PUBLIC ACCESS

Many rewilding projects have areas that are open to public access. A right of public access may already exist on rewilding land, or the rewilder may wish to grant such access. If you are considering granting new rights of access to rewilding land, it is important to understand how this may create permanent rights over the land itself, which could affect how the land can be used and what its resale value might be in the future. This note will consider the rights of the public to access rewilding land as well as the rights and responsibilities of landholders.¹

1.1 Public rights of way

Generally a landholder can control who accesses their land and exclude those who enter without their permission.² However, rural land (which is most likely to form the site of a rewilding project) is often subject to public rights of way which can limit a landholder’s ability to exclude people.

What is a public right of way?

• The general public has a right of access to use public rights of way that cross private land. Public rights of way include:
  • footpaths;
  • bridleways;
  • restricted byways (i.e. a highway over which the public has a right of way on foot, horseback/ leading a horse, or for vehicles other than mechanically propelled vehicles);³ and
  • byways (i.e. highway) open to all traffic.

How are public rights of way created, changed and removed?

Public rights of way limit a landholder’s ability to control who can access their land and impose responsibilities on the landholder.⁴ It is therefore important for rewilders to know where they are, if they do run across the rewilding land. The local authority should keep a “definitive map” showing all footpaths, bridleways and byways, which can be consulted for these purposes.

Public rights of way may also be created by:

• agreement between a local authority and anyone who has the power to dedicate such a way over the land (e.g., the rewilder); or
• where a way over (private) land is used or accessed by the public as of right and without interruption for a full period of 20 years and nobody has asked them to stop.⁵

If a rewilder wishes to create new formal public rights of way, the first step would be to discuss the proposal with the local authority. The responsibilities outlined below will apply to any newly created public right of way. Another option, offering the rewilder more flexibility to change pathways and add conditions as the needs of the site change could be to create a permissive pathway instead of a formal public right of way (see below).

Public rights of way may only be removed (the legal term for which is “extinguished”) or diverted by agreement between a local authority and anyone who has the power to dedicate such a way over the land in question ( e.g., the rewilder). If land was previously used as a public right of way, the general public have a right of public access today, under the maxim “once a highway, always a highway”. Therefore, when a public right of way is created, it continues to exist indefinitely, whether it is used or not, unless it is extinguished.⁶ Under the Countryside and Rights of Way Act 2000 (“CROW”),⁷ rights of way that are not recorded on the definitive map as at the “cut-off date” of 1 January 2026 may be extinguished.⁸

If a way over (private) land is used or enjoyed by the public as of right and without interruption for 20 years, this usage can also create a public right of way. If this is not your intention then you may wish to seek legal advice promptly to avoid it being deemed a public right of way.

What are the landholder’s responsibilities regarding public rights of way?

Landholders have specific obligations with respect to public rights of way on their land, some of which may conflict with rewilding plans. These are to:

• Keep public rights of way clear of obstructions
  • Generally, the bar for what is considered an obstruction is low. It includes any obstacle that crosses the right of way, such as fencing (even if temporary), hedgerows and vegetation encroaching on the right of way. For example, even an unlocked but closed gate could be “a psychological barrier to the public” if it means the path is not clearly identifiable as part of the public highway.⁹ The landholder must leave a minimum of 1.5 metres clear for a field edge footpath, or three metres for a field edge bridleway.¹⁰
  • Wilfully obstructing a public right of way is a criminal offence under the Highways Act 1980 (the “Highways Act”).¹¹ The relevant highway authority has the right to demand that the landholder removes any obstruction they cause or permit to be there. If the landholder fails to act, the relevant highway authority can remove the obstruction and recover the cost from the landholder. Erecting misleading signage to discourage public use of rights of way ( e.g., “bull in field” when there is not a bull in the field) is also an offence under the National Parks and Access to the Countryside Act 1949 (“NPAC Act”), likely to be regarded as obstruction, and is punishable by a fine of up to £2,500.¹² Signs should not be displayed, or should be securely covered, when the animals to which they refer are not present in the field or area.
  • Water sources, slurry pits and overhanging/fallen trees also need to be taken into consideration as they may be viewed as an obstruction to public access.

