Photography and Public Rights of Way

In March 2016 news broke that Google was expanding its Street View programme to cover England and Wales’ 15 national trails. To complete this task a small army of volunteers have been equipped with rather cumbersome 360 degree cameras and are currently walking the nation’s pathways, photographing as they go. The images will be prepared, uploaded and will be free to view, just as the current Google Street View images are.

While the urban Google Street View programme has been implemented with very little complaint or even discomfort from village, town and city dwellers, the expansion of the programme into the countryside feels somewhat more uncomfortable and raises the question of privacy. Many landowners who own land next to public paths might not be as amenable to 360 degree photography that is viewable by anyone who has Internet connection.

Photography from public rights of way is a difficult area. Typically it will depend on the motives of the photographer and the situation. Taking a photograph of a nice view (or making a sketch of it) is incidental to the public right of passage along a public path, as is stopping briefly to rest or have a drink. However, a landowner / manager is entitled to object to someone using a footpath or coastal path to take photos of property. Photographing a landmark building like Chatsworth House from a footpath is to be expected and is probably acceptable, but photographing a smaller private residence of no particular note would be different, especially a remote rural property, as the motive for taking the picture would be more open to question.

Decided cases have ruled that observing race horses performing on adjoining land, or metal detecting, on or from a path may well be an act of trespass. Such an act could certainly be considered a nuisance. Nuisance is a technical term, a tort rather than crime, and is based on unreasonable use of land. Inappropriate photography or filming from a path may be both trespass and nuisance.

In such a case, as homeowner or landowner you are entitled to challenge someone taking a picture or filming. The best advice is always to challenge the photographer and ask for an explanation.

The question of footpaths close to houses, or passing through gardens and yards has long been of concern. Owners naturally prefer to achieve a diversion, but can encounter opposition from organisations such as the Open Spaces Society.

The Country Land and Business Association has been lobbying for a change in the law to make diversions in these circumstances easier, by imposing a statutory presumption in favour of diversion, and DEFRA has promised non-statutory guidelines for local authorities. It remains to be seen whether this goes far enough.

West Country solicitor Jonathan Cheal is a public rights of way specialist whose services are in demand across the country on topics which can be a minefield for farmers and landowners alike. Jonathan works with Mogers Drewett which has offices in Bath, Sherborne and Wells. He also regularly attends market days at Frome Livestock Market.

Mogers Drewett

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