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INTERVIEW: Author Nick Hayes on Trespass and the Right to Roam

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Fences and walls are barriers to thinking as well as walking

Can it be right that most people in England are excluded from most of the country? In The Book of Trespass, author Nick Hayes dismantles the notion of private land as a public no-go zone, and makes an impassioned case for an extension of England's CRoW Act. Here we talk with him about access, inequality, and the right to roam. 



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2
 Sean Kelly 01 Dec 2020
In reply to UKC/UKH Articles:

Thanks for posting that. A very well written and considered article, especially the link 'Right to Roam'. I love the woodcuts too, a fast disappearing art-form in this digital era..

 cal.mac 01 Dec 2020
In reply to UKC/UKH Articles:

A well written article about an important and timely book, but I'm struggling to get my head around the last paragraph where he says people should pay for kayaking. Have I misunderstood? It seems completely at odds with everything else he saying and makes absolutely no sense. 

Post edited at 22:31
 olddirtydoggy 02 Dec 2020
In reply to UKC/UKH Articles:

Great read. Getting into kayaking this year has also enlightened me to the same problem on the waterways in England. The Scots have freedom to roam on their waterways yet in England we don't. It's something like 4% of our water we are allowed to navigate, that's outrageous. Other interests seem to have closed it all and it's not about privacy.

 Blake 02 Dec 2020
In reply to UKC/UKH Articles:

The artwork is superb... I'd love a couple of those on the wall.

In reply to cal.mac:

Yes, that was interesting. I've asked him to clarify that bit because it does seem to differ from the rest. It's just possible I got the wrong end of the stick there.

On the other hand - taking the thread further than Nick has here, not wishing to put words in his mouth - someone's arguably got to pay for river upkeep, and river activities are niche compared to walking etc, so perhaps there is a case for a system where the riparian user pays directly (rod licenses for instance). And maybe that can sit comfortably in a broader framework in which access is presumed to be free at the point of use on land? 

 Marek 02 Dec 2020
In reply to Dan Bailey - UKHillwalking.com:

> ... river activities are niche compared to walking etc, so ...

Hmm, that's a dangerous path (sic) to embark on. 

 uphillnow 02 Dec 2020
In reply to Sean Kelly:

Yes a good read and enjoyed the book very much. It wasn't quite what I expected when I ordered it, but so much the better for that.

David 

> Thanks for posting that. A very well written and considered article, especially the link 'Right to Roam'. I love the woodcuts too, a fast disappearing art-form in this digital era..

 John Gresty 02 Dec 2020
In reply to UKC/UKH Articles:

I have bought his book. It's an impressive bit of research but I'm not convinced that it proposes anything new. Most of the time it just spins out historical tales from centuries ago, padded out with tales of minor excursions on to private land.

When the CROW act was first muted the BMC Peak District Area Committee put in a lot of effort to study the local maps in their area and and make recommendations regarding land that wasn't proposed as open access.   I put in a suggestion regarding a bit of land that wasn't included, and on the final map it was declared open access, whether other folks did the same about that bit of territory I do not know. I know it took several site visits, and a trip to county hall to put in my suggestion, to do it properly took quite a bit of effort. The BMC also employed an officer specifically to lobby at national level on our behalf regarding the proposals.

I believe that first we need to decide whether we work with the existing rules and get more open land and footpaths included before the upcoming revision date, or press for new legislation.

The Ramblers are already seeking out lost old ways, and the canoeists have been agitating for years for better access to rivers. 

John

 olddirtydoggy 02 Dec 2020
In reply to Dan Bailey - UKHillwalking.com:

> Yes, that was interesting. I've asked him to clarify that bit because it does seem to differ from the rest. It's just possible I got the wrong end of the stick there.

