THE MARINE BILL: COASTAL ACCESS FOR HORSE RIDERS.
APPENDIX III
Historically, was the law in Scotland different to that in England?
The Scotland Land Reform Act 2003[i], gave the public a statutory right of air and exercise to the beaches and foreshores on foot and on horse back, subject to a code of conduct. This formalized the pre-existing common law rights.
Those responsible for preparing the Marine Bill put forward the view that the rights of public access in England differ from the common law rights or ‘traditional freedoms’ that existed in Scotland prior to that Act.
This paper looks critically at this assumption.
During the 19th century there appears to have been broad agreement amongst English law lords that the law relating to access to beaches and foreshores was the same in both countries. The Crown held the seashores subject to rights of the public (on foot and on horse back) and was entitled to intervene in order to protect those rights on their behalf. The only pronounced difference was that much more of the shores surrounding Scotland had been granted out to private individuals, than was (or is) the case in England.
Case Decided in Smith v. Stair and Others[ii]
The House of Lords - 13th July 1849
Alexander Smith, W. S., Appellant
The Right Hon. John Hamilton Dalrymple, Earl of
Stair and others, Her Majesty’s Officers of the State for
Scotland, for Her Majesty’s interest, Respondents
Briefly: Smith, the defendant, had built a sea wall, thereby causing an encroachment, on the sands adjacent to the town of Portobello in Scotland. He claimed that he had title to the land on which the wall had been built. Her Majesty’s Officers of State for Scotland had intervened to protect the interests of the Crown, and the public, whose right to air and exercise on the sands had been interrupted. The inhabitants of the neighbouring town of Portobello and the
surrounding country had for time immemorial been in the habit of using the sands for the purpose of riding, and walking, and the royal troops had used them for exercise and been reviewed upon them.
In 1846 this case was heard before the Lord Ordinary of Scotland. As Smith the defendant could not prove his title to the land in question, the court found for the representatives of Her Majesty. The decision was appealed against and subsequently heard in the House of Lords in 1849.
Their Lordships decided that:-
“Title to Sue. – The Crown has title to prevent, by application for interdict, any encroachment by the proprietors of the ground adjoining the sea shore, upon the enjoyment of the shore by the lieges for the purpose of passage or relaxation.”
“Property – Bounding Charter. – a proprietor of ground, described by his title as being of a specified extent, has no right to inclose that part of the shore which is covered by the sea only by ordinary spring-tides. Over which the public has been from time immemorial in the habit of passing, and over which he cannot prove any past use or possession by himself.”
“Crown Costs. – No costs given to the Crown in an action by it to protect rights of the public to the sea shore.” Page 487.
Consideration was given to the definition and extent of the shore, during which Hall, on Sea-Shores p. 8., and the remarks of Holroyd and Bailey in Blundell v. Catterall were cited. So although the Blundell v. Catterall judgment was considered; that was only in relation to the bounds of the Crown land, and not regarded as relevant to the public enjoyment of the shore at Portobello. Below are the remarks of a former Lord Chancellor Lord Brougham. Given that the role of the Lord Chancellor is to preside over major constitutional issues, his opinion must be regarded as having some weight.
“The ground indeed, upon which mainly the judgment of the learned judges is rested, is, that the Crown as guardian of the public interests, has the right to interfere on behalf of those interests, just as the Attorney-General has the right to do so in this country (England) by information against a nuisance, and as the Officers of State do in Scotland who exercise that control.”
Page 498. Lord Brougham
“The question is, whether the officers of State representing the Crown have sufficient interest to apply for and interdict? Mr. Smith objects that the public have made use of these sands only by sufferance, without legal right, and that the Crown have no right to the soil, or interest in where the new wall is erected, because it is above the sea mark of the ordinary neap tides.”
Page 499. Lord Campbell.
“But it has often been held in England, and the doctrine resting on sound principles it must be equally applicable in Scotland, that a party in possession, even with a doubtful title, shall be protected against a wrong doer by an injunction. Therefore, irrespective of the right of the Crown to the sea-shore, and without touching the question whether the sea-shore extends to the flood-mark of ordinary spring tides, or only of neap-tides, I am of the opinion that, by reason of easement enjoyed by the public over the locus in quo from which they are now excluded, the Officers of the State had the right to apply for this interdict, and that it was properly granted in their favour.”
Page 500. Lord Campbell.
“Without pronouncing or even hinting at any opinion as to whether the sea-shore extends to the flood mark of ordinary spring tides, I should have thought that as against this wrong-doer a sufficient case for an interdict had been made out ratione soli. Notwithstanding some loose dicta to the contrary, there can be no doubt that by the law of Scotland, as by the law of England, the soil of the sea-shore is presumed to belong to the Crown by virtue of the prerogative, although it may have been alienated, subject to any easements which the public may have over it.”
Page 500. Lord Campbell.
The judgment of the Lord Chancellor in the case of Gammell et Al. v. Her Majesty’s Commissioners of Woods, &c., and the Lord Advocate of Scotland, 1859, provided further official confirmation of the Crown’s ownership of the sea-shore, in both England and Scotland.
Gammell et Al. v. Her Majesty’s Commissioners of Woods, &c.,
and the Lord Advocate of Scotland[iii].
The House of Lords. 1859.
The case had been brought by appeal before the House of Lords, to decide upon the important question of whether the salmon fishings around the sea coast of Scotland belonged exclusively to the crown and formed part of its hereditary revenues. Page 392.
Although this was a case about salmon fishing, the Lord Chancellor’s remarks about the parity between the law of England and Scotland with regard to the sea-shores, are relevant to the subject of public access to them.
“If I have rightly apprehended the argument of the counsel for the appellants, it is this:
They say the law as to the right of the sea-shore is different in Scotland from that of England; that in Scotland ‘the shore is not as in England, held to be the property reserved to the Sovereign, but presumed to be grant as part and pertinent of the adjacent land under the burden of the Crown’s rights as trustees for public uses’. (Bells Principles, section 642.) That the right of Salmon fishing therefore cannot be connected with any right in the shore, and that in open sea they are incapable of becoming the subject of feudal property.” Page 393.
Several editions of this legal text book on Scottish law upheld the same view.
A Handbook of the Law of Scotland[iv].
James Lorimer 1862.
“1216. Sea-shore.- Closely analogous to the right of highway is the right which the public possess to the sea-shore. The seas and the sea-shores of Great Britain are said to be inter regalia, i.e. they belong to the Crown for public use. The shore comprehends all between the high and low water-mark; but by the former term is meant only the point which he sea reaches in the ordinary spring tides.”(Stair, ii. 1.5; Ersk. ii. 1.6, and 6. 17; Bell’s Prin. 641; Inst. Lib. Ii. Tit. i., secs. 1.3.) Page 245.
