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You are here: BAILII >> Databases >> United Kingdom Journals >> Open Access, Rights and Legislation URL: http://www.bailii.org/uk/other/journals/WebJCLI/1996/issue2/parry2.html Cite as: Open Access, Rights and Legislation |
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![[1995] 2 Web JCLI](../../images/thisissu.gif)
and
Copyright © 1996 F R Barker and N D M Parry.
First Published in Web Journal of Current Legal Issues in association with Blackstone
Press Ltd.
There are a number of issues of significance to note about Part V of the 1949 Act. First, its emphasis on the negotiation and agreement of public open access over land with interest holders may well result in a greater degree of goodwill on the part of the latter towards public access to land than is the case with imposed public access. This, in turn, may have tangible benefits by encouraging those with private interests in land to make improved provision for public access. Although provision is also made in the Act for authorities to make access orders, it seems these were intended as a 'reserve' option, and will presumably only be used where agreements cannot be reached (Countryside Commission/Sports Council 1987, pp 76, 89; see also pp 90-5; Bonyhady 1987, pp 149-50). Second, Part V of the 1949 Act provides for the creation of public access to open country at a regional level through local planning authorities. In this way, local circumstances - such as the nature of the upland terrain, the uses made of it, the likely impact of any access arrangement, and the views of the farming and interest-holding communities and recreational groups - can be considered. Finally, and most significantly, the public access rights to 'open country' secured under the provisions of Part V of the 1949 Act are 'rights to roam' - rights, in other words, to wander freely over such land, unconstrained by the need to follow a network of permissive paths or public rights of way. It can be argued that rights to roam are, more than any restricted rights of access along specified routes, genuinely rights to be included in land.
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Hohfeld's concern was to illustrate and criticise the tendency of the judiciary and legal writers to attach the label 'right' generally and indiscriminately to four very distinct legal advantages - claims (or claim-rights), liberties (or privileges), powers and immunities - which one party may have against another (see Hohfeld 1923, pp 35 - 36). All four conceptions are arguably a 'species of a single genus', and share the common feature of being legal advantages in the sense that "the law sides with the possessor vis à vis some second party in a possible confrontation or conflict of wills" (see Wellman 1985, p 56 ). It is simply that not all of them are protected by the imposition of a correlative duty on another person (see Munzer 1990, p 20).
A legal claim-right implies that the person against whom it is enforceable owes a correlative legal duty to the right-holder: A has a legal claim-right against B that B do (or not do) X if and only if B owes A a corresponding legal duty to do (or not do) X. Thus to say that A has a legal claim-right to possession of his land against B means that B has a legal duty to stay off (not to trespass on) the land (see Hohfeld 1923, p 38; Wellman 1985, pp 8,13). A legal liberty (or privilege) gives A the freedom to perform an action as against B, and B has a correlative legal 'no-claim' that A shall not perform that action. In other words, A has a legal liberty in the face of B to do (or not do) X if and only if B has no legal claim against A that A refrain from doing (or not doing) X. Thus A, a landowner, has the legal liberty to enter his land despite the protestations of B, his neighbour, because B has no legal claim against A that A refrain from entering (see Hohfeld 1923, pp 38-39; Munzer 1990, p 21). A legal power gives A the ability to alter his relations with B by performing some action such as entering a contract or making a will: if A sells or gives his land to B, B's legal relation of non-ownership is changed to one of ownership. A therefore has a legal power over B if and only if B is under a correlative legal liability to have his legal relation with A changed in some way by A's performance of an action (see Hohfeld 1923, pp 50-52; Wellman 1985, pp 8,13). Finally, a legal immunity is a right enjoyed by A against B where A is not subject to having liabilities imposed upon him by the exercise of B's powers: in other words, A has a legal immunity from B as regards some legal relation of A if and only if B is under a correlative legal disability which prevents him from changing A's legal relation. Thus a landowner, A, is immune from action by B, his neighbour, purporting to sell A's land because B is legally disabled from alienating A's legal ownership of the land in the sense that none of his actions would have legal effect in this regard (see Hohfeld 1923, pp 60 -61, Wellman 1985, pp 8,13,52).
