4 - Public Access Arrangements in Other Countries
Background
In contrast to the largely statute-based access arrangements in New Zealand, a markedly different approach to public access is found overseas. An influential factor in considering access arrangements in other countries is that the rights and traditions embodied in either formal rules or social conventions reflect the society in which they exist.
In Europe (including Scandinavia, Scotland and England), the arrangements have formed in a society that has well-established expectations for access across private land and has experienced only gradual change in farming systems. While the principles of respect and responsible access are an integral part of society, the systems are not without pressures, such as increasing urbanisation with little public land available for outdoor recreation. To this end, some countries have chosen to codify in statute the common law that governs public access.
The Group stresses that access arrangements should be viewed in the context of their cultural and societal traditions. New Zealand is unique in that national parks and other public reserves account for approximately 30 percent of land, one of the highest proportions in the world. Customary access in Europe tends, in some cases, to align itself with legislation, whereas in New Zealand customary access of tangata whenua (and perhaps Pakeha) is not well reflected in statute.
Access Arrangements in Other Countries
There is little comprehensive and useful information and research on access arrangements in other jurisdictions. Comparisons between countries are also difficult because of different legal systems, different physical characteristics of the countryside and different cultures. This report does not consider legislation in Australia, the United States and Canada. These countries like New Zealand have a common law and statutory foundation. In addition, the federal/state/provincial government system means that access laws are likely to vary widely.
The following is a survey of predominately European arrangements, summarised from a research paper completed for England's House of Commons (2000).
France
Traditional rights of access are largely restricted to rights of way in the form of servitude de passage (right of passage) and droit de marche-pied (right to walk, along canals and canalised rivers). There are about 120,000 kilometres of footpaths in France (about 50,000 kilometres less than in the United Kingdom, although France is a larger country). Rights of public access, other than rights of way, are only available within national parks and nature reserves.
Germany
Betretungsrecht, the traditional right of public access, confers a public right of access to forests, open land and foreshores, and along footpaths and roads. The right does not give access to enclosed farmland, except on farm roads and tracks. This right has been given a modern statutory basis. It enables free access across another's land and the right to pick berries, flowers and mushrooms anywhere, provided that there is no damage done to the owner's property. Under federal legislation, the right extends to walking, running, sitting, camping, playing, cycling, horse riding and using wheelchairs in forests and, in some states, includes skiing and skating. This right applies to about one third of the former West Germany. Comparable information is not available for the former East Germany.
Switzerland
Switzerland also has a Betretungsrecht, mainly over uncultivated land, and there are also ancient rights of access to forests and woodlands. Access is restricted for periods when land is being cultivated.
Austria
There is a traditional right to roam and the Forstgesetz provides a legal right of access to forests, subject to conditions and restrictions. By contrast, in the Netherlands the main access rights are the public rights of way.
Scandinavia
Access arrangements in Scandinavia confer varying rights on the public for access. In Denmark, legislation provides for access to public forests and to all beaches. The Conservation of Nature Act (Denmark) 1968 provides access for walking and short visits to uncultivated and unfenced areas and roads in private forests.
Access to private land by the public for non-destructive recreation exists in Sweden through the concept of Allemansrätt ("Everyman's Right" or "The Right of Common Access"). This concept grew out of customary practices in the Middle Ages and is an unwritten law. It is a package of "ill-defined" rights, responsibilities and obligations. It allows free access across another's land, the right to stay overnight and the right to pick berries, flowers and mushrooms anywhere, provided that there is no damage done to the owner's property. It excludes access to private grounds, parks, croplands and gardens (the "Home Peace Zone"). The concept retains the support of landowners, although it faces challenges such as costs to landowners from increasing public use, a tendency for commercial businesses to capture the benefits but not the obligations of Allemansrätt, and disturbance from recreational activities such as snowmobiles and camping.
Allemannsretten, or the public right of access, is also part of Norway's cultural heritage. Norwegians have traditionally allowed the public to travel over, enjoy short stays on, or collect natural products for personal consumption on land and waters owned by others. The Outdoor Recreation Act 1957 sought to adapt traditional rights to modern circumstances due to the pressure these rights were coming under and to codify them in detail.
England and Wales
Access across certain rural land in England is based in custom (it is part of the "King's Highway") and in legislation since 1884. It is not an unfettered right.
