Right to roam: paths to 2,500 public areas are being blocked by landowners due to outdated laws

Ben Mayfield, Lancaster University

Vixen Tor is a distinctive, craggy granite outcrop on the western side of Dartmoor, the largest and highest upland area in southern England. But this secluded moorland beauty spot, with a right to roam provided by the Countryside and Rights of Way Act 2000, is hard to get to.

Surrounded by private land, this tor is one of around 2,500 access islands in England and Wales. Other examples include Gillcambon in the northern Lake District and land near the village of Wylye in Wiltshire.

These wild places are open to the public but can only be accessed by helicopter or by trespassing over private land.

The right to roam campaign to draw attention to these legally inaccessible islands has been popularised by veteran campaigners such as authors Guy Shrubsole and Nick Hayes.

These advocates for access contend that it is now time to rethink access law in England and Wales. Based on my research into environmental and land law, I argue access islands seem to be a legacy of laws that have been poorly executed, and outdated before even coming into force.

The campaign for a right to roam predates the Labour party, but gained momentum under the post-war Labour movement. In fact, the promise of a wider right to roam over the English countryside can be found in most of the Labour party’s post-war general election manifestos. This included the manifesto that preceded Blair’s 1997 landslide victory, which had promised “greater freedom for people to explore our open countryside”.

Blair had promised to govern as new Labour however, and sought to distance his party’s policies from those of his predecessors. This included support for the politics of the “third way”.

This was a controversial ideology inside his own party, positing that political solutions are not always found on the left or the right, but can draw on a range of ideas with an aim of finding balance and compromise. The Countryside and Rights of Way Act 2000 can be seen as a product of this era, balancing a limited right to roam on foot with significant powers for landowners to close their land temporarily.

Specifically, the right to roam extended to common land, and to mountain, moor, heath and down, all described in this act as open country. Access was not extended to more accessible lowland areas, other agricultural land or woodland.

There are no access islands in Scotland, however, where access laws are more generous than those in England and Wales. The Land Reform (Scotland) Act contains a presumption in favour of the right of access, with small exceptions such as private gardens, schools and industrial land. By contrast, access law in England and Wales works on a presumption of trespass, with small exceptions allowing access.

My own research into parliamentary papers from the late 1990s shows that the current right to roam was also chosen because it was one of the cheapest solutions, and could be rolled out quite quickly at a time when Blair’s cabinet was looking for support from Labour backbenchers.

A lot of the mapping of open country was done quickly and cheaply through aerial photography. Surveyors would only be dispatched to a site with equipment to count plant species to settle the most contentious cases.

Landowners could appeal and, at times, exploit the uncertainties of this mapping process. According to the Right to Roam campaign organisers, possible trespass protests at the island of Vixen Tor are planned for later this year as a result of this.

Much of the surrounding fields were originally mapped as access land but this was later appealed by the landowner on the grounds that it was improved grassland rather than moor. This closed a vital corridor of access land and left the tor itself as an island.

Following the introduction of the Countryside and Rights of Way Act 2000, grants were made available for landowners to improve gates, stiles and footpaths. Local authorities have the power to negotiate with landowners to open or divert new footpaths. Some have indeed done so. In spite of this, there was no general power to provide pedestrian routes to these islands.

The future of access

Since the introduction of the Countryside and Rights of Way Act, improving and widening access has been a low political priority, but the possibility of a Labour victory in a 2024 general election has led many to believe that a new and more effective right to roam could soon be established.

Kier Starmer’s team has spoken of Scottish-style access which would provide a much wider right of access over woodland, green belt and other open countryside. Starmer has already been accused of a U-turn, promising better rights of access while protecting the rights of landowners.

Rather than a U-turn, this looks like evidence that Labour’s policy on access is still a work in progress. Access campaigners will be waiting for the next election manifesto with eager interest.

Meanwhile, future protests are planned and campaigners are still asking for Scottish-style rights of access to be extended to England and Wales. Whatever the solution, our access to the countryside should be given the parliamentary time and investment that it deserves.

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Ben Mayfield, Lecturer in Law, Lancaster University

This article is republished from The Conversation under a Creative Commons license. Read the original article.