Freedom to roam

A group of ramblers on the Mam Tor ridge in Derbyshire, England

The freedom to roam, or everyman's right is the general public's right to access certain public or privately owned land for recreation and exercise. The right is sometimes called the right of public access to the wilderness or the right to roam.

In England and Wales public access rights apply to certain categories of mainly uncultivated land—specifically "mountain, moor, heath, down and registered common land." Developed land, gardens and certain other areas are specifically excluded from the right of access. Agricultural land is accessible if it falls within one of the categories described above. Most publicly owned forests have a similar right of access by virtue of a voluntary dedication made by the Forestry Commission. People exercising the right of access have certain duties to respect other people's rights to manage the land, and to protect nature.

In Scotland and the Nordic countries of Finland, Iceland, Norway and Sweden as well as the Baltic countries of Estonia, Latvia and Lithuania the freedom to roam may take the form of general public rights which are sometimes codified in law. The access is ancient in parts of Northern Europe and has been regarded as sufficiently basic that it was not formalised in law until modern times. However, the right usually does not include any substantial economic exploitation, such as hunting or logging, or disruptive activities, such as making fires and driving offroad vehicles.

Europe

Belarus

Article 13 of Section I of the Constitution of Belarus guarantees that all forest and farm land is publicly owned.[1][2] Forty percent of the country's territory is covered by forest,[3] and approximately the same amount devoted to agriculture.[4]

According to the Forest Code (Article 13[5]) "citizens have the right to freely stay in the forest and collect wild fruits, berries, nuts, mushrooms, other food, forest resources and medicinal plants to meet their own needs."[6]

United Kingdom

Many landowners in the United Kingdom have, in the past, strongly defended their property rights. Even uncultivated and unenclosed land was formerly heavily protected in some areas, mostly to preserve the land owner's hunting or fishing rights. This in turn left the general public with little access to natural areas. Even such popular sites as Chrome Hill and Parkhouse Hill in the Peak District – although of very little economic interest to the owner – had been out of access to the public, until the enactment of the Countryside and Rights of Way Act 2000. The Ramblers' Association works to increase the rights of walkers in the United Kingdom and has been a driving force behind the recent legislation increasing the public's access to the wilderness.

England and Wales

In England, after a polarised debate about the merits, rights and benefits of private landowners and public recreation, in 2000 the Government legislated to introduce a limited right to roam, without compensation for landowners. The Countryside and Rights of Way Act 2000 (CROW) was gradually implemented from 2000 onwards to give the general public the conditional right to walk in certain areas of the English and Welsh countryside: principally downland, moorland, heathland and coastal land.

Traditionally the public could walk on established public footpaths and bridleways, on common land and on the foreshore, and land owners could prevent access to other areas (or charge a fee for access).

Angling interests successfully lobbied for the exclusion of rivers in England and Wales from CROW, leaving other river users such as swimmers and canoeists with access restricted to less than 2% of navigable water. The British Canoe Union is running the Rivers Access Campaign, to highlight the level of restrictions the public face in gaining access to inland waterways in England and Wales.

The new rights were introduced region by region through England and Wales, with completion in 2005. Maps showing accessible areas have been produced.

Dartmoor National Park enjoys Open Access rights which are significantly more extensive than the rest of the country for historic reasons which have been recently recodified with various legal changes following the Dartmoor Commons Act (1985).[7]

Scotland

In Scotland the Land Reform (Scotland) Act 2003 comprehensively codified into Scots law the ancient tradition of the right to universal access to the land in Scotland. The act specifically establishes a right to be on land for recreational, educational and certain other purposes and a right to cross land. The rights exist only if they are exercised responsibly, as specified in the Scottish Outdoor Access Code.

Access rights apply to any non-motorised activities, including walking, cycling, horse-riding and wild camping. They also allow access on inland water for canoeing, rowing, sailing and swimming. The rights confirmed in the Scottish legislation are greater than the limited rights of access created in England and Wales by the Countryside and Rights of Way Act 2000 (CRoW).[8]

Nordic countries

Ancient traces provide evidence of the freedom to roam in many European countries, suggesting such a freedom was once a common norm. Today, the right to roam has survived in perhaps its purest form in Estonia, Finland, Iceland, Norway and Sweden. Here the right has been won through practice over hundreds of years[9] and it is not known when it changed from mere 'common practice' to become a commonly recognised right. A possible explanation as to why the right has survived mainly in these five countries is that feudalism and serfdom were not established there. Another factor is the survival of large areas of unenclosed forest. Elsewhere in Europe land was gradually enclosed for private use and enjoyment, with commoners' rights (for instance, rights to gather fuel or graze animals) largely eliminated.

