UK: Countryside And Rights Of Way Act 2000

If a Balloonist lands a hot air balloon on your land, damaging a tree, demolishing a fence and squashing crops in the process, is he a trespasser ? If the local hunt saboteurs lay a false trail or blow horns to distract the hounds, are they trespassers ? A study of the Countryside and Rights of Way Act 2000 which received Royal Assent on 30 November 2000 suggests that the answer to both questions could be "no" once the provisions of the Act relating to countryside access ("the right to roam") come into force.

The Act, which comprises 104 sections and 16 schedules is divided into five parts. The first part deals with the right to roam and is the subject of this article. The other four parts deal with amendments to the law relating to public rights of way and road traffic (part 2), nature conservation and wildlife protection (part 3), areas of outstanding natural beauty (part 4) and various miscellaneous matters such as the creation of local access forum and town and village greens (part 5) and will be the subject of subsequent articles.

The provisions in the Act on the right to roam will not come into effect in England and Wales until an order is made by the Secretary of State (in England) or the National Assembly (in Wales). The current estimate is that this will occur in 2005. The reason for the delay is that it is necessary to prepare "definitive" maps showing the land over which the public is to have access. The duty of preparing these maps rests with the Countryside Agency (in England) and the Countryside Council for Wales (in Wales) with effect from 31 January 2001. Once the provisional maps have been produced (and representations may be made by anyone as to which piece of land should be included or excluded) the maps will be confirmed by the relevant agency but will then be subject to appeal by any person having an interest in any land appearing on the map. The appeal will be dealt with either at a hearing or a public enquiry in a manner similar to the existing procedure for rights of way appeals and the same rules about the production of evidence and award of costs will apply. Once appeals have been dealt with, the map will be conclusive but must be kept under review not more than once every ten years. On review, land can either be added to or removed from the map as access land.

Land will be included on a map if it is "open country" or registered common land. Such land will be known as "Access land". Access land also includes land more than 600 metres above sea level in an area where no map has been prepared. "Open country" is land which consists wholly or predominantly of mountain moor heath or down - and by order may be extended to include "coastal land" which is foreshore or land adjacent to foreshore.

Even if land would fall into the definition of "Access land", it will be excluded from the map if it is used for one of the purposes set out in Schedule 1 of the Act. This includes land covered by buildings, land within 20 metres of a dwelling or a building used for housing livestock (if permanent), land covered by pens for the temporary reception of livestock, and land used habitually for the training of racehorses, quarrying, railways, golf courses, racecourses or aerodromes. Any land on which the soil has at any time in the previous 12 months been disturbed by ploughing or drilling for the purpose of planting or sowing crops is excluded also. In addition, the agency preparing the map may exclude an area which is so small that they consider its inclusion serves no useful purpose. However, they may determine that the boundary of the land is to be treated as coinciding with a particular physical feature, even if the effect is to exclude land which would otherwise fall within the definition or include land which would not. There seems to be plenty of scope for argument.

The Act was the subject of furious debate during its passage through Parliament. One of the issues of most concern to landowners was the issue of Occupiers Liability for injury to members of the public exercising access rights. The Act attempts to remove this concern. Firstly it states that the Act shall not increase the liability of any person interested in the land. For the purposes of the Occupiers Liability Act 1957 a person exercising a right of access is not treated as a "visitor" which would impose a higher duty of care. In addition, there is stated to be no duty of care imposed on the occupier by virtue of a risk which results from the existence of a natural feature or a river stream ditch or pond (whether natural or not) or an injury suffered when passing over or through a wall fence or gate - provided that in each case the danger was not due to anything done by the occupier with the intention of creating a risk or being reckless as to such risk. In deciding whether a duty of care is owed to the member of the public, regard must be had to the fact that the right of access ought not to place an undue burden (whether financial or otherwise) on the occupier.

The right of access will be subject to a significant number of restrictions as listed in Schedule 2 of the Act. These include restrictions on driving vehicles, lighting fires, feeding livestock, hunting, shooting or fishing or using metal detectors or any commercial activities. A person breaching a restriction becomes a trespasser and is excluded from any land belonging to the same person for a period of 72 hours. Which brings us back to a Balloonist and the hunt saboteurs. In the Balloonist's case the act prohibits hang gliding and para gliding but not ballooning. It prohibits intentionally damaging trees and plants and without reasonable excuse interfering with a fence. But could he argue that he did not intend to do the former and was blown by a freak wind onto the latter and therefore was not a trespasser ? In the hunt saboteurs case, the act prohibits doing anything which is intended to have the effect of intimidating persons engaged in a lawful activity so as to deter them from engaging in those activities but makes no mention of the dogs. It prohibits doing anything without reasonable excuse which disturbs annoys or obstructs any persons engaged in lawful activity on the land but raises the prospect of a defence that the "reasonable excuse" is a concern for the welfare of the fox. It seems likely that when the law is brought into force by the making of the necessary order, the courts will have a few interesting issues to resolve.