Public rights of way and public access have become a widely discussed subject particularly in the last year with increasing and new use. The Environmental Land Management (ELM) scheme is a new government agricultural payment scheme, to replace the EU scheme but with more focus on the environment.
Under the scheme farmers and land managers may be paid ‘public money for public goods’ which would mean delivering benefits such as clean air, thriving plant life and environmental protection. ELM is based on 3 Tiers and is planned to be rolled-out in 2024. There are calls from some quarters for public rights of way and public access to have a higher profile in this scheme.
Defra’s ELM Policy discussion document
An analysis of responses to Defra’s ELM Policy discussion document (PDD) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/959727/elm-policy-discussion-document-analysis-responses.pdf was published recently.
Stakeholders were invited to participate when the PDD was initially launched in February 2020. Due to COVID-19 the PDD was temporarily suspended in April 2020 but was reopened in June 2020. Stakeholders include farmers, land managers, environmental groups, individuals, lobby and specialist groups (e.g. user groups such as the Ramblers, Open Spaces and Horse Access Campaign). Views were therefore obtained from groups with widely diverging views in relation to rights of way
What is the analysis of responses to the ELM PDD telling us about public rights of way and increasing public access?
Rights of way was one of two areas most frequently cited which respondents would like to see included in the list of public goods covered by ELM.
Rights of way was also one of the few topic areas which specifically referred to COVID 19, with the pandemic having highlighted tensions that exist. The resulting increased access was said to demonstrate the ‘negative impact of public access’ but also highlights the importance of the availability of public access, open space and rights of way for wellbeing. This illustrates how increased public access divides opinion between landowners, land managers, farmers and user groups
Many landowners and farmers have experienced increased trespassing and unacceptable behaviour such as littering, fly tipping, vandalism, gates being left open, dog fouling, sheep worrying, cattle ignorance and wild picnics. Whilst others, where lockdown led to reduced access, observed an increase in wildlife and nesting,
Unsurprisingly, rights of way is most frequently mentioned by special interest and lobby groups such as the Horse Access Campaign, Ramblers and Local Access Forums. User groups and others are looking for an increase in public access giving more engagement for the public with nature and are therefore calling for greater emphasis on public access within ELM. They would like to see rights of way included in the list of public goods covered by ELM and to be given a higher profile in the design principles. They would like to see it introduced across all three ELM Tiers. There is a call for more links between existing rights of way and public access land and more focus on supporting with the ambitions of Rights of Way Improvement Plans including improvement for access for all types of user e.g. horse riders, horse and carriage, cyclists and canoeists. The user groups and others say they are willing to work with landowners to help resolve the issues they are experiencing.
These groups are, however, reluctant to see landowners paid to fulfil obligations to which they are already subject such as those under the Highways Act 1980 to keep open recorded rights of way for public use.
Public access and reducing COVID restrictions
The COVID-19 pandemic has certainly highlighted the importance of public access, but also the challenges and negative consequences landowners have experienced.
This is likely to be further emphasised as we progress towards opening up and reducing restrictions in the next few months. At some stage the requirement to stay local will fall away and there is likely to be a great increase in access to rural areas.
The holiday season is approaching and there is a strong desire to take a break away. Most or all of us will be staying within the UK until isolation restrictions are lifted when returning from abroad. This staycation fever will certainly see an increase in visitors, many of whom will be first time visitors to National Parks, rights of way and other public open space.
This lifting of restrictions and new demand is therefore of great concern for some landowners, but others see it as an opportunity to diversify.
In this climate of change, landowners and managers will be looking for good advice in relation to rights of way. This is particularly important in the light of pending rights of way legislation which is due to commence, possibly later this year. This reform brings into force the streamlining of processes which Local Authorities use to record and change rights of way. It will bring into force the deadline by which historic paths must be recorded or lost, providing certainty for landowners over where historic rights of way exist. Guidance will also be provided for situations where, for example, rights of way cross dangerous farmyards. This is all with a view to both sides working together and meeting needs.
Our Rights of Way Team is here to assist with your rights of way and public access enquiries. Please contact us for detailed advice or a preliminary discussion.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2021.