General Access Research
A legal right of access to rivers would provide clarity and certainty of access and more recreational opportunities for a group of people who want to use the water for recreational and educational purposes including canoeists, swimmers, anglers, walkers and boaters and members of the general public with knock-on benefits for public health.
Water related activities are dramatically on the increase and access would provide millions of people with the opportunity to recreate near their homes and on a variety of waters. And there has been much research in to what can be done.
BACKGROUND
It was as long ago as 1892 that the House of Commons first passed a Resolution on the need for legislation for the purpose of securing the right of the public to enjoy free access to uncultivated mountains and moorlands especially in Scotland, subject to proper provisions for preventing any abuse of such right(1).
There was no mention of the similar need to secure the right of the public to rivers and other inland water. When the issue was considered in an official Report after the Second World War in 1947(2), it was felt that generally rights of navigation existed on rivers up to some point governed by long standing custom or prescription, but that it was unusual to find any general right of navigation on lakes. Hence the Government was advised that on rivers and canals existing rights or customs of navigation were largely sufficient to meet the then public need, but that the maximum degree of public access to lakes should be secured by agreements.
However, a Government report in December 2001(3) indicated that on some 42, 700 miles of rivers in England and Wales, less than 1400 miles have formally-established navigation rights providing secure rights of access. In the last 40+ years only another 500 miles of highly restrictive access agreements have been achieved.(4) ; some are for as little as one day per year As there are some 1.5 million canoeists(5), as well as other recreational users, the need to make further progress in strengthening and clarifying public rights of responsible access to water is clear.
The Recent Access Legislation
The Countryside and Rights of Way Act 2002(6) established in England and Wales a statutory public right of access on foot, subject to safeguards, in large areas of the countryside; and provided for this to be extended in the future to the coast, complementing the public rights of navigation and fishing which exist on non-tidal waters(7).
It had been hoped that this Act would extend to water as well, but it did not in fact do so, and indeed canoeing and other forms of water recreation were specifically excluded from the operation of the Act. This has resulted in a serious disparity by which the need for statutory public rights of access for land-based recreation on foot in much of the countryside has been recognised, but the similar need for statutory public rights of access for inland water-based recreation has not.
However, when the Land Reform (Scotland) Act 2003(8) was passed, it applied to both land and water with the result that a statutory public right of responsible access to most inland water in Scotland has been established, for recreation and education, and also for passage. This is supported by a Scottish Outdoor Access Code(9), approved by the Scottish Parliament, clarifying the operation of the right in a wide range of practical circumstances.
This was an important initiative, redeeming a pledge made by the UK Government in 1997 before devolution(10), and shows that it is quite possible in at least one part of the United Kingdom for the Administration to bring forward legislation providing for a statutory public right of access to water for recreation, education and passage.
However, it further emphasises the relative disadvantage of water-based recreation and other users in England and Wales who at present have no similar statutory rights.
Hence a Bill as a means of removing this disadvantage to the benefit of recreational users and the general public is required or the restoration of Historic Rights ). A Bill would be based on the Scottish legislation and related Access Code in order to utilise the very considerable amount of work which has been carried out there, and the practical experience gained. Has not a precedent been set?
Access Research
Several studies have been commissioned by DEFRA in to considering access to water for canoeist. We have labelled them Brighton 1 to 3 as the same organisation has not only been commissioned to research them but also implement them.
- BRIGHTON 1 – WATER-BASED SPORT AND RECREATION: THE FACTS
- BRIGHTON 2 – WATER BASED SPORT AND RECREATION – Improving Access for Canoeing on Inland Waterways – A Study of the Feasibility of Access Agreements
- BRIGHTON 3 – Improving Access for Canoeing on Inland Waterways implementing the findings of Brighton 2
In the England (and Wales) the canoeist does not have an automatic right to launch on to any river. The legal situation is different from all other countries in the world, where canoeists are generally able to paddle large and small non-tidal rivers without seeking permission, as the beds of these rivers are not privately owned and not vested in riparian owners.
The Government commissioned report “Water-Based Sport and Recreation – the facts” published in December 2001 established:
- There are 4,540 kilometres of canal and rivers with navigation rights.
- There are in excess of 65,000 kilometres of rivers with NO ACCESS
- An issue to address is removing uncertainties about the legal position of public rights of navigation
Successive governments have encouraged canoeist to seek to negotiate access agreements. These have only achieved 812 kilometres of highly restricted access.
The Four Projects
River Mersey: 28 km from Stockport city centre to Carrington – This is, in fact, a realisation of an earlier scheme put forward by the British Canoe Union in 1994/5 and supported by the Environment Agency NW Region. A gain brought about by Local Authorities, who have a statutory remit to promote recreation. Access was uncontested by other interests, so the voluntary agreement could be considered a formality.
