Naturenet: English Common Law
English Common Law
Apart from a very few examples of local custom and tradition which survive in England's legal system, law
which is not contained within a specific Act is known as Common Law. It is built up by the courts and their judgments. This means
that, in deciding a particular case, the court must have regard to the principles of law laid down in earlier reported cases on
the same or similar points, although the law may be extended or varied if the facts of the particular case are sufficiently
different.
In fact, many aspects of the law shown here are also controlled by statute law (which is the other sort of law
made by Parliament) but as a general heading, these matters can be grouped together as based on or originating in on common
law.
There are several such legal matters which are very relevant to those in the Countryside, particularly Rangers
and those who are required to enforce laws and byelaws. As that's what Naturenet is about it is these aspects particularly
which are discussed on this page.
Scottish Common Law is often different from English, sometimes significantly so. The following applies to
English law only, and are guidelines only. If you want reliable legal advice ask your solicitor, not some website.
Anyone damaging anything deliberately and without
good reason is committing an offence. This includes plants, trees, and all installations such as fences, signs, or paths.
However, see below under theft for a note on picking flowers, fruit,
fungi and foliage.
As applied to a piece of land open to the public
which is not common land, open access land, or a public right of way. This is also one area where the laws of England and
Scotland are significantly different. It is against the law to trespass on any land (and inland that includes land covered by
water such as rivers or lakes) or in any building. Ignorance of that fact is no defence under this law. The word trespass covers
much more than people usually realise. All land in this country belongs to someone. If you go on to land without the owner's
permission, you are trespassing unless there is some right of access for the public, or for you specifically (for example if you
have acquired a right to pass over the land to reach some land of your own).
Any person can enter a place if the landowners permit it. However, this does not necessarily make a permanent
right of access, and unless they have dedicated a bit of land to be permanently open it is within the power of the landowner to
ask any person to leave, assuming that person does not have some other lawful reason to be there. The landowner does not have to
give a reason. If the person does not go immediately, by the shortest practical route, then they are trespassing. Despite the
well known sign ‘trespassers will be prosecuted’, trespass is not a criminal offence and trespassers cannot usually
be prosecuted. They can, however, be sued. There is little chance of such a matter ever being so serious as to be worth suing
over, and so this rarely happens.
People in a park will often protest (if asked to leave) that it is public land. However the ownership of the
land is not relevant. Even if the land is owned by a public body, such as the local council, this does not mean necessarily that
they have a right to be on it at all times - they do not. If the place closes at a certain time and a visitor remains after that
time, they can then be considered to be trespassing. If a visitor misbehaves at any time and refuses to leave when asked to do so
by someone with a right to do so (usually the landowner or a representative) then the visitor could becomes a trespasser because
they no longer have the landowner's permission to be there, even if they entered legally. Note: this also gives landowners
the absolute right to close off paths (other than rights of way), and areas without notice or explanation.
This law is of little practical use but might be employed when arguing with more reasonable people. It does not
apply to people on a public footpath
or other right of way, or on open access land. The problem is that if someone is trespassing, they are
unlikely to comply with a polite request to leave, and if they then do not, the landowner has little if any further recourse.
Section 61 of the Criminal Justice and Public Order Act 1994 allows the senior police officer attending the scene of an incident
involving a trespass or nuisance on land to order trespassers to leave the land and to remove their vehicles as soon as
reasonably practicable. The power can only be used when there are two or more people there and "are present there with
the common purpose of residing there for any period, [and] that reasonable steps have been taken by or on behalf of the occupier
to ask them to leave" and either the trespassers have six or more vehicles between them, or they have caused damage to
the land or to property on the land or used threatening, abusive or insulting words or behaviour - or both. So really it's
not likely to cover anything other than a major invasion. This power is not often used, but for practical purposes this is the
only instance where you might get the police to come and actually remove trespassers from a bit of land.
Sometimes, people go onto private property, such as woodland, which is not apparently fenced off and where the
owners do not seem to mind. The fact that there is no fence or no sign saying that the land is private does not mean that people
can go there. Wandering on to farmers' fields or other places which are obviously private is clearly trespassing, but so is
wandering over land which may not be so clearly private, if the public has no right of access.
