Confusing!

[Pete Starr]

I've been trying to get my head around access issues & it's really confusing!

The landowner owns the banks and bed but not the water flowing through it. This means that to portage your boat you maybe trespassing - even if lining the boat on by walking in the river! Unless - the landowner has put an impassable fence across the river in which case you're permitted to portage as long as you don't cross the high water mark???!

Trespass is a civil offense and therefore you cannot be prosecuted but if you cause damage then it becomes a criminal offense and liable to prosecution.

Landowners can use reasonable force to remove people from their land but cannot threaten or abuse a trespasser (?!) - in fact, they have a duty of care to ensure that s trespasser is not put at risk on their property - presumably including fences across rivers that could be severe & dangerous hazards!

Even if you don't touch land you are not necessarily permitted as the Environment Agency own the water and can have you 'extracted'...

Meanwhile Rvrnd Caffyn has established a precedent for free access to all waterways in the magna-carter but, whilst enthusiastically quoted by water sports enthusiasts seems not to be accepted as a legal precedent...

It all seems a bit too complicated for the simple request to paddle gently over some water! But with a scant 1,500 miles of an estimated 42,000 miles of British Waterways granted undisputed public access the battle is worth fighting!!!!

Rant over!


Sent from my iPhone using Tapatalk

[MaxiP]

I am far from an expert on access but you seemed to have picked up on most of the main points there ! I would add that some rivers have a voluntary access agreement - this is normally between the landowner (or angling club) and a recognised body (e.g. BCU) or occasionally with a local club. One of the disadvantages to a voluntary agreement is that you forgo any rights deemed suitable through Caffyn's work or any other agreement so some paddlers choose to ignore them.

The whole issue of access is a contentious issue with differing rules in Scotland / England and varying levels of support from local MPs, regional or national bodies and unfortunately, no single version of the 'truth'.

[Pete Starr]

I am far from an expert on access but you seemed to have picked up on most of the main points there !...The whole issue of access is a contentious issue with differing rules in Scotland / England and varying levels of support from local MPs, regional or national bodies and unfortunately, no single version of the 'truth'.

Thank you MaxiP, I know it was a bit of a rant & a moan


Sent from my iPhone using Tapatalk

[Adrian Cooper]

The landowner owns the banks and bed

The landowner does not necessarily own the bed. The land registry are reviewing this general statement and will only register land where it can be shown that ownership exists.

the landowner has put an impassable fence across the river in which case you're permitted to portage as long as you don't cross the high water mark

If an obstruction has been put in place you should be allowed reasonable access across the land to avoid it. The high water mark is irrelevant

the Environment Agency own the water

The water is not owned by anyone and certainly not the EA.

But with a scant 1,500 miles of an estimated 42,000 miles of British Waterways granted undisputed public access

British Waterways owned the canal network and offer licences to use these. The EA controlled certain regulated rivers. There are some other rivers where there are 'navigation rights' but these relate to changing the river in order to permit the passage of larger craft than would otherwise be able, not passage by vessels generally.

some rivers have a voluntary access agreement - this is normally between the landowner (or angling club) and a recognised body (e.g. BCU) or occasionally with a local club. One of the disadvantages to a voluntary agreement is that you forgo any rights deemed suitable through Caffyn's work or any other agreement so some paddlers choose to ignore them

The essence of an agreement is that it exists between two parties each of whom 'agree' to be bound by its conditions. The BCU are not in a position to make such an agreement on behalf of the paddling community but they may offer advice to other interested parties. The WCA have decided to withdraw from any previous agreements.

[Crow]

Quite simple really.

[Chris_B]

The most useful comparison is with a public right of way over land, like a footpath. The landowner still owns the land, but the public have a right to travel along the footpath. A public right of navigation (PRN) is the same; if you accept the research done by Rev. Caffyn then don't worry about who owns the land or the water. If I'm on a PRN I consider it reasonable for me to bypass any artificial obstructions such as fences and weirs or temporary obstruction such as trees, like I could on a footpath (permanent natural obstructions would mean it's not physically navigable so it won't be a PRN). The EA don't own the water, but they have the right to control abstraction.

[Pete Starr]

If an obstruction has been put in place you should be allowed reasonable access across the land to avoid it. The high water mark is irrelevant

I got this from an EA publication hosted on Gov.co.uk

The water is not owned by anyone and certainly not the EA.

Interesting. I'm not sure where I got this impression - somewhere on here I think or in Access for All... Of all the points here this seems almost moot

British Waterways owned the canal network and offer licences to use these.

Aplogies - I intended 'British waterways' generally, not the organisation of the same name!

Thanks for taking the trouble to reply so thoroughly, but doesn't this just illustrate my post title? - there isn't even consensus amongst the representatives of the different sides of the debate!

[Chris_B]

there isn't even consensus amongst the representatives of the different sides of the debate

Indeed. Even among paddlers who are aware of and understand the Rev Caffyn's work, you'll find two viewpoints: "We believe rivers are PRNs until somebody proves they're not, and will paddle them (with due respects for the rights of others), and we don't need any clarification of the law" and "We believe it's a PRN, but others don't, and we get aggravation when we paddle, so we want a law (like Scotland has) that confirms the right". Both views seem reasonable to me, but I can see that adventurous individuals might prefer the first and people responsible for groups of youngsters would prefer the second.

[Pete Starr]

...paddlers who are aware of and understand the Rev Caffyn's work...

And even then it's problematic... As I understand it the good Reverends work is still a dissertation that proposes ancient rights that are far from being universally accepted as legally binding. I rather fear that, at the end of the day, you only find out if you're 'right' when you win or lose a civil action in court. Not very civilised in my opinion!

Thanks for your reply!

[OLD MAN]

Access has been discussed here for as long (and longer) than I've been here i.e. 6 years.
It gets thrown from pillar to post, and it seems to me from my brief skimming across the surface of what's been written (no offence to anyone here) that we are no further forward today.
My own view is that if you want to canoe on a body of water, then common sense must prevail. This is to say that if you need to cross some property to get to said body of water, and this is likely to cause offence or trespass, than don't do it. There will be another body of water somewhere not far away that you can canoe on without anyone taking offence, so use that instead.
Ask yourself if the land you want to cross belonged to you, would you want people traipsing across it ? If the answer is no, why would you do it on somebody else's land?
Whatever you do, and whatever agreements are in place to allow or stop you canoeing, you're always going to upset someone. Get used to it, it's the nature of the beast.