I can't speak for him either but currently there is a licence system in place to paddle most of our inland waterways that can be accessed. This year we started paddling and my initial attitude was b&$$()x to that, imaging if they did that with crags! We decided to enquire with the kind members of a UK paddling forum to see what the general opinion was about licences and it did change our minds. The money goes back into dredging and the upkeep of the waterways as well as funding for improved access. I was too easy at first to view the access issues from the headspace of a climber.

 simoninger 02 Dec 2020
In reply to olddirtydoggy:

Yes, I think we mustn't assume we can demand access and leave the maintenance to someone else. One of the problems in the Highlands and national parks in the summer was that there wasn't the infrastructure to support all the extra visitors (toilets, litter bins etc), but that infrastructure is largely down to cash-strapped local authorities who get no extra funding per visitor. I always liked the idea of holiday tax that you pay in a lot of mainland Europe; visitors providing local cash for local people to use in developing tourism as they need to.

 Marek 02 Dec 2020
In reply to simoninger:

> ... One of the problems in the Highlands and national parks in the summer was that there wasn't the infrastructure to support all the extra visitors (toilets, litter bins etc), but that infrastructure is largely down to cash-strapped local authorities who get no extra funding per visitor. I always liked the idea of holiday tax ...

Hmm, not sure about that. As a hypothetical thought exercise imagine tourism was removed from Scotland (in order to save money on tourism related infrastructure). What would be the net effect on Scotland's economy? Not too good, I would suggest. So that implies that tourism is a net contributor to Scotland's economy, and the issue of investment in infrastructure is a matter of choice for the Scottish government and local authorities. The money is there - they just choose to spend it elsewhere. Would a modest holiday tax change that? If it was very local then perhaps it would, but at a national level? I suspect not.

Post edited at 14:11
1
 neilcollins92 02 Dec 2020
In reply to UKC/UKH Articles:

As a non-paddler, I'm struggling to see why paddlers should pay for 'river upkeep' as I can't imagine that a paddler would need rivers to be 'maintained' in any way. Canals perhaps, but not rivers, surely? Am I missing something? I would have thought that much more money needs spending on footpaths and I'm sure that I and many others would be very unhappy if there was any suggestion that we should be required to pay for footpath maintenance (albeit that many of us do so voluntarily).   

 BrendanO 02 Dec 2020

Great article, but TERRIBLE SPOILER  - you gave away the book’s big reveal.

Not read it, partway thru article I was ready to buy a copy...then you do a big reveal!!!!!!

Might still buy it, but really.  Sixth Sense?

 deepsoup 02 Dec 2020
In reply to neilcollins92:

> As a non-paddler, I'm struggling to see why paddlers should pay for 'river upkeep' as I can't imagine that a paddler would need rivers to be 'maintained' in any way. Canals perhaps, but not rivers, surely?

I think he must mean canals.  There isn't someone you could pay money to in the case of most rivers, even if you wanted to.  On the canals a licence is technically required to paddle on most of them, and best way for a paddler to buy that licence (in England anyway) is to join BC - it's bundled in with the membership, on top of which the benefits are much the same as for a climber in joining the BMC.

I think that dismal percentage of rivers where there's a right of access on the water is a bit suspect too.  There are certainly far too few rivers in England/Wales where you can swim or paddle without the risk of coming in to conflict with anglers, but the legal case isn't nearly as clear cut as that "4%" suggests

Obviously many of the anglers would contend that paddlers have no right to be on the water in a lot of places, but most of the time that's just their opinion.  There's also a well informed legal opinion that almost all navigable rivers still have a right of navigation that goes back well before the industrial revolution.  (When they were, in effect, highways.  By far the safest and most efficient way to move goods around.)  Those rights of navigation have never been extinguished, the argument goes, therefore they still exist.

The argument about people paying to fish is a bit weird too.  They don't pay for access to the river any more than people shooting grouse are paying to go for a walk across the moors, they're paying for the privilege of catching/killing the wildlife.  (Or perhaps 'livestock' would be more accurate in many cases.)

 Doug 02 Dec 2020
In reply to deepsoup:

> ...  There's also a well informed legal opinion that almost all navigable rivers still have a right of navigation that goes back well before the industrial revolution.  (When they were, in effect, highways.  By far the safest and most efficient way to move goods around.)  Those rights of navigation have never been extinguished, the argument goes, therefore they still exist.

Using the same reasoning Clive Freshwater argued that there was a right of navigation on the Spey & after a series of cases won a judgment in his favour (this was many years ago, decades before the recent changes in access law). Has anyone (eg the BCU) tried a similar approach in England ?

 deepsoup 02 Dec 2020
In reply to Doug:

> Has anyone (eg the BCU) tried a similar approach in England ?

