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KIO POLICY ON ACCESS TO THE COUNTRYSIDE

The Problem

 

Is there really a problem about accessing the countryside? Do we need legal rights as long as we can actually get into the countryside?


The facts are that we are rapidly losing even the informal rights we have had to access our own countryside. Until a couple of decades ago there was little or no problem about accessing the countryside, as there was a relaxed attitude to people crossing land. In the last few years this has changed. In a small, but worryingly increasing number of cases, people attempting to cross land are being stopped by hostile notices and fencing, the latter particularly evident where commonage has been divided. Many places that for generations have been open to walkers and other recreational users are now being closed off: from the Old Head of Kinsale to parts of the Twelve Bens in Connemara, parts of the mountains of the Iveragh, Dingle and Beara peninsulas. Archaeologists and historians can no longer visit some important megalithic tombs and other historical sites and monuments. Even access to beaches is not guaranteed: Ugool beach, near Westport, has been blocked off since 1989 and the local authority, Mayo County Council, has done nothing to re-open it. Many sections of long-distance way-marked trails in the south west have been blocked off by landowners at various times in the past.


The problem is not so obvious in Wicklow and the East of the country generally. Ironically these are the very areas where there are most walkers and landowners may have legitimate cause to complain. Most of the intractable problems are along the Atlantic seaboard, the area that attracts fewest walkers, and is otherwise a prime area for developing hill walking and other outdoor recreations as tourist attractions.


Recreational users of the countryside have no rights. All legal rights to do with access are on the side of the landowners. The only places in Ireland where freedom to roam exists are the National Parks. Although they include some of the most scenic areas they cover only about 1% of the country.

 

Attempted solutions to the access problem

A purely voluntary approach to the problem of access has been tried for many years now. It doesn't work. Permission to access land can be withdrawn at any time by a landowner without giving any reason. This means that even long-established walking routes across private land can be closed without notice at any time.


Comhairle na Tuaithe

In 2004 Minister for the Gaeltacht and Rural Affairs Éamonn Ó Cuív, whose department has partial responsibility (along with the Department of the Environment) for solving access problems set up Comhairle na Tuaithe (the Countryside Council), comprising representatives of the farming organisations, recreational users of the countryside and state bodies with an interest in the countryside to address the issue of access to the countryside. Representatives of the farming organisations have failed to grasp the central issues, let alone deal with them. They have consistently refused to discuss the necessity for legislative change to solve the problem of access to the countryside, or the listing and establishing rights of way. KIO has been a lone voice at Comhairle na Tuaithe meetings trying to press for legislation, continuously overruled by the three or four farming organisation representatives.

Comhairle na Tuaithe, despite being in existence since 2004, has achieved nothing towards solving the problem of access to the countryside.

The long distance way-marked walking routes are permissive paths which can be - and have been - blocked at will by landowners. At only about 3,000km long they are, by international standards, far from extensive. Only about 16% of these routes are over private land, much is on tarmac or through coniferous forests.

As a result of the lack of rights of access to the countryside there is little or no infrastructure to support walking routes, that is - footbridges, stiles, gates, boardwalks, signposts and all the rest that casual walkers from other countries take for granted. There is also a scarcity of walking guidebooks, since landowners can successfully call for the deletion of a route crossing their land. Even eroded paths cannot be repaired without the agreement of the landowner.


"Plans to make the ascent of Ireland's highest mountain safer are on hold because of right of way issues over a steep climb known as the Devil's Ladder. A sum of €100,000 has been provided to develop Carrauntoohil for climbers and a Scottish company with mountaineering expertise engaged to do safety work on the ascent.
Agreement has yet to be reached with all local landowners, however, holding up the project."
The Irish Examiner, March 15th, 2007

 

Walkways Scheme
In 2008 the Government introduced a Walkways Scheme. This provides public funds to farmers for establishing and maintaining footpaths. They are paid a minimum of €725 to a maximum of €1,900 per annum for this. Unfortunately this scheme does not establish any rights of public access. Farmers can withdraw from the scheme at six months' notice and, at the end of five years, the whole scheme is up for renegotiation.

