Government support for a statutory right of access has left ramblers jubilant and landowners threatening legal action. Catherine Paice reports
The government’s access proposals are the most serious potential infringement of private property rights in the UK this century, according to landowners and occupiers.
Confused and angered by the government’s unexpected decision to fulfil its election pledge, landowners are accusing ministers of a fundamental lack of understanding and disregard for those who live in the countryside.
The proposed legislation will affect some 1.6m ha (4m acres), but will only grant rights to walkers. The Country Landowners Association says that changes to the law will jeopardise existing and new voluntary arrangements for horse riders, cyclists, people without cars, people with children, the disabled and others who wish to have greater access to the countryside.
Conflict and confrontation likely
Ian MacNicol, president of the Country Landowners Association, claims that the government has completely misread the feelings of rural voters by acting to impose a statutory right to roam. “We offered co-operation and the government has chosen to give us conflict and confrontation,” says MacNicol. He has pledged to fight against the right to roam using all legal options.
“We have looked at the projected costs – and they are way out,” claims MacNicol. “The real costs will be borne by private landowners and the taxpayer. The government has argued that there is no case for compensation. We believe that the government is wrong. It is said that ramblers will be afforded the same rights in liability terms as trespassers – how can that be progress?
“If the government takes away a property right and that can be proven to affect the value of the land or impose a cost on the landowner, then the individual landowner will be able to take the government to the European Court of Human Rights and make a strong case for compensation.”
Some parts of the country will scarcely be affected by the government’s decision. The South East, for example, has relatively little downland and most existing commons and heath – such as Ashdown Forest – already have open access. But the government also says that it will consider extending the right to roam to cliffs and foreshore, rivers and woodlands. That, according to MacNicol, could spell economic disaster for many tourist-based enterprises.
Confiscation of rights
“We fear that many landowners will see this announcement as leading to a direct confiscation of their rights,” says Ralph Crathorne, partner of rural business advisers Strutt & Parker. “There is a real danger that the legislation which follows will be enacted against a background of conflict, rather than in the spirit of co-operation which is so badly needed to reconcile both sides of this issue.”
FPDSavills enumerated the areas of concern in its submission to the DETR’s consultation paper on access to the countryside in England and Wales. The company, which manages and advises on over 485,000ha (1.2m acres), warned that the land identified for access is the most environmentally sensitive and commercially marginal in the country. It often relies on sporting income and is sensitive to disturbance.
“Voluntary access is more easily managed than blanket access, and accidents can be planned against,” says the firm’s Antony Lumby. “This is a shortsighted, highly political decision that we feel will result in disputes and further division between the rural and urban communities.”
Paul Lindon, at the Woodstock office of chartered surveyors Smith-Woolley, says: “Legislation tends to be inflexible and subject to disputes and litigation. Voluntary local access agreements create a much better, more rational and enjoyable system of paths, both statutory and voluntary, over all sorts of countryside.
“We will continue to lobby for a practical approach to public access, as well as seeking to define the types of land that will be subject to a statutory right of access.”
Farmers and landowners claim to be happy to allow access to their land, provided that they know where the public are, and can exercise some control over their own property, according to Sandy Douglas, partner and head of Knight Frank’s rural consultancy. “Who is to police the duty of care to protect wildlife and the interests of those legitimately making a living from rural areas?” he asks. “Who is to fund the damage – evident in some of our National Parks – which will result from public access?”
Farm tenants are as angry as their landlords. The access proposals will add further costs to the agricultural industry at a time when incomes are already depressed, according to the Tenant Farmers Association. “These extra costs will come from the requirement for increased management input, dealing with problems and paying for public liability insurance,” says George Dunn, the TFA’s chief executive.
Tenant farmers occupy a significant proportion of the land earmarked for the new statutory right of access, and they pay rent to landowners in return for access to and “quiet enjoyment” of land for the purposes of agriculture. Dunn says the new law will give others a higher right to use land – without payment.
The new statutory right will be subject to mapping, which will be drawn up after extensive consultation by the Countryside Agency, which replaces the Countryside Commission on 1 April, and the Countryside Council for Wales. The right to roam will not apply to developed land or to agricultural land other than that used for extensive grazing.
Valuation and compensation
“There will be horrific problems with regard to the definition of the land’s use,” suggests Jeremy Moody of the Central Association of Agricultural Valuers.
Valuers say that the government’s pledge that landowners will be given discretion to close off land or restrict access for certain periods of time will be critical. The proposed annual limit for closures or restrictions is 28 days, which includes up to 12 days for reasons other than land management.
Already land agents are questioning whether these limits offer sufficiently long closed periods, particularly for estates which rely on sporting income.
The government proposes that legislation will also provide grounds for other temporary or permanent closures, or for access to be restricted to linear routes. Land will be closed to public access where there is a risk to health and safety.
However, the government is also warning that, if necessary, provision will be made in the legislation to ensure that access is not restricted unreasonably at peak times.
Clearly, the creation of local access forums will be crucial for securing workable agreements between ramblers and landowners over routes and closed areas.
Landowners may draw comfort from the experience in Scotland, says Peter Prag, senior visiting fellow in the Department of Land Management, University of Reading, and a consultant to Humberts. “As a valuer, I have never come across the concept that because Scotland is open to everyone, this has somehow devalued the land. The very rich, who like their privacy and are not accustomed to sharing it, have always bought estates in Scotland.
“But Scottish estates tend to be far further from centres of population and the kind of intrusion that may be experienced on estates in parts of the north of England.”
James Crawford at Knight Frank’s London office agrees that the effect of access on land values is hard to gauge.
“At this stage it is difficult, if not impossible to quantify the effect,” he says. “The logical assumption is that public access rights will affect the marketability of certain properties. But this depends on the level of agricultural use, the location, the extent of sporting interests, and the potential for management regimes that will provide some form of compensation.”