• Maintain structures for access
  • The landholder must maintain existing stiles, gates and similar structures on public rights of way so that they are safe and reasonably easy to use. The relevant highway authority must contribute at least 25% of maintenance expenses. It may also be agreed that such structures will be maintained at public expense,¹³ although increasingly the highway authority will only approve new structures on rights of way if the landholder takes on the full cost of maintenance .
  • New structures must be as unrestrictive as possible, taking into account the animals being segregated. Landholders also need to consider how accessible their site is to those with disabilities.¹⁴ For this reason, there is a shift away from using stiles and other less accessible structures.
  • The landholder must liaise with the relevant highway authority about replacing or maintaining structures on public rights of way. The highway authority can require the landholder to remove unauthorised structures at the landholder’s expense.¹⁵
• Not to permit certain livestock on land crossed by a public right of way
  • Landholders may be prosecuted if they fail to safeguard the public from potentially dangerous animals on land crossed by a public right of way. Examples and further information on this topic are provided in the note entitled Rewilding in England & Wales: Liability for Damage Caused by Animals.¹⁶
  • In particular, bulls over 10 months old of recognised dairy breeds ( e.g., Ayrshire, Friesian, Holstein, Dairy Shorthorn, Guernsey, Jersey and Kerry) may not be kept in a field containing a public right of way or which the public are otherwise allowed to access under any circumstances. Where bulls of other cattle

breeds are kept in fields with public access ( e.g., for conservation grazing) and are more than 10 months old, they must be kept with cows.¹⁷

• • Beef bulls are banned from fields or enclosures with footpaths unless accompanied by cows or heifers. This does not include open fells or unenclosed moorland.¹⁸
  • Horses may be kept loose in a field containing a public right of way, as long as they are not known to be dangerous.¹⁹ More generally, any animal known or suspected to be aggressive should not be kept in a field that has public access.
  • Notwithstanding the above, rewilders may wish to consider asking dog walkers to put their dogs on leads where large animals are known to be near areas of public access, as all large animals are potentially dangerous.
  • Members of the public may not understand that cattle with calves at foot can present a risk due to protective maternal instincts, especially when a dog is present.²⁰ The Health and Safety Executive (“HSE”) regularly investigates incidents involving cattle and members of the public in England and Wales, with the two most common factors in these incidents being cows with calves and walkers with dogs. Wherever possible, landholders should therefore keep cattle on land that does not have public access, especially when cattle are calving or have calves at foot, particularly during periods of greater public use, such as school holidays.²¹
  • When considering whether to keep livestock in certain areas and what precautions to take, landholders should consider that members of the public are unlikely to be aware of the behavioural characteristics of the livestock. They should also consider the amount and type of public access in different areas of the rewilded land ( e.g., large groups of walkers with dogs every day, groups of children, or infrequent lone walkers). A more

extensive list of precautions to consider when grazing cattle in fields with public access can be found in HSE’s guidance.

1.2 Permissive access

What is permissive access?

A landholder may grant permissive access to the general public over their land. This may include access by invitation for a particular purpose or event or a more general ability to access the site.

Where a landholder enables permissive access to (or over) their land, they can impose conditions on that access (e.g., not allowing dogs to enter the land, access during certain hours, for particular purposes only etc.).

As this type of access is subject to express permission and is not a prescriptive right (i.e. a right acquired by longstanding use of the land), rights of way will not be established after 20 years (as outlined above) where a rewilder is specifically permitting/inviting people onto the land only to visit the rewilding project.

What are the landholder’s responsibilities regarding permissive access?

Permissive access is a right of way that is distinct from public rights of way. Unlike for public rights of way, there are no statutory responsibilities on the landholder to maintain permissive access granted over a site to the public. Access is controlled by the landholder. This makes it a more flexible way of enabling public access.

However, it is important to note that the rewilder must still take steps to ensure that visitors are safe when exercising permissive access rights. More information about obligations owed to the public is set out in the briefing entitled Rewilding in England & Wales: Liability to Individuals on Land.

How is permissive access created, changed or removed?

Permissive access is the granting of permission to access (private) land by the landholder and is created by that granting of permission.

Where a landholder grants permission to access land for a particular purpose or event, the access right is created as part of that invitation, extends to cover activities connected to that purpose and expires when the invitation expires. For example, if a person joins an event, their access is subject to conditions relating to that event and expires when the event concludes.

Where a landholder grants a more general right of permissive access, such as creating a pathway through the land, it is important that any conditions intended to apply to such right are communicated to the public. Often the most appropriate way to do this is through signage.

Signage must be clear and readily visible, kept up-to-date, and be appropriate for visitors (e.g., with language translations where relevant). In addition, to avoid such a path giving rise to a public right of way, signage should state that it is a permissive path that may be closed at the landholder’s discretion, and it may be sensible for the pathways to be closed for at least one day per year so that permanent public access over the route cannot be evidenced. Any conditions specified in the signage should be monitored to ensure they are actually adhered to (i.e. to avoid any inference that restricted activity is in fact permitted).

