Public access in rural areas – how to avoid and deal with problems

Tension between farmers and visitors was heightened during the pandemic as record numbers visited the UK countryside, with infringements ranging from parked cars blocking gateways to dog walkers straying from footpaths.

Some issues are merely an annoyance, while others seriously affect farming operations. We find out what the rights are for farmers to help you deal with issues on your land.

See also: How to manage public access on farm and protect your land

Vehicles obstructing gateways

A vehicle preventing access to a field is at best frustrating, but very problematic when it hinders field work and livestock movements.

However, agricultural law specialist Jeanette Dennis warns that attempting to move the vehicle can result in a criminal damage charge or a civil claim for damages.

Farmers should not assume as a result that a court will agree with their actions.

“Do not assume that one favourable case decision will save all,’’ cautions Ms Dennis, a partner with Cambridge-based solicitors Ashtons Legal.

“Earlier this year, a farmer who flipped a car parked on the access to one of his fields was cleared by a court of criminal damage, but he was very lucky and that farmer had the case hanging over him for months.

“Don’t act in the heat of the moment because you cannot assume that every jury will come to the same decision. Each case is decided on its own facts.’’

Making the wrong split-second decision can be very costly.

Ms Dennis’ advice is to avoid escalating the situation, and to call the police to report the incident and request assistance.

Strays from public rights of way

Visitors can be under the impression that a general right to roam applies to farmland, rather than being limited to certain circumstances and in specific areas.

Landowners can make it clear to the public that they have no rights to cross their land by erecting appropriate signs, for example, “Private: No Public Access” or “No Public Right of Way”.

Avoid using a sign that simply states “Private Road”.

Ms Dennis explains: “An access dispute found against a landowner who used this wording, as the ‘road’ in question was deemed to be a public path, not a road, so the case was lost by the landowner because he had used the incorrect wording on a notice.”

There are also some simple, non-confrontational options set out in legislation to stop new public rights of way being created.

Landowners can lodge an application under S31(6) of the Highways Act 1980 with their local authority to acknowledge any existing public rights of way across their land.

This prevents any new rights becoming established through public use.  “It doesn’t turn the clock back, but it does stop it running for new rights being claimed,’’ says Ms Dennis.

The landowner or their solicitor should first make a statement using form CA16 and deposit it, with a fee, with the local authority, along with a statutory map showing any routes over the land which they acknowledge to already be classified as public rights of way.

This must be done with reference to the Definitive Map and Definitive Statement.

“Ashtons’ team tends to also lodge a copy of other relevant papers with it to make the position clear, as often the Definitive Map is very old, back to the 1950s, and not clear at all,’’ says Ms Dennis.

Within 20 years from the submission, the landowner must then lodge with the authority a declaration through a CA16 to confirm that no new public rights of way have been dedicated since the deposit of the statement.

This can be done a few months after the statement, and once it is lodged it is applicable for 20 years.

Any public passage over the land during this period will not count towards the establishment of any new rights of way.

The CA16 route is a powerful, non-confrontational way of dealing with an access issue, says Ms Dennis, but she warns that there are situations where farmers have come unstuck.

One involved a farmer who had asked walkers to take an alternative route around the outside of a field rather than following the right of way across the field.

“The farmer didn’t make it clear that this field edge route was a permissive path and after 20 years he found himself with a claim for a right of way both around the field and through it, simply because he didn’t seek advice about formally closing the original path,’’ says Ms Dennis.

Wild camping and picnicking

The countryside has many formal campsites and public places where people can picnic, but that doesn’t stop some from setting up camp on private land.

Ms Dennis advises landowners that it is always a good idea in the first instance to ask people politely to move, if they can do so without putting themselves at risk, and then, if they refuse, to contact the police.

The police are under-resourced to take action in many cases, but are more likely to act if there is criminal damage such as irreparable crop damage or a threat to life, she suggests.

More forces are co-ordinating farmers’ efforts through WhatsApp groups run through farming and countryside organisations.

Part of the CA16 form can be used by landowners to make it clear that there is no intention to create any new “commons” areas, which could otherwise arise on land where people continually picnic.

Some former Countryside Stewardship agreements did allow public access for that purpose. “People assumed that when these agreements ended they could continue to come onto the land, but that isn’t the case,’’ says Ms Dennis.

As the farm support system moves towards Environmental Land Management projects, public access and providing services or public goods will become more monetised.

“It is worth looking at ways of getting paid for these rather than simply providing them for free,’’ says Ms Dennis.

Incorrect cycle routes

Maps for cyclists and walkers, including Ordnance Survey, Google and Apple, can sometimes mark routes as being public rights of way when they are not.

Ms Dennis cited the case of a farmer whose farmyard was used as a through road by cyclists.

“They were convinced they had the right because that route was shown on their cycle club map,’’ she says.

“In a situation like this the landowner should put up a big sign stating that it is not a cycling route, again with the wording ‘Private – No Public Right of Way’, and also do a CA16.”

Incorrectly positioned local authority waymarkers can also cause people to stray off a right of way.

“Never assume that waymarkers are correctly positioned. It is definitely worth checking if you are getting issues with walkers in areas where they are not meant to be,’’ says Ms Dennis.