“1217. There is no substantial distinction between a grant of land as bounded by the sea, and as bounded by the sea-shore; the shore is given in both cases, subject to the public use.” Page 246
“1218. After a grant so bounded, nothing remains in the Crown but the public trust; and no private person can, by subsequent grant or otherwise, be allowed to interpose between the grantee and the shore.” Page 246
“1219. Nearly all the sea-shores in Scotland have been granted to individuals under the burdens and limitations in these sections.” Page 246
Writing in 1896, Sir Robert Hunter, formerly Honorary Solicitor to the Commons Preservation Society, citing the Smith v. Earl of Stair judgment, considered the position of the public in relation to access to the foreshore, to be slightly more certain in Scotland. However, this did not take into account their Lordships opinion in that case, that the law relating to the foreshore was the same in England as in Scotland, and Lord Brougham’s comment that in a similar case in England, the Attorney General would intervene to support the rights of the public.
The Preservation of Open Spaces and of Footpaths and Other Rights of Way
A Practical Treatise on the Subject. – 1896.
By Sir Robert Hunter M.A.
Hunter described the situation with regard to public access to the foreshore as it had been left following the Blundell v. Catterall decision.
“In other words, where the fore-shore is the Crown’s, as in most places, the public, though not exercising a right that can be pleaded in law, will not practically be interfered with in passing over it; and this will doubtless be the same in most cases, where the foreshore is in private hands. But the enjoyment of the public cannot be set up to prevent some other use of the fore-shore inconsistent with such enjoyment; and such inconsistent use is more likely to arise where the fore-shore is in private hands. In fact the position of the public with regard to the fore-shore is very much that which it occupies with respect to a common. Practically, while a common is open to the public to wander over it at will, there will be no criminal procedure for trespass, and no damage upon which to found a civil action can be shown; but the public cannot set up a right of wandering to prevent inclosure. So it is with the fore-shore. Page 320.
He writes that the legal position was more certain in Scotland.
“In Scotland at least, the Crown will interfere to prevent an encroachment on the fore-shore by a person having no title. (Smith v. Earl of Stair and Others, Officers of the State of Scotland.)”Page 321.
“This decision, though not exactly establishing a public right to use the sea-shore for purposes of passage and recreations would enable them to prevent inclosure by the owner of the soil, shows that, in Scotland at least, there is such a quasi-easement as will justify interference by the representatives of the Crown to prevent wrong doers.” Page 322.
[i] COASTAL ACCESS IN SELECTED EUROPEAN COUNTRIES.
http://66.102.9.132/search?q=cache:_qyhm7b5dvkJ:www.naturalengland.org.uk/leisure/access/coastal/docs/CoastalAccessEurope-SUMMARY_tcm2-31606.pdf+foreshore+Scotland+%22natural+england%22&hl=en&ct=clnk&cd=1&gl=uk&lr=lang_en
[ii] Smith v. Stair.
http://books.google.co.uk/books?id=6202AAAAIAAJ&pg=PA493&dq=smith+v.+stair+%2B+house+of+lords&lr=&as_brr=3#PPA487,M1
[iii] Gammel et Al. v. Her Majesty’s Commission for Woods &c….
http://books.google.co.uk/books?id=ctoSAAAAYAAJ&pg=PA391&dq=gammel+et+al+%22house+of+lords%22&lr=&as_brr=3
[iv] Lorimer.
http://books.google.co.uk/books?id=IK0uAAAAIAAJ&pg=PA246&dq=Lorimer+%2B+sea-shore&lr=&as_brr=3#PPA245,M1
Saturday 10 January 2009
Friday 9 January 2009
COASTAL ACCESS: BLUNDELL V. CATTERALL
COASTAL ACCESS FOR HORSE RIDERS
Are there really no common law rights in England?
The government’s approach to the drafting of the Coastal Access provisions in Marine Bill is underpinned by an assumption that there is no public right of access, for the air and exercise, to the foreshore and beaches which surround England. The case of Blundell v. Catterall is cited as the justification for this. See for example the Countryside Agency’s Board Paper, ‘Improving Coastal Access an Update, 2005[i]. (APO5/25), and Dr. Helen Phillips’ speech on Coastal Access at the Cambridge University Land Society Debate[ii].
This paper looks critically at the basis for that assumption.
The validity of the Blundell v. Catterall judgment is not in question. What is in question is the government’s response to it. Upon discovery that the case raises an element of uncertainty about the legality of public access to the foreshores, beaches and dunes around the English coast, their chosen remedy, has been to propose statutory protection to those areas for persons on foot only.
No one reading the full report of the case could fail to notice that in the early 1820s it was generally understood that the public had from time immemorial enjoyed unchallenged access to the sea-shore and foreshore not only on foot, but also on horse back and even with carriages. Public access was certainly not confined to persons on foot only.
Based on the evidence of this case, it is difficult to justify the government’s decision to grant statutory protection solely for pedestrians. If there is a possibility that existing ‘de facto’ access on foot is in some way under threat and requires new legislation to clarify matters; why is the same not true of access for horse riders?
(The underlining represents my emphasis in the extracts quoted below.)
Blundell v. Catterall. 1821[iii].
(5.B.& Ald. R. 268; SC 7. ENG. C. Law R 91.)
Briefly, the case brought before the court was an action for trespass over the beach and fore shore of Great Crosby in Lancashire. The defendant had been operating a business, charging money for transporting visitors in bathing machines over the beach and foreshore in order to bathe in the sea. It was also alleged that this activity caused damage to the land. The lord of the manor of Great Crosby, (the plaintiff) was the acknowledged owner of the land and had an exclusive right of erecting stake nets for fishing there; he maintained that the defendant had no right to carry on this commercial activity on his private property.
The general question to be decided was, whether there was a common law right for all the king’s subjects to bathe upon the sea shore, and to pass over it for that purpose, on foot, and with horses and carriages. But because the land was proven to have been private property from time immemorial the judges were obliged to also consider a further question:
“the question really is, whether there is a common law right in all his subjects to do so in locus quo, though the soil of the sea-shore, and an exclusive right of fishing there in a particular manner (namely with stake nets), are private property belonging to a subject, and though the same have been a special peculiar property from time immemorial”.
Pages xvii. Holroyd J.
The judge Abbott C. J., decided that there was no such common law right to bathe in this case. The defendant had endeavored to make a special profit by conveying persons over the land belonging to the plaintiff, and it doing so had caused damage. In addition, the plaintiff had been denied any interest in the profit made by the defendant as a result of his claim that he had a common law right of passage.
The judge also chose to consider the wider national implications of this judgment and he clearly did not believe that it would make a material difference to public access elsewhere, particularly on Crown land.