So far the scheme has led to a number of permissive walks being established nationally. They may well disappear again after five years.

 

Walking Tourism
In recent years there has been a welcome increase in the numbers of walking tourists coming to Ireland, but it is from a very low base. We estimate that the income from walking tourism is less than a quarter of that of Scotland, a country of similar size, terrain and climate.
Foreign walkers, accustomed in their home country to extensive, clearly delineated walking areas, will be bewildered in a country where they find they cannot know for certain where they can or cannot walk. They will also be disappointed by the scarcity of infrastructure and guidebooks. If, as happens, they have a bruising encounter with an angry landowner - and this is more likely among those who do not know the local area - they will certainly remember it and tell their friends.

All in all, not the best of foundations on which to base a thriving industry, one that is rural-based, environmentally friendly, and greatly extends the tourist season.

Reasons given by landowners to deny access

Insurance problems
Since the present law on public liability was passed in 1995 there have been several cases in which walkers have endeavoured to sue a landowner after they were injured. In every single case the person seeking to sue has lost. In one case a casual stroller suing a landowner (not a farmer) succeeded in the courts - only to have this decision struck down on appeal. The 1995 Act has been so successful from a landowning perspective that the element of public liability insurance which covers leisure users against injury is only a tiny proportion of most landowners' insurance bills. Yet the issue of insurance is used by farm organisations to deny access on grounds that their members may be liable in the case of injury to walkers on their land. This is a red herring. Remember: 1995 is now a long time ago and since then not one landowner has been successfully sued. Not many people, landowners among them, seem to know this.

Damage caused by walkers
Walkers are generally law-abiding and acutely aware of damage to others' property and are unlikely to deposit litter. With the right to access land come responsibilities: a respect for the countryside, an obligation not to harm, disturb, litter or damage wildlife or crops. The provision of stiles, gates etc. will prevent damage to landowners' property.

It's my land (and I can do whatever I want with it)
With the law 100% on their side Irish landowners seem to have developed a uniquely aggressive attitude to walkers on their land. Absolute property rights don't exist under our constitution. KIO is looking for reasonable and responsible access to the countryside.

Privacy
Farmers and other landowners are entitled to privacy. We have always supported the concept of routing walking paths away from private dwellings. There is no basis for the farming organisations' constant refrain of How would you like farmers walking through your garden?

The situation in other countries

Most European countries have some form of developed legal access to the countryside.


The right to roam (based on respect for the countryside) has survived in its purest form in Finland, Iceland, Norway and Sweden, giving the opportunity to hike across or camp on another's land. This includes complete right of access to beaches, foreshore, dunes and cliffs. With these rights come responsibilities - an obligation not to harm, disturb, litter nor damage wildlife or crops.

Sweden
The right of access to private land legislation in Sweden is something unique. Nowhere else in the world can you move about in the countryside as freely as in Sweden.

"Enshrined in Sweden's constitution and enjoyed by everyone who feels like it, the right of public access ('Allemansrätt' in Swedish - Everyman's Right) gives you the right to roam the countryside in Sweden in perfect peace and quiet without someone saying: "get off my land", unless you clomp all over someone's back garden or trample all over a farmer's cultivated field that is.


'The freedom to roam', 'the right of public access', 'the right to roam'. There are many ways of expressing this right, and it basically means you have the right to walk, cycle, ride, ski and camp on any land with the exception of private gardens, in the immediate vicinity of a dwelling house or land under cultivation.


Of course, this right comes with a responsibility to look after the countryside and you should not disturb or destroy the environment around you."


(www.visitsweden.com Sweden's official website for travel and tourism)

Scotland
Scotland has long had a tradition of access to most land and the Land Reform Act 2003 confirmed this. Walkers have a statutory right of responsible access to all land (similar to Scandinavia) except obviously railway lands, airfields, harbours, quarries, standing crops, gardens, the immediate vicinity of private homes etc. The Scottish Outdoor Access Code gives detailed guidance on exercising responsible access.

