Printed from: https://conservationhandbooks.com/footpaths/the-pattern-of-paths/lands-with-public-access/
It is estimated that there are 1.2 million hectares of rural land in effective recreational use in England and Wales, comprising 8% of the total land area. This includes a large amount of land to which the public have access though not by right of way. On many of these areas the public can wander at will. The areas include commons, heaths, moors, mountains and coast. Much of this is referred to as ‘open country’, because for reasons of soil, aspect or altitude it was never enclosed or cultivated. For the same reasons, there were few paths, and the only tracks that crossed these areas were the long distance drove roads and pack-horse trails, together with miners’ tracks and other paths with special purposes.
Disputes over access first arose when the increasing demands for recreation from city-dwellers coincided with the fashion for grouse-shooting, and landowners tried to exclude the public to prevent disturbance to grouse. Similar disputes occurred over access to commons near urban areas, increasingly valued by townspeople for recreation.
Conflicts were strongest in the Peak District, where working people from cities such as Sheffield and Manchester sought fresh air and recreation on the open moorlands. Although action was taken in many cases to secure rights of way, the basic freedom sought was the ‘freedom to roam’. This movement began with the formation of the Hayfield and Kinder Scout Ancient Footpaths Association in 1876. From 1888 and on many subsequent occasions private member’s bills were introduced into the House of Commons to try and secure public access to all uncultivated mountain and moorland. Such legislation has still not been passed, although the National Parks and Access to the Countryside Act 1949 and the Countryside (Scotland) Act 1967 provide for the formation of access agreements.
Official access land
Under the National Parks and Access to the Countryside Act 1949, planning authorities in England and Wales were required to make an access survey of all open country in their area, which comprised mountain, moor, heath, down, cliff or foreshore. The authorities could then form agreements with landowners to secure public access, or make access orders if agreement could not be reached. In practice these powers have only seen limited use, of which most has been in the Peak District, where over 19,000 hectares are subject to agreement.
In the Countryside Act 1968, the definition of ‘open country’ was extended to include woodlands and riverbanks, though few such agreements have yet been made.
Similar provision exists for access agreements in Scotland, under the Countryside (Scotland) Act 1967, amended by the Natural Heritage (Scotland) Act 1991.
Under the Countryside Stewardship scheme, operated in England by the Department of Food, Farming & Rural Affairs (Defra), farmers and other land managers can include access agreements as part of a number of measures to improve the conservation, wildlife and recreation value of their land. Eligible types of landscape include downland, waterside land, coast, heaths and uplands.
Defra operates two further schemes under which farmers receive payments for providing access. The Countryside Access Scheme is open to farmers who have land in non- rotational set-aside, and the Access Tier is a management option available in Environmentally Sensitive Areas (ESAs). The Department of Agriculture for Northern Ireland has a similar arrangement called the Access to the Countryside Scheme.
Unofficial access land
Much open country in England, Wales, Scotland and Northern Ireland is subject to ‘de facto’ access. ‘De facto’ is a term to describe a situation that exists, though not by legal right. ‘De facto’ access occurs by tradition, and often because it is not physically feasible for the landowner to prevent access. However, if use by the public increases or changes in pattern, it may become worthwhile for the owner to prevent access.
Unofficial access land is especially important in Scotland, where there are no definitive maps of rights of way, no commons, and only a few areas subject to access agreements.
Access by permission
There are various categories of land owned by local authorities, statutory bodies and charities to which the public have access, either to ‘wander’, or on limited paths and nature trails. Statutory rights of way may of course also exist.
These areas include country parks, and land owned by the National Trust, the National Trust for Scotland, and the Forestry Commission. Reserves owned or managed by the statutory conservation agency, the Wildlife Trusts and the Royal Society for the Protection of Birds may also have some degree of public access, but recreation is usually secondary to the main purpose of nature conservation.
Country parks are mostly owned by local authorities and are managed primarily to provide informal recreation facilities. Facilities in country parks should be suitable for all ages and abilities of walkers, with emphasis on provision for families. Paths are therefore usually constructed to a higher specification than most rights of way, so they are able to cope with relatively high numbers of visitors, and use throughout the year. In Northern Ireland, there are seven country parks managed by the Environment Service of the Department of the Environment, and a network of Forest Parks managed by the Forest Service of the
Department of Agriculture for Northern Ireland.
The National Trust, a charity, is the largest private landowner in England, Wales and Northern Ireland, and allows the public free access to many hectares of moorland, mountain, downland and coastline, as well as fee-paying access to many parklands. The National Trust for Scotland owns similar types of property.
There are 8,675 commons covering 1.37 million acres of land in England and Wales, of which a third is in Wales, and much of the remainder is in northern England. The type of land varies, but includes heath, grassland, scrub, woodland, moor and mountain. The total area is decreasing, as areas with few or no common rights registered under the Commons Registration Act 1965 can be deregistered, and then used like any other private land.
Common land is the remnant of the manorial system of the Middle Ages. It is land owned by an individual, a company or a local authority, to which other people, called the commoners, have certain rights. These rights include, amongst others, the right to graze animals, to cut bracken, to fish or to collect firewood. Pressure for access by people other than the commoners was first voiced in the south of England, where landowners attempted to prevent public access to some of the commons around London. This led to the formation of the Commons Preservation Society in 1865, from which grew the National Trust, and the Commons, Open Spaces and Footpaths Preservation Society.
A major success was the Law of Property Act 1925 which gave the public right of access ‘for air and exercise’ to all commons in urban areas in England and Wales. Other commons only have legal public access if special agreements or Acts have been made, and these, together with the urban commons, only constitute about a quarter of the total area of common land. On other commons not subject to legal public access, it is often not worth the owners’ while, or they are not allowed, to fence it off and protect it from access by people other than the commoners.
Thus, most commons are subject to ‘de facto’ access.
Some commons are now only used for recreation, and commoners’ rights are seldom exercised. Other commons, particularly in the uplands, are vital for the livelihood of those commoners with grazing rights. Whether legalised public access should be allowed on all commons is, like public access to all ‘open country’, a controversial and complex question.
Since the Commons Registration Act 1965, official common land registers and maps have been compiled, and are held by the relevant county council, metropolitan district or London borough, where they can be inspected. Ironically, the ending of uncertainty over the status of some commons has put them under threat of development and loss of access, where lack of proven common rights allows deregistration.
The subject of land with public access is very complicated, both legally and historically, and is only dealt with briefly here. However, it is an important subject, as many of the paths on which conservation volunteers are asked to work are on this type of land. The problems and solutions may be quite different to those encountered on rights of way, as access to these areas is not necessarily limited to a certain line, as on a right of way.