Erm..  I don't think so, but I don't really know to be honest.

BC set out their position on access here: https://www.britishcanoeing.org.uk/go-canoeing/access-and-environment/acces...

 Tobes 02 Dec 2020
In reply to deepsoup:

> I think that dismal percentage of rivers where there's a right of access on the water is a bit suspect too.  There are certainly far too few rivers in England/Wales where you can swim or paddle without the risk of coming in to conflict with anglers, but the legal case isn't nearly as clear cut as that "4%" suggests

> Obviously many of the anglers would contend that paddlers have no right to be on the water in a lot of places, but most of the time that's just their opinion.  There's also a well informed legal opinion that almost all navigable rivers still have a right of navigation that goes back well before the industrial revolution.  (When they were, in effect, highways.  By far the safest and most efficient way to move goods around.)  Those rights of navigation have never been extinguished, the argument goes, therefore they still exist.

> The argument about people paying to fish is a bit weird too.  They don't pay for access to the river any more than people shooting grouse are paying to go for a walk across the moors, they're paying for the privilege of catching/killing the wildlife.  (Or perhaps 'livestock' would be more accurate in many cases.)

Specific to England the requirement of a rod license (coarse or game) from the Environmental Agency (EA) and permission to fish a body of water is a two fold system. For all waters (streams, rivers, ponds, lakes etc) whether private estate lake or public river (Thames for example) - an EA rod license is required. In addition a permit (day/season ticket) from the owner may also be required.  

The investment by anglers for the EA license does go into matters such as, pollution control, access, maintenance and stocking of public water ways. I don't think that necessarily gives them the upper hand in who has the right to be there more - and conflicts between paddlers and anglers I would say tend to occur more between game anglers (salmon and trout) and paddlers - likely linked to the higher fishing fees required for a days game fishing (can be £100's) as opposed to coarse angling (catch and release and a tenner a day for example). The majority of EA rod licenses held in England are for coarse fishing - so a paddler is more likely to pass a coarse angler on the bank and less likely to have a stand off so to speak.

Admittedly there's a fair bit of generalisation and sweeping statements (on my part) but this is drawn from 30 odd years of angling (and some paddling) - I'm not totally blind to the behaviour of some anglers or condone it btw but this is slightly off topic and has been discussed a number of times on here before. 

J1234 03 Dec 2020
In reply to UKC/UKH Articles:

I was intending to show her a place where,[.............] that it sparked my interest. Why did we leave so readily, when we both knew we were doing nothing harmful, disrespectful, or wrong?

This brings up something I have long wondered. If I was walking across some land, and a person said "Oy, get orf, this is my land." What if I said, prove it, what then?

and

However angling and kayaking, though ostensibly aggressively opposing pursuits, are good examples of things that people should pay to access - much of the fee goes towards the upkeep of the rivers and canals, which is a modern expression of the commons of old.

Would this suggest paying to access land to climb?

Good article thanks and another book to add to the list, maybe time to stop reading and do some trespassing.

 Marek 03 Dec 2020
In reply to J1234:

> This brings up something I have long wondered. If I was walking across some land, and a person said "Oy, get orf, this is my land." What if I said, prove it, what then?

Strictly speaking, he doesn't need to prove anything. If he is the landowner (or appointed representative) then ignoring him is a criminal offence (if not CRoW land or a RoW). You can claim in court that you were justified in thinking that he wasn't the landowner, but then it would be up to the court to decide if you had reasonable grounds to think that person was not the landowner.  I think you'd find that a tricky position. Perhaps if you could show that you knew the person to be just some local busy-body you might stand a chance, but then it would never have come to court.

If he isn't the landowner (or for instance one of their staff/workers) then you are in the clear. But really, what are the chances of that?

So it's not down to what they can prove, it down to what you could reasonably assume.

All hypothetical, of course.

Post edited at 14:47
J1234 03 Dec 2020
In reply to Marek:

> Strictly speaking, he doesn't need to prove anything. If he is the landowner (or appointed representative) then ignoring him is a criminal offence (if not CRoW land or a RoW). 