As for water belonging to someone, what a load of tosh. Water comes from the sky and belongs to us all.

Just go canoeing and try not to tread on anyones toes.

[Crow]

Access has been discussed here for as long (and longer) than I've been here i.e. 6 years.
It gets thrown from pillar to post, and it seems to me from my brief skimming across the surface of what's been written (no offence to anyone here) that we are no further forward today.
My own view is that if you want to canoe on a body of water, then common sense must prevail. This is to say that if you need to cross some property to get to said body of water, and this is likely to cause offence or trespass, than don't do it. There will be another body of water somewhere not far away that you can canoe on without anyone taking offence, so use that instead.
Ask yourself if the land you want to cross belonged to you, would you want people traipsing across it ? If the answer is no, why would you do it on somebody else's land?
Whatever you do, and whatever agreements are in place to allow or stop you canoeing, you're always going to upset someone. Get used to it, it's the nature of the beast.

As for water belonging to someone, what a load of tosh. Water comes from the sky and belongs to us all.

Just go canoeing and try not to tread on anyones toes.

I agree with all this, Paul.

But I would point out that water from the sky no longer belongs to us all. It currently belongs to a Consortium consisting of Canada Pension Plan Investment Board, Colonial First State Global Asset Management, IFM Investors and 3i, Cheung Kong Infrastructure Holdings, Morgan Stanley/M&G Investments, Hastings Diversified Utilities Fund/Utilities Trust of Australia, and others.

Also, if water comes from the sky and belongs to us all, doesn't land come from the earth and belong to us all as well?

Just being provocative, but worth thinking about.

[Pete Starr]

Sorry if it's a tired subject - as I've said before, all my prior kayaking experience was on the sea and you tend not to get the same access hassles there!
It does seem like a minefield and one hopes that common courtesy and mutual respect should prevail. For the record, in case it wasn't clear, I am not, have not and will not advocate access to water where there is no right-of-way to it!


Sent from my iPhone using Tapatalk

[Crow]

Sorry if it's a tired subject - as I've said before, all my prior kayaking experience was on the sea and you tend not to get the same access hassles there!
It does seem like a minefield and one hopes that common courtesy and mutual respect should prevail. For the record, in case it wasn't clear, I am not, have not and will not advocate access to water where there is no public right-of-way to it!


Sent from my iPhone using Tapatalk

Some people can't be bothered with the subject, even though it's directly relevant to them. Personally, I find it interesting, even though I live in a more enlightened place.

Indeed. Even among paddlers who are aware of and understand the Rev Caffyn's work, you'll find two viewpoints: "We believe rivers are PRNs until somebody proves they're not, and will paddle them (with due respects for the rights of others), and we don't need any clarification of the law" and "We believe it's a PRN, but others don't, and we get aggravation when we paddle, so we want a law (like Scotland has) that confirms the right". Both views seem reasonable to me, but I can see that adventurous individuals might prefer the first and people responsible for groups of youngsters would prefer the second.

Well, I regard myself as fairly adventurous, but I prefer the second myself. The Magna Carta isn't really explicit enough for my liking, it's a bit like if Scottish access laws were based on a phrase in the Declaration of Arbroath. I'd rather have a modern law, and that could have the benefit of covering land access as well. And lakes!

It's strange that none of the access campaigning seems interested in access to lakes, which is very restricted still in England (but not of course iver the border).

[Pete Starr]

Interesting Crow, I'll have do pop up north to feel more enlightened at some point.

I wonder what the positive way forward is - how to relieve the uncomfortable stale-mate without further erosion of fragile relations ...
Ho hum it's a
co-nun-drum!


Sent from my iPhone using Tapatalk

[Pam Bell]

There IS a simple solution, we just have to convince the respective governments of Wales and England that they need to act. A petition is will be delivered to the National Assembly for Wales on 1st November to 'Establish Statutory Public Rights of Access to Land and Water for Recreational and Other Purposes'.
You can sign the petition HERE.

[Chris_B]

I am disappointed that more people haven't signed that; it's the best worded petition on this topic I've seen. I signed it the day it was launched, and I encourage anyone reading this to do so, and ask others as well.

[cloudman]

The situation regarding access may not have changed legally but on the river the attitude does seem to have mellowed, there have been very few reports of problems this year, the main one being in Llangollen and that was aimed more at the rafters than ourselves. I doubt the situation will ever be legally resolved as the politicians don't seem to have the motivation to tackle it and with all the Brexit problems it is bound to be shelved for the next few years. Our best approach is to just keep paddling in a responsible way respecting other river users.

Our situation is always compared to Scotland but there is a very important difference, open access was not granted in Scotland it was just confirmed and a set of rules was drawn up to regulate it. It was found that there was never any trespass laws in Scotland and when this was put to the landowners they had a choice of a free for all or the regulated access that was agreed. The legal situation in England & Wales is far more complicated so would require considerable time and effort to sort out, is there the political will to undertake the task?

[saarlak]

This wasn't a new subject when I started paddling 31 years ago. As far as I'm aware we don't have a right of access to any more water than we did back then.

It's a grey area of law that needs clarity, but no landowner or angling group will bring a civil case because they think they have nothing to gain and can only lose their perceived restrictions.

I never thought the Caffyn arguement made any difference, even if it was confirmed in a court case that we're unlikely to get, iirc the PRN is written into passages about free passage for merchants, I can see a pretty solid arguement that it doesn't cover any WW rivers, so it's a quite restricted right of access. It's not old law we need, it's new law.

Which brings us to the other option, a right to roam for rivers, but there's no political will for that and paddlers as a group aren't a big enough voting block to create a political will like the ramblers did.

Personally, I'm a quiet paddler who's boat and clothing are earth toned, fellow paddlers have trouble spotting me never mind angry landowners. I live in an area with a local access agreement that is reasonable enough that I generally stick to it even though I'm not a BCU member or a member of the clubs who signed up to it.

My only real local gripe is Kielder, I used to work there so paddled it regularly, but as a private individual, the charges and restrictions mean it's not worth the effort. That's Northumbria Water rather than anglers or private landowners.