In the light of Hohfeld's rigorous analysis, one can see how employing simplistic and "remarkably inarticulate" (Wellman 1985, p 11) expressions like "A is the (fee- simple) owner of Blackacre" is likely to lead to confusion by obscuring the fact that the property rights making up this 'ownership' will usually be a complex bundle of Hohfeldian legal conceptions (see Honoré 1987, pp 161-192). In particular a landowner will normally have, for example, legal claim-rights to possess and exclude others from his land (entailing correlative duties enforceable against others not to trespass thereon). He will also have, for example, a legal liberty to grow the crop of his choice (entailing a correlative legal 'no-claim' on others that he refrain from doing so), a legal power to sell, bequeath or give away his land (entailing a correlative legal liability on others to be legally affected by the exercise of this power), and a legal immunity against its confiscation by the state (entailing a legal disability on the state from so doing). Similarly, a statement such as "the public have a right of access to Whiteacre" is unrevealing because it fails to specify which of the Hohfeldian conceptions is involved, and this makes it difficult to comment on the relation or conflict between these rights and the private property claim-rights, powers, liberties and immunities over the land to which access is sought. This article is not directly concerned with those entering land along the network of public rights of way that exists in England and Wales (see further on this Riddall & Trevelyan (1992); Barker & Parry (1995)). Rather, it seeks to examine the position of those entering land by virtue of statutory access to 'open country' pursuant to Part V of the 1949 Act.
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In Hohfeldian terms, this 'right' would seem to be properly classified as an immunity against being treated as a trespasser, rather than a claim-right of access. It entails only a correlative disability on the interest holder precluding him (provided the conditions of access are complied with) from treating a person within the area as a trespasser.(1) Rather than according the public a claim-right of access, enforceable against the interest holder, it seems the 1949 Act grants the public only a basic permission (in the form of a Hohfeldian immunity) to have access on stringent conditions, any breach of which will render the entrant a trespasser. Although the relevant planning authority could take action in the event of a member or members of the public being denied access (see 1949 Act, s 68), those excluded would seem to have no direct remedy, as the Act stands at present, against the interest holder to enforce their immunity-right of access. There is only a limited duty owed by the interest holder to a person entering 'open country' pursuant to Part V of the 1949 Act in so far as the Occupiers' Liability Act 1984 now affords such entrants the same protection in relation to personal injury as it does to trespassers.(2) Whilst this is an improvement on the position under the Occupiers' Liability Act 1957, which expressly excluded those entering land by virtue of Part V of the 1949 Act from the protection afforded to 'visitors' (see Occupiers' Liability Act 1957, s 1(4)), the duty which the 1984 Act imposes does not appear to be correlative to a claim-right of access in the Hohfeldian sense. It is suggested that the only claim-right which is correlative to and entailed by this duty is the claim-right enjoyed by an entrant under the 1949 Act to be treated, by the interest holder, at least as well a trespasser. This, in itself, sheds no light on the nature of the open access entitlement under Part V of the 1949 Act, but seems to be consistent with its generally negative tenor.(3)
This negative approach suggests strongly that, despite its radical appearance, the 1949 Act protects and reflects private property values to a large degree. A close examination of the provisions of Part V gives the distinct impression that public 'rights to roam' created under its authority are to be regarded as interferences with established private property rights, the scope and effect of which must be limited and controlled. In its current form, it tends to perpetuate the emphasis on private property rights, associated inherently with the entitlement of the owner of the land to exclude the public therefrom (classic judicial expositions include those in Harrison v Duke of Rutland [1893] 1 Q B 142; Hickman v Maisey [1900] 1 Q B 142 and AG v Antrobus [1905] 2 Ch 188; and see also Munzer 1990, pp 89-90; Waldron 1988, pp 39-39; Honoré 1987, pp 166-168, 181, 184). The provisions of Part V of the 1949 Act do little to promote and strengthen public rights to roam as legitimate, wider, 'inclusive' property interests, in the sense of entitlements enjoyed by each member of the public to have access to - not to be excluded from - land.
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Ss 70 and 71 of the 1994 Act add new ss 14A, 14B and 14C to the Public Order Act 1986 and confer on local authorities a wide power to make orders prohibiting what are referred to as 'trespassory assemblies' and criminalising certain conduct associated with such assemblies. The Public Order Act 1986 s 14A(1) now confers a discretion on a chief officer of police to apply for such an order, where he reasonably believes that an assembly (meaning twenty or more persons - see s 14A(9)) is intended to be held on land in the open air to which the public has no right of access or only a limited right of access. Section 14A(1) also requires that the officer reasonably believe first, that the assembly is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any such permission or the limits of the public's right of access, and second, that it may result in serious disruption to the life of the community or significant damage to land, or a building or monument on it, of historical, architectural, archaeological or scientific importance (see s 14A(1)). The power to prohibit trespassory assemblies is reinforced by the creation of criminal offences (see the Public Order Act 1986, s 14B inserted by the 1994 Act, s 70) in respect of persons who organise an assembly which they know is prohibited by an order under the Act (see s 14B (1)). Similarly a person who takes part, or incites another to take part, in an assembly which they know is prohibited is also guilty of an offence (see ss 14 B(2) and s 14B(3)). There is also a wide power for any uniformed police officer to stop and direct not to proceed any person whom he reasonably believes to be going to a trespassory assembly covered by a prohibition order, which the police officer reasonably believes is likely to be an assembly which is prohibited by that order (see the Public Order Act 1986, s 14C inserted by the 1994 Act, s 71).