“In some parts, the King is the owner of the shore; and it is not probable that any obstruction would be interposed on his behalf to such a practice. Of private owners, some may not have thought it worth while to advance any claims or opposition; others may have had too much discretion to put their title to the soil to the hazard of a trial by an unpopular claim to a matter of little value.” Page xxxix Abbott C. J.
He also noted that public access to the sea shore was analogous to that on inland wastes and commons, although differing slightly.
“But, further, the practice, as far at least as I am acquainted with it, differs in degree only, and not in kind or quality, from that which prevails as to some inland wastes and commons; and even the difference in degree is not in some instances very great. Many of those persons who reside in the vicinity of wastes and commons, walk or ride on horseback, in all directions, over them, for their health and recreation; and sometimes even in carriages, deviate from public paths into those paths which may be so traversed safely.” Page xxxix. Abbott C.J.
In considering whether his judgment was likely to result in widespread actions for trespass being brought before the courts, he concluded that it would not. The reason he gave for this was, that where there was no injury to the owner, the existing law provided suitable checks against such actions.
“But, shall the owner of the soil be allowed to bring an action against any person who may drive his carriage along these parts of the sea shore, whereby not the smallest injury is done to the owner? The law has provided suitable checks to frivolous and vexatious suits: and, in general, experience shows that the owners of the shore do not trouble themselves or others for such matters”. Page xl. Abbott C. J.
Had the true intention Abbot C. J.’s judgment been to prevent the people from roaming freely over beaches all around the coast one would expect there to have been a surge of actions for trespass. The fact is that did not happen; it was acknowledged to be a special case relating to particular circumstances.
Whether or not this important judgment had a significant impact on public access to the sea-shores throughout the country, can only be gauged by studying the aftermath.
An Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm,
compiled from the Text Writers and Decided Cases[iv];
by Robert Gream Hall, Esq. of Lincoln’s Inn, Barrister. 1830
Nine years later, writing on the subject of the rights of the Crown and the public in the shore; Hall maintained that where the Crown had granted the ownership of the shore to a private individual, it was not always the case that the grantee could exclude the public.
“It seems certain that the mere ownership of the soil will not exclude the public, or authorize the owner to exclude the public fishery; for no subject can take more than the King had to grant, out of the shore or the sea bottom, therefore the grantee must have taken his grant , subject to the public right of piscary, to which the sea and sea-shore were liable, even in the King’s hands.” Page 56.
Hall asserted that public rights to the sea shore were to be construed favourably.
“But although it may be deemed an object of no small importance to protect the right of the Crown to the sea shore, against encroachments by individuals; yet where a claim is made on behalf of the public, and the King’s right is opposed to the general right of the subject, Courts of Law, which favour liberty, and have an anxious regard for public rights, and presume the King himself to be personally interested in the public good, will protect the claims of the public to the utmost verge of the law. The ownership of the shore, as between the public and the King, has been settled in favour of the King; but as before observed, this ownership is and has been immemorially, liable to certain general rights of egress and regress, for fishing, trading, and other uses claimed and used by his subjects. These rights are variously modified, promoted, or restrained by the common law, and by numerous acts of parliament relating to fisheries, and the public safety, but a statement of which is not within the limit of our subject.” Page 120.
There is a separate, supplemental chapter on the public right to use the shore for bathing, in which he remarks on the case of Blundell v. Catterall.
“This was the first case in which the public right to use the sea shore for bathing, was ever judicially claimed or opposed, as was remarked by Mr. Justice Bayley.” Page 185.
Hall argued that the text of Bracton (which had been dismissed by the court) favoured the rights of the public.
“In the case before us it was argued, that although no express mention is made of bathing as a general common law right, yet the common right to frequent the shore, (littus,) without limitation of purpose, (so that it be legal,) is expressly asserted by Bracton.” Page 190.
According to Hall the text of Bracton had been misconstrued by the Court, firstly in their consideration of his text in relation to rivers rather than the sea shore and secondly by the learned judges conclusion that because the text is taken from Civil law, that the doctrine may not be good at Common law.
“The public in every parish, manor, &c. on the coasts, have a right to one or more convenient ways to reach the shore, according to the wants, extent and localities of the district, it is not to be denied, since without this fishing and navigation would be valueless. Nor is it sufficient to say such a way should be a mere footway; and if it be a way for horses and carriages, and I thus have the right to drive down to and along the shore in a machine or carriage, and float on the sea, why may I not do so to get into the sea itself? The right of way to the sea is never yet contended to be a mere footway; the same mode of approach to and from the sea as is allowed for fishing and embarkation, it is all that is desired on behalf of bathing.” Page 203.
“…and the true question all along is, whether the King’s ownership in the shore is not itself subject to this usage. The ownership of the Crown in the shore has always been subject to the rights of using it as a road for fishing and navigation. It is evidently not the sea alone, but the shore also which is subject to these common law rights. Thus, the frequenting of the shore is claimed and enjoyed as an accessory to these rights, which are the principals.” Page 203.
“It is difficult to regard the fishery as a public and general right, and the necessary way and passage for its exercise as a local and partial privilege. The public have a right to navigate the seas, and to fish therein, is not limited to particular places; it is not a local right, but pervades the whole coast of England. The right of way commensurate with these rights would seem to be commensurate.”
Further, the law did not compel goods (not customable) to be landed at a port, therefore, he reasoned, the public required latitude in order to the exercise their right of fishing.
“The Common Law does not control in such manner, the general rights of fishing in a navigating the seas. It does not compel the subject to embark or disembark his person or his goods (not custumable) at one place more than another; and it is conceived, that in order to the full, complete, and unimpeded exercise of these great public rights, a right of way, above and along the edge of the high water mark, is involved in the existence of those great public rights, and annexed to them; but subject (for the protection of private rights) to the control of a jury, as to what shall be deemed sufficient, in the place of exercise.” Page 212.
A Treatise on the Rights of Water published in 1859, made it clear that Blundell v. Catterall was regarded as a ‘special case’, where, in that particular instance the public had been deprived by Act of Parliament of their rights over the ‘ locus in quo’.
A Treatise on Rights of Water including the Public and Private Rights to the Sea and to the Sea Shore[v].
J. B Phear Esq., of Inner Temple, Barrister at law, Senior Fellow of Clare College Cambridge. 1859.
Phear was of the opinion that where the shore had been granted out by the Crown the public still retained their rights over it.
“When the Crown conveys to private individuals the legal title to the shore, they become enabled to exercise such rights of ownership there, as the Crown itself could have done, and no more; the proprietary rights in the beach thus acquired by them are, therefore, subordinate to the general interests of the public.” Page 46.
He acknowledged that this view did not agree with the decision in Blundell v. Catterall, but also noted that :-
“..this case may be upheld without adopting the majority of reasons of the judges who decided it: the subject came before them in the form of a special case’.” Page 50.
