Know your Legals.

http://fergustheforager.co.uk/the-law/

Reconnecting to the landscape is far from straightforward in the British Isles where every bit of land is under some form of ownership and an individual’s freedoms are beset by a long history of intricate laws. 
Note that the main account of the issues in the piece ‘Know Your Legals’ below
relates to the law of England and Wales only. The law may differ in other legal jurisdictions – which include the Isle of Man, Scotland, Northern Ireland and Eire.

I received the following email today (23rd Jan 07)

I just read your ‘foraging and the law’ page with interest.  I note that the brief sentence that deals with Scotland is inaccurate.  Scotland now has its own Access legislation and the right to go ‘stravaiging’ as your article suggests is not quite so simple.  Also you have not made it clear that the Wildlife and Countryside Act also applies to Scotland.  please update it for the sake of us Scots.

The following link provides some useful information:

Welcome to the Outdoor Access Scotland Website

Another EXCELLENT piece is:

Code of Conduct
for the conservation and enjoyment
of wild plants

– at the bottom there are lists of currently protected plants
For further information on the law as regards collecting wild plants in Scotland please see the following site and its relevant links:
http://www.forestharvest.org.uk/legal.htm

KNOW YOUR LEGALS
by Ian Trueman, solicitor

The purpose of this article is to provide a very brief introduction to the law and in particular the Two principal Acts of Parliament of interest to those who visit and enjoy our countryside. These are the Countryside and Rights of Way Act 2000 (known as CROW) and the Wildlife and Countryside Act 1981 (WCA).

CROW

After one hundred years or more of campaigning, CROW now enshrines in law a “right to roam” for people on foot only (with dogs too if desired) (to access open country in England and Wales. It does not apply in Scotland, where the tradition of wandering at will or “stravaiging” is well settled.

“Open country” is defined as mountain, moor, downland and heath and registered commons. It also includes land that has been voluntarily opened up by a landowner – the Forestry Commission is an example of one such a volunteer.

The Countryside Agency (CA) is in the process of mapping all such access land and in time it is hoped, that all such land will be shown on Ordnance Survey maps.

As with most legal issues, there are exceptions and exclusions – for example the right to roam does not cover golf courses, buildings, sensitive nature reserves and cultivated land. These are all outside the scope of CROW.

Once on access land, the public can enjoy it for “open air recreation”, which CROW (rather unhelpfully) does not define. Therefore the common sense definition of the phrase will apply – walking, climbing and picnicking are all activities within this definition.

With rights comes responsibilities and CROW demands of the public that it behaves. What does this mean? The CA has published an updated Countryside Code to guide us all. An example is that dogs are not allowed on access land between 1 March and 31 July (effectively when baby livestock is around and vulnerable), or at any other time in the vicinity of livestock. Only if it is on a short lead of not more than two metres.

National Park Authorities or County and District Councils have powers alongside Central Government, to enforce CROW. The authorities will particularly be on the look-out for landowners who erect misleading notices seeking to deter the public from exercising their CROW rights.

Needless to say, CROW has generated some controversy. The Ramblers Association takes the view that it does not go far enough, and are campaigning to include within its remit, all coastal areas. Landowners, unsurprisingly, are generally hostile, and CROW has generated hundreds of appeals seeking to prevent estates being opened up to access. The best known appellant, to date, is Madonna, whose appeal preventing her Wiltshire estate being put under the umbrella of CROW was largely successful.

WCA

The WCA is a complex piece of legislation, which touches upon common law rights in certain areas. I will take two examples – plant gathering and animal hunting/ gathering. In general a landowner owns all trees and plants growing upon his or her plot. An owner has the right to sever such objects from the land (and to sell the same), but WCA intervenes in the case of certain protected wild plants. In short if a plant species is protected under WCA, no one can pick, destroy or sell it (including the landowner) without committing an offence. If a species does not enjoy WCA protection what about the stranger who wants to take plants? An act of this nature would ordinarily be theft, but an exception in the Theft Act states that in the case of mushrooms or plants growing wild on land, a person may take away foliage, fruit or parts of the plant without committing an offence – unless it is done with the intention of selling them, or for other reward.

