with the considerations of landowners, notably including safety concerns.