As for the enlightened north, I've never had any problems with fishermen or landowners in England, but I used to get regular abuse on the Tweed from the ghillie at Boleside (a well known idiot), and the final day of a long trip that ended on the Tay was filled with verbal abuse and getting cast at by idiots who didn't understand that deliberately casting a sharp hook at someone is assault. You might have the right to be there, but it doesn't mean you won't get abuse.

Something which might be of interest, if only from an age of the dispute point of view is the Crack Trespass. Something like this done regularly might work, at least to draw attention. It would be easier with the support of the sport's governing body, but they don't seem to have any will to get their members the one thing they want.

[Pam Bell]

The dispute is quite new. Up to about the 1950's there are numerous records of people sharing the rivers for all types of activity, both for commerce/sustenance and recreation. CRACK was effectively stamped out by BCU.

[Crow]

Our situation is always compared to Scotland but there is a very important difference, open access was not granted in Scotland it was just confirmed and a set of rules was drawn up to regulate it. It was found that there was never any trespass laws in Scotland and when this was put to the landowners they had a choice of a free for all or the regulated access that was agreed. The legal situation in England & Wales is far more complicated so would require considerable time and effort to sort out, is there the political will to undertake the task?

That sounds a bit pessimistic. I've heard it before that the English situation is more complicated than Scotland or Wales and it would be too difficult, but I don't agree. Where there's a will there's a way. Mind you, in the current political climate I wouldn't expect anything positive for some time. Still, I believe sense will prevail in the end.

I am disappointed that more people haven't signed that; it's the best worded petition on this topic I've seen. I signed it the day it was launched, and I encourage anyone reading this to do so, and ask others as well.

I agree, people should support this.

There IS a simple solution, we just have to convince the respective governments of Wales and England that they need to act. A petition is will be delivered to the National Assembly for Wales on 1st November to 'Establish Statutory Public Rights of Access to Land and Water for Recreational and Other Purposes'.
You can sign the petition HERE.

Signed it already, and would encourage everyone on here to sign it.

My only real local gripe is Kielder, I used to work there so paddled it regularly, but as a private individual, the charges and restrictions mean it's not worth the effort. That's Northumbria Water rather than anglers or private landowners.

None of the campaigns (in England) seem to cover lakes, which I find a bit weird. I think the Welsh campaign does though, which is encouraging?

As for the enlightened north, I've never had any problems with fishermen or landowners in England, but I used to get regular abuse on the Tweed from the ghillie at Boleside (a well known idiot), and the final day of a long trip that ended on the Tay was filled with verbal abuse and getting cast at by idiots who didn't understand that deliberately casting a sharp hook at someone is assault. You might have the right to be there, but it doesn't mean you won't get abuse.

Everyone has different experiences. I've had problems with some anglers and landowners in England (was once threatened with being shot and beaten up - not sure in which order!), but I've met plenty of others who were fine. Of course you get idiots on both sides of the border, the difference is the law is very clearly in our favour up here and most people know it.

[Pam Bell]

None of the campaigns (in England) seem to cover lakes, which I find a bit weird. I think the Welsh campaign does though, which is encouraging?

The 'Waters of Wales' campaign is for access to land and water, thus ensuring that the needs of water and waterside users are addressed, along with those of the wider public.

[Pete Starr]

I've signed - although embarrassingly managed to misspell 'Leeds' DOH! 8-(|).

Thanks Pam & others for drawing attention to it.


Sent from my iPhone using Tapatalk

[KeithD]

...... iirc the PRN is written into passages about free passage for merchants, ...

I don't see any basis for this. The 1472 Act for Wears and Fishgarths reconfirms (and clarifies) intent of Magna Carta;


"Whereas, by the laudable Statute of Magna Carta, among other Things, it is contained That all Kedels by Thamise and Medway, and throughout the Realm of England, should be taken away, saving by the Sea-banks, which Statute was made for the great Wealth of all this Land, in avoiding the straitness (obstruction) of all Rivers, so that Ships and Boats might have in them their large and free Passage..."


(See text of the Act)

There has never been any statute or court case which has established any limitation on the public right of navigation or extinguished this general right on any permanently flowing river where it is practical to navigate in any suitable craft. If there was, those that oppose navigation could identify it and use it to justify an injunction to prevent navigation. This has never been done - ever! Those that oppose navigation don't produce any "evidence" to support their views - they just repeatedly assert their conclusion whilst the evidence to support public navigation rights is very plentiful and readily available - http://www.riveraccessforall.co.uk/d...g_evidence.pdf

There is so much of it that it is very understandable that many will get bored and distracted before they get to the end of it but it is there for all (that want to) to see.

At the end of the day we have a right to responsible navigation of rivers. Others have their rights to rivers too and we all have a responsibility to share in a civilised way and in a way that protects the environment etc. There is much less conflict than there has been in the past and calm, considerate and responsible use of rivers in appropriate conditions will continue this trend.

[saarlak]

Everyone has different experiences. I've had problems with some anglers and landowners in England (was once threatened with being shot and beaten up - not sure in which order!), but I've met plenty of others who were fine. Of course you get idiots on both sides of the border, the difference is the law is very clearly in our favour up here and most people know it.

Very true, like I said, the guy at Boleside is a well known idiot, he has serious anger management issues, while every other angler I've met on the Tweed has been pretty friendly. The incident on the Tay was a weekend, some abuse was from someone who was paying more for a day's fishing than the price of my boat, which makes them an idiot, the rest was from a fishing competition, 50 anglers on 400 yards of river, when there are more hooks in the water than fish there must be an idiot or two nearby. Idiots are everywhere, and there's no legislation that can stop them.

I also help my situation in England because I don't really think of river tripping as a summer sport, there's rarely enough water, and when there is the water is generally too murky for fishing so there's no conflict.

In all honesty, the amount of abuse I've had while paddling is pretty minimal, I've had far more abuse from cycling on the roads.

Pam, what were the BCU's reasons for stamping out CRACK, I was paddling back then but didn't really know anything about it being at the other end of the country and a little young for militant action.

Keith, the PRN stuff is open to interpretation, as the magna carta reference is to the free passage of merchants, I can see an argument that it's about allowing the free passage of shipping for the movement of goods, the authors of the Magna Carta and the 1472 act wouldn't have considered a grade 3 river to be navigable so would they have considered them included in the act? Besides that there are plenty of weirs on british rivers that have been there for centuries, they've never been removed, so the act has obviously passed out of use or has been interpreted to only cover reasonably navigable rivers. Cafynn's work is a possible line of argument in court, but that requires a court case, at which point I think the more modern arguments for responsible access for the public good that were the basis for the right to roam are far more powerful.

