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Why access to land remains a complicated issue

Summary justice is no more, but access to land in the modern age remains a complicated and heated issue, says Lindsay Waddell

The ownership of land has been a contentious issue from the dawn of man. History tells us we have fought over it as individuals, families, clans, tribes and countries for thousands of years, and sadly, as recent history has shown us in Europe, it’s not done yet. It seems odd that Stone Age travellers were trading in valuable items across Europe and yet an individual could not cross the land occupied by another tribe for fear of being killed.

I mention the Stone Age as some of the artefacts, such as axe heads, that have been found in this country originated from central Europe as that is the only place in the world where the stone was found. Trade, it appears, was allowed, but trespassing was not, and being caught in the wrong place simply meant you were killed.

Move on some considerable time, though, and perhaps the most notable piece of legislation that affected the access to land was the Enclosure Act of 1773. This controversial piece of law came to pass when some landowners began to enclose land for their own purposes, and when the predicted uproar ensued over what they were doing, the landowners, who ran Parliament, simply passed an act to enshrine what they were doing in law. This, at a stroke, removed vast swathes of ‘common’ land from the rights of the commoners into individual ownership, and along with it, the right of access to it.

Land access remains a hot topic, especially when it comes to the protection of wild game

When the word ‘allotment’ is used, the vast majority of people immediately think of a garden plot, but that was not the case back then. Anyone who thought they had a claim on a piece of land went to the act tribunal and put their case. If successful, they were ‘allotted’ the land, and so we have thousands of ‘allotments’ in the uplands of England, many of them hundreds of acres, which carry the name of a long-gone successful pleader of his case.

Here in Teesdale, Athey’s, Lords and Tinklers are but three that carry the name of those to whom they were granted, while others were named after what was obviously common in them, as there is one called Hardberry, a local name for crowberry, or to give it its full title, Impetrum nigrum.

Not surprisingly, some of the landowners rigged the system so they ended up with rather more of their share of what had been common land. The Enclosure Act displaced thousands of commoners from what had been their existence, and there was much discontent at the time, but the act was in place for the benefit of the improvement of agriculture and is still in place today, although I guess it has not been used for some time. There still was access over much of the land that had been ‘enclosed’, though in the shape of footpaths, as a whole range of activities still had to carry on. All goods in those days were moved by horse, or on someone’s back, and trade carried on over the high tops as well as in the lowlands.

Many of the uplands of England were busy places then, with quarrying and mining a huge employer of men, who trudged daily to and from work. The drove roads for cattle and sheep were also an important part of life, many still in evidence to this day. The act did not apply to Scotland as the land ownership system was different north of the Border and, oddly enough, there has always been accepted access over open land in the hills of Scotland.

Arable land and woodland have, for what would seem obvious reasons to most, always been subject to control as far as the public have been concerned. Damage to crops causes hardship to farmers and public access to woodland is dangerous when timber extraction is taking place.

Ambleside in the mid-1800s showing a drove road in the Lake District with livestock and travellers

Signage banning access on sporting estates became common, with notices warning anyone foolish enough to enter pheasant preserves of the dangers. These included man traps and unfriendly gamekeepers, who themselves were in danger from violent poachers. Violent battles were not uncommon, with some deaths on both sides resulting from them.

Pressure for more access continued, though. The most famous is the action organised by the communist youth party, and undertaken by a considerable number of people — some say hundreds, others thousands — at Kinder Scout, a moorland plateau in Derbyshire on 24 April 1932. It ended with a pitched battle between some of the protestors and gamekeepers. After a court case, a number of the protestors received prison sentences for violence, not for trespassing.


Delicate balance

It remains the case that trespassing is not a criminal offence. But what happened at Kinder Scout laid the foundations for future legislation, which would give many the right of access over more land, including the National Parks legislation, and then in 2000 the CROW Act, short for Countryside Rights of Way. This
opened up a right of way on foot to all the unimproved land in England, but not woodlands. It only allows access for individual pleasure and not for business purposes, so a commercial company that organises outdoor activities should not be using CROW land.

Surprisingly, there has not been the predicted rush to invade the open spaces, which is some relief to moorland gamekeepers, although there are always those who simply ignore the code. There is still pressure for more access, though, including woodland. As we have found in the uplands, as well as many coastal sites, there are winners and losers. The disturbance of breeding birds during the few months of the year when they rear young can be a dangerous thing.

Field boundaries from the enclosures created by stone walls and hay barns in the Yorkshire Dales

To those who have little interest in the outdoors other than exercising their own rights, the damage sometimes done is simply an acceptable consequence. We have a highly populated country and our wildlife is being squeezed. I would make the case that we have to give some consideration to what we have left of our natural wildlife resource and give it some breathing space. In the end it is all about education, and we have some way to go on that front as many of the population become more detached from the countryside.

The access issue can also have an impact on those who wish to pursue their sport. Access for wildfowlers can be problematic, with individuals seeking to bar them from reaching the shore and hence their morning or evening flight.

The case for increased access will continue, with access not the real issue — more that the land is in someone else’s ownership. Some simply think all land should be the property of ‘the people’. But the land they are seeking access to is home to many others as well — it’s just they are not human.