Blog - 05/06/2020
Where’er you walk – Roaming the countryside
The easing of some of the lockdown guidelines has resulted in an increase in walkers and cyclists enjoying their daily recreation in the allegedly covid-free country.
The joys of country walking are aptly described in the famous aria “Where’er you walk” from Handel’s oratorio Semele. Many will have heard that aria. Many more may have heard of the expression “Right to Roam” and may think that they are therefore entitled to walk wherever they please on rural land. After all the freedom to roam or “everyman’s right” is the general public’s right to access certain public or privately owned land, lakes and rivers for recreation and exercise – i.e. a perceived unfettered right which also complies with current lockdown guidelines (so long as you are at least two metres apart).
This is not the case.
Under the Countryside and Rights of Way Act 2000 members of the public can walk freely on mapped areas of mountain (land that is higher than 600 metres above sea level), moor, heathland and registered common land without having to stick to paths. This land is known as “access land”.
Landowners and tenants who have at least 90 years left to run on their leases may “dedicate” their land for public access.
However there is no automatic right to walk across agricultural or other private land even if doing so is unlikely to cause any damage.
Nor is there a right to wander across land which may be shown as open access land on a map but remains private – known as “excepted land”. This includes the majority of agricultural land and forestry as well as military land (do that at your peril!). Land used for racehorse training is also excepted as is land upon which there are pens for the breeding of livestock or game.
The only lawful way of accessing excepted land is by using a public right of way.
Public rights of way are the main means of getting about in the countryside. They are minor highways and whilst the use may seem obvious from the description, many landowners over whose land these public rights of way run would attest to the fact that the actual use often differs from what is permitted. One Yorkshire landowner commented to the writer that the country air often goes to people’s heads impairing their ability to appropriately use such rights of way.
A brief description of public rights of way with specific recorded rights are as follows:
- Footpath (usually waymarked with yellow arrows) – a right for walkers only.
- Bridleway (usually waymarked with blue arrows) – a right for walkers, horse riders and usually cyclists but there can be specific exclusions for cyclists.
- Restricted byway (usually waymarked with purple arrows) – a right for walkers, horse riders, (usually) cyclists and horse drawn carriages.
- Byway open to all traffic (often referred to as a BOAT and usually waymarked with red arrows) – rights for all users.
Other access rights may exist on some routes but they may not be public rights. Part of a private driveway may also be a footpath or bridleway. The fact that it is capable of being used for vehicular access does not convert the driveway into a BOAT. Vehicular use of the private driveway will be for access to the properties which are served by the driveway.
Landowners can close public rights of way that cross their land for up to 28 days in a year – usually to protect livestock at times such as lambing. Permission needs to be sought from Natural England if they wish to do that and likewise for an exclusion or restriction for land management purposes or conservation for any length of time.
Natural England also has the power to exclude or restrict access for public safety reasons, such as excluding heathland due to the risk of fire, and also for conservation management.
Landowners can restrict access for dog walkers for similar reasons. Usually from 1st March to 31st July dogs are required to be kept on a short lead. Restrictions can be in place for longer periods where there are paths over moorland where game is bred and shot.
What landowners cannot do is put up signs threatening that trespassers will be prosecuted (or shot or even eaten) or any other sign that might deter members of the public from using public rights of way. Trespass is not a criminal offence but a trespasser may be prohibited from going onto the land (or land owned by the same person) for 72 hours after leaving it.
What would be a criminal offence would be causing wanton damage to fencing, hedging, trees, crops and livestock. The theft of crops or livestock would also be a criminal offence. This would include the theft of game that had been bred in pens on the land.
The Countryside Code still exists – and has been updated to reflect the need for social distancing. Walkers and other users of pubic rights of way such as horseriders and cyclists should familiarise themselves with the Code and follow it – and not let the fresh country air delude them into thinking that they can roam wherever they please.
If you have any queries about this topic, please contact Rosie McCormick Paice our Residential & Rural Property Partner, or any member of the Residential Property Team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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