Public Right of Way River Access Issue...

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jsymonds
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Public Right of Way River Access Issue...

Post by jsymonds » Mon May 16, 2016 7:45 pm

Hi Guys,

Quick question, can I utilise public rights of way to access rivers directly if the path crosses through the river (not over a bridge)?

Below is a section from an email recently received in relation to a river section that has navigable rights year round, to access the river a public right of ways crossing private land in needed, the agents are arguing that canoe are not 'usual accompaniments' and therefore cannot be carry on the footpath..

Section from email:
Further to our previous correspondence please be advised that my clients have confirmed that they are firmly of the opinion that using the public footpath without consent from the landowner for canoe access is trespass. We have also been advised from the local Rights of Way Department that our interpretation of this use being trespass as being correct. Please therefore be advised that if you continue to try to use the footpath for access to the riverbank my clients are prepared to take this matter further and if necessary instruct solicitors to serve an injunction to desist in unlawful activities.

Any advice would be much appreciated!

J

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DaveBland
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Re: Public Right of Way River Access Issue...

Post by DaveBland » Mon May 16, 2016 8:37 pm

I would guess that if you are walking and carrying your boat, there is no issue. Riding bikes and horses is not allowed. You can take a dog if walking and a push chair. There is no guidance given to what you can or can't carry as long as you are walking.

Edit:
Not a perfect guide, but WikiP says:

"The highway right to use a right of way is restricted to passing and re-passing, associated activities, and the taking of 'usual accompaniments'. "

I guess it all comes down to 'usual'. I bet you can carry a fishing rod!! It would seem 'usual' to be carrying a boat if near water wouldn't it?
dave

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Adrian Cooper
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Re: Public Right of Way River Access Issue...

Post by Adrian Cooper » Tue May 17, 2016 11:36 am

I days gone by, and let's be honest, we are talking generally about footpaths which have been used since time immemorial, people used footpaths to get from one place to another. They were in lieu of roads since many people did not have animal drawn carts and cars and trucks had not been invented. These paths were not used solely to get a person from one place to another, the person would be travelling for a reason and they would be carrying with them whatever paraphernalia they required be that their tool bag for their next job or a goose under their arm for the market. If they were driving animals I guess they needed to use the larger bridal ways.

Whilst the Countryside Rights of Way Act contains restrictions on 'vessels' on non tidal waters, you will note that this refers to the use of such vessels on that land, not the carrying of a vessel from one place to another.

Footpaths, you will notice, go from here to there, they are the means and the direction for your travel. If you are taking your coracle to the river, there will be a path and it would be expected that you would carry your coracle, it is not 'accompanying' you. If the footpath goes to the river, why on earth would you not be taking a vessel unless there was a shallow ford to get you across.

Bottom line is I think the letter is hogwash and has no good founding in law. You might like to ask them to clarify what is their legal basis for the stance they are taking so that you can check it out.

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Adrian Cooper
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Re: Public Right of Way River Access Issue...

Post by Adrian Cooper » Tue May 17, 2016 11:37 am

I apologise for the poor sentence construction. Must try harder.

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John K
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Re: Public Right of Way River Access Issue...

Post by John K » Tue May 17, 2016 11:53 am

There is case law that states that the test for lawful use of a highway is "reasonableness". If the OP does want to enter into a debate with the landowner then it might be worth pointing them to DPP Vs Jones (1999) which includes this paragraph "The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. For the reasons I set out below in my judgment it should. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass."

I would suggest that using a footpath to go to a river would be very reasonable, as would carrying a canoe to the river. Ironically if the footpath didn't lead to a river then there could be an argument that carrying the canoe wasn't reasonable!

The email quoted by the OP sounds like typical bluster to me, purely designed to intimidate.

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Re: Public Right of Way River Access Issue...

Post by Franky » Tue May 17, 2016 12:47 pm

jsymonds - What is the background to this correspondence? Did you ask the landowners for permission to carry a canoe across their land in advance? Or did they initiate the correspondence on seeing you carry a canoe?

I realise you can't give full details, but there's not much here to go on.

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Re: Public Right of Way River Access Issue...

Post by jeremyduncombe14 » Tue May 17, 2016 2:35 pm

The right to pass and repass along a public footpath will include the right to carry any object with you, so long as that object does not damage or otherwise interfere with the land or anything on it. You should therefore be free to carry your canoe, but not to drag it along, put it down on the ground, or lean it against fences or stiles. You should be OK so long as you carry the canoe to the river and place it directly into the water. You might point out to the landowner that they have a duty to facilitate free passage along public footpaths on their land, and any deliberate obstruction may be a criminal offence. I have to ask though, why are they so anti canoeists ? Have you got previous history with them ?

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Re: Public Right of Way River Access Issue...

Post by Chris Bolton » Tue May 17, 2016 7:12 pm

my clients have confirmed that they are firmly of the opinion that using the public footpath without consent from the landowner for canoe access is trespass
Solicitors choose their words carefully. If the solicitor had evidence that the law said this, that's what would have been written. The fact that all they can quote is their clients' opinion suggests to me that they don't have any better evidence.

So I would reply "In contrast to your clients, I am firmly of the opinion that it is not trespass" (you might like to read up on 'Arkell v Pressdram' but I don't suggest referring to it!)

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