River Teme: only 1 mile or 1.6km of whitewater around Ludlow – including four weirs- This is highly restrictive with no access in June, July and August and considerably reduces access the rest of the year with a potentially unmanageable booking system. The current arrangement is for all year round paddling based on suitable water levels. The intervention of the Brighton Team has given the opportunity for locals to close down the paddling opportunities. This is not acceptable.
Of all the studies this is the agreement that shows that the Brighton research Team do not understand the market they are delivering for.
River Waveney: 33 km from Brockdish (east of Diss) to Ellingham (east of Bungay) – This is nothing more than a duplication of the work undertaken by the British Canoe Union, Environment Agency, Local Authorities and the East of England Development Agency in 1999. This previous work was not identified by the EA and Brighton Team and as canoeing has taken place for many years access was not contested. The Paul Hiney Secret Rivers programme this month paddled it and traced navigation on it back to the Romans.
River Wear: 9 km from Houghall south of Durham to the Sands north of Durham.- In reality this is probably 3 mile (5km) stretch around the Durham peninsula which has always been used by canoeists. The extra distance is taking in Houghall College. There is no certainty that this will be included, as they only own one of the riverbanks. In August 2006, the Environment Agency admitted that they had achieved nothing and could only claim success if the owner opposite to Houghall would agree access.
From 2006
The flaws in the Environment Agencies report into rivers access are highlighted – Putting pilot voluntary canoe access agreements in place
On the 3rd October 2006 the Environment Agency published their report “Putting pilot voluntary canoe access agreements in place”. The work was carried out by the University of Brighton but commissioned by the Environment Agency (EA). Canoe England raised grave concerns over the piece of work and the manner in which it was undertaken.
The purpose of the study
On behalf of DEFRA the EA asked Brighton University to test and demonstrate the processes involved in negotiating voluntary agreements and to secure voluntary canoe access agreements on four rivers in England (Mersey, Teme, Waveney and Wear). These rivers had featured in an earlier feasibility study carried out by the Countryside Agency. The study concluded that additional access to rivers could be provided through voluntary arrangements, but that more advice and guidance was needed.
The study claims
- Demand in England for recreational access to inland waters is not widespread.
This claim contradicts the reality* that canoe & kayaking is the most popular watersport for the 10 year running, with over 2million paddlers participating and membership levels increasing month by month.
Furthermore, the Countryside Agency – Land Recreation and Access Report concerning National Parks (June 2005) stated that there was a great unmet demand for white water canoeing in the National Parks.
- Approaches to securing canoe access by voluntary agreement are successful.
Nearly half of the rivers access “secured by this work was already in place.On one river the agreement is for a 1 mile stretch and for very restricted time periods. Given the popularity of canoeing, this is not successful, sustainable or acceptable. In fact on a couple of the pilot study rivers there is now less canoeing available than before the intervention of the work by the EA/Brighton University.
What has the study actually achieved?
Very little indeed, 72kms (45 miles) have allegedly been “given” to paddlers, but in reality over 25 miles already had access agreements in place (the EA had sponsored a Canoeists Guide to one of the rivers). So in two years a meager 20 miles of access have been secured, with some of that being highly restrictive and complicated.
There are over 41,000 miles of rivers (over 3 meters wide) with no access! At this rate gaining access, by this method, to rivers is too slow and certainly not adequate!
Just a few reasons why the study is flawed
- There was no consultation with the British Canoe Union, the National Governing Body of the sport, representing paddlers’ interests.
- Rather than finding an innovative solution this study fuels the angling versus canoeing debate.
- In the light of the Scottish Land Reform Act and following example from other European countries, Canoeists are right to expect a more realistic approach to access.
Why rivers access agreements do not work
From over 66,000kilometres of rivers in England and Wales without a public right of navigation, only 812 kilometres of highly restricted access has been negotiated. Some agreements are for just a few days each year adding very little (1.2%) to the 4% of inland waterways with a public right of navigation. Ultimately, access is in the hands of riparian owners. If they refuse to engage in negotiation, there is no way canoeists can make progress.
So this work has achieved very little expect spending a lot of money to show how difficult it is to negotiate access! In the report re access where the EA could not contact all the landowners they assumed a right of access anyway!
Canoeing is a clean physical activity enjoyed by over two million people each year causing no damage and minimal disturbance. Canoeing is also a sport, which delivers Olympic and international medals. Canoeing is a sport and recreational activity for all regardless of age or ability.