Phear pointed to the fact that Mr. Justice Holroyd himself had observed that the sea-shore in question had been “a special peculiar property from time immemorial”. He went on to describe how in some places the public had been deprived of their rights locus in quo.
“..It is certain that in the early days of our history, the Crown did not always confine itself to its constitutional limits: many grants were made by to private individuals, in defeasance of public rights, and were so long enjoyed without interruption, that legislature in the time of Edward III., thought fit by a sort of saving clause in a penal statute to legalise all weirs, gorges, &c., i.e., fixed apparatus for exclusive fishing, which had been erected and exercised before the time of Edward I. many of these are consequently in full vigour at the present time, and it is clear from the finding of the special case, and the terms in which Holroyd, J., expressed the real issue before the Court, that the plaintiff’s right to the shore and to his stake fishery, must be classed among them, as being due to grant from the Crown before the statutable period. Page 51.
“Under these circumstances, the public had been deprived by Act of Parliament of their rights over the locus in quo, and it was not necessary to the decision to hold, that the rights claimed on their behalf had no existence elsewhere.” Page 51.
“The desire to protect well ascertained private interests, seems to have been the sole origin of a doctrine which, in saying that a subject cannot cross the beach, for the purpose of bathing without trespassing upon the rights of the crown, must by parity of reasoning deny the common right of the public to shrimping and gathering shell fish on the beach, and prevent owners of the land bordering the shore, from passing over the intervening sand to their boats. It is not probable that future decisions will go to the length of confirming this, unsupported as it is by analogy or authority; and description given above of the relations between the rights of the Crown and those of the public, as they subsist at common law, seems to be substantially correct.” Page 51.
“It is not probable that the owner of the soil will ever interfere in these matters, unless for the purpose of making some profit thereby.” Page 51.
“but is it considered that no book, or authority or custom whatsoever, denies a right of way, ad libitum, over the shore so long as it is the shore, whether the soil be the King’s or belong by some grant from the Crown. Such right of way is allowed for fishing, and, when the case was res integra, would allow the shore to be used as an highway as much for the one purpose as the other, instead of thus virtually declaring the same man a trespasser for bathing, who was no trespasser when up to his knees or neck in water, in search of a lobster a crab or a shrimp.” Page 51.
Under the Crown Lands Act.1866, (29 & 30 Victoria. c. 62.) section 7, responsibility for the management of the majority of the Foreshore was transferred from Her Majesty’s Woods and Forests to the Board of Trade. The existing rights of the public and of those of private individuals were preserved.
The Law Times. December 28th 1867[vi].
Real Property Lawyer and Conveyancer- Notes on New Decisions.
“FORESHORES – Until this year the management and interests of the rights in the Crown of the shore and bed of the sea and tidal parts of navigable rivers has been in the hands of the Department of Woods and Forests, Along with other Crown lands surrendered to the nation during the life of the Sovereign on settlement of the Civil List.
The annual reports of the department have stated from time to time the sales they have made of pieces of the foreshore. By and Act passed last year – the Crown Lands Act, property has been transferred to the Board of Trade, and a memoranda submitted by Mr. Farrer the secretary, on the course to be adopted by the Board in dealing with this property has been laid before the House of Commons. The doctrine proposed is that the Sovereign is, of common right, seized with the soil of the bottom of the sea and of the shore landwards up to the line of medium high tides. But in many places acts of private ownership are being done which continued for much less than the statutory sixty years are held to warrant a jury in presuming a grant from the Crown. Mr. Farrer proposes that the customs and coastguard officers be instructed to report all encroachments or acts of ownership, and any exclusion of the public from walking, bathing, landing, fishing and the like. Some claims of ownership may be injurious to navigation or other public rights, and others may have little or no effect except as establishing a title adverse to the Crown: but it is desirable that they should be made known in order that the Board of Trade may judge whether it is desirable for them to take steps to prevent or qualify them. It is generally a question whether it is worthwhile to go to the expense of legal proceedings by ‘information ‘or indictment for the Crown cannot bring an action of ejectment and an action of trespass brought by the Crown has fallen into disuse. It is probable that sooner or later Legislature will give more summary remedies than at present exist. The title of the Crown is not usually absolute title to the exclusive enjoyment of the soil; it is subject to various rights on the part of the public, such as rights of fishing and navigation. The public right of bathing has been denied by a court of law, but the decision has been questioned by high authorities, and is considered doubtful. In a country like England, where every open space may be needed for public health and enjoyment, and where facilities for navigation, fishing, beaching, landing, and shipping are of the highest importance, it is of great moment that the control of the public and of the Government over the bed of the sea and the strip of common which lies between land and open sea should be preserved. It desirable, with a view to useful public work that there should be power to grant a license of lease at a small nominal rent, preserving the title of the corn. The existing statutes relating to Crown property are framed to prevent sales and leases at less than real value; if the Board of Trade are to act on a different principle, it may be desirable, if not necessary, to have the distinct sanction of Parliament. In the Transfer Bill of 1866 clauses were inserted allowing the Board to makes sales or grant leases or licenses on such terms as they should think fit where parts of the foreshore are required for harbour, docks, piers, or other works of utility, and in other cases also, the Board then certifying their reasons; but in the House of Lords these clauses were opposed by certain Scottish landed proprietors, and in order to save the Bill at a late period of the Session the clauses were abandoned. It is considered that as far as England is concerned it is considered there would be no difficulty in getting the Act amended in this respect; but with regard to Scotland it would be necessary either to come to terms with the Scottish proprietors, or to ascertain by legal proceedings the exact nature and extent of the Crown’s rights to the foreshore in Scotland, and then propose legislation on that basis.” Page 157.
The Preservation of Open Spaces and of Footpaths and Other Rights of Way
A Practical Treatise on the Subject. – 1896.
By Sir Robert Hunter M.A.
Hunter described the situation with regard to public access to the foreshore as it had been left following the Blundell v. Catterall decision.
“In other words, where the fore-shore is the Crown’s, as in most places, the public, though not exercising a right that can be pleaded in law, will not practically be interfered with in passing over it; and this will doubtless be the same in most cases, where the foreshore is in private hands. But the enjoyment of the public cannot be set up to prevent some other use of the fore-shore inconsistent with such enjoyment; and such inconsistent use is more likely to arise where the fore-shore is in private hands. In fact the position of the public with regard to the fore-shore is very much that which it occupies with respect to a common. Practically, while a common is open to the public to wander over it at will, there will be no criminal procedure for trespass, and no damage upon which to found a civil action can be shown; but the public cannot set up a right of wandering to prevent inclosure. So it is with the fore-shore.” Page 320.