>

A criminal offence, blimey.

Could they detain me?

 Marek 03 Dec 2020
In reply to J1234:

> A criminal offence, blimey.

Glad you're impressed. It's not trivial.

> Could they detain me?

No, only the police can do that. But they do have the right to use reasonable force to remove you from their property.

 Marek 03 Dec 2020
In reply to J1234:

> This brings up something I have long wondered...

In a similar vein - I in my turn have wondered: Does a sign nailed (for sake of argument by the landowner) to a gatepost saying "No public access. Keep out." (or words to that effect) constitute a legitimate 'request to leave' or does that request have to specific to you (i.e., face-to-face) at that time once you have entered their land.

I suspect the latter (i.e., ignoring the sign is trespass - a civil offence, not 'aggravated trespass' - a criminal offense). But I don't really know. Does anyone?

J1234 03 Dec 2020
In reply to Marek:

> In a similar vein - I in my turn have wondered: Does a sign nailed (for sake of argument by the landowner) to a gatepost saying "No public access. Keep out." (or words to that effect) constitute a legitimate 'request to leave' or does that request have to specific to you (i.e., face-to-face) at that time once you have entered their land.

> I suspect the latter (i.e., ignoring the sign is trespass - a civil offence, not 'aggravated trespass' - a criminal offense). But I don't really know. Does anyone?

I doubt it has much strength at all, otherwise possibly people with car parks could use it.

Removed User 03 Dec 2020
In reply to deepsoup:

You clearly know next to nothing about coarse angling in this country (as opposed to game angling-trout, salmon etc.) The tradition here is that fish are caught for sport and returned to the water. They would be precious few fish to angle for if they were all killed on capture, which would be shooting yourself in the foot as an angler.

 deepsoup 03 Dec 2020
In reply to Removed Userena sharples:

> You clearly know next to nothing about coarse angling in this country..

True enough (albeit irrelevant, the topic is access not fishing).

I do know that anglers don't necessarily kill the fish they catch though, as you might have noticed if you'd read my post more carefully.

 deepsoup 03 Dec 2020
In reply to Tobes:

Interesting, ta.

Removed User 03 Dec 2020
In reply to deepsoup:

This is what you wrote 'they're paying for the privilege of catching/killing the wildlife'. As you say, you know next to nothing about coarse angling. If you did the option of killing wildlife would not have appeared.

1
 deepsoup 03 Dec 2020
In reply to Removed Userena sharples:

This is the whole sentence you're quoting a bit of:

> They don't pay for access to the river any more than people shooting grouse are paying to go for a walk across the moors, they're paying for the privilege of catching/killing the wildlife.

If I take you at your word that anglers *never* kill the fish they catch that still leaves the grouse. Or are you going to tell me that they're released alive afterwards as well?

Post edited at 20:36
Removed User 03 Dec 2020
In reply to deepsoup:

All I was attempting to do was correct the widespread assumption that coarse anglers kill the fish they catch. They dont. Why you drag grouse shooting into it when I said nothing at all about that, I have no idea.

4
 deepsoup 03 Dec 2020
In reply to Removed Userena sharples:

> They dont.

I never said they did.

> Why you drag grouse shooting into it when I said nothing at all about that, I have no idea.

Er..  I didn't write that in response to anything you did or didn't say, I wrote it before you posted in this thread.  It's in the the post that you were (mis)quoting when *you* replied to *me*. 

Are you ok?  You're not poorly or something are you?

Removed User 03 Dec 2020
In reply to deepsoup:

I would imagine you about as bored by this as me. As a matter of fact you did say (or at least did not explicitly rule out) that coarse anglers kill the fish they catch. I'm fine, thanks.

2
 webbo 03 Dec 2020
In reply to deepsoup:

But you did write as a reply to him. So he does have a point.

1
 deepsoup 03 Dec 2020
In reply to Removed Userena sharples:

> I would imagine you about as bored by this as me.

More baffled than anything to be honest.

> As a matter of fact you did say (or at least did not explicitly rule out) that coarse anglers kill the fish they catch.

