In Focus: what the law says about public access and why the term ‘right to roam’ is incorrect

Battle lines over what has wrongly been described as the ‘right to roam’ have been drawn for some time. For some campaigning under the ‘right to roam’ banner, this has become a rallying cry, demanding that all areas of the UK countryside are opened for people to walk where they like, camp in any location and paddle along any waterway.

For landowners, it has become a major issue, with many members of the public mistakenly believing there is a general ‘right to roam’. Such trespassing can cause significant damage to crops and boundaries, risking the welfare of livestock and threatening sensitive wildlife areas. The recent case clarifying the absence of a right to wild camp on Dartmoor attracted national headlines and this has again cast the spotlight on the debate around such rights (see the CLA commentary here), and how much open access land we should have in the UK.

But, what are the current rights, what are the laws around public access land, what do landowners need to know and do the public access rules differ around private land, farms and beaches?

In this blog, we explore these issues and also look at the arguments around whether the rights of public access should be increased or not.

Campaigners argue that there should be a ‘right to roam’. They point to ancient rights in other countries, such as Sweden and Estonia that allowed people wander in open countryside.

Some of these campaigners have, in part, positioned the fight as a class war, but the reality is that much of our land has to be protected for a variety of reasons, including food security for the nation and to preserve sensitive environmental sites.

The entirety of the UK is criss-crossed with footpaths, bridleways and other public rights of way. For hundreds of years in England and Wales this has meant that you have a right to use the route. However, there is no right to wander on gardens, crops or other private land.

The term ‘right to roam’ is a poorly chosen expression. A major issue for our members is people trespassing on their land and then claiming they “have a right to roam”.

This term has caused a lot of confusion and, as a result of the term, many people wrongly believe they can use this ‘right to roam’ to walk, swim or camp anywhere they like. This belief then has a knock-on impact to their own safety, for instance in agricultural areas where heavy machinery is operating, impacting sensitive environmental areas and also on the farm business.

There are 3.5mil acres of land open to public access under the national Catalogue of Rights of Way (CROW) and the Woodland Trust say that there are almost 1.3mil acres of woodland accessible to the public in England and Wales.

These areas are open to access provided those accessing behave responsibly and subject to a number of exclusions and restrictions which may apply at certain times of the year or more permanently for a wide variety of reasons.

As we’ve said, the ‘Right to Roam Act’ is an incorrect term and shouldn’t be used, but when people refer to it, they are often incorrectly referring to the Countryside and Rights of Way Act 2000.

Labour came to power in 1997 with a manifesto pledge to give the public an “increased right to public access”. Three years later, the Countryside and Rights of Way Act was passed but it took another three years to then map all of the open countryside in England and Wales. The provisions for open access then came into effect in Wales on 28 May 2005 and in England on 31 October 2005.

Under the Act, members of the public can use access land in England and Wales without having to follow the paths. The access land includes a range of privately owned wild, open countryside including mountains, moors, heaths and downs. Common land registered with the local council and some land near the England Coast Path has also been designated as coastal margin which the public have access to.

The access provisions set out in the Countryside and Rights of Way Act 2000 applies to England and Wales and you can find all of the land designated open access shaded on Ordnance Survey maps or via this Natural England portal.

While this land is open access, there are still restrictions that members of the public should be aware of.

Open access land can be used for walking, running, watching wildlife, and climbing.

On access land you may leave the path and explore the countryside. However open access doesn’t mean that you can do anything you please. Certain activities such as horse riding, cycling, taking animals onto the land (other than dogs), water sports, metal detecting, lighting fires, hosting commercial activities and driving vehicles (other than mobility scooters and powered wheelchairs) on the land are generally all forbidden.

The exception to this is that activities that would not be allowed through the statutory right of access, such as horse riding and cycling, may be permitted with the landowner’s consent. There may also be additional rights for instance if there is a bridleway or byway.

Wild camping is not allowed on open access land, unless it is specifically identified as a camping area or you have permission from the landowner, then you are not permitted to camp on access land.

Within areas of open access land, there could still be some parts that remain private and these are classed as ‘excepted land’. The public cannot access excepted land unless there are public rights of way crossing them. Excepted Land includes houses, buildings and the land they are on, such as courtyards; land used to grow crops; building sites and land that’s being developed; parks and gardens; golf courses and racecourses; railways and tramways; and working quarries.

Land managers can also temporarily restrict the public from using access land for a variety of reasons including protecting livestock during lambing, protecting breeding birds or to keep the public safe from harm.

You are permitted to take a dog with you onto access land but there are some ground rules that you must follow to protect wildlife and farm animals.

If, you are taking a dog onto open access land, they must be kept on a lead no longer than two metres between the dates of 1 March and 31 July to protect ground nesting birds and at all times around livestock.

On land next to the England Coastal Path, you must always keep your dog under close control.

The government is in the process of creating an England Coast Path that will stretch the full length of England’s coastlines.

The route of this path is still being negotiated in some areas but along with coastal margin land will give people the right of access along the entire coastline of England. This does not cover the full length of all coastal estuaries and the path going too far inland on some estuaries has been a point of contention between Natural England and landowners. Wales has a separate legislative regime for coastal access with no spreading room.

Much of the foreshore is owned by the Crown who allow public access and many of the beaches outside of Crown ownership already permit public access. As with inland open access ground, some areas of the coast path will be deemed as excepted land where public access is not permitted.

One argument for increasing the amount of public access is ensuring that everyone around England and Wales can easily access green space.

The government in the Environmental Improvement Plan has committed to ensure that the public can have access to green space or water within a 15-minute walk from their home. Being able to enjoy open space has proven benefits on both physical and mental health.

Increased use of current access land and public rights of way can also promote environmental awareness by encouraging people to care about nature.

There may also be economic benefits associated with boosting local communities through tourism and creating opportunities for social inclusion.

There are many arguments against increasing the amount of public access. Firstly, there are already thousands of footpaths and public rights of way crossing the countryside and this provides ample opportunities for people to access nature.

Footpaths and other public rights of way can be found in every part of the UK, taking people to beautiful locations in every corner of the countryside.

Some conservationists believe that increasing public access can lead to environmental degradation as increased footfall, particularly with dogs, and disturbance can impact fragile ecosystems.

Another strong argument against increasing public access is the need to better inform members of the public about respect for the environment. The greatest complaints the CLA receive from landowners relate to rubbish left behind, damage to boundaries, gates left open and general damage to the wider environment caused by members of the public.

Access will continue to be a hotly debated topic for many years to come and remain something of a political football.

Those using the ‘right to roam’ terminology will probably continue to do so, but it is both incorrect and leads to more divisive actions and discussions which in our view entrench positions and are deeply unhelpful.

The CLA will continue to represent the interests of landowners and the countryside at the highest level, making sure our members are heard.

If you have any questions about public access, then contact Andrew Gillett or Claire Wright in the CLA team and they will be able to provide expert advice and guidance.

Email andrew.gillett@cla.org.uk or claire.wright@cla.org.uk.