Camping in a forest in Femundsmarka National Park, Norway

Today these rights underpin opportunities for outdoor recreation in several of the Nordic countries, providing the opportunity to hike across or camp on another's land (e.g. in Sweden for one or two nights), boating on someone else's waters, and picking wildflowers, mushrooms and berries. However, with these rights come responsibilities; that is, an obligation neither to harm, disturb, litter, nor to damage wildlife or crops.

Access rights are most often for travel on foot. Rights to fish, hunt or take any other product are usually constrained by other customs or laws. Building a fire is often prohibited (though in Sweden and Norway fires are allowed with proper safety precautions). Making noise is discouraged. In some countries, putting up a tent in the forest for one night is allowed, but not the use of a caravan. Access does not extend to built up or developed land (such as houses, gardens) and does not necessarily include commercial exploitation of the land. For example, workers picking berries may be legal only with the landowner's permission.

There are some significant differences in the rules of different countries. In Denmark, there is a more restricted freedom to roam on privately held land. All dunes and beaches and all publicly owned forests are open to roaming. Uncultivated, unfenced areas are open to daytime roaming irrespective of ownership status. Privately owned forest have access by roads and tracks only.

Finland

In Finland, the freedom to roam and related rights are called "jokamiehenoikeus" in Finnish and "allemansrätten" in Swedish (lit. "the everyman's right"), similar to other Nordic countries.

Everyone may walk, ski or cycle freely in the countryside where this does not harm the natural environment or the landowner, except in gardens or in the immediate vicinity of people's homes (yards). Fields and plantations, which may easily be harmed, may usually not be crossed except in the winter.

One may stay or set up camp temporarily in the countryside, a reasonable distance from homes, pick mineral samples, wild berries, mushrooms and flowers (as long as they are not protected species). One may fish with a rod and line (only still waters), row, sail or use a motorboat on waterways (with certain restrictions), and swim or bathe in both inland waters and the sea. One can walk, ski and ice fish on frozen lakes, rivers and the sea. Income from selling picked berries or mushrooms is tax-free. Picking cloudberry may be temporarily restricted in parts of Lapland.

One may not disturb others or damage property, disturb breeding birds (or their nests or young), or disturb reindeer or game animals. One may not cut down or damage living trees, or collect wood, moss or lichen on other people's property, nor may one light open fires without the landowner's permission (except in an emergency). It is acceptable, however, to use an alcohol burner, wood stove or similar device that has no hot parts touching the ground. One may not disturb the privacy of people's homes by camping too near to them or making too much noise, nor litter, drive motor vehicles off road without the landowner's permission, or fish (excluding angling) or hunt without the relevant permits.[10] In the autonomous province of Åland the right to camp is not necessarily recognized.[11][12]

The right is a positive right in the respect that only the government is allowed to restrict it as in the case of strict nature reserves. However, the exact definition remains mostly uncodified and based on the principle of nulla poena sine lege (what is not illegal cannot be punished).

Norway

Everyone in Norway enjoys the right of access to, and passage through, uncultivated land in the countryside. The right is an old consuetudinary law called the allemannsrett (lit. the everyman's right), that was codified in 1957 with the implementation of the Outdoor Recreation Act.[13] It is based on respect for the countryside, and all visitors are expected to show consideration for farmers and landowners, other users and the environment. In Norway the terms utmark and innmark divide areas where the right to roam is valid (utmark, literally something like "land outside [the boundaries]") and where it is invalid or restricted (innmark, "land inside [the boundaries]"). The law specifies innmark thoroughly,[14] and all areas not covered by this definition are defined as utmark, generally speaking uninhabited and uncultivated areas. Cultivated land may only be crossed when frozen and covered in snow.

In later years the right has come under pressure particularly around the Oslo Fjord and in popular areas of Southern Norway. These areas are popular sites for holiday homes and many owners of coastal land want to restrict public access to their property. As a general rule, building and partitioning of property is prohibited in a 100-meter zone closest to the sea, but local authorities in many areas have made liberal use of their ability to grant exemptions from this rule. However, even if a land owner has been permitted to build closer to the shore, he may not restrict people from walking along the shore. Fences and other barriers to prevent public access are not permitted (but yet sometimes erected, resulting in heavy fines).

Canoeing, kayaking, rowing and sailing in rivers, lakes, and ocean are allowed. Motorised boats are only permitted in salt water. All waters are open for swimming - with the exception for lakes that are drinking water reservoirs (see for instance Maridalsvannet).