As a matter of fact I did not say it.
No, I didn't explicitly rule it out. Do you know what else I didn't explicitly rule out? Literally an infinite variety of other completely irrelevant things.

 deepsoup 03 Dec 2020
In reply to webbo:

Christ, it's contagious.
No, he (she?) doesn't have a point.

Besides, it's a bit rich having a go at me about it after what ena wrote in reply to me just then:

> coarse anglers kill the fish they catch.

(Yeah that's only the second half of the sentence - apparently that's how quoting works now.)

Well, that's all for now folks but please do join me next week on "Let's Make No F*cking Sense" when Darren Jackson will be waxing an owl!

 webbo 03 Dec 2020
In reply to deepsoup:

> This is the whole sentence you're quoting a bit of:

> If I take you at your word that anglers *never* kill the fish they catch that still leaves the grouse. Or are you going to tell me that they're released alive afterwards as well?

This is what I meant. He is right you brought grouse up.

1
In reply to BrendanO:

Wait, was it penned by a ghost writer?

 tehmarks 04 Dec 2020
In reply to J1234:

I imagine that the situation with kayaking and canoeing is that they are caught by historic rules made with bigger boats in mind. Waterways don't remain navigable without maintenance, and so I think it is right that those who use the waterways pay for their upkeep.

A kayak obviously has minimal requirements compared to larger traffic — but then that's represented in the licence cost (for the Canal & River Trust) for a kayak being £55 compared to the typical narrowboat licence of £800-1000. I'd say that's quite fair.

Post edited at 00:27
 deepsoup 04 Dec 2020
In reply to tehmarks:

I don't think many paddlers object to the licence fee for waterways (and the few that do just don't pay, it's not like they have Judge Dredd enforcing it).  The author seems to confuse waterways such as those covered by the Canal & River Trusts with natural rivers though.

On the cost, I mentioned above that BC membership is the obvious way to pay for that licence.  You can pay £55 a year for that one on its own, or you can pay £45 a year for (adult individual) BC membership which includes that one and a whole bunch of others as well as insurance and various other benefits, and supports their work on access etc.  (They seem to be much more proactive about it than they used to be.)

 deepsoup 04 Dec 2020
In reply to Tobes:

I meant to write a fuller reply before I got sidetracked with all that strangeness..

Personally I wouldn't mind at all chipping in a few quid to support conservation work anywhere there's a mechanism for doing so and I'm confident that's where the money actually goes.  I wouldn't want that to be compulsory though, access needs to be a right not a privilege.  It's worth noting that there are quite a lot of paddlers out there doing voluntary work on rivers and waterways themselves, litter picking especially.

On the subject of stand-offs and conflict, I have seen it kicked off from the other side as well.  It can be hard to make a 'friendly' first impression when you're not optimistic about how the encounter is going to go.  I think when people are expecting there to be grief they can tend to unconsciously get their retaliation in first and then it becomes a self-fulfilling prophesy.  I once paddled with a guy who would pretty much pick a fight with any angler he saw and then come away from the encounter genuinely convinced that they'd started it.  (Extreme case that - like I said, I only paddled with him the once!)  I suspect there's evidence on the occasional thread here that there are walkers who take the same attitude to mountain bikers and vice versa.

 Howard J 04 Dec 2020
In reply to Marek:

> In a similar vein - I in my turn have wondered: Does a sign nailed (for sake of argument by the landowner) to a gatepost saying "No public access. Keep out." (or words to that effect) constitute a legitimate 'request to leave' or does that request have to specific to you (i.e., face-to-face) at that time once you have entered their land.

> I suspect the latter (i.e., ignoring the sign is trespass - a civil offence, not 'aggravated trespass' - a criminal offense). But I don't really know. Does anyone?

It is entering onto the land which is the trespass, whether or not there is a sign. 

 Howard J 04 Dec 2020
In reply to UKC/UKH Articles:

An interesting article, although the point about inequality of access is a red herring - that is due to a failure to provide public green space within cities, rather than rights of access to the countryside.  And I think he doesn't seem concerned that people have to get a living from the countryside and that it is not simply there for urban-dwellers' recreation (important though that might be).

