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Legal Summary

Access (Trespass)

Access for collecting specimens

In order to enter onto land for the purposes of collecting wildlife specimens, the permission of the owner should generally be sought. Entering onto land without such permission will normally be a trespass against the owner. Trespass is not generally a criminal offence, but the owner of land may seek civil remedies against a trespasser.

In certain circumstances, there may be a right of access to land, or public access to the land may be permitted or tolerated by the owner. In such cases, entering onto the land for the purposes of collecting specimens may well go beyond the scope of the right or permission, and it is safest, therefore, nevertheless to first seek the permission of the owner.

Trespass

Trespass to land is any unjustifiable intrusion by one person upon land in someone else’s possession.

The slightest crossing on to the land is sufficient to be a trespass; removing soil or part of a building is a trespass; placing anything on someone else’s land is a trespass (e.g. leaving rubbish on the land). It is not necessary to know that the land belongs to somebody else — i.e. it is no defence that the trespass was due to a mistake of law or fact.

An entry upon another’s land is not trespass if it can be justified, for example, by operation of law (e.g. statutory powers given to police officers), by consent of the owner, or by necessity (e.g. to put out a fire). Another example is use of a highway: the public have the right to pass and repass, but use for any other purpose will amount to a trespass e.g. setting up a shop or trying to stop the landowner exercise his shooting rights.

A person in possession of the land can claim damages or an injunction. It is not necessary that there should have been any actual damage. An injunction may be sought to prevent a threatened trespass or stop a continuing trespass. The amount of damages will depend upon the circumstances. For example, if there is no damage done, and the trespass consists of merely someone using a track which he is not entitled to use, the amount of damages is equal to the usual charge for wayleave in the district.

Where actual damage has been done, the amount of damages will normally be the amount by which the value of the land has been diminished (which will not necessarily be the cost of restoration). “Aggravated damages” can be awarded where, for example, the trespass is accompanied by noise and disturbance.

Existing access

Rights of area access currently exists over a considerable extent of land, much of it open countryside, with varying levels of reliability. Much access is tolerated by landowners (de facto access) — but this can be withdrawn at any time, and may not be widely known. Some access has been formally recorded, by contractual agreement with a third party (such as a local authority), under statutory enabling provisions (such as under the National Parks & Access to the Countryside Act 1949 and the Wildlife & Countryside Act 1981), or by practice or custom (such as much open countryside held by the National Trust, or woodland held by the Woodland Trust).

About 100,000 hectares (¼ million acres) of common land (and some other open countryside) are subject to a statutory right of access under the Law of Property Act 1925, the Commons Acts, or local statutes (e.g. Elan Valley, Cleeve Hill, Epsom Downs). The Law of Property Act 1925 enacted a right of area access (for “air and exercise”) on commons which were in former urban districts (many such districts were largely rural in character), and over other commons where the landowner had (voluntarily) executed a “deed of dedication”.

In most cases, the right of access to such land is subject to restrictions or byelaws, which may well prohibit harming or taking wildlife. In many cases, breach of these restrictions or byelaws may constitute a criminal offence.

Access under Part I of the Countryside and Rights of Way Act 2000

The Countryside and Rights of Way Act 2000 will give people a new right of access on foot to extensive areas of open country (mountain, moor, heath and down) and registered common land, subject to sensible restrictions to avoid activities which might cause harm or damage. Before the new right comes into effect, the Countryside Agency and the Countryside Council will first prepare maps showing where people can and cannot exercise the right of access. The Government has a target to open up public access to mountain, moor, heath and down, and registered common land, by no later than the end of 2005.

The right of access is specifically subject to the restrictions contained in Schedule 2 to the Act, which will mean that the right will not apply to any person who collects wildlife specimens whilst on access land.

The Act will not, however, affect any present licence for, or toleration of, research or scientific activities on access land. Those who enter on open country at present, for whatever purpose, frequently do so without any express permission of the owner (or occupier): they may have an implied licence or they may be, in effect, trespassers. If a person on access land is in breach of a restriction, it will be a matter for the owner whether to tolerate his continued presence, just as it is now. So the status of a scientist or researcher engaging in the collection of insects on the land will be unchanged in such a situation. There are areas of access land where the owner of land may be perfectly content for scientific research to continue, and indeed may be happy to welcome them onto the land.