1.3 Open access land

What is open access land?

1.25 million hectares of land in England and Wales is designated for “open access” under CROW. Broadly speaking, the public has a right of access under CROW to land mapped as open access land, such as mountain, moor, heath and down, or registered common land. This enables the general public to enjoy walking, site seeing, birdwatching, climbing and running and certain other activities that have been permitted in the past on such land.²²

Unlike a public right of way which is restricted to a particular, specified path, these activities can take place across the open access land.²³

What are the landholder’s responsibilities on open access land?

Generally the landholder must not restrict access for permitted activities (see the list above and further details in the accompanying endnote 33).

How are rights relating to open access land created, changed or removed?

By contacting the Open Access Contact Centre,²⁴ private land can be dedicated as open access land to create public access rights if the landholder owns the freehold or holds a lease which has more than 90 years left to run.²⁵

There are advantages to landholders in dedicating land as open access, because it decreases the landholder’s liability to third parties compared to other types of public access. This is discussed in the Rewilding in England & Wales: Liability to Individuals on Land briefing.

However, dedicating land for open access is permanent (or lasts for the duration of the long lease in leaseholder situations), so it will remain open access land even if it changes ownership.

Some open access land, although mapped, may be considered “excepted land” which means that landholders may restrict access. This is generally due to safety or infrastructure considerations, for example where wind turbines or telephone masts, railways, golf courses or quarries are on the land.

The landholder can remove or relax restrictions on the types of activities members of the public can perform on the land (e.g., to allow wild camping or horse riding). However, they cannot restrict the types of activity further (e.g., prevent hiking or climbing). The list of permitted and restricted activities under CROW applies by default, unless specific variations or exclusions to this have been expressly stated by the landholder.

It may be possible in some circumstances to restrict access to open access land (i.e. land to which CROW applies) to avoid danger to the public, although public rights of way can still be used.²⁶

1.4 Common land

What is common land?

Common land is usually privately owned land which certain others (known as “commoners”) are entitled to use, by exercising their “rights of common” to take or use its natural resources. The scope of any such rights should be included in the title deeds of the rewilder or, if the land is registered common land, on the common land register (see below).

Such rights may include the right to:

• collect firewood, turf or peat to burn as fuel;
• put livestock out to graze or feed on the common;
• take fish from waterways, ponds or lakes, or take wild animals; and
• take soil or minerals from the common.

Where the landholding is registered common land,²⁷ it is also dedicated as (open) “access land” under CROW. This gives a more general right of public access on foot. It is an offence to drive over common land without lawful authority.²⁸ Common land is outlined on the commons register. There is also a database of common land in England.

What are the landholder’s responsibilities regarding common land?

The landholder must not restrict the exercise of rights of common over the landholding by commoners.

How are rights of common created, changed or removed?

The Commons Act 2006 provides that new “rights of common” may only be created by statute or by express grant over common land.²⁹

Often rights of common were granted historically and, if the landholding is subject to them, the landholder should be aware of who the commoners are and the nature of their rights.

Landholders have some limited recourse if “commoners” exceed their “rights of common”, for example, by grazing more livestock than they have rights to graze, or selling timber or wood taken from the common.

On any registered common land, Natural England (“NE”) and Natural Resources Wales (“NRW”) can stop anyone, including “commoners”, from exceeding their “right of common” by serving a notice. NE and NRW can apply for a court order to have the notice legally enforced if there is a failure to comply. NE must inform the interested parties ( e.g., the landholder, commons council and other rights holders) of this.

What is trespass?

“Trespass” is a civil (rather than a criminal) wrong which is committed where:

• a member of the public enters private land without a valid legal basis for doing so ( e.g., where there is no public right of way and the site is not open access land); or
• a visitor goes beyond the extent of the permission granted by the landholder ( e.g., because they engage in activities not authorised by the landholder), or
• the landholder withdraws that permission.

Trespass is not committed where people enter private land without the explicit consent of the landholder if they have implied permission. For example, where land is entered in order to carry out an inspection or conduct repairs with lawful authority.

What are the consequences of trespassing?

Generally speaking, trespass is a civil wrong against the landholder, but trespass can also constitute a criminal offence where it is: (i) committed intentionally; (ii) involves a residential building; and (iii) the trespasser is living or intends to live in the property.³⁰ Civil trespassers may, however, commit other crimes when trespassing, for example, if they use force or threaten an occupier with violence in order to gain entry to the land.

What can a landholder do?

