This article is one in a series looking at the impact of public rights on land intended for development. In this article, we will focus on public rights of access under the Countryside and Rights of Way Act 2000 (‘CROWA’).
In our articles ‘Preparing your land for sale or development Part 3: On the ground considerations‘ and ‘The Impact of Rights on Development Land: Part 4 Common Land and Town and Village Greens‘ we will discuss other types of third party applications which could create rights over land.
The intention of CROWA was to establish a ‘right to roam’ on certain areas of land in England and Wales. Under CROWA there is a public right of access to;
Collectively the above are known as access land. It is possible to make a voluntary application to dedicate land as access land, which is binding on successive owners and occupiers indefinitely.
The public can only use access land for outdoor recreation such as walking, running, watching wildlife or climbing, although the landowner may permit other uses if they wish. Whilst using access land members of the public must ensure that they do not break or damage any walls, fences or hedges, and they are not allowed to do the following without the landowners permission;
Further restrictions on the use of access land are set out in Schedule 2 of CROWA.
It is worth noting that some land which may qualify as access land can be deemed as ‘excepted land’ and therefore the right to roam cannot be exercised. The categories of excepted land are set out in Schedule 1 of CROWA but some examples are land which;
The extent of access land is shown on conclusive maps maintained by Natural England, which are available free of charge online. These conclusive maps have been issued for each region since CROWA came into force, and there is a requirement for the maps to be kept under review by the relevant local authority or statutory body.
If your land is dedicated as access land then this will affect the future use of it. Whilst it may be possible to develop access land, this will be for the local planning authority to consider and is likely to result in specific conditions being attached to the planning permission, if granted.
It is an offence to discourage the public from using access land such as by displaying notices to that effect or charging them to access the land. Therefore, if you own access land, you must ensure you allow members of the public to freely access it in accordance with their rights and responsibilities under CROWA.
You will generally not be liable for any injury caused to members of the public on land you own which is dedicated as access land, as long as you do not create any risks or are reckless about whether a risk is created. You therefore need to ensure that you maintain and manage the land appropriately.
As a landowner you can exclude or restrict access to your land for any purpose for up to 28 days each year (except on certain summer Saturdays and Sundays and any bank holidays) and you can ban the bringing of dogs on to your land in certain circumstances (such as when it is lambing season). You must give notice to the relevant authority on each occasion that you intend to restrict access to your land.
The ‘right to roam’ is something that many members of the public see as a fundamental right in England and Wales, and when landowners seek to challenge this right, objection are likely to be raised. In January 2023, a landowner won his case against Dartmoor National Park Authority (Darwall v Dartmoor National Park Authority) to restrict members of the public having a right to wild camp without authority on the landowners privately owned land located within Dartmoor National Park. Dartmoor National Park Authority argued that the Dartmoor Commons Act of 1985 stated that the public had a right of access to Dartmoor National Park on foot and on horseback for the purpose of open-air recreation, which in their opinion gave visitors the right to wild camp on Dartmoor. The landowner argued that ‘recreation’ did not include the right to camp, and the landowner’s view was upheld by the high court.
Since the decision was made public, protests have taken place on Dartmoor and the case has faced criticism from many organisations which advocate for wild camping and the benefits it provides to people. At the time of writing this article, Dartmoor National Park Authority has decided to seek permission to appeal the case, and they are currently in negotiations with landowners in Dartmoor to try to reach an agreement which allows wild camping to continue to take place whilst the case works its way through the courts. Whilst this case does not concern directly the ‘right to roam’ under CROWA, it does show that there is sometimes conflict between the public’s right to access certain common land, and the landowner who ultimately owns and has to manage that land.
Further and more detailed information about other elements of strategic land can be found here.
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.
The Michelmores Property Development Club (PDC) is a forum for developers and property professionals to connect and share knowledge. The Club is celebrating its 21st anniversary...
