5 December 1997

Public access: an

unstoppable force?

Any day now the government will publish a consultation

paper on access to the countryside. Some details have

already been leaked. Leo Hickish, a partner with Strutt &

Parker, considers the form it is likely to take and how

farmers should respond

THIS government is committed by its manifesto to increasing public access to the countryside, and its consultation paper is expected to establish an automatic right of access to "open land", mainly upland areas and common land.

It will also contain measures to improve access to other types of open countryside, which might include woodland, riversides and coastal areas, if sufficient progress is not made by voluntary agreement.

As the Country Landowners Association and NFU have long recognised, these proposals have a general, if vague public appeal, and are backed by a determined and vigorous lobby. Opponents of unlimited access have, therefore, campaigned with restraint and been at pains both to show the areas in which walkers and landowners are at one, and to point to the success of voluntary schemes.

Nevertheless, recent years have seen an enormous growth in individual applications to local authorities to resurrect historic and sometimes dubious rights of way. The proposals expected from the government, though reasonable in appearance, are likely to spark off protracted and costly in-fighting over the application of their details.

Farmers and landowners will have to contend with a climate in which they could easily be represented as trying to maintain indefensible privilege and denying the public its heritage.

The best way to tackle the threat of unlimited access is patient, concerted and constructive criticism of the forthcoming proposals nationally, and a similar response by landowners locally.

Open land proposals

The basis of the governments approach seems to be a modification of the draft Access to the Countryside Bill produced in the early autumn by the Ramblers Association.

This covered England and Wales, and sought to amend the law of trespass to enable members of the public to "resort in foot to open country… for their recreation". Open country was defined as "any area which consists wholly or predominantly of mountain, moor, heath, down or common land".

The single word "predominantly" could spark off countless appeals and counter-appeals if it goes unchanged into the governments bill. Moreover, although most of the categories are upland, and could be seen as extensions of the national park principle, common land is a quite separate category. The effect of including everything in the Register of Common Land would give unlimited access to a wide and potentially anomalous collection of holdings, some of them on the edges of towns.

The Ramblers Associations draft proposed a category of excepted land which is covered by buildings or the surroundings of buildings – parks, gardens and pleasure grounds, quarries, gravel works, railways, golf courses, racecourses, aerodromes and the like. Landowners would be able to apply for exception orders to have land declared within this category.

It also proposed a category of non-conforming land, declared such because it was not open country but agricultural land. But the proposal would exclude both registered common land and land used as rough grazing.

An addendum to the main draft suggests that any person at any time thereafter may apply to the local authority to get the excepted or non-conforming designations removed, leaving landowners under constant threat of having to fight and refight their battles.

The consultation paper is likely to include a number of reasons for a temporary prohibition order, such as organised shooting, danger of fire, the birth and suckling of lambs and kids, protection of recently planted trees, or the prevention of injury in dangerous areas of land (eg, mine shafts).

Problems of access

One of the most contentious areas of the proposed legislation is access. The RAs draft would place a responsibility on local authorities for creating access from the public highway "as of right" once someone had complained that "sufficient means of access" were not available.

Given a fairly large area of land, how many access points would be reasonable? And who would pay to create them?

Deciding about access points is likely to be a local authority responsibility, which offers the farmer scope for making representations. The draft is vague as to payment, suggesting the local authority may make an agreement with the farmer or landowner under which it will carry out the work, or pay wholly or in part for it to be done.

In many locations it would be unrealistic to provide access in the form of gates or stiles without car parking to go with it.

Government thinking is that landowners who provide car parking facilities should be compensated through the Countryside Stewardship Scheme or Countryside Access Scheme, which many will regard as wholly inadequate.

A better solution would be for a landowner to provide a car park and install a pay-and-display meter for its use, although this in turn will be resisted by those who want every aspect of access to be free.

There is also the possibility that farmers might win some additional profit if the point of access is close enough to other farm facilities, including a farm shop, tea-rooms, gift shops and so on. Indeed, a shop could sell guides and maps designed especially for the stretch of open land open to access.

