Countryside Land Alliance – Supplementary written evidence
I would clarify the impacts that public rights of way have on landowners and home owners in terms of costs and liabilities.
There is no liability under the Occupier’s Liability Acts whilst the public remain on the path. However, if they stray, then the landowner does have some liability. From the point of view of cost and impact on a business, the greater the use by the public the greater the risk of liability falling on the landowner and the more he has to manage the public crossing his land. There are, for example, security risks which are much more difficult to manage if the public has free unfettered access to areas that, in other businesses, would be restricted. The risks of theft, vandalism or other undesirable behaviours are greater, simply because the landowner cannot physically make the area secure and has to allow access to a farm, or a house, or garden. The landowner cannot challenge people, because they have a right to be on a public right of way, and this makes monitoring and dealing with undesirable or criminal behaviour more difficult. A landowner cannot close off his farm access or lock his garden gate to ensure that his house or business is secured where rights of way pass through.
Costs and liability also arise from the requirements of the Health and Safety at Work etc Act legislation and the Animals Act 1971. For example, there are requirements within the Health and Safety legislation for businesses to ensure safe working practices which do not expose the public to risks to their health and safety. This can be difficult to achieve where public rights of way pass through busy farmyards with machinery or animals. Farms are highly mechanised places, with large, complex machinery: ensuring that the public’s safety is taken account of when passing though what is essentially a busy workplace can present logistical challenges, and can result in changes to working practices, or additional time, all of which create additional cost and liability. The implications of the public passing through the centre of a farm when livestock are being collected, or silage operations are taking place (which will involve large numbers of tractors and trailers attempting, often against the clock of changeable weather, to gather in the crop) having to consider the public randomly meandering though is considerable in terms of both potential liability and the attendant cost especially if operations have to be changed to accommodate the right of way.
Both the Health and Safety and the Animals Act legislation have to be considered where livestock are kept where there is public access. HSE produce detailed guidance on how to manage livestock risks when rights of way pass through fields (see: http://www.hse.gov.uk/pubns/ais17ew.pdf). None of the measures proposed is without additional cost: there is the time it takes to produce and maintain a simple risk assessment, to keeping cattle away from fields which have rights of way (which may not always be possible and will restrict the amount of grazing available, and therefore, potentially the number of animals that can be kept), or providing, erecting and maintaining fencing to separate livestock from the public. It can be the case that claims are made by the public for alleged incidents involving cattle. With strict liability under the Animals Act, whether the person was on the public right of way or not, it is often the livestock owner’s insurers who pay out. The end result is therefore simply a substantial rise in insurance premiums to the livestock owner as insurers look to cover the risk that arises from having public access to areas of land with livestock. In areas of high public use, the cost of premiums can mean that it is uneconomic to retain cattle. This can cause costs in other areas – for example, if the landowner is required under an environmental agreement to keep cattle on the land.
An issue with the Animals Act is that the strict liability means that the landowner carries the cost and liability, even though he may not be at fault. The risk of such a claim is exacerbated whenever the public comes into an area where livestock are kept.
A further area of cost is that of disease and injury. Statistics (from the Monitor of Engagement with the Natural Environment, for example) show that around 60% of walkers have a dog with them. Dogs which are not regularly wormed can carry a disease, neospora caninum, which results in death and abortion in cattle. The losses can be significant. Irresponsible behaviour by dog owners – for example, allowing the dog to run free amongst sheep (which is already legislated against under the Dogs (Protection of Livestock) Act 1953) can result in mortality, abortion, injury and stress. All these again are significant costs for landowners. The pressures of public access to farmland and irresponsible use can result in landowners simply giving up certain operations – for example, today I spoke to a landowner in Sussex who is seeking the diversion of a footpath away from his house and farm buildings where he still keeps sheep. He used to rear turkeys, but had to give that up because the dogs using the footpath attacked and killed the turkeys and the risk of continuing loss was too great. He is hoping that a diversion will reduce the cost and liability of the remainder of his home and business.
Another issue is that of trees – the requirements on a landowner to monitor, manage and maintain his trees are significantly greater in areas where the public is likely to come into contact with them (such as alongside a road or public right of way).
However, without doubt the area of most concern and cause for anxiety is when the public enter areas such as farmyards or gardens, which is where the farmer or homeowner feels most vulnerable and where the risks from machinery, livestock, or indeed the farmer’s own dogs are greatest. It is not uncommon for farmers or homeowners to be told by highway authorities that they cannot allow dogs to run free in areas where there is a public right of way, because this would deter the public from using the path. Aside from the practical implications (especially where the area is the garden or the farmyard) this exposes the landowner to greater risk because he cannot maintain the security and deterrent from theft and other undesirable activity that would, for other businesses or homes, be available.
I would also like to add an example to illustrate the just some of the costs and liabilities that fall on landowners.
A land manager in Oxfordshire contacted us on Wednesday this week.
There are a number of public rights of way across his farm, including a bridleway which follows the route of a private farm track. None of the rights of way permit public access with motor vehicles. My understanding is that apart from the bridleway, the remaining paths are public footpaths.
The farmer is currently unable to place a gate across the track to prevent illegal use by vehicles (because there is no legal provision which allows him to do this). Since Monday this week, he has already reported three incidents to the police whereby people using the right of way across the farm have tried to break into a secured and alarmed building, have managed to put a car (which was illegally using the bridleway) into a ditch and have fly-tipped on his land, again, using a track illegally.
This level of incident is not uncommon, and places a significant burden on him in trying to manage and protect his business. One right of way passes through the farmyard and again there have been a significant number of incidents there, including a number of thefts. He has tried challenging people only to be told that they are using the right of way, when it is clear that is merely a means to an end.
The land manager will be responsible for disposing properly of the fly-tippping, which is an additional cost and liability that a landowner has to bear simply because the presence of the rights of way make it impossible for him to prevent access to his land.
Sarah Slade MRICS
National Access Adviser
1 November 2013