England and Wales
England and Wales have over 225,000km of off-road routes classed as Public Rights of Way, along with numerous other paths - bridle ways, towpaths and disused railways. The Countryside and Rights of Way Act 2000 (CROW) gave walkers right of access to most areas of uncultivated land, about 1.4 million hectares of open country - mountain, moor, heath, down and common, along with National Parks. The CROW Act was bitterly opposed in advance but since implementation there has been barely a murmur of dissent. Furthermore, the Marine and Coastal Access Bill was passed in November 2009 and will establish a coastal route around England's 4,345km coast along with a permanent right of access. The creation of the coastal path is expected to take up to ten years and cost about £50 million. When finished it will link with the Welsh Coastal Path, expected to be completed in 2012.

Norway
"Everyone in Norway has a right of access to the countryside, originally a traditional right but now set out in the legislation governing the right of access. It is important to remember that this right is based on respect for the countryside and that visitors must always show consideration for farmers and landowners, other users and the environment.
In practice the right of access means:
* You may go anywhere in open country ("unfenced land") on foot or on skis and picnic wherever you want. Open country is land that is not cultivated. In Norway, the term covers most shores, bogs, forests and mountains...
* You may put up a tent, or sleep under the stars, for the night anywhere in the countryside, forests or mountains, except in cultivated fields and lay-bys. However, you must keep at least 150 metres away from the nearest house or cabin. If you want to stay for more than two nights in the same place, you must ask the landowner's permission, except in the mountains or very remote areas..."
(www.visitnorway.com the official travel guide to Norway)

 

Austria
44,000km of marked trails, a right to roam in forested areas and in some mountain areas. In others landowners reserve the right to deny access, although, because of the importance of mountain tourism, this is rarely exercised.

Germany
Local rambler groups maintain 200,000km of marked trails (so there may be others). 'Betretungsrecht' the traditional right to free access, covers forests, open land and foreshore, and along footpaths and roads, but not to enclosed farmland. It has been given a modern statutory basis.

Spain
Spain is in the process of revising its laws on access. At present there is a general legal right to access mountain areas, the coast and other high amenity areas. There are over 100,000kms of maintained pathways. The Canaries, the Pyrenees and other major mountain areas all have well-developed networks of pathways. There is a right of access to river and canal banks. There is an ambitious plan to link the entire country by a network of paths/cycle ways made up of historic pathways, bridleways, drovers' roads, disused railways, old roadways and towpaths. For example, the GR 99, El Camino Natural del Ebro is a recently opened 1,280km way-marked path along the entire route of the Ebro.

France
An extensive network of footpaths covers the entire country - over 58,000km of long-distance paths and 120,000km of local footpaths. Foreshores and beaches are in public ownership and a 3metre strip along the coast is open to walkers, along with the right to access this strip.

Finland
"The age-old concept of Everyman's right gives everyone the basic right to roam freely in the countryside without needing to obtain permission no matter who owns or occupies the land... Everyman's right does not, however, cover activities which damage the environment or disturb other... Everyone is basically entitled to walk, ski, cycle or ride freely in the countryside as long as this causes no harm to property or nature. This right is limited in cultivated fields and plantations and around people's homes." - from "Everyman's Right in Finland", Finnish Ministry of the Environment 2007. ( www.ymparisto.fi/download.asp?contentid=25603 )

Ireland
In Ireland you have virtually no legal right to step onto private land, no matter how remote.
There are scarcely any rights of way, apart from the obvious, for example public roads and urban parks.
This is why, in stark contrast to other European countries, casual walkers are often confined to tarmac or have to struggle on intermittent paths through countryside where no infrastructure (stiles etc) has been provided or worse, where they can be turned back by a landowner for no reason.

