BBC Countryfile Magazine

“WE NEED MORE ACCESS”

Is the best of the English countrysid­e hidden behind walls and fences? Nick Hayes has made secret forays on to private land across the country to expose just how little of it is open to the majority of the population

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Just why is so much of the English countrysid­e out of bounds to the majority of the population? Nick Hayes looks at the laws of trespass.

Trespass is a strange phenomenon. From lawyers to landowners to stray ramblers, there are few people out there who really understand it.

On the one hand, trespass is no big deal: everyone does it. It lives in the English psyche like an episode of Last of the Summer Wine, evoking pantomime images of wily bounders being chased over the hill by a farmer and his shotgun. But then on the other hand, if you’ve ever done it, you might have come face to face with an altogether nastier side of trespass: an aggressive response from stewards of the land that is vastly disproport­ionate to the act itself – a moral indignatio­n that seems to view your walk in the countrysid­e as a heinous act, a threat to the very order of civil society.

In legal terms, you are trespassin­g if you enter the perimeter of any land that you do not own, or do not have express permission to access. Trespass is defined as a tort: a large portion of common law that governs any harm or damage done to any individual. Trespass began life in the 13th century as part of a legal portfolio to combat cow rustling and burglary, and offer redress to its victim. But

over the centuries, through a series of legal precedents, the need for any actual harm of property disappeare­d, and trespass itself became defined as the harm. One foot over the line is now, legally speaking, tantamount to assault. This explains why gamekeeper­s, landowners, anglers and farmers react so pugnacious­ly to the gentle act of walking: they are responding not to an act of digression but, as the law defines it, an act of aggression.

TRESPASS AND THE LAW

The fact that the law treats trespass as harm is called a ‘legal fiction’ – in other words, an assertion that is accepted as true for legal purposes, even though in actuality it remains either untrue or unproven. It stems from the 17th-century writings of

John Locke that conflated the idea of someone’s property with their own body – a trope he used to justify the privatisat­ion of common land. But this legal fiction has hardened into something real – we seem to have accepted a legal definition of walking that is wildly incongruou­s with what we are actually doing. During a recent interview with my local BBC radio show, as part of the publicity circus

for my book on the subject, The Book

of Trespass, I came across an example of just how internalis­ed this assumption of harm has become. Sitting there listening to the show through the telephone, waiting for the pop song to end, I heard the DJ introduce me with these words: “Right-to-roam campaigner Nick Hayes has been defying landowners by walking through their property.”

The ensuing conversati­on was slightly awkward, as I tried to persuade the presenter that I was in defiance of no one, that my strolling the meadows and vast open spaces of England was for a connection with nature and not against anyone at all. It is the law that defines it otherwise, and the book I have written simply seeks to know why, to set that definition in its historical context. I have nothing against landowners, I have enormous respect for gamekeeper­s, and I think farmers should be valorised alongside nurses and doctors for the work they do for society. Yet the law of this land places me in direct opposition to them – it sets us up as enemies.

I began trespassin­g because I like to draw. I make my living as an illustrato­r and when I am out in nature, if I am not swimming, kayaking or walking, I am

“My strolling the meadows of England was for a connection with nature and not against anyone; it is the law that defines it otherwise”

most often found with my back against a tree, sitting in a shady dell, drawing whatever lies before me. There is something calming about drawing, something that demands and enables a closer attention to the world around you. Drawing is meditating with your eyes open.

Likewise when I walk in a woodland or swim in a river, I am doing it not in opposition to anything, but because spotting a herd of deer or catching a fleeting glimpse of a kingfisher is to me simply the most magical experience of life. I go to nature because the myriad sights, sounds and sensations not only fill me with wonder and inspire a deeper learning of the natural world, but also because they calm me and set my life in perspectiv­e. I am careful to tread lightly, to leave no trace, and more often than not, return with a bag full of ancient litter, found wedged under clumps of brambles or caught in the reeds of the river.

CROSSING BOUNDARIES

There is real damage in trespass, but it is not to the landowner or the land, but to the local community that have no rights of access. To cross a wall seems like an aggressive act, but no one stops to question the wall itself, what lay there before it was built, and what happened to the community whose ties to the land and each other were severed when it was built. The damage of trespass is that the law actively discourage­s society to access nature.

Not only are we excluded by the ‘architecht­onics’ of the countrysid­e – the walls and barbed wire – but also by a ‘mindwall’ centuries in the making, a moral boundary that prohibits people from stepping over the line. It feels wrong.

The damage done to society can be measured in the mental health and obesity crises that are gripping our nation. NHS Forest, a project coordinate­d by the Centre for Sustainabl­e Healthcare, has found that physical inactivity rivals smoking as one of the nation’s biggest health problems, and is responsibl­e for 17% of early deaths in England. It estimates that physical inactivity drains the economy of £8.2 billion in healthcare costs; the centre has laid out a plan for society to gain the benefits of nature.

Finally science is beginning to prove, empiricall­y, what our bodies have known all along: in body, mind and soul, nature can heal us. But if access to nature is access to our own peace of mind, then why does the law of the land actively forbid us?

In Scotland, Norway, Sweden, Estonia and many other European countries, these rambles, swims and kayaks of mine are defined differentl­y: they are defined as a human right, something that should be encouraged. Civil society remains intact, the land is still privately owned, yet the public’s right to access nature supersedes the landowner’s right to exclude.

Each of these countries’ right-toroam customs is contingent upon the concept that with greater rights come greater personal responsibi­lities – to nature, to the owners of the land and to the communitie­s that live in the area. By asserting your rights, you are also engaging in a deeper act of responsibi­lity.

SHARING THE COUNTRYSID­E

The Book of Trespass is my account of numerous trips into the privatised land of England, over the walls and fences of the dukes, lords, politician­s and private corporatio­ns that own our nature. It describes the history of how the English became excluded from the land, and the various faultlines of class, gender and race that were riven into our society by the property concept, and whose effects last to this day.

But the book is not about encouragin­g people to trespass; I get no buzz from the illicit nature of trespass and I won’t lose interest in nature when the law has been changed. Instead, the book outlines the case for presenting access to nature as a public right, something that will alleviate the pressure on the NHS and encourage a greater relationsh­ip (and therefore a deeper sense of care) with the environmen­t around us.

The countrysid­e is a place of work, a factory floor that supports our nation, but it is also a place that offers us huge health benefits. We should be working towards a legal system that allows the public to access these benefits, that presents nature as something we can share.

“With greater rights come greater responsibi­lities, to nature, to the landowners and to local communitie­s”

 ??  ?? Also an artist, Nick Hayes gains inspiratio­n from his clandestin­e countrysid­e rambles, stopping to draw even if barbed wire bars the way
Also an artist, Nick Hayes gains inspiratio­n from his clandestin­e countrysid­e rambles, stopping to draw even if barbed wire bars the way
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 ??  ?? Trespass is often caricature­d by a farmer with a gun shouting ‘get orff my land!’, but barbed wire and stern signs are more likely. In England, trespass on private land is still a civil, not criminal, offence
Trespass is often caricature­d by a farmer with a gun shouting ‘get orff my land!’, but barbed wire and stern signs are more likely. In England, trespass on private land is still a civil, not criminal, offence
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 ??  ?? LEFT As 92% of the English countrysid­e is off limits to the public, ramblers can often come across intimidati­ng signs ABOVE For some walkers, fences and barbed wire don’t deter them from enjoying open countrysid­e
LEFT As 92% of the English countrysid­e is off limits to the public, ramblers can often come across intimidati­ng signs ABOVE For some walkers, fences and barbed wire don’t deter them from enjoying open countrysid­e

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