[i] ‘Improving Coastal Access an Update, 2005
http://www.countryside.gov.uk/Images/AP05_25%20Access%20to%20the%20Coast_tcm2-26590.doc
[ii] Dr. Helen Phillips speech on Coastal Access at the Cambridge University Land Society Debate http://www.naturalengland.org.uk/about/speeches/hp3.html
[iii] Blundell v. Catterall
http://books.google.co.uk/books?id=zDY9AAAAIAAJ&pg=RA1-PR1&dq=select+adjudged+cases+%22blundell+v+catterall%22&lr=&as_brr=3
[iv]Hall.
http://books.google.co.uk/books?id=0JgDAAAAQAAJ&pg=PA253&dq=sea-shore+%22blundell+v+caterall%22&lr=&as_brr=3#PPA1,M1
[v] Phear.
http://books.google.co.uk/books?id=E8gDAAAAQAAJ&printsec=frontcover&dq=sea-shore&lr=&as_brr=3
[vi] The Law Times 1867
http://books.google.co.uk/books?id=N5EDAAAAQAAJ&pg=PP9&dq=Foreshores+%2B+law+times+1867&lr=&as_brr=3#PPA157,M1
Are there really no common law rights in England?
The government’s approach to the drafting of the Coastal Access provisions in Marine Bill is underpinned by an assumption that there is no public right of access, for the air and exercise, to the foreshore and beaches which surround England. The case of Blundell v. Catterall is cited as the justification for this. See for example the Countryside Agency’s Board Paper, ‘Improving Coastal Access an Update, 2005[i]. (APO5/25), and Dr. Helen Phillips’ speech on Coastal Access at the Cambridge University Land Society Debate[ii].
This paper looks critically at the basis for that assumption.
The validity of the Blundell v. Catterall judgment is not in question. What is in question is the government’s response to it. Upon discovery that the case raises an element of uncertainty about the legality of public access to the foreshores, beaches and dunes around the English coast, their chosen remedy, has been to propose statutory protection to those areas for persons on foot only.
No one reading the full report of the case could fail to notice that in the early 1820s it was generally understood that the public had from time immemorial enjoyed unchallenged access to the sea-shore and foreshore not only on foot, but also on horse back and even with carriages. Public access was certainly not confined to persons on foot only.
Based on the evidence of this case, it is difficult to justify the government’s decision to grant statutory protection solely for pedestrians. If there is a possibility that existing ‘de facto’ access on foot is in some way under threat and requires new legislation to clarify matters; why is the same not true of access for horse riders?
(The underlining represents my emphasis in the extracts quoted below.)
Blundell v. Catterall. 1821[iii].
(5.B.& Ald. R. 268; SC 7. ENG. C. Law R 91.)
Briefly, the case brought before the court was an action for trespass over the beach and fore shore of Great Crosby in Lancashire. The defendant had been operating a business, charging money for transporting visitors in bathing machines over the beach and foreshore in order to bathe in the sea. It was also alleged that this activity caused damage to the land. The lord of the manor of Great Crosby, (the plaintiff) was the acknowledged owner of the land and had an exclusive right of erecting stake nets for fishing there; he maintained that the defendant had no right to carry on this commercial activity on his private property.
The general question to be decided was, whether there was a common law right for all the king’s subjects to bathe upon the sea shore, and to pass over it for that purpose, on foot, and with horses and carriages. But because the land was proven to have been private property from time immemorial the judges were obliged to also consider a further question:
“the question really is, whether there is a common law right in all his subjects to do so in locus quo, though the soil of the sea-shore, and an exclusive right of fishing there in a particular manner (namely with stake nets), are private property belonging to a subject, and though the same have been a special peculiar property from time immemorial”.
Pages xvii. Holroyd J.
The judge Abbott C. J., decided that there was no such common law right to bathe in this case. The defendant had endeavored to make a special profit by conveying persons over the land belonging to the plaintiff, and it doing so had caused damage. In addition, the plaintiff had been denied any interest in the profit made by the defendant as a result of his claim that he had a common law right of passage.
The judge also chose to consider the wider national implications of this judgment and he clearly did not believe that it would make a material difference to public access elsewhere, particularly on Crown land.
“In some parts, the King is the owner of the shore; and it is not probable that any obstruction would be interposed on his behalf to such a practice. Of private owners, some may not have thought it worth while to advance any claims or opposition; others may have had too much discretion to put their title to the soil to the hazard of a trial by an unpopular claim to a matter of little value.” Page xxxix Abbott C. J.
He also noted that public access to the sea shore was analogous to that on inland wastes and commons, although differing slightly.
“But, further, the practice, as far at least as I am acquainted with it, differs in degree only, and not in kind or quality, from that which prevails as to some inland wastes and commons; and even the difference in degree is not in some instances very great. Many of those persons who reside in the vicinity of wastes and commons, walk or ride on horseback, in all directions, over them, for their health and recreation; and sometimes even in carriages, deviate from public paths into those paths which may be so traversed safely.” Page xxxix. Abbott C.J.
In considering whether his judgment was likely to result in widespread actions for trespass being brought before the courts, he concluded that it would not. The reason he gave for this was, that where there was no injury to the owner, the existing law provided suitable checks against such actions.
“But, shall the owner of the soil be allowed to bring an action against any person who may drive his carriage along these parts of the sea shore, whereby not the smallest injury is done to the owner? The law has provided suitable checks to frivolous and vexatious suits: and, in general, experience shows that the owners of the shore do not trouble themselves or others for such matters”. Page xl. Abbott C. J.
Had the true intention Abbot C. J.’s judgment been to prevent the people from roaming freely over beaches all around the coast one would expect there to have been a surge of actions for trespass. The fact is that did not happen; it was acknowledged to be a special case relating to particular circumstances.
Whether or not this important judgment had a significant impact on public access to the sea-shores throughout the country, can only be gauged by studying the aftermath.
An Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm,
compiled from the Text Writers and Decided Cases[iv];
by Robert Gream Hall, Esq. of Lincoln’s Inn, Barrister. 1830
Nine years later, writing on the subject of the rights of the Crown and the public in the shore; Hall maintained that where the Crown had granted the ownership of the shore to a private individual, it was not always the case that the grantee could exclude the public.
“It seems certain that the mere ownership of the soil will not exclude the public, or authorize the owner to exclude the public fishery; for no subject can take more than the King had to grant, out of the shore or the sea bottom, therefore the grantee must have taken his grant , subject to the public right of piscary, to which the sea and sea-shore were liable, even in the King’s hands.” Page 56.
Hall asserted that public rights to the sea shore were to be construed favourably.
“But although it may be deemed an object of no small importance to protect the right of the Crown to the sea shore, against encroachments by individuals; yet where a claim is made on behalf of the public, and the King’s right is opposed to the general right of the subject, Courts of Law, which favour liberty, and have an anxious regard for public rights, and presume the King himself to be personally interested in the public good, will protect the claims of the public to the utmost verge of the law. The ownership of the shore, as between the public and the King, has been settled in favour of the King; but as before observed, this ownership is and has been immemorially, liable to certain general rights of egress and regress, for fishing, trading, and other uses claimed and used by his subjects. These rights are variously modified, promoted, or restrained by the common law, and by numerous acts of parliament relating to fisheries, and the public safety, but a statement of which is not within the limit of our subject.” Page 120.