Wild berry foraging is part of the right.

Hunting rights belong to the landowner, and thus hunting is not included in the right of free access. In freshwater areas such as rivers and lakes, the fishing rights belong to the landowner. Regardless of who owns the land, freshwater fishing activities may only be conducted with the permission of the landowner or by those in possession of a fishing licence. Different rules apply for children under the age of 16. Children under the age of 16 have the right to fish without a licence, a right codified in 1992. This right was tried and upheld in a ruling from the Norwegian Supreme Court in 2004.

In salt water areas there is free access to sports fishing using boats or from the shoreline. All fishing is subject to legislation to, among other things, protect biological diversity, and this legislation stipulates rules regarding the use of gear, seasons, bag or size limits and more.

Sweden

In Sweden allemansrätten (lit. "the everyman's right") is a freedom granted by the Constitution of Sweden. Since 1994 the Instrument of Government says that notwithstanding the right to own property "everyone shall have access to nature in accordance with allemansrätten".[15] What this means is not further explicated on in the constitution, and only sparsely in other legislation.[16] In practice, allemansrätten is defined as actions that are not crimes, will not make a person liable to pay damages, nor can be prohibited by any authority.[17] As in other Nordic countries, the Swedish right to roam comes with an equal emphasis being placed upon the responsibility to look after the countryside; the maxim is "do not disturb, do not destroy".

Allemansrätten gives a person the right to access, walk, cycle, ride, ski, and camp on any land—with the exception of private gardens, the immediate vicinity of a dwelling house and land under cultivation. Restrictions apply for nature reserves and other protected areas. It also gives the right to pick wild flowers, mushrooms and berries (provided one knows they are not legally protected), but not to hunt in any way. Swimming in any lake and putting an unpowered boat on any water is permitted unless explicitly forbidden. Visiting beaches and walking by a shoreline is permitted, providing it is not a part of a garden or within the immediate vicinity of a residence (legally defined as the hemfridszon). The hemfridszon's size depends on conditions but can be as large as 70 metres from an ordinary dwelling house.[16] To better protect access to water and the right to walk along beaches, it is since 1975 generally not permitted to build a new house near (generally 100 m) from a beach and/or shoreline.[18]

Fishing remains essentially private—apart from on the biggest five lakes and the coast of the Baltic Sea, the Sound, Kattegat and Skagerrak. It is permitted to drive a car on a private road unless explicitly signposted otherwise. Small camp fires are generally permitted, but in some periods banned by local authorities due to wild fire risk. It is allowed to put up a tent on any uncultivated land for a night or two.[19] There has been some controversy on commercial use of the berry picking rights, when companies legally contract people to pick berries in the forests.[20]

Exercise of the rights is overseen by the County Administrative Boards—which can, for example, force the removal of a fence if it obstructs access to areas that are important to the allemansrätt.[16]

Many Swedish people consider this to be a form of legacy or human right. Thus to put up a 'no trespassing' sign would be considered a violation.

Estonia

In Estonia, it is permitted to access natural and cultural landscapes on foot, by bicycle, skis, boat or on horseback.[21]

Private property may be accessed at any time. If the private property is fenced or posted against trespassing, the permission of the owner is required to proceed. The owner of the private property is also required to post signs stating the ownership of the land, and contact numbers, to avoid legal issues. Land owners may not block access to land, roads or bodies of water that are public or designated for public use, including ice and shore paths.[21]

All bodies of water that are public or designated for public use have public shore paths that are up to 4 m wide. The shore path along a navigable body of water may extend to a distance of 10 m of the water line. The owner may not close this path even if the private property is posted or marked with no-trespassing signs. Grazing areas and other enclosed areas along the shore paths must have stiles. Ponds with no outlet located entirely on the land of one land owner and lakes smaller than five hectares located on land belonging to more than one land owner shall not be in public use. Permission from the landowner is required to access such bodies of water.[21]

Neither do bodies of water protected as sources of drinking water or which are in use by aquaculture or are in other special use have a shore path. All of the rights and responsibilities regarding humans’ interaction with nature are collectively termed everyman’s right. Everyman’s right does not pertain to the organizing of sporting events or other public events in open country. To organize these, the permission of the landowners or other possessors of land, and if necessary, of the local government, must be sought.[21]

The following is permitted in nature:

The following is prohibited:

