We take for granted a stable political system, a corpus of property law which is applied with uniformity, a land registry free from direct political interference and a non-political judiciary which guards its independence fiercely.
That is not to reflect a naive or rose-tinted view, but those are among the reasons why UK real property is a safe and, indeed, good long-term investment. But how are things changing? And are rural landowners under particular pressure?
The legislative landscape
On 22 June, then prime minister Boris Johnson’s administration introduced a Bill of Rights into parliament. The headline ambition was to “overhaul” the Human Rights Act 1998 and, as the Ministry of Justice put it, address “mission creep [which] has resulted in human rights law being used for more and more purposes, with elastic interpretations that go way beyond anything that the architects of the Convention had in mind.” One of the first things which Liz Truss’s administration did was to withdraw it from parliament, leaving the HRA 1998 intact and in force.
Article 1 of the First Protocol of the European Convention on Human Rights, enacted in Schedule 1 of the 1998 Act, is not an absolute right:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Bill of Rights would not have changed it. In practice, Article 1 of the First Protocol has not been a political or significant legal battleground since the 1998 Act came into force on 2 October 2000. Practitioners’ eyebrows are frequently raised when an Article 1 of the First Protocol point is pleaded and, from a review of the leading appellate cases since 2000, the majority have seen arguments dismissed: the laws of England and Wales relating to trespass, adverse possession and repossession of property have not ultimately been found wanting.
The Bill would, however, have changed the framework for considering such rights:
- A court could have considered the development under the common law of any right that is similar to the ECHR right.
- A court could adopt an interpretation that diverged from judgments of the European Court of Human Rights.
- A court was not to adopt an interpretation that expanded the protection which the right gave unless there was no reasonable doubt that the European Court of Human Rights would have come to the same conclusion.
The courts could already take account of the common law. Otherwise, the withdrawal of the Bill, which was becoming politically controversial, is probably to the good in terms of the quality and consistency of judicial decision-making. That, in turn, is probably for the good of property owners.
Among the best examples of UK property as a good long-term investment are landed estates: multigenerational holdings; increasingly diversified and, therefore, hedged; and, since the advent of the assured shorthold tenancy and farm business tenancy in the mid-1990s, able to let cottages and agricultural land, as well as commercial units, on an essentially free-market basis. It is hardly surprising, then, that their owners and those who represent their interests, such as the Country Land and Business Association, are among the most vocal advocates on the public square for “property rights”. But there the pressure is starting to be manifest, in particular in relation to one totemic issue.
The issue at hand
Public access to private land has, since the early days of the Labour movement, been a distinctly political issue. The National Parks and Access to the Countryside Act 1949 was the Attlee government’s response, including the compilation of definitive maps and statements of minor public rights of way county by county. The concept was a one-off exercise in the 1950s to compile the maps, followed by periodic reviews. The magnitude of the task was such that, under the Wildlife and Countryside Act 1981, it became a continuous, slow-burn process of review, triggered by something which justified amending the map: for example, new evidence of a historical route which had fallen into disuse but had never been stopped up.
It was not, however, intended to be open-ended. The Countryside and Rights of Way Act 2000, which enacted the so-called “right to roam” on certain mountain, moor, heath and downland, also included a “cut-off”: any public rights of way unrecorded by 1 January 2026 would be extinguished. Though that cut-off is on the face of the Act, it has never been brought into force, and in February 2022 DEFRA bowed to pressure from user groups, confirming that it would not bring it into force on 1 January 2026, if at all.
Covid, lockdowns and the shift to homeworking and staycations in 2020 saw a massive upsurge of use of the public rights of way network. They also saw a significant increase in trespass: many mapping apps on smartphones do not distinguish between paths and public paths. Anecdotally, there is still much greater use of the network than before the pandemic. As a result of the pressure on land managers, High Court litigation is afoot to demonstrate that the public right of access on foot for open-air recreation on Dartmoor does not, and never did, extend to a right for the public to (wild) camp; rather, that there should and would be better control of public recreational use by permission.
And, for the first time since the 1930s and 1940s, the issue is hotting up as a matter of public debate. Nick Hayes, author of The Book of Trespass, and Guy Shrubsole, advocate of rewilding and author of Who Owns England?, have established a “Right to Roam” campaign for a massive extension of the 2000 Act access right in England and Wales. Robert Macfarlane, Cambridge don and author of popular books on landscape, espouses the adoption of a Scots law approach to trespass in England and Wales, which would significantly reduce a landowner’s ability to control access. With echoes of Kinder Scout in 1932, there was a “mass trespass” at DEFRA minister Richard Benyon’s Englefield Estate on 7 August this year.
The change in subsidy regime, from the Basic Payment Scheme (carried over from the EU) to the Environmental Land Management Scheme is also relevant here. ELMS is underpinned by the concept of public benefits (payments to land managers) for public goods (better land management, in particular from an environmental perspective).
Early indications from DEFRA were that imaginative permissive access schemes might unlock payments, but, as the detail has emerged, that prospect seems to have faded. That might have provided a singular opportunity for landowners to open up significant areas of land in England and Wales to a grateful public, on a basis which they could control and without the dilemma of having to dedicate public rights of way in perpetuity. Instead, one of the headline arguments of those such as Hayes and Shrubsole has become that, if the public, through the Exchequer, is subsidising environmental land management, then the public should have (permanent) access to that land.
Concluding thoughts
Public access may be a totemic issue and a particular land management headache for rural landowners. A changing political sentiment towards property rights is and should, however, be a matter of wider interest and concern for those who own, manage and invest in property. The sale of council houses in the 1980s was popular politics and reinforced the message that the state respected private property ownership. The proposed amendment of the Housing Act 1988 to remove “no fault” possession of properties let on assured shorthold tenancies might equally be popular politics if you are a party seeking re-election in a “blue wave” of northern constituencies or trying to appeal to younger voters, but it sends a rather different message as to its political disposition.
It is unlikely that the new Conservative administration will introduce a further Bill of Rights, but the recent developments above should be a wake-up call to those who own and manage rural land. For the wider property sector, it is more a question of watch this space, but do not assume that the political case for the economic and other benefits of protecting value and certainty in real property is understood and appreciated at Westminster and in Whitehall.
James Pavey is a partner at Irwin Mitchell