Eventually the Countryside and Rights of Way Act 2000 will come into force and people will have a right to enter open land falling within the description of “mountain, moor, heath or down” for outdoor recreation. When this happens the question will arise: What duties, if any, will an occupier of such land owe to ramblers exercising their right to roam?

When the Bill was being debated in the House of Lords many grandees shared the view of Lord Peel that “If we are to invite people onto private land it is ridiculous that owners should be left with any liability at all” (Hansard HL, 23 November 2000, col. 983-4). But the Government refused to accept that right to roamers should roam at their own risk, though it did claim to “have reduced liability to a bare minimum” (Rt Hon Michael Meacher MP, Hansard HC, 28 November 2000, col. 876).

The final form of s.13 of the Countryside and Rights of Way Act 2000, which provides the answer to the question above, represents a series of compromises reached during the passage of the legislation. These compromises take the form of amendments to both the Occupiers’ Liability Act 1957 s.1(4) and the Occupiers’ Liability Act 1984. (Consequently, if you are using a book of statutes it might be worth checking whether it has incorporated the changes or not. The easy way to determine this is to look at the Occupiers’ Liability Act 1984. If this statute has a section 1A in your book then the changes have been incorporated. If it does not have a section 1A then you ought to photocopy or download a copy of s.13 of the Countryside and Rights of Way Act 2000. Of course, this advice only applies when the 2000 Act comes into force.)

The change to the Occupiers’ Liability Act 1957 s.1(4) is easiest to describe. The 2000 Act merely provides a substitute s.1(4). The new s.1(4) makes clear that neither a person exercising the right to roam nor a person exercising rights under an access agreement or order under the National Parks and Access to the Countryside Act 1949 is to count as a visitor for the purposes of the 1957 Act. In summary, the right to roam does not extend the scope of liability under the 1957 Act.

The consequence of this is that a person exercising the right to roam comes within the scope of the Occupiers’ Liability Act 1984. This may surprise some people because textbook writers often refer to the 1984 Act as dealing with the duty which occupiers owe to trespassers (see McBride ; Bagshaw, Tort Law, p.118). But this is just convenient shorthand. In fact the 1984 Act deals with the duty which occupiers owe to persons other than their visitors (and other than highway users: see s.1(7) of the 1984 Act). In summary, a person exercising the right to roam will be part of a new category of non-trespassing non-visitors covered by the Occupiers’ Liability Act 1984.

As you may recall the Occupiers’ Liability Act 1984 does not impose a duty on occupiers to protect all non-visitor entrants against all risks on the land. Instead a duty is only owed with regard to known risks (s.1(3)(a)) to anticipated non-visitor entrants (s.1(3)(b)), and even then the duty is only owed if it is the sort of risk which an occupier ought to protect a non-visitor entrant against (s.1(3)(c). (For details, see McBride ; Bagshaw, Tort Law, pp.118-119). Parliament was not willing, however, to leave the courts to apply these provisions to persons exercising the right to roam without further guidance.

Thus s.13(2) of the Countryside and Rights of Way Act 2000 provides a list of risks which occupiers do not have to protect persons exercising the right to roam against. A new subsection (s.1(6A)) has been inserted into s.1 of the Occupiers’ Liability Act 1984 stating that there will be no duty to such a person in respect of: “(a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or (b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.”

Section 1(6B) of the Occupiers’ Liability Act 1984 extends this protection even further by providing that “any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape.” But, in order to ensure that ss.1(6A) and 1(6B) are not treated as an invitation to install electrified fences and poisonous shrubs s.1(6C) provides that there may still be liability “where the danger concerned is due to anything done by the occupier – (a) with the intention of creating that risk, or (b) being reckless as to whether that risk is created.”

With regard to risks which are not on this list (so the occupier can be held liable for them) s.13(3) of the 2000 Act inserts a new s. 1A into the 1984 Act. This provides that when assessing what duty is owed under s. 1 of the 1984 Act to a person exercising the right to roam the court should have particular regard to: “(a) the fact that the existence of that right ought not to place an undue burden (whether financial or otherwise) on the occupier, (b) the importance of maintaining the character of the countryside, including features of historic, traditional or archaeological interest, and (c) any [relevant Codes of Conduct drawn up under other provisions in the Act]”.

Summary of the new law

1. Persons entering land exercising the right to roam are not visitors of the occupier within the Occupiers’ Liability Act 1957.

2. The occupier of land entered by persons exercising the right to roam will owe them duties in accordance with a modified s. 1 of the Occupiers’ Liability Act 1984.

3. The main modifications are (i) that there will be no liability for injuries caused by natural features of the landscape, including all trees and plants, or whilst crossing fences or walls except by gates and stiles, unless the occupier created the danger intentionally or recklessly, and (ii) courts should take account of the need to avoid the right to roam placing undue burdens on occupiers and the importance of maintaining the character of the countryside when determining whether in other situations a duty is owed and if so what.

Evaluation of the new law

To a large extent the new law is nothing more than reassurance for occupiers. We might hope that even if the 2000 Act had said nothing about liability courts would not have concluded that occupiers had to fence every cliff, and pepper the countryside with warning notices alerting the unwary to the dangers of slippery rocks, swift-flowing rivers, deep ponds and tall trees.

But some features of the new statute are very difficult to understand. Principally, it is not easy to explain why Parliament thought that it was necessary to distinguish persons exercising the rights to roam from other non-visitor entrants. This may lead to absurd cases where people injured climbing over defective walls or by hidden dangerous natural features will have an interest in arguing that they were in fact trespassers rather than exercising the right to roam.

A further oddity is that the exception for intentional or reckless conduct only covers dangers due to “anything done” by the occupier. It would appear that this does not cover omissions. So the occupier who notices that a branch on his tree is in danger of falling onto a ramblers’ favourite picnic spot is apparently free to do nothing! (Though he almost certainly would be obliged to take steps to deal with the problem if he was aware that trespassers often stopped under the same tree.)

One interesting side effect of the 2000 Act is that it will put further pressure on those occupiers who try to protect entrants by erecting warning signs. This is because s.14 of the new Act makes it an offence to display a notice containing false or misleading information likely to deter people from exercising the right to roam. Thus the occupier who gives too graphic a warning of the dangers to be found on his or her land may end up being criminalized whilst the occupier who gives an insufficient warning ends up being held liable in tort.

Another point worth noting is that whilst the new Act moderates the occupiers’ duty to persons exercising the right to roam it extends the liability of keepers of animals. The Animals Act 1971, s.5(3) provides that keepers of dangerous animals are not liable for the injuries that those animals do to trespasser unless the animal was being kept as a guard and it was unreasonable to use it for that purpose. But it seems that there will be no comparable protection for the keeper of goats which butt persons exercising the right to roam (since they will not be trespassers). Thus right to roamers chased by livestock should bear in mind that they are more likely to obtain compensation if they are trampled on than if they injure themselves on a defective wall whilst trying to flee!