Forum members have expressed an interest in discussing whether the access rights created by the new Bill should be restricted at night. To facilitate this discussion, this paper briefly considers the background, potential arguments for and against p...
Recreation

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NCAF 6/4 Access to land at night

Forum members have expressed an interest in discussing whether the access rights created by the new Bill should be restricted at night. To facilitate this discussion, this paper briefly considers the background, potential arguments for and against providing night-time access rights, and the position overseas.

Background

The Countryside and Rights of Way Bill proposes to create public access rights on foot for open-air recreation to areas of mountain, moor, heath, down and registered common. It makes no distinction for these purposes between public access during the daytime and public access at night. 

The Bill gives local authorities powers to make by-laws, but it is understood that these are intended for use in exceptional circumstances only. Landowners may impose specific access limitations at the local level for up to 28 days of the year in relation to any given parcel of land. In addition to this, the Countryside Agency or National Park Authority may authorise additional restrictions on specific grounds such as land management needs, safety, emergency situations and wildlife/heritage protection. 

The position appears to be the same for land to which permanent access is voluntarily dedicated under clause 16. 

Arguments in favour of access rights applying at night

  • Accidental trespass: people who's journey takes longer than anticipated, they should not have to worry about technically becoming a trespasser if they don't manage to leave access land before nightfall.

  • Night experiences: there is a particular quality to being outdoors, and particularly in wild and open places just before dawn, just after sunset and at night. Some perfectly harmless and pleasurable activities are either most enjoyable or only feasible at night (- star gazing with minimal light pollution; seeing or listening to owls/foxes/badgers; experiencing silence and solitude and so on). 

  • Adventure (e.g. Duke of Edinburgh Award activity): this often includes night-time experience in open country (- as the Bill stands this might arguably continue to rely on permission from the landowner, if it is perceived as being 'organised activity' and so exempted from the access rights by Schedule 2). 

  • Simplicity and clarity 

  • Impracticability of enforcing a ban: arguably it could be very difficult in practice to enforce a formal prohibition on night-time access - and as a general principle one should not legislate for an unenforceable outcome.

  • Experience- on existing areas of access land, night time access is rarely prohibited, and is not known to have caused significant problems  

Arguments against access rights applying at night


  • Poaching and theft of equipment, stock etc.: is easier to undertake at night. 

  • Trespass and damage: a similar set of arguments arises here. There may be more potential for inexperienced users to trespass (accidentally or deliberately) and in some cases cause damage, for example by straying into cropped areas that would in daylight be more clearly recognisable as excepted land.

  • Danger to visitors: (especially inexperienced countryside visitors), encouraged by the new rights to begin using open countryside at night

  • Wildlife disturbance
  • Interference with predator control: gamekeepers often control foxes and other predators at night, dawn or dusk. Night-time access rights might impede this.  

Overseas experience

The following information is from SNH Review No. 110 - Access to the countryside in selected European countries: a review of access rights, legislation and associated arrangements in Denmark, Germany, Norway and Sweden, by Peter Scott Planning Services This was produced for SNH and the Countryside Commission, to provide information on the continental European experience of area wide access provision and management. 

The report was submitted in 1998.

Denmark

Denmark is the only country known to have any formal time restrictions on rights of access to access land - which is mainly private forests and unenclosed, uncultivated land.

Some 70% of Denmark's forests (total forest area: 5,000 sq.km) are privately owned (including private institutional owners). Private forests attract some 25m visits/year.
Under the Protection of Nature Act 1992, passage within private forests on foot (on paths and established roads) and on bicycles (on paths with consolidated surfaces and roads) is only permitted between 07.00 and sunset. These timing restrictions do not generally apply to State forests. The rules are usually displayed at entrances to private forests. Lawful access to privately owned, unenclosed, uncultivated land on foot is also only permitted between 07.00 and sunset. 

We understand that the constraint is sometimes (mis)interpreted in winter as being from sunset to sunrise rather than 7:00 am, and that this particular rule is not generally well known or enforced.

Germany (Baden-Württemberg)

There are no formal restrictions on times of access to any specific types of land
Hunters have been reported as being unhappy about early morning/evening joggers and walkers disturbing game and shooting, and wanted forest access to be restricted to paths and daylight hours.

Norway

There are no time restrictions on the general right of access to the countryside ('allemannsratten'), insofar as we are aware. There are provisions for privacy zones around private dwellings and other properties (day and night). No reported problems

Sweden

Again no general restrictions under 'allemansratten', but as with Norway there are provisions for privacy zones around private dwellings and other properties. No  reported problems.