We went on a walk recently with some friends in the countryside. As we were walking we got talking about some of the things that go on in rural areas and whether we are allowed to do certain things. It seems that as the resident lawyers of the group, it quickly descended into everyone looking at us to answer these questions. The hot topics were along the lines of:
I live in a house with lots of land, how can I stop a footpath being created like the ones we are walking on?
Our friend, Oksana, is lucky, she has a big house with lots of land. She tells us that people often walk across the bottom of one of her fields.
Footpaths and public rights of way are definitely something to be cautious of, as the old saying goes, “once a footpath, always a footpath”. Footpaths can be classified as highways and can come into being as a highway either expressly or by presumption. Whereas with express creation the landowner will have an intention to create a footpath, with presumption it can come into existence if the way or footpath has been used by the public as of right without interruption, usually over a minimum of 20 years.
Oksana needs to be most cautious of presumption, as a landowner must proactively take steps to prevent people from using the footpath.
Oksana looked quite alarmed. Landowners can prevent a footpath becoming a highway by presumption by stopping people from using it, turning them away, restricting access to the area. Signs and adequate fences would go a long way to achieve these. So long as people have not used the footpath for more than 20 years, she will be fine.
Under S31(6) of the Highways Act 1980 a landowner can make an application to the local highways authority and council to rebut a presumed dedication of way as a highway and therefore extinguish the way as a highway.
When we enjoy a walk in the country, it is important to respect private property and only walk along designated footpaths.
I have a wood burning stove, can I collect fallen wood?
Mo has a very cosy stove. He asks if he can pick wood up on his walks.
It is safest to assume that you need the landowner’s permission, as in most cases you will do. Otherwise you may be committing theft! Many woodlands are owned or managed by organisations like the Forestry Commission, and it is important to be mindful that fallen wood forms part of the environment that we are enjoying. So, Mo, play it safe and buy from a retailer.
Can I pick blackberries?
Billy makes wonderful homemade blackberry crumble and says that he always goes blackberry picking in the summer. He asks if taking blackberries is theft? Interestingly the Theft Act 1968 makes provision for this: “a person who picks…fruit…from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose”. The commercial purpose is key; this will come down to a question of fact in each case.
Billy also needs to be careful that he does not trespass onto private land or take fruit or produce that is being grown commercially, which is another matter entirely. This could lead to a civil claim in trespass, or amount to theft from the farmer or grower.
Ultimately, a degree of common sense is clearly necessary. So long as Billy does not sell his blackberry crumbles for financial gain, nor trespass onto private land, he can go on picking.