Acquiring Access

There is no general right to roam in the countryside. A person entering private land commits trespass unless they do so with expressed or implied consent. Public rights of access may exist over private land. Public rights of way may be established by long use at common law or by modern designation.

A public right of way is established when it has been used extensively and continuously for a sufficient period so that it can be presumed that it has been dedicated for use by the public.

Separately, an easement may be established by long use as of right and openly. These are broadly equivalent to the easements established for the benefit of private property. See the section on easements under property law.

See the separate section on access to the countryside and the section under England and Wales Agriculture. Equivalent access to countryside legislation was not introduced in Northern Ireland until 1983.

District Councils have a duty to assert, protect, maintain, and record public rights of ways to ensure public access to the countryside for recreational purposes. They may create, divert, and close public pathways. They may signpost and maintain public paths. They may enter access agreements or access orders to ensure public access to the countryside. They may make bylaws for the prevention of damage to land.

Rangers may be appointed. Financial assistance may be provided to private or voluntary bodies in relation to maintenance work on public access land.

The Department of Environment plays a secondary role to the District Council. In some matters, it must confirm proposals by the District Councils. This arises, for example, in the creation and closure of public paths, confirmation of access orders, and proposals made to exclude land used for agricultural and forestry purposes from the scope of the order.

A District Council has compulsory acquisition powers to acquire a right of way. Where it is satisfied, having regard to the extent to which the path would add to the convenience or enjoyment of a substantial section of the public, or persons residing in the district, and the effect which the path would have on the rights of persons interested in the land, it is expedient that the path should be created, the order may be made. The path creation order may be conditional or unconditional or subject to conditions and limitations.

If it is shown in consequence of a public path creation order, diversion order, or extinguishment order, that the value of any person’s interest in land is depreciated or that the person has suffered damage by being disturbed in the enjoyment of his land, the District Council or the Department, if it makes the order, shall pay compensation of that amount. There is no right of compensation for depreciation of the value of land or disturbance in land other than that over which the right-of-way was created, unless the creation would have been actionable if it had been effected otherwise in exercise of statutory powers.

The District Council is to consult with the Department and bodies representative of owners and occupiers of lands for ascertaining whether there is open country, in considering what action should be taken, whether by making access agreements or orders or acquisition of land or securing public access for the purpose of open-air recreation.

In considering what action should be taken, the District Council is to have regard to the relevant circumstances, including the extent to which public access for open country for the purpose of open-air recreation is likely to be available without such action and generally the extent to which there is a need for greater facilities in the district for which access, whether by persons living within or outside the district.

The District Council may enter an access agreement with persons having an interest in land. An access agreement may provide for the payment of money or a contribution towards expenses. There may be provisions for revocation or variation.

An access order may be submitted to the Department for confirmation. Provided an access agreement is not enforced and it appears likely and practicable to secure the making of such an agreement.

There is a procedure for the submission of an access order for confirmation to the Department. Similar provisions apply to a public path order. If, on submission of an access order to the Department for compensation, a representation is made that the land is used or is being brought into use for agriculture or forestry and the order would prejudice that use.

Where the Department is satisfied the conditions above apply and outweigh the benefit arising from the increased facilities, it shall not confirm the order. Where the conditions apply and the Department is satisfied, where land is included in an access agreement and it is represented that the above conditions apply, the District Council may be required by the Department to vary the agreement.

Before coming to the above conclusions, the Department shall either cause a local inquiry to be held or afford the person by whom representation was made to the District Council the opportunity to be heard. This applies before the variation of an existing agreement.

Where, in consequence of an access order, the value of land is depreciated, or a person suffers damage by being disturbed in his enjoyment of land, the District Council is to pay compensation in that amount. There is no right to compensation for the depreciation of land or disturbance of enjoyment of land, not comprised in the order or if so comprised is excepted land, except insofar as it is held with land comprised in the order which is not excepted land, or the omission of any other person to exclude the public from the land in the order would have been actionable at the instance of the landowner if the access order had not been made.

Compensation is to be assessed with reference to the first five years of access. Compensation is not payable until a five-year period has expired, so as to allow assessment of the actual impact. The compensation is then assessed relevant to the original date as if the actual effect was known as on that date.

The application for compensation may be made immediately, recorded immediately to save the amount of compensation claimed and the applicant’s entitlement to receive the application. When paid, compensation is to bear interest until payment at the rate fixed by the Department of Finance.

Payments on account of compensation may be made on application on the grounds of special circumstances. A person aggrieved by refusal to make payment may appeal to the Department.