Can the farming industry and the public come to an agreement about access to land? grania langdon-down reports


Public right of access to land is the biggest single policy concern of farmers and landowners, according to Jonathan Cheal, head of the agriculture team at Thring Townsend Lee & Pemberton.



‘If you ask any group of farmers or landowners what worries them most, it is crassness from the Department for Environment, Food and Rural Affairs, foot and mouth, and the economic situation,’ he says. ‘But in terms of policy, the public coming onto their land is top of their agenda.’



The Ramblers Association earlier this summer won a significant victory on behalf of walkers when the House of Lords overturned a ruling that allowed landowners to use evidence that had not been made public to block the existence of a right of way.



Jerry Pearlman, honorary solicitor to the Ramblers Association and a consultant with Yorkshire law firm Zermansky & Partners, says that, up to the Court of Appeal, it was held that landowners could defeat footpath claims – even after 20 years of public use when regular, unchallenged usage normally assumes legal precedence – using private information such as a letter to a solicitor, a tenancy agreement or a private conversation to prove they intended the footpath to remain private.



Mr Pearlman says the association’s ‘dogged pursuit’ of a point of law has paid off. ‘Landowners will now have to do more to make members of the public know they are planning to block a right of way,’ he says. ‘What we have done is restore the status quo and it will redouble the expectations of our members when they go along to public inquiries.’



Mr Cheal, who acts for farmers and landowners, says the decision in Godmanchester Town Council v Secretary of State for the Environment, Food and Rural Affairs and Drain v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28, has made it more difficult for landowners to rebut the presumption of dedication of a footpath.



‘In cases where 20 years of public use have concluded and the public right arises, it is now too late for landowners to try to demonstrate they didn’t intend to dedicate it as a path,’ he says ‘But, in cases where the 20 years is not yet finished, the judgment is a blessing in disguise because it is a wake-up call to them to do something now, such as putting up a sign or locking a gate, to prevent the public from being under the impression that a right has been acquired.’



When it comes to byways being used by off-road vehicles or motorbikes, Mr Cheal says the Natural Environment and Rural Communities Act 2006 has closed off the possibility of new claims for off-roading. ‘There are about 800 surviving claims from before 2005 which will be decided by public inquiry. Anything later than 2005 can only be a restricted byway for use by the public on foot, horseback or horse and cart.’



The other big issue is the right to roam. The Countryside and Rights of Way Act 2000 (CROW) gave the public the right to roam over mountains, moors, heath and down. Mr Cheal says: ‘CROW was the result of a crusade by the left to open up land to public access. Legislation on access was passed in 1949 but the crusaders didn’t like it because it paid the landowner and the landowner was protected from occupiers’ liability, both of which were seen as ideologically unacceptable.



‘CROW removed those two provisions. However, once the 2000 Act was passed, the actual effects haven’t been as bad as landowners feared because most people don’t want to walk where they know they are not really supposed to be.



‘What will be a major issue is the extension of CROW to cover coastal access. If they do it without proper occupiers’ liability protection, it will be fraught with risk to the landowner. CROW 3 will cover woodland and riverbanks and, again, that is a very worrying prospect which hasn’t been thought through.’



What is clear is that public right of access is an issue close to both men’s hearts. Mr Pearlman, who always tries to walk the paths at issue, is now 74, with 50 years of active legal practice in this area under his belt and no plans to put his feet up. Author of the first-stage drafting of the ‘right to roam’ Bill, he says the countryside has become increasingly important in people’s lives and more people are using what they think are public routes. ‘At the same time, the attitude of landowners has hardened, perhaps because they confuse the right to roam with the right to walk along a defined path,’ he says. ‘I personally feel that there are more stubborn and less co-operative landowners than for several years.



‘However, the CROW legislation has settled in and landowners seem to accept that it isn’t as harmful as they feared it was going to be. It was probably the greatest change in English property law since 1925 because suddenly the law of trespass was changed.’



Mr Cheal says he works hard to build bridges between landowners and farmers and the general public. ‘There is always going to be a demand for access,’ he says. ‘We have a very small island and the amount of space is getting less, while the number of people wanting access is getting bigger, so there is bound to be a continuing collision course, which will only get worse.



‘However, if the public and the farming industry will only work together, it is not insuperable. I tell landowners not to take the line that they want the public off their land. The more diplomatic approach is to welcome them on your terms – that is, when and where, dogs on leads, that they come onto the land at their own risk and with your permission and not as a right. That way you have won some friends for the industry, which are sorely needed, and, at the same time, you can manage and control access without giving rise to a right.’