Austria

The right to roam in Austria, particularly in forests and mountainous areas, is called Wegefreiheit. Since 1975 the right to roam in forests is guaranteed by Federal law. In particular, walking, running, hiking, and resting are automatically allowed to the public in most forest areas. However, horse riding, bike riding, and camping are not, and may only be practised with the land owner's permission. A large proportion of the forest area in Austria is owned by government bodies such as the Österreichische Bundesforste, but the same restrictions still apply. In some circumstances forests may be closed to the public for environmental reasons. The situation in mountainous areas is less clear, and differs from state to state. Some states, such as Carinthia, Styria, and Salzburg guarantee a right to roam in mountainous areas (usually defined as above the tree line), for all recreational activities. In other states, such as Tyrol, Lower Austria, and Burgenland, no explicit right to roam exists and land owners reserve the right to deny access. In practice, however, such restrictions are rarely enforced, since mountain tourism is an important industry in Austria. [22]

Czech Republic

The old legal institute of "right of the way" (imbedded in the Civil Code) has its roots in Austria-Hungary law. This legal institution is applied when one land owner has a need to go through alien lands for access to his own land.

According to the Nature and Countryside Preservation Act, there is a legal right to roam through countryside ("veřejná přístupnost krajiny", public accessibility of countryside – excluding parcels owned by a natural person). Some types of land are excluded from compulsory public accessibility: settled and building grounds, courtyards, gardens, orchards, vineyards, hop gardens, grounds destined for animal husbandry. Fields and arable land are excluded during seasons when herbage or soil would be damaged, pasture lands are excluded during cattle grazing. In national natural preserves, national natural monuments, national parks and in the first zones of landscape protected areas, state authorities can restrict public access (ordinarily only to roads or only to marked routes). Special acts can exclude also other areas (e. g. military areas, rail tracks etc.).

According to Forest Act, forests are publicly accessible ("obecné užívání lesa", common use of forest – including private ones). However, biking, sledge riding, skiing and horseback riding are allowed only on forest roads. Public motor vehicle riding is prohibited (highroads going through forest are not considered as parts of the forest). Common use of forest can be restricted by the owner in military forests, protected areas, forest nurseries, forest orchards, deer parks, pheasantries etc.

The Road Act defines "obecné užívání pozemních komunikací" (common use of roads – some road can be excluded), The Water Act defines "obecné užívání povrchových vod" (common use of surface waters).

Switzerland

The freedom to roam is guaranteed in Switzerland by the Swiss Civil Code. Some cantons however have more detailed regulations concerning the rights of access of otherwise not authorised people.

The Swiss Civil Code provides that forest and pasture are accessible freely for everyone, as long as there is no excessive usage. Except in special cases like the protection of young forest or biotopes it is not allowed to fence in forest areas. This also applies to private property. However, it is possible to make activities with excessive usage and possible potential to cause damage (e.g. events in the woods, access with cars) dependent on special authorisation. Similar regulations are in place for land which is not usable (e.g. stretches of water, rock, snow and ice), regardless of the land being unowned (i.e. being under the control of the canton and not able to be claimed as private property) or being in private hands.

It is further possible for the canton to restrict the freedom to roam to protect nature (e.g. the gathering of mushrooms, berries, wood, etc. in forests).

United States

Property rights within the United States include the right to exclude others. On public property, government agencies have the authority to restrict or limit this right to roam under the property clause of the constitution. Similarly, private property owners can restrict access to through or over their property.

While no jurisdiction in the United States has applied a true freedom-to-roam paradigm, many states have enacted recreational use statutes to encourage landowners to open their property to hiking, hunting, fishing, swimming and other recreational activities. These statutes shield landowners from liability in negligence actions should those using the land recreationally be injured by something on the land; without such statutes, those using the land for these purposes with permission would be invitees or licensees depending on whether or not they had paid for the privilege, and would thus be able to sue the landowner in the event of injury under most circumstances. However, no state applies a general permission to enter private lands of any kind for recreational purposes.

California's "California Coastal Act" provides a similar right for its beaches, and is successfully suing riparian property owners who try to use trespassing laws to restrict public access to the public portions of a beach. [23]

Florida's state constitution establishes a public trust of "sovereignty lands", including wet beaches "below mean high water lines ... for all the people," respecting a freedom to roam there, regardless of any private neighboring dry beach. Local ordinances typically limit this freedom strictly to roaming on foot, and prohibit driving motor vehicles or beaching boats. [24]

Criticism

In recent years population growth has increased pressure on some areas popular for hiking and increased mobility and affluence has made previously remote areas more accessible. There is some concern that without ecological education, some recreational users have limited understanding of the economic and natural systems they are exploring, though significant harm or damage is unusual, the main concerns being disturbance of sensitive species of wildlife (particularly by dogs), and litter.[25]

The 1992 Rio Convention on Biodiversity (subscribed to by 189 countries) expressed some caution about the potential effect of unlimited access, especially in tropical forests, where slash and burn practices undermine biodiversity. For this reason, broad public access rights are challenged in some countries' resulting Biodiversity Action Plan.