I'm fully in support of a watery right to roam, and to some extent I'm playing devils advocate here, I don't have an alternative solution, but the methods I've seen used over the last 30 years haven't worked and I don't see anything new and different in the present methods.

[Pete Starr]

...the guy at Boleside is a well known idiot, he has serious anger management issues.

Leaving us with angler management issues :/

While I was reading around the stuff that Pam linked to the petition I read about land and water ownership and one article there seemed very clear that regardless of ownership of it doesn't confer the right to paddle in it over private land. It all comes down to variable interpretation of ancient rights in law.

If parliament has other priorities / insufficient motivation to establish a new, unambiguous legal position then probably the best thing w can do is ensure that, in the event of any disputes with land owners or other users, our own behaviour is always exemplary. This will look upon us more favourably in the unlikely event of any ensuing civil action and increase chances of winning the case. In turn, this would help establish legal precedent.

The other thing could be to define / brand different types of canoeing that might be easier to 'sell' the idea - whilst maybe a bit divisive there is a big difference on the impact of solo / small group canoe touring and large group play boating on other water users. Perhaps not helpful - just a thought!

[MultiMark]

I don't believe there's anything to gain at the detailed level of these legal arguments. They're too arcane to have any relevance today.

I believe this is about vested interests, geography and population density. Scotland is a long way from the most highly populated area on our island, namely the South East. Those who might make a comparison between the FREEDOM! (sorry couldn't resist that) in Scotland and the constraints in England can't nip out to paddle the Spey every weekend.

Our best chance is if the Welsh debate comes down in favour of the sorts of land access enjoyed in Scotland. This will bring awareness of the restrictive nature of English law to a much wider audience and perhaps build more momentum for change.

As for vested interests, anglers provide additional direct income to both large estates, who provide expensive days out for salmon and trout fishing, and farmers who charge anglers clubs for access to land and maintenance of pegs. As long as they pay they will be supported by the landowners. And, let's not forget that angling is still the largest participation sport.

Here's hoping the Welsh Assemble gets it right.

[Pam Bell]

Hi all - thanks for your support for the petition :-)
Just to pick up a couple of comments/questions that have cropped up:

- CRACK was stamped on because it offended people with influence, who were able to create hassle for Sports Council, who in turn were able to bring pressure to bear on BCU. Much later on, WCA (as was) was given hassle for proactive campaigning as opposed to negotiation of agreements, and had to go way out on a limb to mount the original campaign to the Welsh Assembly.

- The Welsh Assembly nearly got it right the first time round, but some politicians lost their nerve. The petitions committee of the Welsh Assembly's report on a short inquiry into the original petition in 2003 stated: "We agree with a number of witnesses that the rivers of Wales are a natural “gift” that should be within everyone’s right to enjoy. We therefore believe that all people should have the right of access to inland water in Wales. Access should not be based on the vagaries of permissions bestowed or ability to pay but on the fundamentals of equity and social justice..." The committee's primary recommendation was: "A new statute would ensure everyone has access to inland water in Wales,and on an equal footing; it would provide clarity, certainty and permanence and we believe that the Land Reform (Scotland) Act 2003 provides a basis from which a unique Welsh model may be developed. We recommend that a further more wide ranging inquiry be carried out with a view to bringing forward legislation in this area, which would give all stakeholders the opportunity to submit evidence."
For anyone not familiar with the early stages of the campaign, there followed a public enquiry; a lot of intense lobbying against access, a costly scheme for government-facilitated attempts to negotiate access (which actually resulted in demonstrable reductions in real terms); and a green paper consultation which was stalled several and ended just before the last election, with the findings "...left on the table to inform the next government"!

- The present petition is to remind the Welsh Assembly that they have 'unfinished business'. The campaign group 'Waters of Wales - WoW' comprises boaters, swimmers, birdwatchers, photographers and anglers - anyone who has an interest in recreation in, on or beside water. WoW has been joined in the campaign by the Welsh Fell Runners Association - WFRA, and the petition is for land reform to meet the land and water access needs of ALL users. It is not one group against another, but the public against the, albeit vocal, minority who seek exclusive use of the countryside - that changes the numbers game considerably!

[Pete Starr]

Thanks Pam


Sent from my iPhone using Tapatalk

[KeithD]

Keith, the PRN stuff is open to interpretation, as the magna carta reference is to the free passage of merchants,

No it isn't! Clause 33 says " All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast." The inclusion of protection of public navigation rights in Magna Carta may have been motivated by merchants but no right of passage over land or water has ever been interpreted by any court as applying only for a particular purpose of use. On the contrary courts have established the opposite. In the case of Yorkshire Derwent Trust Ltd and another v Brotherton and Others Lord Justice Balcombe stated that he considered that there was also a public right of navigation for pleasure boats.

The reasons he gave included the fact that at common law rivers are either publicly navigable or not navigable at all; that on land the classification of a public right of way by one type of user has always implied use by a less burdensome user, eg pedestrians may use a carriageway; dedication may be made for a less intense use but it is not possible to dedicate for use by a section of the public.

His final reason was that the fact that some vessels paid tolls did not preclude free use by recreational craft since pedestrians were allowed to use turnpike roads without the payment of tolls.

Here is Magna Carta - http://www.bl.uk/magna-carta/article...translation#33 Where is the implication that PRN applies only to merchants? You are being influenced by the oft repeated claims of those that oppose navigation but without any evidence to support their claims.

Besides that there are plenty of weirs on british rivers that have been there for centuries, they've never been removed, so the act has obviously passed out of use or has been interpreted to only cover reasonably navigable rivers.

I don't disagree. Clause 33 of Magna Carta has even been repealed but this only extinguishes this particular protection of navigation rights not the right itself. PRN can only be extinguished by an Act of Parliament or a delegated authority. If it had happened those that oppose navigation should be able to say when and how. They can't!

[cloudman]

That sounds a bit pessimistic. I've heard it before that the English situation is more complicated than Scotland or Wales and it would be too difficult, but I don't agree. Where there's a will there's a way. Mind you, in the current political climate I wouldn't expect anything positive for some time. Still, I believe sense will prevail in the end.