There is a separate, supplemental chapter on the public right to use the shore for bathing, in which he remarks on the case of Blundell v. Catterall.
“This was the first case in which the public right to use the sea shore for bathing, was ever judicially claimed or opposed, as was remarked by Mr. Justice Bayley.” Page 185.
Hall argued that the text of Bracton (which had been dismissed by the court) favoured the rights of the public.
“In the case before us it was argued, that although no express mention is made of bathing as a general common law right, yet the common right to frequent the shore, (littus,) without limitation of purpose, (so that it be legal,) is expressly asserted by Bracton.” Page 190.
According to Hall the text of Bracton had been misconstrued by the Court, firstly in their consideration of his text in relation to rivers rather than the sea shore and secondly by the learned judges conclusion that because the text is taken from Civil law, that the doctrine may not be good at Common law.
“The public in every parish, manor, &c. on the coasts, have a right to one or more convenient ways to reach the shore, according to the wants, extent and localities of the district, it is not to be denied, since without this fishing and navigation would be valueless. Nor is it sufficient to say such a way should be a mere footway; and if it be a way for horses and carriages, and I thus have the right to drive down to and along the shore in a machine or carriage, and float on the sea, why may I not do so to get into the sea itself? The right of way to the sea is never yet contended to be a mere footway; the same mode of approach to and from the sea as is allowed for fishing and embarkation, it is all that is desired on behalf of bathing.” Page 203.
“…and the true question all along is, whether the King’s ownership in the shore is not itself subject to this usage. The ownership of the Crown in the shore has always been subject to the rights of using it as a road for fishing and navigation. It is evidently not the sea alone, but the shore also which is subject to these common law rights. Thus, the frequenting of the shore is claimed and enjoyed as an accessory to these rights, which are the principals.” Page 203.
“It is difficult to regard the fishery as a public and general right, and the necessary way and passage for its exercise as a local and partial privilege. The public have a right to navigate the seas, and to fish therein, is not limited to particular places; it is not a local right, but pervades the whole coast of England. The right of way commensurate with these rights would seem to be commensurate.”
Further, the law did not compel goods (not customable) to be landed at a port, therefore, he reasoned, the public required latitude in order to the exercise their right of fishing.
“The Common Law does not control in such manner, the general rights of fishing in a navigating the seas. It does not compel the subject to embark or disembark his person or his goods (not custumable) at one place more than another; and it is conceived, that in order to the full, complete, and unimpeded exercise of these great public rights, a right of way, above and along the edge of the high water mark, is involved in the existence of those great public rights, and annexed to them; but subject (for the protection of private rights) to the control of a jury, as to what shall be deemed sufficient, in the place of exercise.” Page 212.
A Treatise on the Rights of Water published in 1859, made it clear that Blundell v. Catterall was regarded as a ‘special case’, where, in that particular instance the public had been deprived by Act of Parliament of their rights over the ‘ locus in quo’.
A Treatise on Rights of Water including the Public and Private Rights to the Sea and to the Sea Shore[v].
J. B Phear Esq., of Inner Temple, Barrister at law, Senior Fellow of Clare College Cambridge. 1859.
Phear was of the opinion that where the shore had been granted out by the Crown the public still retained their rights over it.
“When the Crown conveys to private individuals the legal title to the shore, they become enabled to exercise such rights of ownership there, as the Crown itself could have done, and no more; the proprietary rights in the beach thus acquired by them are, therefore, subordinate to the general interests of the public.” Page 46.
He acknowledged that this view did not agree with the decision in Blundell v. Catterall, but also noted that :-
“..this case may be upheld without adopting the majority of reasons of the judges who decided it: the subject came before them in the form of a special case’.” Page 50.
Phear pointed to the fact that Mr. Justice Holroyd himself had observed that the sea-shore in question had been “a special peculiar property from time immemorial”. He went on to describe how in some places the public had been deprived of their rights locus in quo.
“..It is certain that in the early days of our history, the Crown did not always confine itself to its constitutional limits: many grants were made by to private individuals, in defeasance of public rights, and were so long enjoyed without interruption, that legislature in the time of Edward III., thought fit by a sort of saving clause in a penal statute to legalise all weirs, gorges, &c., i.e., fixed apparatus for exclusive fishing, which had been erected and exercised before the time of Edward I. many of these are consequently in full vigour at the present time, and it is clear from the finding of the special case, and the terms in which Holroyd, J., expressed the real issue before the Court, that the plaintiff’s right to the shore and to his stake fishery, must be classed among them, as being due to grant from the Crown before the statutable period. Page 51.
“Under these circumstances, the public had been deprived by Act of Parliament of their rights over the locus in quo, and it was not necessary to the decision to hold, that the rights claimed on their behalf had no existence elsewhere.” Page 51.
“The desire to protect well ascertained private interests, seems to have been the sole origin of a doctrine which, in saying that a subject cannot cross the beach, for the purpose of bathing without trespassing upon the rights of the crown, must by parity of reasoning deny the common right of the public to shrimping and gathering shell fish on the beach, and prevent owners of the land bordering the shore, from passing over the intervening sand to their boats. It is not probable that future decisions will go to the length of confirming this, unsupported as it is by analogy or authority; and description given above of the relations between the rights of the Crown and those of the public, as they subsist at common law, seems to be substantially correct.” Page 51.
“It is not probable that the owner of the soil will ever interfere in these matters, unless for the purpose of making some profit thereby.” Page 51.
“but is it considered that no book, or authority or custom whatsoever, denies a right of way, ad libitum, over the shore so long as it is the shore, whether the soil be the King’s or belong by some grant from the Crown. Such right of way is allowed for fishing, and, when the case was res integra, would allow the shore to be used as an highway as much for the one purpose as the other, instead of thus virtually declaring the same man a trespasser for bathing, who was no trespasser when up to his knees or neck in water, in search of a lobster a crab or a shrimp.” Page 51.
Under the Crown Lands Act.1866, (29 & 30 Victoria. c. 62.) section 7, responsibility for the management of the majority of the Foreshore was transferred from Her Majesty’s Woods and Forests to the Board of Trade. The existing rights of the public and of those of private individuals were preserved.
The Law Times. December 28th 1867[vi].
Real Property Lawyer and Conveyancer- Notes on New Decisions.
“FORESHORES – Until this year the management and interests of the rights in the Crown of the shore and bed of the sea and tidal parts of navigable rivers has been in the hands of the Department of Woods and Forests, Along with other Crown lands surrendered to the nation during the life of the Sovereign on settlement of the Civil List.
