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Access to riverbanks: a word of warning



As many local swimming pools remain closed and temperatures rise, figures suggest that more of us are heading to Britain’s rivers to enjoy some ‘wild swimming’

As a result there has been much media comment and speculation recently about public access being granted to rivers, streams, and lakes. Some commentators give the misleading impression that there is or will be “a legal right” to go ‘wild swimming’.

So what does this mean for farmers and landowners? Agriculture Solicitor, Jonathan Cheal discusses why they need to be careful about this, in his latest article.

Disingenuous press comment about legal rights having been granted can encourage people to trespass on private land in order to get to their nearest water, under the mistaken impression that they can now do so lawfully because they read it in the paper.

A similar thing happened when the CROW Act 2000 (Countryside & Rights of Way Act) was mooted, about the public being granted access to open access land, which became inflated in the public consciousness to an apparent “right to roam”.

No such right was given; CROW limited the public access to specific types of open land under strict control provisions.

It was rumoured at that time that the effect of CROW access was going to be extended to riverbanks, but that did not materialise.

The present proposals, which take the form of an amendment to the current Agriculture Bill going through parliament at present, are different from what was intended under CROW: they will allow farmers and landowners to be paid to provide public access to rivers.

That will not, it seems, be the granting of new public rights of way, let alone a right for anybody to go anywhere to get to water; but rather it will allow the landowner to grant a permissive facility to people to walk on nominated routes to get to the water.

Farmers need to take great care about this, to make sure that they do not end up granting a public right of way but rather permissive access which is capable of being revoked by the farmer if the money is no longer claimed or no longer available, or if the farmer just doesn’t want to continue with the arrangement.

It must also be at the users’ risk.  Further, signs should be erected, stating that the river access is by permission, not as of right, and not at the farmer’s risk but at the risk of the user.

Even if no such provision ends up being included in the Bill/Act, farmers will still need to be wary, as people will always “try it on”.

The best way to prevent a public right arising is to lodge a Deposit under the Highways Act/Commons Act.  This is a familiar process but needs to be done with great care.

It is not clear whether the proposed amendment will be successful, and what the eventual wording will be when the Bill is enacted, but as always farmers and landowners need to take this seriously.

It is admirable to allow the public to enjoy your land and water, but it must be subject to prudent safeguards to prevent untoward rights and/or liability arising.

If you have any questions about this, please get in touch with Jonathan Cheal of our Agriculture team on 07901 332 642 or email Jonathan.cheal@mogersdrewett.com.