A comparison of Public Access Provisions and methods of mitigating impacts of Public Access on Agriculture

The debate about the extent and nature of public access provisions in England and Wales is long running and ongoing: the subject has always had the potential to provoke strong views on all sides. As a result, there are many representative bodies with an interest in this area working either on behalf of those that use access or those that use the land that is subject to the access. Government is routinely lobbied to increase access provision.

My key objectives were to get an idea of how England and Wales compared with other similar countries and whether there were mechanisms in other countries that would mitigate some of the issues that are often reported here.

Of the countries visited, England and Wales’ public rights of way provision was significantly more extensive by km per km². Some of the problems experienced here, such as sheep worrying and injuries to the public by livestock, were not experienced to the same extent in other countries as they do not have the same density of public access provision within farm land. These problems could be ameliorated by:

• The adoption of an effective public education scheme as has been seen in Scotland which could help tackle issues relating to dogs and public access.
• Introduction of a new power to temporarily divert public rights of way where livestock are present which would allow for farmers to keep livestock away from the public improving safety and reducing fatalities and also keeping members of the public’s dogs away from sheep.

Our current system of public rights of way provision is confrontational and expensive. In other countries there is greater emphasis on collaboration between user groups, Government, local communities and landowners. Our current confrontational system could be improved. Key suggestions to foster a collaborative environment:

• An amendment to s31 Highways Act 1980 to bring it in line with the example in the Netherlands which provides for a 30-year period of use before a public right of way can be claimed and also a 30 year extinctive prescriptive period, making the system more balanced.
• An amendment to current legislation and guidance encouraging Surveying Authorities to take a neutral stance on Definitive Map Modification Order applications that do not have sufficient public benefit. Currently applications that meet the legal test receive significant public funding. Such a change would not prevent claims that had little public benefit but would mean they would not be brought at the public’s expense.
• The addition of a Recreational Use Statute along the lines of the appended example in Alabama. This would encourage landowners to provide permissive access to land and water.
• Government should look for mechanisms to encourage permissive access agreements between users, local government and landowners as is seen in Netherlands and France, allowing for more flexibility and less expense. Such access agreements should encompass caves and water/rivers.