Landholders should ensure that paths over their land are clearly marked so that members of the public do not enter land that is not subject to a right of public access.

If the landholder encounters people on their land who do not have a right or permission to be there, they should:

• politely ask them to leave as soon as they become aware of them;
• be aware that agreeing to let them stay for a certain amount of time may affect their right to remove them later; and
• take note of any damage that they believe they have caused.

A trespasser is permitted to leave the land they are trespassing on by the most direct route to a public right of way rather than having to retrace their steps.

If the trespassers refuse to leave, the landholder may be able to obtain assistance from the police without having to apply to the courts for an order requiring the trespassers to leave. More information on landholder rights and remedies against trespassers is outlined below.

When may the police be able to assist?

Under the Criminal Justice and Public Order Act 1994 (the “CJPO Act”), the police have limited discretionary powers to remove trespassers from land. In particular, the police may direct trespassers to leave and remove any vehicles or other property they have on the land if they believe that^31:

• two or more people are trespassing with the intention of residing on the land; and
• reasonable steps have been taken by the landholder to ask the trespassers to leave, and the trespassers have:
  • caused damage to the land or to property on it;
  • displayed threatening, abusive or insulting behaviour towards the landholder or their family, employees or agents; or
  • six or more vehicles on the land between them.

If the police have already directed the trespassers to leave and they fail to do so, or they return to the land within three months, the trespassers would be committing an offence punishable by up to three months’ imprisonment and/ or a fine of (currently) £2,500.³²

What other remedies may be available to the landholder?

If the police are unable (or unwilling) to remove the trespassers from the land, it is possible to take action through the courts. This is a lengthy and often costly process, so is generally appropriate only where there are repeated or persistent instances of trespass or where there is risk of significant damage.

To remove the trespassers, the landholder will need to make a possession claim against the trespassers in the County Court. The procedure for doing so is out of scope of this briefing, but can be found in Rule 55 of the Civil Procedure Rules. Specific legal advice should be sought to ensure the correct procedure is followed.

If successful, the court will grant the landholder an order for possession, which must be served on the trespassers. If the trespassers do not voluntarily vacate following service of the possession order, the landholder will need to obtain a warrant for possession, pursuant to which the County Court Bailiff or High Court Sheriff will take steps to force the trespassers to leave.

Fences and hedges

A freeholder or leaseholder may find that their deed or lease requires them to maintain some or all of the fencing or hedging separating their land from that of their neighbours. In the case of freehold land, this obligation can bind future purchasers, as well as the original purchaser of the land at the time the obligation was created.³³ In the absence of such an obligation, it will be the landholder’s responsibility to maintain any fencing or hedging that sits on their land, but they will not be under a duty to do so. Rewilders should therefore check their lease or title documentation to determine whether they are subject to any obligations to maintain fencing or hedging around their land, especially if they are considering removing existing fencing.

Additionally, for landholders who keep livestock on the land, it is vital that they erect and maintain fencing along the boundaries of their land to prevent the livestock from escaping and causing damage or injury, for which the landholder could be held liable.

If the landholder decides (following a risk assessment) to keep livestock in a field with public access, they should ensure that fences, gates or other means of enclosure are the correct height, strength and degree of security to accommodate safe public access. The HSE guidance provides more information on this.

It is also possible for a duty to fence land to arise as a matter of local custom.³⁴ However, it is rare for such a customary duty to be recognised by the courts, and they are unlikely to be encountered in practice.

Generally speaking, landholders should regularly check that fences, gates and stiles are safe and fit for purpose, especially on land that is subject to public access.

Implications of keeping livestock and other animals

Keeping livestock or other animals on land comes with various responsibilities and potential liabilities for landholders, which can vary from liability for damage that they might cause to, in extreme cases, criminal liability if they cause injury or death where the landholder is in breach of other responsibilities regarding health and safety. These topics are dealt with more fully in the briefings entitled Rewilding in England & Wales: Liability to Neighbouring Landholders, Rewilding in England & Wales: Liability for Damage Caused by Animals and Rewilding in England & Wales: Liability to Individuals on Land respectively.

Duty to ensure land is safe

Where third parties – whether invited or not – are present on the land, the landholder owes a duty to take reasonable care to ensure the land is reasonably safe to those accessing it. This is covered in detail in the Rewilding in England & Wales: Liability to Individuals on Land briefing.

It is good practice for landholders with rights of public access through their land to conduct risk assessments when planning or implementing changes to their land. HSE has the ability to investigate and where necessary prosecute landholders for harm caused to members of the public who have a legal right to be on landholders’ land.