Welcome back today and by popular demand I’m going to talk about the law on open access land and how it relates to camping and other activities on open access land.
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So rather than just give you a bunch of links and tell you where to find the legislation online I thought take you on a whistlestop tour of how a barrister will look through the law to research something and find a definitive legal position on any given situation.
Firstly unsurprisingly there are countless textbooks on any given topic that we want to research plus there are legal databases that we can access which plug straight into all of the legislation, updates journals, discussions, case law, and so on.
As you recall from my previous video there is a right to roam on access land within certain parameters if you miss that video I will link it as a card now so you can go back and watch that video first.
So in order to understand how the law works with roaming on open access land I thought it might be interesting to dive right back to the beginning on the land law and give you a very brief and simplistic overview on how landlord actually works.
First, it is worth to note this video is centred around England and Wales but I am happy to look into other areas in the questions if you leave your comments below.
So first of all it’s important to understand how landholding works in England and Wales you may have heard the phrase that all land belongs to the Queen and this is right but more accurately the land belongs to the Crown and therefore the only person capable of owning land it is the sovereign which at the moment is the Queen; this notion of course originated in the Norman conquest in 1066 and it persists today.
You may think therefore how does one person own a property if all of the land belongs to the Queen so the simplest way to explain this is that what the person actually owns are a collection of rights and duties in respect of that land the most obvious of course being to take and retain possession of that land and to make use of it for the purpose that it was acquired. This would then be known as an interest in the property and the technical name is an estate in land; therefore when a person buys a house for example they own an estate in land – they don’t own the land itself.
Skipping forward to the modern day now there are two legal estates that exist and they are derived from the Law of Property Act 1925 – these are technically referred to as (1) “an estate in fee simple absolute in possession” which you will know as a freehold estate; and (2) “a term of years absolute”, which you will know as a leasehold. Very simply, the leasehold came about because the freeholder was allowed to do what they wish to do with the freehold of that estate and therefore they can sublease it create a different kind of estate in land to someone else for a period of years
Section 1 subsection 3 of the Law of Property Act 1925 provides that all other estates charges or interest over the estate are held in equity.
So by now you’re possibly thinking what does this have to do with open access land? And whether you are allowed to camp there. Well, now hopefully, it’s all going to make a little bit more sense, Simply put virtually all land in England and Wales or more properly all estates in land in England and Wales are owned by somebody – whether that’s a person a company /corporation, public authority, and so on. Now think of what you know to be the freehold in an estate in land that is absolute possession that means that within very limited restrictions that owner of that estate can have absolute possession which means the right to occupy that land and exclude anyone else from it; unless of course there are easements on that land which is a completely different topic altogether which I do have a talk on if anyone’s interested let me know in the comments!
Otherwise a privately owned estate in land doesn’t give the general public the right to roam across that land. However, leading up to the year 2000 there was a lot of pressure on the government to provide law which is essentially the right to roam and access uncultivated areas of England and Wales this resulted in the Countryside and Rights of Way Act 2000 which was implemented over a number of years because there was a number of maps produced over those years which told people exactly what was open access land or what was privately owned land and where the rights of public way are, such as footpath, so you could buy these maps so that you would know where these open access land areas are so – that when you’re out and about you know that you’re not breaking any law by trespassing on private property. And as you can see the Countryside and Rights of Way Act is a long one! So when one is reading a piece of legislation there is usually an introductory paragraph which tells you in plain English what this act of Parliament was designed to do so as you can see the Countryside and Rights of Way Act was and I quote:
“an act to make a new provision the public access to the countryside to amend the law relating to the public rights of way to enable traffic regulation orders” and so on…. in other words to provide for the right to roam on certain areas of land also when reading any piece of legislation there are almost always definitions at the start of the act which tells you exactly what certain terms mean. This act is no different in that in part 1 it gives you the definition of open access land broadly speaking means any land which is shown on a map as open access land and at this point take the opportunity to give a shout out to Paul Messner’s channel which link below although it doesn’t I’m doing it yet because he gives a great visual guide as to how to find open access land on an ordnance survey Explorer maps! So back to the Act: section 2 of the Act is where the rights to access this land is derived from you’ll see in section 2 subsection 1 any person is entitled by virtue of this subsection to enter and remain on any access land for the purposes of open-air recreation if and so long as he does so without breaking or damaging any wall fence hedge style gate and he observed the general restrictions in Schedule II. This is back to my brief guide on how a lawyer interprets the law every section of law like this may refer to a schedule which will have further details which might be changed or added to later on a typical example is the Coronavirus Act – there were lots of schedules so that and lots of changes are made over the coming months so in this case we would need to look to schedule 2 to see what other activities are restricted when you are exercising your right to access this open access land.
You’ll see from the outset at section 1 of schedule two it says subject to paragraph 2 section 2 1 does not entitle a person to be on any land if in or on land he: – and then there’s a whole list of different things which are restricted. The first one includes driving any vehicle other than an invalid carriage other examples include taking any animal other than a dog; lighting or tending of fire is also restricted as is intentionally or recklessly taking killing injuring or disturbing any animal bird or fish.
For the purposes of camping we look all the way down to (s) which states: “if in or on that land he engages in organised games or in camping, hang gliding, or paragliding” so ultimately whilst you have the right to roam on open access land these woods activities are by default restricted.
However and whilst it is the default position of areas like the Lake District and the Peak District and various other areas that they do not allow camping on their land it is reportedly tolerated as long as you stick within certain guidelines and parameters which is broadly leave no trace again
I’m going to defer to Paul Mesto’s channel because he has lots of videos talking about leave no trace whilst camping and I don’t think there is a need to repeat everything he said in one of my videos.
So you may now be wondering how does land become open access land in the first place this essentially is where the estate owner declares the land as open access land and then it gets marked up on relevant maps so that you can find it is open access land and then you know that it’s somewhere that you have the right to roam the provision for this is in section 16 of the act which provides that any person that owns the freehold or a lease of at least 90 years can declare the land as open access land. But as you’ll see further down in this section any dedication made under subsection 1B which is the leasehold version shall have effect for the remainder of the term held by the person making that dedication and furthermore you will see more generally the dedication under this section is irrevocable and subject to subsection 4 binds successive owners and occupiers of and other persons interested in the land to which it relates but nothing in this section prevents any land from becoming excepted land and again excepted land is defined within the act and you can look that up as well.
So the position always comes back to the person that controls the land and whether they are giving permission for camping but as you’ll see for many blogs and sites camping is tolerated in certain areas where it isn’t strictly legal but providing you’re not causing any mess you’re abiding by the “leave no trace” and you’re being very sensible with the way that you’re camping because if you going on long hikes it might well be necessary to be stopping at some point and camping because you can’t do a three-day hike no sleep in between.
So there was just a very quick overview of where these laws come from it’s by no means complete as you can see from the length of the act and the size of the books but I’m happy to look into specific questions – why not check out my channel memberships if there are specific areas of law that a number of you will be to look at and I can focus much more time on those areas of law if that’s what you’re interested in so once again thank you for joining me and thank you to everyone that subscribes to me so far the channel has grown very quickly in a short space of time and I’m really grateful to all of you watching so please do subscribe to the like button go crazy that really helps my channel and I’m really very grateful so thank you for watching!