It is not normally possible to be a trespasser whilst legitimately on a right of way. However, if the user is not
using the right of way as a route to get from one place to another, but using it for some other reason, such as to interfere with
the landowner, they could be considered to be a trespasser. A real example of this is Harrison -v- Duke of Rutland (1893) long before open access
land was in existence. This case concerned a early hunt saboteur who was deemed by the court of appeal to be a trespasser for
shouting and waving flags, whilst on a footpath, on a grouse moor. This important distinction was the purpose for which the person was there. This does not
mean that it is always wrong to shout and wave flags on a footpath. Since 1893 the definition of what can be done on a highway
has grown wider, and so
it's still not entirely clear what, exactly, one can and cannot do whilst there.In 1999 Lord Irvine said: "Our rights of access to the
highway do not include just the right to 'pass and re-pass' (and any reasonable activity that is strictly 'incidental' or
'ancillary' to passing and re-passing), but also any other reasonable activity. But there are certain tests laid down. Most
importantly, our activity must not interfere with the 'primary' right to pass and re-pass (i.e. it must not be obstructive), and
it must not be such as to cause a 'nuisance'. "
See The Countryside and Rights of Way Act 2000. Note that this applies only to specific areas and has many limitations. There is still no such thing as a
general 'right to roam'.
In many cases people take things from the countryside, such as stones, wood, earth, and so on. Where
such items have value they may have committed theft if this is not authorised by the landowner. They have not committed it until
they actually take it away, but not necessarily taken off the site, e.g. walking off holding something is probably enough - any
successful prosecution must show that they have intended to permanently deprive the owner of the item. See also Wildlife and Countryside Act 1981 regarding uprooting
plants.
Picking wild things is not usually a criminal offence. Section 4, subsection 3, of the Theft Act 1968 makes it
clear that – A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage 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. For the purpose of this subsection 'mushroom' includes any fungus, and
'plant' includes any shrub or tree (see also theCriminal Damage Act 1971, s10). Whilst picking may not be theft, it
might be theft if you uproot a tree or shrub - because a tree might be worth something - and take it away.
Related to this Act there is is right to collect the "Four F's", fruit, flowers, foliage and
fungi, so long as it is for personal use, and not for sale or commercial gain. This does not mean that people can enter land
unlawfully to do so, but in areas where they can lawfully be, for example on a country park, or walking along a right of way,
they are entitled to collect and take away the Four Fs for such purposes. You may be relieved to know that plants and fungi
specifically protected by theWildlife and Countryside Act 1981 would not be affected by this as the protection afforded by the WCA would over-ride this right.
Another significant exception is that land made accessible through the Countryside
and Rights of Way Act 2000 is not subject to these rights.
An interesting point to which we have no answer would concern bluebells. When children pick bluebells they
usually rip them out of the ground. Although the root is not disturbed the bulb is damaged below ground. Does this count as
uprooting, and is therefore illegal, or the gathering of flowers, and is therefore legal? Any advice welcomed.
NB This section excludes the special case of commoners exercising common rights - now a rare event.
Almost any behaviour
which is found threatening is strictly an offence, e.g. following someone around, making verbal threats (even mild ones). Any
incidence of actual violence or serious threat to a countryside worker or member of the public should be notified to the police
as soon as possible. This is not a matter for landowners or their staff to deal with themselves.
Often
known as 'Ancient Lights' it is often assumed that there is a general right to have a view or get light across a
boundary. This is not so, although it can be obtained over time. See the following extract:
"There is, under English law, no general right to light or to a view. As Chief Justice Wray stated
in a case in 1611: "For prospect . . . is a matter only of delight . . . and the law does not give an action for such
things as delight". If it did, Lord Hardwicke observed in 1752, "there would be no great towns". A right to
light can be acquired for buildings (but not gardens) through 20 years' uninterrupted enjoyment, and in one case in 1979 it
was held that a claim is not barred by virtue of the fact that a greenhouse needs more sunlight than does a room".
From an article by Gary Slapper in The Times 25 July 2000.
While the 'right to light' has been an established part of English law for the last four centuries or
so, the phrase itself is actually misleading. The difference between the right to light and the right to freedom from smell and
noise is that light has to be acquired before it can be enforced. What is more, unlike many other such matters, enforcement of
the right to light is almost always a private matter between two landowners. Neither the local council nor any national agency
has any role in enforcing it.
Natural light is in fact a commodity that can be bought, sold, transferred between parties, or as is often the
case, acquired through long-term use. Planning permission does not override a right to light and for a property developer,
neighbouring rights to light can limit the height and position of the development and in certain cases actually reduce the site
value. It's also worth noting that light is not the same as a view. Sea views, particularly, are famously the cause of disputes, but there
is no right to a view, as such, and where natural light is available, the view that comes with it cannot be either owned or
protected by the landowner.
if you are concerned about a loss of light you definitely need professional advice from a surveyor or solicitor
who knows about it. it's a complex area of law so don't try going it alone.
Seethis helpful page from
RICS.
Some of the above was taken from an article by Kelly and Co Property Points.
Also see Hedgerows for problems concerning nuisance hedges.
Don't.
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