The annual reports of the department have stated from time to time the sales they have made of pieces of the foreshore. By and Act passed last year – the Crown Lands Act, property has been transferred to the Board of Trade, and a memoranda submitted by Mr. Farrer the secretary, on the course to be adopted by the Board in dealing with this property has been laid before the House of Commons. The doctrine proposed is that the Sovereign is, of common right, seized with the soil of the bottom of the sea and of the shore landwards up to the line of medium high tides. But in many places acts of private ownership are being done which continued for much less than the statutory sixty years are held to warrant a jury in presuming a grant from the Crown. Mr. Farrer proposes that the customs and coastguard officers be instructed to report all encroachments or acts of ownership, and any exclusion of the public from walking, bathing, landing, fishing and the like. Some claims of ownership may be injurious to navigation or other public rights, and others may have little or no effect except as establishing a title adverse to the Crown: but it is desirable that they should be made known in order that the Board of Trade may judge whether it is desirable for them to take steps to prevent or qualify them. It is generally a question whether it is worthwhile to go to the expense of legal proceedings by ‘information ‘or indictment for the Crown cannot bring an action of ejectment and an action of trespass brought by the Crown has fallen into disuse. It is probable that sooner or later Legislature will give more summary remedies than at present exist. The title of the Crown is not usually absolute title to the exclusive enjoyment of the soil; it is subject to various rights on the part of the public, such as rights of fishing and navigation. The public right of bathing has been denied by a court of law, but the decision has been questioned by high authorities, and is considered doubtful. In a country like England, where every open space may be needed for public health and enjoyment, and where facilities for navigation, fishing, beaching, landing, and shipping are of the highest importance, it is of great moment that the control of the public and of the Government over the bed of the sea and the strip of common which lies between land and open sea should be preserved. It desirable, with a view to useful public work that there should be power to grant a license of lease at a small nominal rent, preserving the title of the corn. The existing statutes relating to Crown property are framed to prevent sales and leases at less than real value; if the Board of Trade are to act on a different principle, it may be desirable, if not necessary, to have the distinct sanction of Parliament. In the Transfer Bill of 1866 clauses were inserted allowing the Board to makes sales or grant leases or licenses on such terms as they should think fit where parts of the foreshore are required for harbour, docks, piers, or other works of utility, and in other cases also, the Board then certifying their reasons; but in the House of Lords these clauses were opposed by certain Scottish landed proprietors, and in order to save the Bill at a late period of the Session the clauses were abandoned. It is considered that as far as England is concerned it is considered there would be no difficulty in getting the Act amended in this respect; but with regard to Scotland it would be necessary either to come to terms with the Scottish proprietors, or to ascertain by legal proceedings the exact nature and extent of the Crown’s rights to the foreshore in Scotland, and then propose legislation on that basis.” Page 157.
The Preservation of Open Spaces and of Footpaths and Other Rights of Way
A Practical Treatise on the Subject. – 1896.
By Sir Robert Hunter M.A.
Hunter described the situation with regard to public access to the foreshore as it had been left following the Blundell v. Catterall decision.
“In other words, where the fore-shore is the Crown’s, as in most places, the public, though not exercising a right that can be pleaded in law, will not practically be interfered with in passing over it; and this will doubtless be the same in most cases, where the foreshore is in private hands. But the enjoyment of the public cannot be set up to prevent some other use of the fore-shore inconsistent with such enjoyment; and such inconsistent use is more likely to arise where the fore-shore is in private hands. In fact the position of the public with regard to the fore-shore is very much that which it occupies with respect to a common. Practically, while a common is open to the public to wander over it at will, there will be no criminal procedure for trespass, and no damage upon which to found a civil action can be shown; but the public cannot set up a right of wandering to prevent inclosure. So it is with the fore-shore.” Page 320.
[i] ‘Improving Coastal Access an Update, 2005
http://www.countryside.gov.uk/Images/AP05_25%20Access%20to%20the%20Coast_tcm2-26590.doc
[ii] Dr. Helen Phillips speech on Coastal Access at the Cambridge University Land Society Debate http://www.naturalengland.org.uk/about/speeches/hp3.html
[iii] Blundell v. Catterall
http://books.google.co.uk/books?id=zDY9AAAAIAAJ&pg=RA1-PR1&dq=select+adjudged+cases+%22blundell+v+catterall%22&lr=&as_brr=3
[iv]Hall.
http://books.google.co.uk/books?id=0JgDAAAAQAAJ&pg=PA253&dq=sea-shore+%22blundell+v+caterall%22&lr=&as_brr=3#PPA1,M1
[v] Phear.
http://books.google.co.uk/books?id=E8gDAAAAQAAJ&printsec=frontcover&dq=sea-shore&lr=&as_brr=3
[vi] The Law Times 1867
http://books.google.co.uk/books?id=N5EDAAAAQAAJ&pg=PP9&dq=Foreshores+%2B+law+times+1867&lr=&as_brr=3#PPA157,M1
COASTAL ACCESS - APPENDIX I: EVIDENCE
The methods employed in preparing the Marine Bill -
Were they well informed, thorough and impartial?
For the time being, horse riding is a perfectly legitimate and well established activity on many English beaches. Despite this, government has drafted the Marine Bill without giving proper consideration to protecting horse riders existing ‘de facto’ or common law access. The evidence for this is contained in the Asken Report[i] commissioned by Defra, (see below).
This omission has not only effectively silenced the voice of horse riders as far protecting their existing access. It also excluded them from participation in the scrutiny of later stages of the Bill, in particular the Select Committee hearings, when no representative of horse riding interests was offered the opportunity to give evidence to the Committee.
“Appraisals for Options to Improve Access to the English Coast – Final Report” Asken Ltd (May 2007).
Government claim to base all new policy and legislation on reliable evidence. Defra and Natural England used the latest England Leisure Visit Survey 2005 statistics to inform their policy making on access provisions to the coast. This Report noted that unlike other leisure pursuits, (for which Defra and Natural England also have responsibility) no official statistics had been gathered to inform government of the extent of horse riding around the English coast. This is at best a negligent omission.
‘Horse riding is not a specified activity in ELVS (England Leisure Visit Survey) and there are no reliable data on the current use of coastal paths and beaches for riding.’*
Para. 3.2.3. Page 16.
The Report acknowledged that equestrians do currently enjoy access to the coast.
‘Horse riding is a well-established customary activity on some beaches. Wide expanses of smooth sandy beaches are favoured as these allow riders to gallop in relative safety.’
Para 12.3.1. Page 161.
The Report alerted government to the possible disadvantage to equestrian access of promoting a statutory access on foot only.