Sorry to sound pessimistic, I was just being realistic in the current political climate. One of the reasons rivers were left out of the CROW Act (no pun intended) was due to the complicated nature of river access, with all the problems facing the country at this time I can see no chance of Parliamentary time being given to sort access to rivers. Also to an outsider there are currently few signs of a major problem, anglers are starting to accept that we are not out to destroy their sport, hence the reduction in conflicts. It must be sorted eventually but to sort the Brexit problems will take at least 10 years so short term I can't see any progress in England, Wales is part way there so hopefully will set a model for England to follow later.

[saarlak]

Sorry Keith, I'm guessing I must be rememebering the merchant stuff from the CRoW act and I'm mixing up my access campaigns (otherwise I can't think why I'd know about the Magna Carta including comments on the free passage of merchants), I'd blame old age but my memory has always been a confused mess of random, rarely connected trivia, sorry about that.

Unfortunately I still don't think there's a clear case for preexisting common law access to all rivers, there may be a case, but I don't think it's as clear as the hype around Cafynn's work suggests. Without legal confirmation, it remains Cafynn's interpretation, when what we need is clear, new legislation like CRoW but wetter.

A judge stating there's a common law right of access to navigable rivers, just makes me wonder what a navigable river is. Despite the fact Low Force on the Tees has been paddled for years, I'd struggle to call it navigable.

I fail to see Cafynn's work moving things forward, it's just part of the noise around the need for new legislation. I think the "You supported voluntary agreements, here's how many new ones have been agreed. You acknowledged the problem, your solution hasn't worked, can we have a new solution please?" argument is much stronger.

Even if Cafynn's work was as clear cut and powerful as is often suggested, I'm not sure forcing free access on landowners and angling groups in that way is necessarily the best way of doing things. I wonder if it's a pillar in the structure supporting the access case or a brick in the wall between paddlers and other interests. The debate has been too polarised for too long, we need the moderate voices on both sides to find a solution.

Pam, thanks for the info, sounds pretty typical. Good to hear WoW seems to be on the right track.

I'm lucky, I view this as a disinterested party, access round here is pretty good. I find it a little strange that the best salmon river in England and Wales is also one of the best open canoeing rivers, but the biggest problem is the local water company's safety policy.

[KeithD]

Unfortunately I still don't think there's a clear case for preexisting common law access to all rivers, there may be a case, but I don't think it's as clear as the hype around Cafynn's work suggests.

As this is about the civil law the standard of proof that applies is "on the balance of available evidence". The evidence for the existence of public navigation rights is available here http://www.riveraccessforall.co.uk/d...g_evidence.pdf. That needs to be weighed against the evidence against. Can you suggest any that causes your reservations - not the fact that others assert a different conclusion but the actual evidence that the conclusion is based on. Remember the existence of riparian rights can not be an issue as it is an accepted principle of English (and Welsh) Law that private rights are always subservient to public rights.

I'm not sure forcing free access on landowners and angling groups in that way is necessarily the best way of doing things.

"Forcing" free access on landowners and angling groups is the wrong way of looking at it. Canoeists and other navigators do have rights but so do others. We all also have responsibilities for reasonable accommodation of others and a collective responsibility for protecting the environment etc. Of course there is room for civilised accommodations and dialogue but not on the basis that canoeists and other river users have no rights and can't have any access without the permission of landowners and anglers who can exercise total control.

[saarlak]

As this is about the civil law the standard of proof that applies is "on the balance of available evidence".

I think on some rivers there's clear evidence of PRN, rivers that have a clear history of being used, and those laws are clear, but I haven't been able to find a legal definition of what a navigation is, and the definitions I have found don't describe the majority of rivers I paddle on. On rivers with rapids, where it's only in more recent times that paddlers have had the equipment to make them practical runs, where you can get down them but paddling back up isn't an option and there is a history of conflict over access (you can't make a public right of way if since day one a land owner has made it clear you were trespassing, and your historical evidence of access is a history of disputed trespass), in those cases I see the PRN theory as far weaker. Is a 20 foot waterfall really a navigation just because a paddler has been down it? If a fall has been done only once and the kayaker injured themselves doing it, is that a navigation?

We have a situation where the Welsh Assembly have agreed in principle that there should be access similar to the rights on land (not sure if the British Government have said the same), they have said they would try it with voluntary agreements to see if compromises could be reached for the benefit of all, and there is now clear evidence that those at the extremes of the argument are blocking any compromise, the "this isn't working, can we have a new solution, a right to roam on water" argument is so much stronger, and it gains us access to all water not just that with a historical right of navigation.

If we go with PRN and it's just for navigations, that implies that land owners have the right to restrict access where there is no navigation. Most of the rivers in my area where people paddle, I suspect, would fall outside of the definition of a navigation, we'd be relying on the years of past cooperation for access, we might well keep the access we have because round here we get on pretty well with the fishermen and the Tyne Tour has economic benefits for the local area, but we would have no rights in law. If one land owner decided to take a hard line stance the largest mass participation paddlesport event it Europe would be over, as would any chance to run that section, and they'd be on quite strong legal footing doing it.

If we create legislation that says, you have access to all water but there is a responsibility to protect the environment, with defined minimum water levels for passing over spawning grounds or restricted periods to protect nesting sites for birds or even a maximum group number and number of groups from one organisation or club during fishing season (as a few of examples), it would be seen as reasonable, we would get the majority of anglers on board, the majority would drown out the voices of the extremists and while we'd still bump into folks like the ghillie at Boleside on the Tweed, they wouldn't have a leg to stand on and wouldn't even have the support of their fellow anglers. If we go down a route that says it's a historical right, there are no legal grounds to make any restrictions, those extremists will find it easier to gain support for their ideology amongst the moderates and the rivers will be filled with antagonism and disputes.

[KeithD]

I think on some rivers there's clear evidence of PRN, rivers that have a clear history of being used, and those laws are clear, but I haven't been able to find a legal definition of what a navigation is, and the definitions I have found don't describe the majority of rivers I paddle on. On rivers with rapids, where it's only in more recent times that paddlers have had the equipment to make them practical runs, where you can get down them but paddling back up isn't an option ........

