Land Law Essay Help: Public Rights in Land
Land Law Cases referred to in this section:
Brady v Northern Ireland Housing Executive (1990) NI 200
DPP v Jones (1999) 2 AC 240 at 257D
Mercer v Denne (1905) 2 Ch 538
YB Mich 8 Edw IV, pl 30 (1466)
Public right to use the Highway
All citizens have a right of use of any highway over which the public has acquired a right of way, by statute or by reason of dedication and acceptance at common law. These rights are in fact overriding interests under the Land Registration Act 2002 Schedule 1 Paragraph 5.
A highway may include a carraigeway over which there is vehicular access, the adjoining pavement or footway, a footpath, byway, bridleway and other types of public traverse that may not even resemble a path (Brady v Northern Ireland Housing Executive (1990) NI 200 at 211C per Sir Brian Hutton LCJ). It need not lead to any public place and indeed, the public highway has been described as a public place in itself, to be used and enjoyed for any reasonable purpose (DPP v Jones (1999) 2 AC 240 at 257D per Lord Irvine of Lairg LC).
Public right of fishing
There is a common law right for members of the public to fish in open sea and in all tidal and salt waters, dating back to 1466: 'Every man may fish in the sea of common right' (YB Mich 8 Edw IV, pl 30 (1466)). This includes the right to take shellfish from the 'exposed foreshore', and a right to bait-dig on the foreshore provided this is done anciliiary to the act of fishing. There is no right in respect of non-tidal waters or any inland non tidal lakes.
Public right of passage in navigable waters
There is a public right of passage at will over all navigable tidal waters for the purpose of navigation, commerce, trade and intercourse. There is also a public right of passage over non-tidal rivers and lakes, subject to statutory regulation (such as the Water Resources Act 1991, Schedule 25 and the Countryside Act 1968, Section 22(6)). The rights over non-tidal rivers and lakes are for reasonable acts of user only incidental to a right of passage and repassage - and what is reasonable is by reference to the capacity and quality of the river or other waterway.
Local customary rights
Some rights may be enjoyed under this heading that have a distinct local dimension, exercisable by inhabitants of a particular local community. This may include for example, the drying of fishing nets at a particular location (Mercer v Denne (1905) 2 Ch 538 at 581, 584). In theory, such rights must have been established from before 1189 - but in practice, evidence of uninterrupted long user for 20 years (or perhaps living memory) is sufficient, provided that there is no actual evidence that the user originated after 1189.
Rights of recreational access
The major new right of access was completed across England on October 31 2005. From this date there has been a new right giving people the opportunity to walk freely across mapped ‘access land’, without sticking to paths. In England, the public now have ‘open access’ to around 940,000 hectares (3,629 square miles). This represents 7.1% of the country. The new right covers most recreational activities carried out on foot, including walking, sightseeing, bird-watching, climbing and running, but there are some common sense restrictions in place which limit where people can walk or take a dog (see Countryside and Rights of Way Act 2000 s 2(1)).
The new right of open access does not include camping, cycling, horse riding or driving a vehicle (except mobility
scooters and buggies), but where these activities already take place they are unaffected. Access land open under
the Countryside and Rights of Way Act (CROW) is for walkers but does not prevent people carrying out other activities with the landowner’s consent or where permitted by law.
Land to which the new right of access applies is land that has been mapped under the Countryside and Rights of Way Act 2000 (CROW) as mountain, moor, heath, down and registered common land. Landowners may dedicate other areas of land for permanent open access; for example, the Forestry Commission plan to dedicate over 180,000 hectares (700 square miles). However, even within these mapped or dedicated areas, certain places are excluded. Some areas are out of bounds such as gardens, parks and arable land.
Where a person exercises rights of access he may do so only if and so long as he does not break or damage any wall, fence, hedge, stile or gates (Section 2(1)(a), (2)) and he observes the general (see Schedule 2) and specific statutory restrictions in relation to the land. A person becomes a trespasser on any access land by failing to comply with these requirements.
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