As has been pointed out by at least one commentator (Smith 1995, p 24) these provisions raise important questions about the extent to which private property rights in land should be permitted to override rights to freedom of expression in public. They are particularly relevant in the context of public 'rights to roam' created under the 1949 Act because what is now s 14A of the Public Order Act 1986 is drafted so widely that it may catch - and thereby potentially negate - many such rights. Land subject to an open access agreement or order made under the 1949 Act will clearly be "land to which the public has a limited right of access" within s 14A(1), and there is a real danger that the other requirements for a prohibition order will be satisfied. The definition of an 'assembly' in s 14A is so wide that any group of twenty or more members of the public seeking to exercise their rights to roam will be caught by it. In addition the extensive range of restrictions to which public rights to roam under the 1949 Act are subject (see ss 60(3) 90(1),(3) (a)) may make it relatively easy to argue that such an assembly "is likely...to exceed the limits of the public's right of access" within s 14A(1)(a). Finally it may not be difficult to contend that a group of twenty or more members of the public exercising their rights to roam "may result in serious disruption to the life of the community", or in significant damage to land of historical or other importance so as to satisfy s 14A(1)(b).
A local authority in England and Wales can only make a prohibition order under the Public Order Act 1986, s 14A with the consent of the Secretary of State (see s 14A(2)). Nevertheless, the power to make such an order reinforces the view that the rights of open access enshrined in the 1949 Act are, in reality, currently treated as interferences with private property rights, rather than as legitimate, wider interests in land.
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As was mentioned earlier, property can be analysed as a 'bundle of rights' in or over a resource (in this case land) (see Waldron 1987, pp 26-30; Ackerman 1977, pp 26-28; Macpherson 1978, pp 3-4, 6-11), and the argument that ownership is made up of a number of 'essential incidents' is also well known (see Honoré 1987; Ackerman 1977, pp 26-27). Both property and ownership can therefore be seen as relative and relational concepts, particularly as regards land. A landowner can be identified as the person with the strongest link with the particular piece of land in question (his rights over it minus his liabilities) within the complex web of legal relationships existing between persons who are concerned with the land in question in some way. Alternatively, to phrase it another way, he can be described as the person with the weightiest package of incidents in relation to the land and, in particular Honoré's first incident of possession (and thereby exclusion) (see Honoré 1987, p 166- 68). The ideas explored here for strengthening Part V of the 1949 Act, and with it the entitlement of the public to have access to open country, would be likely to have the effect of shifting some of the legal emphasis currently attached to the private, exclusive interests of the owners and occupiers of such land, in favour of attaching greater importance to the inclusive entitlements of members of the public to have access - not to be excluded from - it. Such an approach may, in turn, start a process of reformulating the nature of property and the respective weight accorded the rights in the bundle making it up, and result in individual property systems exhibiting a greater balance between private and public rights (for further detail on this 'reformulative' idea see Barker and Parry 1995, and also see R v Doncaster Metropolitan Council ex parte Braim (1989) 57 P & CR 1 at 15, where a public right to recreation over Doncaster Common was recognised).
If Part V of the 1949 Act is to play a part in strengthening the legal protection, emphasis and support accorded to the entitlement of the public to have access to 'open country', several changes to its essentially negative approach may be necessary. These changes to Part V might well destroy the consensual element inherent within it, and thereby rule out any advantages (mentioned at the start of the article) that can be attributed to it. They are, however, arguably a necessary step in securing more extensive public rights to roam over open country.
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In contrast to the range of conditions aimed at protecting private property rights, those provisions of the Act designed to protect the public's rights of access are few and meagre. There is an express stipulation that interest holders must not do any works which would interfere with access (see the 1949 Act, s 66(1)), and a reference to the fact that access agreements and orders may contain additional requirements relating to the making of "expedient" provision "for securing that sufficient means of access to the land...will be available for the public..." (see s 67(1)). This imbalance strengthens the perception of public access immunity-rights created under the Act as interferences with private property rights which must be controlled and restricted.