A suggested solution

The law needs to be changed

Current legislation on access to the countryside is simple and one-sided: landowners have the law completely on their side. They can turn recreational visitors away, for any reason or none. The result is that landowners are increasingly using this imbalance to keep such visitors off areas they have traditionally walked and/or to demand money for allowing access. We urgently need a radical change in the laws.
Our primary goal is legislation to give recreational visitors the right to access our countryside.
What we are campaigning for can be summarised in three words:
legislation, legislation, legislation.

What kind of legislation?

Firstly we must distinguish between freedom to roam and rights of way. For low value or rough grazing land, freedom to roam allows recreational users to wander at will, except near houses, over growing crops etc. - the norm all over Scotland and the Scandinavian countries and in parts of England and Wales. Ireland has no areas covered by freedom to roam except the National Parks.

In heavily cultivated areas rights of way are the norm. These are linear paths or tracks from which the walker should not deviate. They are normally marked on maps and signposted. We have very few rights of way in Ireland.

What we are looking for therefore is a legal right to allow freedom to roam in mainly remote rough grazing land, that is about 7 per cent of the total land area in the State. Areas covered by freedom to roam should be marked on the maps and indicated on the ground. Freedom to roam would never be allowed in close proximity to dwellings or across growing crops, nor in areas of persistent vandalism.

For other areas, mainly lowlands, we propose rights of way both to get to areas covered by freedom to roam and to form looped walks or walks to areas of interest, such as amenity areas or historical or archaeological sites.

Landowners can benefit directly from rights of way. Instead of walkers wandering blindly through farmed areas at random they could be channelled into rights of way and so avoid unnecessary disturbance. No Irish Government, and few local authorities, have yet taken on landowners in order to facilitate access to the countryside.

We are also campaigning for severe restrictions on intrusive barbed-wire fencing in areas where freedom to roam would be allowed.

 

A proposal for Irish conditions

While we recognise that there could be problems in legislating for the 'right to roam' in Ireland, it is hard to see what objections landowners could have to walkers crossing open, unfenced upland if they are behaving responsibly. We suggest this approach, with reasonable restrictions agreed with landowners, over most of the country. Local authorities, tourism interests and local walking clubs should take an active role in settling disputes.
Where there are difficulties, we suggest the creation of clearly defined rights of way through farmland in order to access open ground, amenity areas or archaeological sites, with reasonable compensation for landowners related to the area of land sterilised. An area where rights of way are particularly needed is the Dublin and Wicklow Mountains, where there are large numbers of walkers and where some landowners have suffered from the activities of irresponsible trespassers and vandals. The legislation to create rights of way already exists but is hopelessly archaic and unclear. It needs to be replaced with modern, clear legislation.

The present status of rights of way in Ireland is unsatisfactory, with uncertainty as to where rights of way exist and with almost all local authorities failing to even identify, let alone list and maintain them or to take enforcement proceedings where they are blocked.

The role of the local authorities to date

It has been the sad experience of walkers and the public in general that local authorities have been ineffective in their handling of right of way and access disputes. In fact in no case that we know of in any part of the country, have the local authorities taken effective action to help the rights of walkers, no matter how just the walkers' case.

If disputes are to be resolved a much more forceful and objective attitude will be required to take the interests of walkers - and therefore of tourism - into account. As a start Access Officers should be appointed in counties where walking is an important leisure activity. Local authorities should be required by law to identify, list and protect walking routes. If they prove inadequate to the task, a national commission for walking routes should be set up to do it on behalf of the public.

What is the outlook if nothing is done?

If no action is taken soon there will be more frequent difficulties between landowners and persons attempting to cross land, as the popularity of walking is growing constantly. The possibility of continuing to attract foreign walkers (and other leisure users) could be severely stunted. This would be particularly tragic given that Ireland could be a prime choice for British and continental walkers because it offers such attractive landscapes and good walking country.

If you would like to inform us of any problems in your area please email us at info@keepirelandopen.org

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