The RA draft has an addendum which recognises that people do not always behave well in the countryside. It lists a whole series of actions which would remove the protection of the proposed legislation from offenders.

These include: Driving or riding vehicles, lighting fires, having dogs not under control, injuring wildlife, swimming in contravention of notices, hunting and shooting, etc, damaging trees and plants, general damage and the leaving of litter.

It is not clear how any of these admirable rules could be enforced without vigorous and time-consuming action by the farmer. Landowners are, therefore, not likely to be impressed by the inclusion.

If the leaked details are correct, the government intends to make walkers bear the primary responsibility for their own safety. Landowners could nevertheless be open to claims of negligence, and this aspect of the consultation paper will need to be examined in the closest detail.

There are many potential areas of contention in the proposal to establish free access to open land. We feel that farmers and landowners should already be showing a readiness to engage in constructive discussions with local authorities. If the proposals becomes law, such an attitude could help them to deal with cases without confrontation.

Proposals for farmland

The governments proposals for most farmland will be studied with great interest.

At present, public access to lowland rural areas is achieved by a combination of voluntary agreements and historic rights of way. There is already a considerable pressure from activists to reopen "historic" rights of way, and some counties have as many as 300 outstanding cases for the creation of modification orders.

It will be disappointing if the governments consultation paper does not do something to deal with the chaotic situation which threatens to overwhelm some local authorities and involve landowners in protracted and expensive negotiations and appeals if they are to resist the creation of a potentially damaging right of way.

Our experience in this field suggests many of the "definitive" right-of-way maps which county councils were required to create under the National Parks and Access to the Countryside Act 1949 are faulty, and can be challenged by reference to historical and even archaeological evidence.

In Hertfordshire we were successful in showing that a right of way should not be converted into a byway for the use of vehicles. Nevertheless, the maxim "once a highway always a highway" allows many routes which have not been used for several hundred years to be reopened very simply.

The weight of the past is even more in evidence when landowners propose the reorganisation of footpaths and footpath system to take account of present day needs. They are frequently unsuccessful.

We believe that there must be a change in the rules, both tightening the procedures for submitting a modification order and giving the local authority greater discretion in the investigation of such applications.

It should be possible for landowners to negotiate with both local authorities and responsible access bodies, both to propose trade-offs to rationalise and simplify rights of way which are now inappropriate and where necessary create new rights to satisfy demand.

Voluntary agreements

The governments proposals are likely to embrace the system of voluntary agreements like the CLAs Access 2000 initiative. This campaign to encourage owners to provide access to land has opened up more than 100,000ha (250,000 acres) since 1990.

But the leaked details suggest the government intends to make provision for the "right to roam" to be extended to a wider range of countryside if voluntary agreements achieve "inadequate access", whatever that may mean.

The CLA argues that the National Parks and Access to the Countryside Act 1949 already gives local authorities the necessary powers to create access agreements. If nothing has happened in some areas, this is probably because there is no real demand.

The associations access adviser Alan Woods says: "New legislation is unnecessary because adequate powers already exist." But the government is committed to new legislation, and the concept of "inadequate access by voluntary agreement" seems destined to hang like the sword of Damocles over farmers and landowners, with its potential for disputes both nationally and locally.

Compensation

The government is prepared to compensate farmers and landowners for providing access facilities, but is not prepared to compensate them for loss of land value or increased costs.

In our view, there is no doubt that increased public access can reduce the value of a farm or estate, especially in the eyes of potential buyers from an overseas country.

Circumstances may arise in which the most convenient access, from the publics point of view, is also that which adversely affects the integrity of a farm or estate. These are considerations which can only be resolved at a local level, but some acknowledgement of the issue needs to be written into any subsequent draft Bill.

Main picture: Increased public access to upland and common land areas seems likely, and woodland, riversides and coastal areas could follow. Left:Leo Hickish.

Right: Public access is likely to be suspended during lambing. Below:If the point of access is close to, say, a farm shop, it could benefit the farmer.

Even on areas where public access is granted by the government, temporary prohibition orders for activities like organised shooting are likely.