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One way forward here might be to impose a duty on authorities to make access agreements or orders wherever they consider that the public interest outweighs the individual's interest in excluding the public from the land he or she nominally holds. If an access agreement could not be reached, then, having already decided that an access arrangement of some sort is in the public interest, the authority would be under a duty to create one by means of an access order.(8) The effective discharge of this statutory duty would necessarily require the authority to keep a 'rolling' check on potential terrain within its area which might be or become particularly suitable for access arrangements, and also on social and other factors which might affect the relative weight of public and private interests in relation to the making of such arrangements.
In considering whether to make access arrangements, authorities would need to reflect a balance between the public and private interest. Individuals may not have too much difficulty representing their own private interests, but it may be less easy to assess and represent 'the public interest' (see in particular Countryside Commission/ Sports Council 1987, pp 14-15, 16-17, 123-130). One option might be for authorities to take decisions whether to create particular open access areas on the merits of each case. This would presumably entail their gathering evidence of any public interest, need and desire for such areas by, for example, placing notices in relevant local newspapers and on and around the land concerned. Although local authorities are arguably well placed to monitor and appreciate regional and national trends which may affect the balance between public and private interest, a disadvantage of this approach is that it is likely to be cumbersome, expensive and time-consuming, and might not always accord the public interest sufficient weight. An alternative, although more radical, approach might therefore be to start from a presumption of public interest in favour of the creation of open access areas, based on the contemporary social and legal importance of public access to land. It would then be for those with private interests in open country to convince the relevant local authority of the case for not creating public rights to roam over such land.
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The application and effect of the provisions of Part V may, therefore, need to be strengthened and, in particular, there may be good arguments for making open access arrangements less dependent upon the consent of those with private interests in open country. A side effect of such an alteration to the statute would be that the consensual element which currently underpins open access would be lost. Although this element may be advantageous in the sense that it generates goodwill towards the idea of public access to land, it is probably not, in itself, a sufficient argument for retaining the provisions of the 1949 Act in their present form. They tend to perpetuate the view that public rights to roam over open country are interferences with property rights, whose scope and effect must be controlled and restricted, rather than legitimate, wider, inclusive interests in land, worthy of more proactive development and protection. The ideas for change explored above could also start a process of reformulating the prevailing conception of private property in England and Wales. In a small way they could affect the respective legal emphasis attached to various rights making up the property 'bundle', by shifting the emphasis away from private, exclusive rights traditionally enjoyed by owners, occupiers and 'interest holders' over land, in favour of attaching greater importance to access rights of a wider, public, inclusive nature (see further Barker & Parry, 1995).
Ackerman, B (1977) Private Property and the Constitution (New Haven: Yale University Press ).
Barker, F R & Parry N D M (1995) 'Private Property, Public Access and Occupiers' Liability' 15 Legal Studies 335.
Becker, L (1977) Property Rights: Philosophic Foundations (Boston: Routledge & Kegan Paul).
Bonyhady, T (1987) The Law of the Countryside: The Rights of the Public (Abingdon: Professional Books).
Countryside Commission/Sports Council , (1987) Access to the Countryside for Recreation and Sport (CCP 217).
Countryside Commission, (1989) Managing Rights of Way: An Agenda for Action (CCP 273).
Countryside Commission, (1992) Rights of Way: An Action Guide (CCP 375).
Countryside Commission, (1993) National Target for Rights of Way (CCP 436).
Gray, K (1991) 'Property in Thin Air' (1991) 50 Cambridge Law Journal 252.
Hohfeld, W (1923) Fundamental Legal Conceptions, (ed) W Cook, (New Haven: Yale University Press).
Honoré, A M (1987) Making Law Bind (Oxford: Oxford University Press).
Law Commission No 75 (1976), Report on Liability for Damage or Injury to Trespassers and Related Questions of Occupiers’ Liability (London: HMSO) Cmnd 6428.
Law Reform Committee Third Report (1954), Occupiers' Liability to Invitees, Licensees and Trespassers (London: HMSO) Cmnd 9305.
Munzer, S (1990) A Theory of Property (Cambridge: Cambridge University Press).
Pound, R (1959) Jurisprudence (St Paul, Minnesota: West Publishing Company).