Although there is still some argument in law over what is a plant “growing wild”, put simply, those plants which arc obviously commercially grown cannot be taken (hence scrumping is theft.) whilst free-growing blackberry plants cannot have their fruits stolen unless for re-sale. It is worth noting though, that the above exception only protects the person who takes only part of a plant, if all the plant is taken away an act of theft arises, as against a landowner.

In the above scenario, though, the stranger still commits trespass, which is actionable in law. CROW has anticipated one potential problem by making it clear that any member of the public who enters access land must not pick any plant or part of one -irrespective of the Theft Act exception I have touched on. Whether that stipulation helps endear CROW to landowners remains to be seen.

The law of property in animals is complex, but as a general principle animals divide into ‘domestic’ and “wild’. Domestic animals are chattels and acts of theft and criminal damage can apply to this class of creature. As for wild animals, (I avoid ‘game’ for the purpose of this article) there is no absolute property in such creatures that are living, but there can exist various classes of qualified property rights. For example, a landowner who retains hunting rights on his own land has a qualified property in wild animals whilst they reside there – hence such owners often grant shooting rights to third parties.

Once a wild animal is killed (or found dead) there is an absolute property in the creature that rests in the landowner, or the user of any shooting or sporting rights – who can maintain a claim against any third party, such as a trespasser onto land. This is particularly so if a trespasser intends to sell on wild animals, such as rabbits. The situation is somewhat complicated where wild animals are found in the road – in practise no highway authority is likely to pursue anyone who picks up dead rabbit, for example – but note the Deer Act 1991 creates various offences relating to deer, and certainly collecting carcases for sale as venison is not permitted without licence.

Overlaying all these general principles though, are the statutes – not just CROW and WCA but others such as the Deer Act already referred to. These acts protect classes of animals by making it a criminal offence to kill, collect or maim with the use of snares or traps. Although in yesteryear the best birdwatchers learnt about their subject through egg collecting, post WCA, those days are over. All wild birds are now protected (subject to exceptions) and indeed, the mere possession, without authority of any species which is protected gives rise to an offence – even if that species is picked up already dead, from the road.

Finally, I am conscious of the fact that behind every statement in this article lies a mass of exception, legal uncertainty and no doubt potential for dispute. Perhaps to a communality of legal complexity do the separate states of town and country truly emerge.

 

LAW AND COUNTRY CODE (OF HONOUR)

What of wild root and tuber plants e.g. wild carrot, wild parsnip, dandelion, burdock, pignut, etc.?

If the underground portion is harvested then strictly speaking the part of the plant that grows above ground should be left on site and not taken away. By doing this the forager is demonstrating that his or her intention is not to permanently deprive the landowner of the goods. However, they may still leave themselves open to a charge of criminal damage, if permission from the landowner is not first sought. It is also unsightly.

On land which has been opened up under CROW rights the harvesting of any wild plant parts is forbidden.

There are national restrictions that apply to the new access rights at all times. CROW excludes any rights to the following; to ride a horse or bicycle, or drive a vehicle; take part in organised games or commercial activities; bathe in non-tidal water, or use boats there; hunt, fish or collect anything from the area including rocks or plants; camp or light fires.

In addition further local restrictions may be Imposed on the new rights where deemed necessary.

The above national restrictions and local restriction powers only apply to the land newly opened up to access under the CROW scheme. They do not affect what people already do: by local tradition or tolerance; with express permission; on public rights of way such as footpaths and bridleways; or under any other existing rights or arrangements that apply locally.

That’s the law but what of respect?

The following is a quote from an old holy Wintu Native American woman, that sets the benchmark—she was contrasting the behaviour of her people with that of the white man; “When we Indians kill meat, we eat it all up. When we dig roots we make little holes. When we build houses we make little holes. When we burn grass for a grasshoppers, we don’t ruin things. We shake down acorns and pinenuts. We don’t chop down trees. We only use dead wood.”

This article was reproduced by kind permission of The Bushcraft Magazine – thanks Steve and Huw! (Spring 2006)

 


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