In its 1997 manifesto, the British Labour Party promised increased access to the countryside. The first step was a consultation paper in 1998 on access to the countryside. Following consultation, a Bill was introduced in March 1999 "to give people greater access to the countryside" and was passed as the Countryside and Rights of Way Act (England) 2000.
The legislation confers a right of access (foot access only) to defined "access land" but not the "right to roam" over all land. "Access land" throughout England and Wales will be opened for access once a comprehensive mapping of these areas has been completed.
There is no compensation for any landowner resulting from the creation of a statutory right of public access over his or her land where it is defined as "access land". The Act does, however, remove landowners from owing any duty to any persons from risks resulting from the existence of natural features or from walls, fences or gates (except proper use of gates or stiles). Landowners may restrict access for any reason for up to 28 days per year without permission, with the opportunity to seek further restriction or exclusions on land access for management reasons.
In addition, the Act provides for a "country code" to cover the arrangements for land access. It establishes a National Countryside Access forum composed of representatives from landowners, local government and recreational groups to advise on the development of policy and procedures on access to the access land and rights of way.
Scotland
Rural Scotland is dominated by a small number of large estates (particularly in the Highlands) farmed by tenants. The Scottish Executive (Government) has been concerned about the adverse effects of absentee landowners, land owned by trusts and companies, and large estates being used exclusively as hunting and fishing estates. Exclusive ownership or land monopoly was inflating land values, frustrating the ability of local communities to purchase the land.
In response to these concerns, in 1997 the Scottish Executive began a wide-ranging and comprehensive review of its land legislation. The outcome was the Land Reform (Scotland) Bill introduced into the Scottish Parliament in November 2001 and assented on 23 January 2003.
One objective of the Land Reform (Scotland) Act 2003 is to promote "responsible access" to land, whereas, previously, rights and responsibilities regarding access involved a complex mix of legislation and common law. The Scottish "model" for access comprised three elements: changes to legislation, an outdoor access code and new responsibilities for local authorities.
The legislation provides for:
- a statutory right of "responsible access" to all land (including enclosed agricultural land, as well as open and hill ground) regardless of ownership;
- responsible access for informal recreation and passage purposes. It does not allow any motorised form of recreation. Camping is allowed where travel necessitates it (additional responsibilities apply) but the public cannot stay on land indefinitely;
- restrictions on access to buildings and their curtilages in the interests of privacy and safety, and to places on the grounds of health, safety or the national or public interest; and
- specific consideration to be given to farming practices.
A key component is a Scottish Countryside Access Code, which provides guidance on responsible behaviour, interprets the public right of access to the outdoors and advises people where to find information and how to obtain help if a problem occurs.
Local authorities have existing powers to provide and ensure access, including the ability to acquire land, remove obstructions, close paths and provide ranger services and facilities. The legislation assigns responsibility to local authorities to facilitate access and provide practical assistance where significant problems arise. The practical application of this is through the provision of information, local access forums, and access strategies and plans.
In general, the Scottish reforms address the fact that previously, access to land was neither secure nor encouraged, which limited people's confidence to utilise rights of access. In summary, the Scottish access reforms involve:
- a combination of legislation, a code of conduct and local government to achieve desired outcomes;
- a code providing a societal reference point or norm for "responsible access";
- a set of principles, definitions and conditions pertaining to the right of access; and
- an agency responsible for the provision of information and for dealing with conflicts when problems arise over access.
Conclusion
Traditional rights of access are a common component of the European experience. These rights are never unfettered, but may provide for access by area (forests, foreshore or defined paths) or exempt access (such as cultivated land). Where traditional rights of access have come under pressure from societal change, there have been varying attempts to codify these rights into statute to ensure that the privileges of enjoying the countryside are available to future generations. Tourism and commercial opportunities have increased the pressures on traditional "rights" through encouraging their use by people unaccustomed to local values and traditions.
New Zealand faces some of the same pressures on private rural land as its overseas counterparts, such as tourism and changes in land use and ownership. By understanding the social conventions that have moulded how our society thinks about access, New Zealand can respond appropriately to protect these conventions and prevent erosion of the ability of the public to enjoy the countryside, forests and coastal environment. Aside from the values outlined in Chapter 2, an important consideration in the access debate is property rights, discussed in the following chapter.
Contact for Enquiries
Mark Neeson
Manager, Land and Water Policy
Pastoral House
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PO Box 2526, Wellington
Phone: +64 894 0703
Fax: +64 4 894 0745
