by Ian Trueman, solicitor
The purpose of this article is to provide a very brief introduction to the law and in particular the Two principal Acts of Parliament of interest to those who visit and enjoy our countryside.
These are the Countryside and Rights of Way Act 2000 (known as CROW) and the Wildlife and Countryside Act 1981 (WCA).
After one hundred years or more of campaigning, CROW now enshrines in law a “right to roam” for people on foot only (with dogs too if desired) (to access open country in England and Wales. It does not apply in Scotland, where the tradition of wandering at will or “stravaiging” is well settled.
“Open country” is defined as mountain, moor, downland and heath and registered commons. It also includes land that has been voluntarily opened up by a landowner – the Forestry Commission is an example of one such a volunteer.
The Countryside Agency (CA) is in the process of mapping all such access land and in time it is hoped, that all such land will be shown on Ordnance Survey maps.
As with most legal issues, there are exceptions and exclusions – for example the right to roam does not cover golf courses, buildings, sensitive nature reserves and cultivated land. These are all outside the scope of CROW.
Once on access land, the public can enjoy it for “open air recreation”, which CROW (rather unhelpfully) does not define. Therefore the common sense definition of the phrase will apply – walking, climbing and picnicking are all activities within this definition.
With rights comes responsibilities and CROW demands of the public that it behaves. What does this mean? The CA has published an updated Countryside Code to guide us all. An example is that dogs are not allowed on access land between 1 March and 31 July (effectively when baby livestock is around and vulnerable), or at any other time in the vicinity of livestock. Only if it is on a short lead of not more than two metres.
National Park Authorities or County and District Councils have powers alongside Central Government, to enforce CROW. The authorities will particularly be on the look-out for landowners who erect misleading notices seeking to deter the public from exercising their CROW rights.
Needless to say, CROW has generated some controversy. The Ramblers Association takes the view that it does not go far enough, and are campaigning to include within its remit, all coastal areas. Landowners, unsurprisingly, are generally hostile, and CROW has generated hundreds of appeals seeking to prevent estates being opened up to access. The best known appellant, to date, is Madonna, whose appeal preventing her Wiltshire estate being put under the umbrella of CROW was largely successful.
The WCA is a complex piece of legislation, which touches upon common law rights in certain areas. I will take two examples – plant gathering and animal hunting/ gathering. In general a landowner owns all trees and plants growing upon his or her plot. An owner has the right to sever such objects from the land (and to sell the same), but WCA intervenes in the case of certain protected wild plants. In short if a plant species is protected under WCA, no one can pick, destroy or sell it (including the landowner) without committing an offence. If a species does not enjoy WCA protection what about the stranger who wants to take plants? An act of this nature would ordinarily be theft, but an exception in the Theft Act states that in the case of mushrooms or plants growing wild on land, a person may take away foliage, fruit or parts of the plant without committing an offence – unless it is done with the intention of selling them, or for other reward.
Although there is still some argument in law over what is a plant “growing wild”, put simply, those plants which arc obviously commercially grown cannot be taken (hence scrumping is theft.) whilst free-growing blackberry plants cannot have their fruits stolen unless for re-sale. It is worth noting though, that the above exception only protects the person who takes only part of a plant, if all the plant is taken away an act of theft arises, as against a landowner.
In the above scenario, though, the stranger still commits trespass, which is actionable in law. CROW has anticipated one potential problem by making it clear that any member of the public who enters access land must not pick any plant or part of one -irrespective of the Theft Act exception I have touched on. Whether that stipulation helps endear CROW to landowners remains to be seen.
The law of property in animals is complex, but as a general principle animals divide into ‘domestic’ and “wild’. Domestic animals are chattels and acts of theft and criminal damage can apply to this class of creature. As for wild animals, (I avoid ‘game’ for the purpose of this article) there is no absolute property in such creatures that are living, but there can exist various classes of qualified property rights. For example, a landowner who retains hunting rights on his own land has a qualified property in wild animals whilst they reside there – hence such owners often grant shooting rights to third parties.
Once a wild animal is killed (or found dead) there is an absolute property in the creature that rests in the landowner, or the user of any shooting or sporting rights – who can maintain a claim against any third party, such as a trespasser onto land. This is particularly so if a trespasser intends to sell on wild animals, such as rabbits. The situation is somewhat complicated where wild animals are found in the road – in practise no highway authority is likely to pursue anyone who picks up dead rabbit, for example – but note the Deer Act 1991 creates various offences relating to deer, and certainly collecting carcases for sale as venison is not permitted without licence.
Overlaying all these general principles though, are the statutes – not just CROW and WCA but others such as the Deer Act already referred to. These acts protect classes of animals by making it a criminal offence to kill, collect or maim with the use of snares or traps. Although in yesteryear the best birdwatchers learnt about their subject through egg collecting, post WCA, those days are over. All wild birds are now protected (subject to exceptions) and indeed, the mere possession, without authority of any species which is protected gives rise to an offence – even if that species is picked up already dead, from the road.
Finally, I am conscious of the fact that behind every statement in this article lies a mass of exception, legal uncertainty and no doubt potential for dispute. Perhaps to a communality of legal complexity do the separate states of town and country truly emerge.