Riddall, J & Trevelyan, J (1992) Rights of Way: A Guide to Law and Practice (2nd ed) (Ramblers' Association/ Open Spaces Society).
Shoard, M (1987)This Land is Our Land: The Struggle for Britain’s Countryside (London: Paladin, Grafton Books).
Simmonds, N (1986) Central Issues in Jurisprudence (London: Sweet & Maxwell)
Smith, A T H (1995) Criminal Law Review 19.
Wellman, C (1985) A Theory of Rights (Totowa, New Jersey: Rowman & Allenheld).
(1) In Wellman's words, "[t]he practical importance of possessing an immunity is the safety it confers upon one's legal position" (p.52). An alternative approach might be to classify a permissive access right to land as a Hohfeldian liberty, entailing a correlative no-claim on the private landowner who created or allowed the rights that the public should not exercise them. There is, however, a potential problem with this approach in that the weak link in the Hohfeldian scheme is arguably the purported legal relation between a liberty and a "no-claim". In fact, unlike the other conceptions, liberties appear to be legal advantages which are merely allowed by the law, but on which the law takes no stance in terms of entailing correlative legal disadvantages on others. Hohfeld's attempt to define the correlative of a liberty as a "no-claim" is open to the criticism that it is "the absence of things put as things" (see Pound 1959, vol. IV, p.80). Treating a permissive public access right as a liberty may therefore be inappropriate because the owner of a private interest in land does appear to stand in a legal relation with a person entering the land since he may bring a legal action for trespass against the entrant, unless the latter is entering pursuant to, and within the conditions of, a permissive public access right which legally disables the owner from so doing. Back to text
(2) Contrast the position of those using the public rights of way network, which consists of public highways, the users of which are not protected by the Occupiers' Liability Act 1984, (see s 1(7) and Barker & Parry 1995). Back to text
(3) The Law Reform Committee in its report, which preceded the 1957 Act, placed emphasis on the inter-relationship between s 60(1) of the 1949 Act, which provides that entrants under the Act are not to be treated as trespassers, and s 66(2) which, the Committee considered, made it clear that s 60(1) was not intended to increase the legal liability of the occupier of the land to entrants under the 1949 Act (see Law Reform Committee 1954, para 82). The Committee therefore concluded that such entrants should not receive the protection of the 1957 Act. The Law Commission in its later report considered that limited protection should be afforded by analogy with the position of trespassers, whom they recommended should receive the limited protection of the 1984 Act (see Law Commission 1976, para 41). Back to text
(4) See, for example, R v Metropolitan Borough Council ex parte Braim (1989) 57 P & CR 1; Rubinstein v Secretary of State for the Environment (1989) 57 P & CR 111; Mayhew v Secretary of State for the Environment (1993) 65 P & CR 344; Christchurch Borough Council v Secretary of State for the Environment & Barratt Southampton Ltd (1994) 68 P & CR 116; Dunlop v Secretary of State for the Environment & Cambridgeshire County Council (1995) 70 P & CR 307: R v Suffolk County Council ex parte Steed (1995) 70 P & CR 487; R v Secretary of State for the Environment ex parte Andrews (1996) 71 P & CR 1. Back to text
(5) In the case of access agreements, this would constitute a significant modification to the privity of contract principle. Such a modification to the privity principle might be seen as analogous to the modifications which allow easements (private rights of access) and restrictive covenants to 'run with land' and be enforced by and against persons who were not privy to the original agreement which created the easement or covenant. The analogy is not, however, a particularly close one and should be treated with caution, given the fundamental differences between such private interests in land and the public access entitlement which is the subject of this article. Back to text
(6) See Hansard HL ser 5, vol 519, col 1488, Baroness Nicol, 6 June 1990; see also Hansard HC ser 6, vol 167, col 1223 Henry Bellingham, 23 February 1990; vol 171, col 1344, Edward Leigh, 4 May 1990. Back to text
(7) Compare, for example, the continuing obligations on local planning authorities to review the provision of conservation areas under the Planning (Listed Buildings and Conservation Areas) Act 1990, s 69. Back to text
(8) If such a duty were created, there might be an issue as to the entitlement to compensation for those whose private property rights in land were adversely affected. It might be argued, however, that paying such compensation would merely reassert the primacy of private property interests in land, an issue which this article seeks to evaluate critically. Back to text
(9) For the most recent attempt to extend rights of access to the countryside see the Access to the Countryside Bill - first reading 30th January 1996 (see Hansard HC ser 6, vol 270, col 779-785). Back to text