The House of Lords considered these issues when determining the situation on the Spey. Although the case was heard under Scottish Law, the Law Lords considered the law elsewhere. Lord Wilberforce said -

“I have referred to these cases drawn from differing systems of law to support the existence of a rule, which is really one of the common law of nations, resting ultimately on facts and needs not confined to any one place or time, that the use of river according to its natural quality and capacity, for downstream floating is recognised by law, and to support the use of broad and liberal principle for the statement and application of the rule.” (My comments "The common law of nations ..... not confined to any one place and time" would include England and Wales now. Downstream only floating is clearly included. The history of use didn't even have to include any sort of vessel - floating logs was enough)

He also said -

“Rivers, with a few exceptions have always been there inviting use by man and man since long before history has had the means and occasion to use them. The interaction between natural and visible capacity for use and human exploitation thus produces by inevitable process a segregation between rivers of public use and other rivers and streams.” (My comments - I interpret this as meaning if it has the capacity to be used it has the right to be used.)

In the same case Lord Fraser said -

“Until the right of way (on land) is constituted along a definite route, it does not exist at all, and even after it has been constituted there may not be any visible indication of its existence. But a river exists as a physical feature plainly marking the route of any right of navigation and the purpose of use by the public is not in my opinion to constitute the right but to prove that the river is navigable. The theoretical basis of the right is that the Crown has not, and could not have, alienated the right to use the river for navigation but has retained it in trust for the public.” (My comments - this suggests that a history of navigation by any vessel, including canoes, isn't necessary to create a PRN but simply demonstrates that the river is navigable since all navigable rivers have a PRN where it is practical.)

The final judgement included “... in my opinion, the public right of navigation which has been established would extend to permit any operation which could reasonably be described as navigation by any vessel that could reasonably be described as a boat, as the word has hitherto been understood.”

You can understand why opposing vested interests don't want a court case.

I agree that a clear modern restatement of the law as in Scotland would be an ideal solution but with the many pressing priorities for government etc I don't see it happening any time soon so in the meantime we are left with the rights we have always had and sensible, responsible, civilised co-operation between the various user groups.

[Adrian Cooper]

There is a bit of an eye opener on the Dordogne River inFrance. At Argentat they have recreateda barge which was used in times gone by to transport goods downstream. The barge or ‘gabarre’ was built up-river,loaded and taken downstream. These journeyswere quite treacherous since they were made when the river was high enough tofloat the boat over the ‘malpasses’ or rapids. They were taken downstream to places like Bordeaux and Bergerac, theload sold and the boat also sold for firewood. The crew would then take a couple of weeks to walk back upstream totheir home town. This was how the riverwas used in ‘olden times’ and exactly how I can see upland rivers having beenused in the UK. Back then the roads wereeither very poor or non-existent but the cost of building carts for the goodsand maintaining horse or cattle for towing might well have rendered this modeof transport uneconomic.

We must try to avoid using our own perceptions of what ispractical these days when considering how trade was carried on in history.

[Pete Starr]

Adrian, interesting history but how do you see this helping to contribute to contemporary access debate? Are you, in effect, suggesting that ancient rights are rendered irrelevant through provision of more convenient means of transportation?


Sent from my iPhone using Tapatalk

[Adrian Cooper]

I'm not sure how you arrived at that understanding from what I wrote?

Rivers have been used since pre-history as transport routes partly because of the lack of good established over-ground routes. I was using the French example to demonstrate how this might be the case even when there are rapids and the flow so strong that 'back upstream' might have been either difficult or impossible. Just as aside, flash locks on the Thames were used until relatively recently to get both up and down weirs.

The contribution to the debate is the affirmation of the use of rivers since 'time immemorial' as a public facility which is the initial thrust of the Caffyn dissertation. This use and right has never been extinguished which is why you will find no laws prohibiting river travel.

Have you noticed how the vast majority of laws are about prohibition and restriction since you don't need a law confirming that something is acceptable.

[ttxela]

This is an interesting read!

We've had our SOT's on the Gt Ouse for a few years now and keep them at the local Marina. We have BCU membership and accompanying cards. We've spent many happy weekends paddling up and down. Anglers mostly say hello, motor boat owners wave (and occasionally infuriate the wife by remarking on her electric outboard). Mostly the banks are farmland and we get out wherever we please for a brew up and picnic, sometimes a farmer will appear and we wave and say hello.

Never been asked to show the card by anyone, never been challenged by anyone.

I guess we are lucky in that respect where we are?

[KeithD]

Are you, in effect, suggesting that ancient rights are rendered irrelevant through provision of more convenient means of transportation?

Clearly not what he was suggesting but this might be the effect, perhaps, for those concerned only about the most convenient means of transportation. But the rights still remain (they can only be amended or abolished by specific Act of Parliament or directly delegated authority) so for those of us with other concerns they are far from irrelevant. The right of freedom of speech may be irrelevant ......... unless you want to say something!

[Pete Starr]

Adrian - sorry, wasn't being obtuse, misunderstood!

KeithD - equally clearly that wasn't clear to me!

It's a hard topic to grasp for the uninitiated - I'll try harder to understand going forwards


Sent from my iPhone using Tapatalk

[cloudman]

To imagine how the rivers would have been used in ancient times you only need to look at the under developed countries around the world. Before the road network was developed much of the country was heavily wooded so travel would have been very restricted, travel on even the smallest rivers would have been much easier as show today by native peoples living in the rain forests. Boats would have been man hauled up river and possibly lined down if necessary, we have a dugout canoe in our local museum found locally despite our only local river being quite small and shallow, they would not have been able to paddle either up or down in a log boat so it must have been hauled.

[Grizzle]

Weirs and Garths.....

http://www.bbc.co.uk/news/uk-england-37779585

Seems that someone else wants to turn the clock back / re-establish the rightness of the clock..

[Adrian Cooper]

This is an interesting read!

We've had our SOT's on the Gt Ouse for a few years now and keep them at the local Marina. We have BCU membership and accompanying cards. We've spent many happy weekends paddling up and down. Anglers mostly say hello, motor boat owners wave (and occasionally infuriate the wife by remarking on her electric outboard). Mostly the banks are farmland and we get out wherever we please for a brew up and picnic, sometimes a farmer will appear and we wave and say hello.

Never been asked to show the card by anyone, never been challenged by anyone.

