Alastair Frew
Partner & Head of the Business Property Team at Lodders Solicitors
Alastair Frew, Partner in the Real Estate practice at Lodders Solicitors, reviews the background to Right to Roam, its impact on landowners and countryside walkers, and what changes the government may have in its sights.
As the summer rolls on, and UK holidaymakers opt for a staycation, the number of visitors to the British countryside has started to soar.
And so, our attention turns to the “Right to Roam”.
A little like the Countryside Code, but much wider in scope, the Right to Roam was introduced by Tony Blair’s Government but is now in the process of being rolled back, with trespass set to become a criminal offence.
Legal review
Right to Roam is an ancient customary right to wander in open countryside, which did not apply in England and Wales until the Countryside and Rights of Way (CRoW) Act 2000. This granted the public the right to walk.
CRoW represents the right for the public to meander and roam, to pass and re-pass, on common land, and also mountains, moors, heaths or downs – traditional picture-perfect countryside – but does not apply to improved grasslands. It does not give right to camp.
Unless the landowner grants additional permission, it does not apply to horse-riding, cycling or driving any vehicle other than a mobility scooter or powered wheelchair.
CRoW was intended to narrow the gap with Scottish law which, since ancient times, has granted the public a wide set of rights, allowing the public to walk on “open land in hill country” that is “access land”.
Lost lanes
Without doubt, there is momentum to increase the right of the public to roam, and walkers are keen to uncover the old lanes.
Right to Roam led to the discovery of “lost lanes” by campaign groups and, with it, arguments over their status as highways.
Even though the Right to Roam does not provide any legal presumption that the path is a highway, another change in legislation was required: The Natural Environment and Rural Communities Act 2006 (NERC 2006) introduced restrictions on the dedication and adoption of highways and prevented the informal adoption of vehicular highways. It provided that ancient vehicular highways could only become highways if shown on a Highway Authority definitive map, or with the consent of the landowner.
“Lost lane-ing” remains alive, and the game is on for the public to uncover old footpaths. However, if the only evidence is that rights existed before 1949, the CRoW states that, on 1st January 2026, regulations will be introduced to end the ability to uncover lost footpaths (if there is other evidence, then the footpath can still be added after 2026).
No regulations are yet in place, nor draft regulations published, but the deadline remains. The government could introduce regulations at short notice, and slam the door shut.
Mental health
The pandemic and lockdowns have highlighted the importance of outside space to our mental health.
As Right to Roam only covers about eight per cent of England and Wales, most areas are some distance from the main population centres, and the surrounding land is by definition not included, often making it worthless.
Tougher legislation
Currently, trespass to open land is a civil tort, and only becomes a crime if the trespasser fails to leave when asked, or keeps returning.
There are no published proposals to end the current Right to Roam but, following recent civil disturbances, the government has proposed tougher legislation.
The Police, Crimes, Sentencing and Courts (PCSC) Bill 2021 would criminalise trespass, unauthorised encampments. Whilst primarily aimed at protest groups and traveller communities (which itself raises a whole series of other questions) will it really have the effect of criminalising a rambler pitching a tent in the woods for a night of camping?
The solution?
More access is needed, but less is being granted. Currently, events like Parkrun are under threat because landowners refuse to allow them to recommence. Could we solve the problem by providing more information about how the countryside can be enjoyed, with clarity on what is permitted?
Perhaps the country should unite to:
- Accept there has been an unprecedented explosion in demand for access to open land.
- Seek Government re-assurance that countryside rambling will not be criminalised.
- Seek clarity as to the 1/1/2026 deadline for the new regulations.
- Raise awareness of the Countryside Code, and urge members of the public who are enjoying the fresh air to read the Code, and be more co-operative with landowners.
- In return, urge landowners not to block the public from having access.
