Access to the Countryside

Public access to the countryside continues to be a hot political issue. In England and Wales, CRoW is up-and-running and seems to be causing very few problems for land managers. Exceptions seem to be failure of dog owners to respect the dog ban imposed by many owners of grouse moors, although the fact that dogs can still be taken on public rights of way may well compound the problem of understanding. Fortunately, it seems that closures are seldom needed and the least restrictive option approach is working. Natural England is monitoring the impacts of public access, and Asken has completed a 3-year project with Faber Maunsell to give insights into what people are doing on Access Land, their attitudes to and understanding of CROW and other management informaiton.

In Scotland, the Land Reform (Scotland) Act was introduced in 2005. Again, few problems have emerged – some golf courses have experienced difficulties and I’m told that Network Rail Scotland have concerns about people crossing unfenced railway lines.

South of the border again, access to water has replaced CRoW in the headlines. With respect to the coast, Wales and England are going separate ways. Wales is leading the way at present. The concept is to implement the improvement options incrementally. An initial 3-year programme is underway to improve paths, with specific sections being developed for use by the disabled, families, cyclists and horse riders.This will focus initially on existing paths but, in the longer term, push towards an all-Wales coastal path. Local improvements are expected to be identified in the RoWIPs of the 16 coastal unitary authorities in Wales. At a local level, it is anticipated that access developments will be championed by local coastal access partnerships. CCW is managing the programme nationally, on behalf of the National Assembly.

In England, Asken led a team of specialists to assess the economic, social and environmental benefits and costs. Of the options considered, a variant on Option 4 is being considered – an access corridor with ‘spreading room’. The proposals put together by Natural England now form Part 9 of the Marine and Coastal Access Act 2009. It is beginning to look like the £50m implementation programme will survive the public spending cuts, but possibly spread over a longer time.

Contact us at:

k.taylor@asken.co.uk

• A young man dived into a flooded quarry and broke his neck. He sued the landowner – a borough council – despite the fact that warning signs were in place advising people not to dive into or swim in the pool, and wardens regularly advise people of the risks. The case was eventually decided in favour of the council. The point at issue was that the council new about the risks, knew that the steps they had taken to guard against these risks were not entirely effective, had affordable plans that were likely to be more effective, but had not implemented them.
• A father of two drowned in a pool on part of a National Trust property. His widow sued the Trust for failure to meet their duty of care because there were no warning signs saying that the pools were dangerous. The judge ruled against the widow on the grounds that the risks of swimming are obvious and it is reasonable to assume that an adult doing so is willingly accepting the risks.
• Whilst taking his dog out for a walk, a walker fell on slippery ground and impaled himself on a branch or stump; he lost an eye as a result. The accident occurred on a newly opened area within an RSPB nature reserve. The injured party sued RSPB on the grounds that they had failed in their duty of care. His claim was not sustained and the judge deemed it unreasonable to expect parts of a nature reserve to be made free of all such vegetation.
• A highland cow (with calf at foot) attacked a man as he walked through a herd of cows. He did not have a dog with him. He died as a result of his injuries. At the inquest, the farmer was absolved of any blame.

Even so, safety cannot be ignored, as has been found in relation to risks to people with dogs from suckler cows (with one farmer having been found liable for damages caused when his cattle caused serious injuries to a walker on his land). There is a growing number of cases involving people with dogs being injured by suckler cows. A case heard by the House of Lords in 2003 changed the way that liability was applied to a greater risk of litigation. The government is planning to modify the Animals Act 1971 to make the law apply in a clearer and more limited way.

An occupier does have a duty of care towards people coming onto his/her land, and any employer or self-employed person has a duty to ensure that people are not put at unreasonable risk as a result of his business operations. The best way of dealing with this is to undertake a risk assessment, record the findings and actions to be taken, TAKE THE ACTIONS NEEDED, and monitor how well they have worked. Review and modify the management if necessary.

The reality is, though, that you will never be certain whether you have done enough! Even if you have the misfortune to have to defend yourself against a claim and succeed, every set of circumstances is different and success with one does not guarantee success in another set of circumstances.

Asken director, Ken Taylor, has been called upon by several of the government agencies and departments responsible for implementing the new legislation. These include:

• Health and Safety Executive
• Defra
• Countryside Agency
• English Nature
• Countryside Council for Wales
• Scottish Natural Heritage
• Forestry Commission and Forest Enterprise
• Ministry of Defence
• Local authorities (e.g. Gwynedd, Lincolnshire, Nottinghamshire, Lancashire, Cumbria, LDNPA)

Asken has helped them to understand the impacts of access on land management and to prepare guidance. Asken has also reviewed issues associated with managing public health and safety, and fire risk on Access Land for the Agency, CCW and Forestry Commission. For more information about access to open countryside and the new rights of way proposals - contact Asken

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