I guess we are lucky in that respect where we are?

The Great Ouse is a public navigation, i.e. altered to permit large craft by the installation of 'river architecture', from Bedford to the Wash.

[dougdew99]

Change will only occur when sufficient numbers of canoeists are resolved to actively campaign for change. Waters of Wales is a good example of this. While many are prepared to discuss this topic theoretically, actually doing something is a different matter. Nothing empties the room faster than calling for action. This is despite the incredible work done by Keith and others in researching the law. Until people are ready to stand up and be counted, it matters not a jot what the 'law' is. The same vested interests will continue to rule the roost and the BCU will ignore the issue and play 'olympics'. Those of us who are prepared to stand endless river-side abuse will paddle where they will, and the rest of us, including families and youth groups will paddle only where our 'masters' allow us. Meanwhile endless theoretical discussion on forums will continue, achieving absolutely nothing.

I feel better now. I am going to have a cup of tea and a lie down.

[Pete Starr]

Doug (OK to call you Doug?), I'm sure you're right but from a new-to-the-problem point of view it is kind of important to try and have some grasp of what the law is!
Totally agree that change won't happen in it's own though!


Sent from my iPhone using Tapatalk

[KeithD]

Knowledge of the legal history (and therefore the current law) encourages paddlers to assert their rights and, if this is done calmly and non-confrontationally, those that oppose navigation will come to accept the right. Persistent, calm, informed lobbying of legislators may over time bring revised legislation. Direct action through aggressive protest has, in the past, produced nothing but an entrenchment of tribal positions which makes sensible co-existence more difficult. The steady and real increase in the use of many rivers has not come about because of aggressive protest.

Don't have a cup of tea and lie down - have a restorative paddle and a refreshing cup of tea and, where you can, make friends with other river users.

[saarlak]

Sorry, been out of internet range (or rather I'm too cheap to pay for mobile access).

The problem with the PRN direction is that no matter how good our argument sounds there are no guarantees when we end up in a court case. The Lord Justice Balcombe quote, for example, while in favour of what we would like, was made in a case that went back and forth for years, with judges finding both for the PRN and against it (I'm not sure where the case is today, and haven't the time or energy to search through and correlate difficult to find legal documents to find out, I don't really care, it's the greyness of the law that is key). The only guarantee in court is that lawyers will make a profit, and they will find arguments for either side as long as they can continue making a profit. No matter how strong our argument is, and regardless of how many cases we quote, some have gone against our cause, the law remains grey, and past case law or rights given in old english in documents that have for the large part been repealed (regardless of the specific effects of those repeals), does not guarantee future cases.

If we are thirsty and have a bucket of mud we have two choices. 1. let it settle and skim off what looks clean but we can never be sure is drinkable, or 2. Tip it out, give it a rinse and fill it back up from the tap. That second option is quicker, safer and more sensible. With Scottish land reform, the CRoW act and the Welsh assembly's comments, the zeitgeist in this country is to increase public access to our national heritage with new legislation, it's the clean tap water. Getting lost in the muddy water of our legal system, with individual cases and appeals and someone actually having to go through all the stress with costs and possibly punishment hanging over them, and no guaranteed they will work in our favour seems pointlessly time consuming, expensive and risky.

As you can probably tell, I'm cynical, but I'm an optimistic cynic. Brexit may take up much of the governments time over the next 10 years, but the same could be said in 2008 about the global financial crash, but it didn't prevent all other activity. Same sex marriage came along, which while it was a long struggle for those involved, the final legislation was pushed through suprisingly quickly, and I suspect that the financial crisis and the effects of austerity and stagnating wages may have played a part in timing and speed. At some point every government needs to distract the public, to offer the peasantry something that makes them feel better about themselves and those in power. Over the next 10 years there will be a story, perhaps a stuffed up brexit negotiation, or petrol hitting 1.50 a litre, or an expenses scandal or maybe just an accumulating feeling within the country that things are getting worse quicker than they are getting better, something that makes whichever Jim Hacker is in power turn to their Sir Humphrey and say, "I can't leave this as my legacy, I need a good story, something that the majority support, that costs us nothing but makes the peasants feel like they are getting something and makes them like me a little more.". If a cooperative, shared access plan is pushed under the noses of MPs now and they don't seem to have the will to move on it, there is still potential for them to find the will, and no matter how cynically that will is found, the peasants still get the freedoms. There you go, a little cynical optimism.

I will not argue that we don't have a moral right to share our national heritage, but I don't see clarity coming from quoting ancient documents on the river, and I don't see it happening by dragging those same arguments through our legal system either. Pushing for new legislation with reasoned arguments for the public good and cooperative shared access seems by far the best use of time and resources.

[Crow]

A well reasoned argument, Mr. Saarlak, and eloquently put.

Thank you for expressing it so well.

I agree with your conclusions, and find for the clean bucket option.

[Pete Starr]

Thanks for all the considered & reasoned arguments. Still bloody confusing though... Just saying

I like the Saarlak summary although, having grown up with the original Star Wars films I'm uncomfortably reminded of the sandy sphincter in the desert... No relation I presume??? :O

Reasonable, considerate & polite I can do - apart from the Welsh petition are there any other practical ways to actively support this cause?


Sent from my iPhone using Tapatalk

[KeithD]

The problem with the PRN direction is that no matter how good our argument sounds there are no guarantees when we end up in a court case.

There are also no guarantees that calls for modern legislation will be successful or that, if it were, it would reflect the "broad and liberal principle" referred to by Lord Wilberforce. Fortunately it's not a binary choice, one route or the other. It's much safer to argue for the appropriate modern legislation on the basis of clear evidence of what the law has been since time immemorial. And while you are waiting for our legislators to act (it may be quite a wait) the PRN that has always existed is still in place.

So by all means lobby our legislators, write to your MP and better still arrange to meet your MP at his/her constituency surgery to encourage support for modern legislation as in Scotland. Be sure to be clear that we are not asking for legislation to create a public right of navigation (it already exists ) but to give statutory recognition to the existence of the common law PRN. And in the meantime paddle with due consideration for other river users and the protection of the environment.