‘It seems, therefore, that there is a risk that improving pedestrian access to the coast, and to beaches in particular, may lead to further restrictions on existing customary horse riding activity’ Page 162.
The Report set out and evaluated the 4 possible Options on how the statutory access law might be implemented. It identified the potentially damaging effect on existing equestrian access of Option 2 (Use of CROW Act s 3.), affecting a staggering 438,000 hectares and Option 4 (Providing an unmapped coastal corridor), capable of affecting 2,300 kilometers of linear access.
Options 2 and 4 have subsequently been adopted by government and inserted into the Bill.
‘Overall, it is concluded that options that affect beaches (i.e. Options 2 and 4) could adversely affect horse riding activity at a small number of beaches, resulting in restrictions to current usage’. Page 162.
As a way of limiting the potential damage to equestrian access, the Report made the recommendation that horse riders could be granted the same statutory right to the foreshores and beaches as walkers, (as is already the case in Scotland). That suggestion has been ignored.
‘However, the opportunity could be taken to extend access rights for horses to foreshores and beaches, thereby making a wider range of such areas available for horse riding.’ Page 162.
In the light of Natural England’s apparent indifference to horse riders as a legitimate user group, their reliance on statistical evidence which is not fit for purpose, and their failure to adopt the recommendations of their own advisors; it is difficult to not to criticize.
* Reliable statistics on horse riding would also have demonstrated that the majority of leisure riders visiting English beaches are women and girls. This raises an additional question. Can Defra and Natural England sustain their claim that the provisions contained in the Draft Marine Bill have no gender implications?
[i] Appraisal of Options to Improve Access
to the English Coast. 2007.
http://www.defra.gov.uk/wildlife-countryside/pdf/access/ca-asken.pdf
Were they well informed, thorough and impartial?
For the time being, horse riding is a perfectly legitimate and well established activity on many English beaches. Despite this, government has drafted the Marine Bill without giving proper consideration to protecting horse riders existing ‘de facto’ or common law access. The evidence for this is contained in the Asken Report[i] commissioned by Defra, (see below).
This omission has not only effectively silenced the voice of horse riders as far protecting their existing access. It also excluded them from participation in the scrutiny of later stages of the Bill, in particular the Select Committee hearings, when no representative of horse riding interests was offered the opportunity to give evidence to the Committee.
“Appraisals for Options to Improve Access to the English Coast – Final Report” Asken Ltd (May 2007).
Government claim to base all new policy and legislation on reliable evidence. Defra and Natural England used the latest England Leisure Visit Survey 2005 statistics to inform their policy making on access provisions to the coast. This Report noted that unlike other leisure pursuits, (for which Defra and Natural England also have responsibility) no official statistics had been gathered to inform government of the extent of horse riding around the English coast. This is at best a negligent omission.
‘Horse riding is not a specified activity in ELVS (England Leisure Visit Survey) and there are no reliable data on the current use of coastal paths and beaches for riding.’*
Para. 3.2.3. Page 16.
The Report acknowledged that equestrians do currently enjoy access to the coast.
‘Horse riding is a well-established customary activity on some beaches. Wide expanses of smooth sandy beaches are favoured as these allow riders to gallop in relative safety.’
Para 12.3.1. Page 161.
The Report alerted government to the possible disadvantage to equestrian access of promoting a statutory access on foot only.
‘It seems, therefore, that there is a risk that improving pedestrian access to the coast, and to beaches in particular, may lead to further restrictions on existing customary horse riding activity’ Page 162.
The Report set out and evaluated the 4 possible Options on how the statutory access law might be implemented. It identified the potentially damaging effect on existing equestrian access of Option 2 (Use of CROW Act s 3.), affecting a staggering 438,000 hectares and Option 4 (Providing an unmapped coastal corridor), capable of affecting 2,300 kilometers of linear access.
Options 2 and 4 have subsequently been adopted by government and inserted into the Bill.
‘Overall, it is concluded that options that affect beaches (i.e. Options 2 and 4) could adversely affect horse riding activity at a small number of beaches, resulting in restrictions to current usage’. Page 162.
As a way of limiting the potential damage to equestrian access, the Report made the recommendation that horse riders could be granted the same statutory right to the foreshores and beaches as walkers, (as is already the case in Scotland). That suggestion has been ignored.
‘However, the opportunity could be taken to extend access rights for horses to foreshores and beaches, thereby making a wider range of such areas available for horse riding.’ Page 162.
In the light of Natural England’s apparent indifference to horse riders as a legitimate user group, their reliance on statistical evidence which is not fit for purpose, and their failure to adopt the recommendations of their own advisors; it is difficult to not to criticize.
* Reliable statistics on horse riding would also have demonstrated that the majority of leisure riders visiting English beaches are women and girls. This raises an additional question. Can Defra and Natural England sustain their claim that the provisions contained in the Draft Marine Bill have no gender implications?
[i] Appraisal of Options to Improve Access
to the English Coast. 2007.
http://www.defra.gov.uk/wildlife-countryside/pdf/access/ca-asken.pdf
MARINE BILL: COASTAL ACCESS FOR HORSE RIDERS
(This is about existing access to the coast NOT the proposed new coastal path and spreading room for walkers.)
As I write at the beginning of 2009, I am very concerned about the lack of access provisions for horse riders in the Draft Marine Bill which is currently making its way through Parliament. Horse riders in Scotland have already been granted a statutory right of responsible access to their beaches and foreshores[1]. By choosing not to do so in England, Natural England is pursuing a policy of exclusion rather than inclusion, which is far from the impression given by their June 2007 press release ‘Access for All’.[2]
The English Bill does not protect horse rider’s existing ‘de facto’ or common law access to beaches and foreshores at all, while granting statutory protection to people on foot. I believe that without such protection, the freedom they currently enjoy will be extremely vulnerable to challenge and subject to unnecessary restriction.
English beaches are the last remaining open spaces in the country where our access has not been regulated by government. In some of our coastal areas, horse riding is already restricted by local bylaws, usually with good reason. But since there is a presumption in favour of horse riders being there in the first place, they are in a position to contest any bylaws imposed without good reason.
Marine Bill will remove that presumption. In its place the government proposes an over complicated and far from transparent scheme. This will compel horse riders to negotiate with local authorities and landowners in order to secure access to the coastline where they believe they already have common law rights. This access will inevitably be of a temporary, permissive nature; possibly requiring a permit or a toll to be paid. Hardly “access for all” is it?
Over the last 60 years all government legislation and policy making on public access to the countryside has consistently resulted in a reduction of access for horse riders. This legislation is no different. It fails to protect them. The negative impact of this Bill has either not been properly quantified by government, or there is a deliberate intention to reduce our public access.
[1] http://www.scottishequestrianassociation.org/edb/docs/northayrshireriding.pdf
[2] http://www.naturalengland.org.uk/press/news2007/190607.htm
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