Critics from defenders of proprietorship sometimes assert that the All People's Right threatens the essence of ownership and the "management practices" of property owners, who may or may not have created and preserved environmentally important qualities [26] Private owners and their representatives have also argued that newly created access rights ought to lead to financial compensation for private landowners.

See also

Wikivoyage has a travel guide for Freedom to roam.

Notes

  1. ↑ "Constitution of Belarus" (in Russian). Government of Belarus. Archived from the original on July 3, 2008.
  2. ↑ "Constitution of Belarus, English Translation". Government of Belarus, National Legal Internet Portal of the Republic of Belarus. Archived from the original on September 28, 2008.
  3. ↑ "Belarus: Window of Opportunity (see Table 15, page 66)" (PDF). United Nations.
  4. ↑ "Belarus Tourist Information" (in Russian). Belarus Portal tut.by.
  5. ↑ http://www.belarus.net/costitut/constitution_e.htm#S E C T I O N II THE INDIVIDUAL, SOCIETY AND THE STATE
  6. ↑ "Forest Code of Belarus" (in Russian). Government of Belarus.
  7. ↑ http://www.dartmoor-npa.gov.uk/visiting/vi-enjoyingdartmoor/vi-countryside-access/vi-openaccess
  8. ↑ "Countryside and Rights of Way Act 2000: Fact Sheets". Department for Environment, Food and Rural Affairs. 2000-03-07. Retrieved 2006-12-09.
  9. ↑ (Norwegian) Archived February 13, 2006, at the Wayback Machine.
  10. ↑ "Everyman's right". www.ymparisto.fi. Retrieved 2014-10-19.
  11. ↑ "Allemansrätten på Åland" (PDF). The local government. Retrieved 2011-09-29.
  12. ↑ "Allemansrätten på Åland". The tourist organization of Åland. Retrieved 2015-04-16.
  13. ↑ "Outdoor Recreation Act". regjeringen.no. Retrieved 2011-09-29.
  14. ↑ "gårdsplass, hustomt, dyrket mark, engslått, kulturbeite og skogplantefelt og liknende områder hvor allmennhetens ferdsel vil være til utilbørlig fortrengsel for eier eller bruker. Udyrkede, mindre grunnstykker som ligger i dyrket mark eller engslått eller er gjerdet inn sammen med slikt område, regnes også som innmark. Det samme gjelder områder for industrielt eller annen særlig øyemed hvor allmennhetens ferdsel vil være til utilbørlig fortrengsel for eier, bruker eller andre."
  15. ↑ Regeringsformen. 2 kap, Grundläggande fri- och rättigheter §18, Regeringen (Swedish) "Alla skall ha tillgång till naturen enligt allemansrätten oberoende av vad som föreskrivits ovan."
  16. 1 2 3 Bertil Bengtsson (2004). Allemansrätten – Vad säger lagen? (PDF) (in Swedish). Naturvårdsverket. p. 7. ISBN 91-620-8161-6. Men inget sägs om vad den rätten närmare är för något. Inte heller annan lagstiftning ger klart besked om detta.
  17. ↑ Ebbesson, Jonas (2003):Miljörätt.ISBN 91-7678-526-2
  18. ↑ "Miljöbalk (1998:808) (MB)". Lagen.nu. Retrieved 2011-09-29.
  19. ↑ "Allemansrätten, Right of public access – a unique opportunity" (PDF). Naturvardsverket.se. Retrieved 2012-11-09.
  20. ↑ "Berrypickers, unite!". The Economist. ISSN 0013-0613. Retrieved 2016-05-21.
  21. 1 2 3 4 "Igaüheõigus". 2011-01-19.
  22. ↑ "Wegefreiheit im Wald und im Berggebiet" (PDF). AV-Rechts-Infotext 2004 (in German). Austrian Alpine Club.
  23. ↑ "Beach Access". Surfrider Foundation.
  24. ↑ "Florida Constitution". State of Florida. Article X, Section 11.
  25. ↑ "Protests fly over 'wild camping'". NewsInEnglish.no. 28 Jul 2015.
  26. ↑ Claimed among others by LRF - The Federation of Swedish Farmers (in Swedish on their web-site May 2011)

Further reading

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