[dougdew99]

I suggest that on a given Sunday, 100 groups of not more than four paddlers, take a quiet paddle on 100 contested rivers in England and Wales. This would be accompanied by a well organised press, social media and TV campaign. This would bring the issue to the general public who have no idea of the current situation. With any luck, anglers will behave badly, thus providing great social media and tv footage. Is this 'aggressive'?. I think absolutely not. If you believe in your rights, you should exercise them. 'Aggressive' is putting a hundred paddlers on one river disturbing other river users' enjoyment and giving the wrong impression that this is how it would be, if our rights are recognized.

[SimonMW2]

Disputes of access are not necessarily new. When the Trow vessels used to go up the River Severn, before it was canalised, all the way to Welshpool, they used to have to wait until the rains fell, and then they came back downstream on the strong currents. The idea that nobody used rivers if there were rapids, or it was generally shallow, is a false one.

Upton Upon Severn apparently had some issues with land owners trying to obstruct passage of trade vessels by demanding payment to pass. The vessels often passed through with the crews effectively giving the landowners the finger. It seems that landowners have always, wrongly, seen the river as belonging to them, despite Parliamentry statute.

As an aside regarding land ownership, I do love the tale of a Miner who walks home from work over some land being apprehended by the rich landowner. The Miner asks the landowner how he got to own the land. The Landowner says that his family has owned it for generations going back 400 years. The Miner then asks how they got to own the land before 400 years ago. The landowner replies that his family fought for it. The Miner then takes off his jacket and says to the landowner "Okay, I'll fight you for it now then!"

[cloudman]

As an aside regarding land ownership, I do love the tale of a Miner who walks home from work over some land being apprehended by the rich landowner. The Miner asks the landowner how he got to own the land. The Landowner says that his family has owned it for generations going back 400 years. The Miner then asks how they got to own the land before 400 years ago. The landowner replies that his family fought for it. The Miner then takes off his jacket and says to the landowner "Okay, I'll fight you for it now then!"

This joke brings back memories, my Grandfather who was a miner, born in 1898 died at 104 was very left wing, this was one of his regular stories.

But joking aside it is very true the Normans took the land and shared it out as spoils of war. Most of our Royal families income is still obtained from these lands via Crown Estates, Duchy of Lancaster and Duchy of Cornwall and no doubt others that we will never know about.

[Adrian Cooper]

We had a holiday on the Scilly Isles a few years back. We cycled round the island and came to a track down to a farm by the coast. Ther was a man with a spade repairing the surface where it had worn away or was washed by rain. "This is Charlie's job." He didn't mean his son!

[cloudman]

We had a holiday on the Scilly Isles a few years back. We cycled round the island and came to a track down to a farm by the coast. Ther was a man with a spade repairing the surface where it had worn away or was washed by rain. "This is Charlie's job." He didn't mean his son!

Oh come on, be fair, the poor soul had to scrape by on as little as £20.5m from the D of C last year. You can't afford to repair roads for peasants as well as live the high life.

http://duchyofcornwall.org/assets/im...ARA%202016.pdf

As a point of interest the D of C owns these waters.

The Waters - Among the oldest parts of the Duchy of Cornwall are the Dart, Salcombe and Kingsbridge, Avon, Tamar, Looe, Helford and Camel estuaries and coastal foreshore around Cornwall and the Isles of Scilly.

http://duchyofcornwall.org/water-and-woodlands.html

[Crow]

Oh come on, be fair, the poor soul had to scrape by on as little as £20.5m from the D of C last year. You can't afford to repair roads for peasants as well as live the high life.

http://duchyofcornwall.org/assets/im...ARA%202016.pdf

As a point of interest the D of C owns these waters.

The Waters - Among the oldest parts of the Duchy of Cornwall are the Dart, Salcombe and Kingsbridge, Avon, Tamar, Looe, Helford and Camel estuaries and coastal foreshore around Cornwall and the Isles of Scilly.

http://duchyofcornwall.org/water-and-woodlands.html

Hmmm. I thought it was agreed that someone could own the land on the river banks, but not the water that flows down the rivers?

[Chris_B]

My understanding is that the owner of the bank owner the river bed up to the centre of the river, and this is well established law and not disputed. The ownership of the water isn't defined and doesn't matter. The key point is that there's lots of evidence that there's a right of way over the river bed and (as public right) that takes precedence over the private rights of the owner (like a public right of way over land).

[cloudman]

Hmmm. I thought it was agreed that someone could own the land on the river banks, but not the water that flows down the rivers?

I should give him a call to debate the issue, what's the worse that can happen? Clapped in irons in the Tower can't be that bad.

[Pam Bell]

My understanding is that the owner of the bank owner the river bed up to the centre of the river, and this is well established law and not disputed.

Not necessarily. This letter from Land Registry was posted on another forum in 2011:

"A letter from the Land Registry Head Office.

RE. Registration of land covered by water.

Thank you for your letter dated 17 March. Please accept my apologies for the delay in responding.

As part of a review of the Land Registry ’s approach to the application of general boundaries in 2009, the methodology for mapping land abutting a non-tidal river was examined.

Previously, the convention adopted was that where a parcel of land abutted a non-tidal river, but the title deeds were silent as to the inclusion or exclusion of the river and there was nothing to cast doubt on the ad medium filum presumption (that adjoining landowners own to the mid-point of the river), the title plan would be mapped to include half of the non-tidal river’s width within the red edging. If the title deeds specifically included or excluded the river, then it was included within, or shown outside, the red edging (as appropriate).

Our view now is that, generally, titles founded on the ad medium filum presumption are unsatisfactory, the presumption (like any presumption) being rebuttable. We are likely therefore to exclude rivers from the red edging on the title plan unless a satisfactory title has been deduced. Nevertheless, as with highways, this is only a convention and we will depart from it if there is thought to be good reason in a particular case for doing so.

It needs to be remembered that the inclusion in, or exclusion from, the red edging of the whole or part of the river is not conclusive as to ownership. All registered title plans show only the general position of boundaries, unless they are shown as having been determined as exact boundaries pursuant to section 60 of the Land Registration Act 2002."

[Chris_B]

Off topic, but I like the story, from many years ago, from the time when Lt C Wales was on an Army exercise on Dartmoor. It was raining hard, and water was rising around the tent. The Captain instructed Lt Wales to dig a ditch round the tent. His response was that it was illegal to dig such a ditch, Sir, without the permission of the Duke of Cornwall. Apparently he then gave himself permission and dug it.