The Scottish model shows that a right of responsible access can work, although this is not without its problems for landowners. However the 2003 Act mainly codified existing customary rights, whereas he is seeking to overturn centuries of English law, which is never going to be easy.

It seems to me that the best opportunity for reform would be to tie it to the proposed reforms of agricultural subsidies now we are leaving the CAP.  Farmers are now to be paid for environmental improvements, and this should extend to better public access.

 Marek 04 Dec 2020
In reply to Howard J:

> It is entering onto the land which is the trespass, whether or not there is a sign. 

You missed my point. I was asking whether the sign constitutes a "request to leave" and hence implies 'aggravated trespass' (a criminal offense) or is it irrelevant (in which case it's just 'trespass' (NOT a criminal offense).

 Howard J 04 Dec 2020
In reply to Marek:

A quick glance at the CPS guidance suggests that the request to leave must come from a police officer.  Otherwise aggravated trespass must include the intention to intimidate or to disrupt or obstruct activities on the land. 

https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/THE-CRI...

 tehmarks 04 Dec 2020
In reply to Howard J:

> The Scottish model shows that a right of responsible access can work, although this is not without its problems for landowners.

The issue — and I say this as someone fully in support of the right of access to all — is, do you genuinely think we are responsible enough as a population to be given those rights as they exist in Scotland? I don't think we are. Certainly not judging by the abject chaos that the pandemic has caused in our rural areas.

And that is sad

 Marek 04 Dec 2020
In reply to Howard J:

Hmmm, interesting. Some more browsing seems to suggest so much of the 'trespass' interpretation has become dominated by hunt sabotage, raves and travelers (and responses to the aforesaid).

 Marek 04 Dec 2020
In reply to tehmarks:

> The issue — and I say this as someone fully in support of the right of access to all — is, do you genuinely think we are responsible enough as a population to be given those rights as they exist in Scotland? I don't think we are. Certainly not judging by the abject chaos that the pandemic has caused in our rural areas.

> And that is sad

Sad indeed, but I think the other comparative issue (responsible access in Scotland vs. England) is simply due to population density. Of course it could be argued that that by restricting access in England, the problem gets even worse in the few place people can go.

 Scouser 04 Dec 2020

I have just ordered the book, so I have not yet read it and so can’t comment on it. However, I found this interview a compelling read but like all disputes, the answer often lies in compromise and I feel that this interview is one-sided and without any lenience towards the landowners. The law is archaic and does need to be modernised. Going back to Napoleonic 18th century, the population of Britain is 10-fold now if not more, and so access to land for recreational purpose is required by so many more of us in the 21st century.
I am an avid hiker and there’s rarely a weekend goes by where I am not out trig-bagging or leading groups of hikers. Perhaps there is an easy compromise where the landowner can maintain his/her privacy but also allow specific parts of his land to be accessed. Take for example the mapped footpaths of England. If the landowner was compelled to provide an agreed mapped footpath through his/her land of his/her choosing, providing access across or through it to further footpaths or to points of interest such as a waterfall or trig point, which doesn’t impinge on his/her privacy and where, perhaps maintained by local council and regulated by, for example, the footpath’s officers of The Ramblers Association, then everyone could be a winner. There will always of course, be bombastic landowners. There will also be farmers who have valid concerns for livestock or crops. However, if the landowner was given the right to close the footpath due to it being used for livestock or crops, perhaps by signage, and so long as he/she does not abuse this right then even this problem could be overcome. I don’t think it will be easy to change the law that seems to have been set in concrete for an age, but I do think that compromise is the way forward together with the issue of littering the countryside taught as part of a school curriculum so that future generations will see such habits as being taboo and morally wrong. Opening up the land via controlled footpaths won't happen overnight but through generations, it could eventually work.

J1234 23 Jan 2021
In reply to UKC/UKH Articles:

This book is excellent. A pleasant and accessible read, though having a Social Sciences back ground helps, it is not academic. It challenges my conception of boundaries and the very idea of property ownership, but also appeals to my Famous 5 or Rupert the Bear side in going and having an explore in the countryside and maybe a little adventure, whilst cooking sausages under the stars. 
Highly recommended.


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