Freedom to roam

Freedom to roam

The freedom to roam, or everyman's right is a term describing the general public's right to access certain public or privately owned land for recreation and exercise. The term is sometimes called right of public access to the wilderness or the right to roam.

The 'freedom to roam' in different countries

In England such access applies to certain categories of mainly uncultivated land—specifically "mountain, moor, heath, down and registered common land." Developed land, gardens and certain other areas are specifically excluded from the right of access. Agricultural land is accessible if it falls within one of the categories described above. Most publicly owned forests have a similar right of access by virtue of a voluntary dedication made by the Forestry Commission. People exercising the right of access have certain duties to respect other people's rights to manage the land, and to protect nature.

In Scotland and the Nordic countries of Finland, Iceland, Norway and Sweden it may take the form of general public rights which are sometimes codified in law. The access is ancient in parts of Northern Europe and has been regarded as sufficiently basic that it was not formalised in law until modern times.

Many tropical countries such as Madagascar have historic policies of open access to forest or wilderness areas. This practice in the rainforests of eastern Madagascar and in the Madagascar dry deciduous forests has led to considerable destruction of habitat, much of which is effectively irreversible.

In the United States hiking access to true wilderness areas is encouraged, but the property owner controls access to private lands, with exceptions for beach access and other easement rights that can be negotiated between government entities and owners to allow access to lands of unusual merit.

In the Nordic countries

Ancient traces provide evidence of the freedom to roam in many European countries, suggesting such a freedom was once a common norm. Today, the right to roam has survived in perhaps its purest form in Finland, Iceland, Norway and Sweden. Here the right has been won through practice over hundreds of years [ [http://www.caplex.no/Web/Magazine.aspx?id=allemann Caplex article (Norwegian)] ] and it is not known when it changed from mere 'common practice' to become a commonly recognised right. A possible explanation as to why the right has survived mainly in these four countries is that feudalism and serfdom were not established there. Another factor is the survival of large areas of unenclosed forest. Elsewhere in Europe land was gradually enclosed for private use and enjoyment, with commoners' rights (for instance, rights to gather fuel or graze animals) largely eliminated.

Today these rights underpin opportunities for outdoor recreation in several of the Nordic countries, providing the opportunity to hike across or camp on another's land (e.g. in Sweden for one or two nights, or "temporarily"), boating on somebody else's waters, and to pick wildflowers, mushrooms and berries. However — with the rights come responsibilities; that is, an obligation neither to harm, disturb, litter, nor to damage wildlife or crops.

Access rights are most often for travel on foot. Rights to fish, hunt or take any other product are usually constrained by other customs or laws. Building a fire is often prohibited (though in Finland fires are sometimes allowed on state owned land and in Sweden fires are allowed with proper safety precautions). Making noise is discouraged. In some countries, putting up a tent in the forest for one night is allowed, but not the use of a caravan. Access does not extend to built up or developed land (such as houses, gardens) and does not include commercial exploitation of the land. For example, workers picking berries is legal only with the landowner's permit.

The notable exception is Denmark, where it is generally not allowed to walk in privately owned forests, more similar to the rest of Europe.

Finland

In Finland, everyone may walk, ski or cycle freely in the countryside (i.e. on all private land, except in gardens in the immediate vicinity of people’s homes or in fields and plantations which could easily be damaged. This right is called in Finnish the "jokamiehenoikeus", literally translated "every man's rights", similar to other Nordic countries. During the winter, however, skiing is permitted on fields). They may stay or set up camp temporarily in the countryside, a reasonable distance from homes, pick mineral samples, wild berries, mushrooms and flowers (as long as they are not protected species). They may fish with a rod and line, row, sail or use a motorboat on waterways (with certain restrictions), and swim or wash in both inland waters and the sea. They can walk, ski and fish on frozen lakes, rivers and the sea. Income from selling the berries or mushrooms picked is tax-free.

The right is restricted. They may not disturb other people or damage property, disturb breeding birds (or their nests or young), or disturb reindeer or game animals. They may not cut down or damage living trees, or collect wood, moss or lichen on other people’s property, nor may they light open fires on other people’s property (except in an emergency). They cannot disturb the privacy of people’s homes, by camping too near to them or making too much noise, and neither can they leave litter, drive motor vehicles off road without the landowner’s permission, or fish or hunt without the relevant permits. [ [http://www.ymparisto.fi/default.asp?contentid=216511&lan=fi&clan=en www.ymparisto.fi - Everyman's right ] ] In the municipality of Ahvenanmaa one is not allowed to camp even for one night without the landowner's permit.

The right is a positive right in the respect that only the government is allowed to restrict it. However, the exact definition remains uncodified and based on the principle of nulla poena sine lege (what is not illegal cannot be punished for).

Norway

Everyone in Norway enjoys the right of access to and passage through uncultivated land in the countryside. The right is an old consuetudinary law called the "allemannsrett", that was codified in 1957 with the implementation of the Outdoor Recreation Act. [http://www.regjeringen.no/en/doc/Laws/Acts/Outdoor-Recreation-Act.html?id=172932] It is based on respect for the countryside, and all visitors are expected to show consideration for farmers and landowners, other users and the environment. In Norway the terms "utmark" and "innmark" divide areas where the right is valid and where it is not. The law specifies innmark thoroughly, [”gårdsplass, hustomt, dyrket mark, engslått, kulturbeite og skogplantefelt og liknende områder hvor allmennhetens ferdsel vil være til utilbørlig fortrengsel for eier eller bruker. Udyrkede, mindre grunnstykker som ligger i dyrket mark eller engslått eller er gjerdet inn sammen med slikt område, regnes også som innmark. Det samme gjelder områder for industrielt eller annen særlig øyemed hvor allmennhetens ferdsel vil være til utilbørlig fortrengsel for eier, bruker eller andre.” ] all other areas being utmark. Utmark is generally speaking uninhabited and uncultivated areas and where the right is valid. Cultivated land may only be walked on when it is frozen and covered in snow.

In later years the right has come under pressure particularly around the Oslo Fjord and in popular areas of Southern Norway. These areas are popular sites for holiday homes and many owners of coastal land want to restrict public access to their property. As a general rule, building and partitioning of property is prohibited in the 100m zone closest to the sea, but local authorities in many areas have made liberal use of their ability to grant exemptions from this rule. Even though a land owner has been permitted to build closer to the shore he can not restrict people from walking along the shore. Fences and other barriers to prevent public access are not permitted (but yet sometimes erected).

Canoeing, kayaking, rowing and sailing in rivers, lakes, and ocean are allowed. Motorised boats are only permitted in salt water. All waters are open for swimming.

Hunting rights belong to the landowner, and thus hunting is not included in the right of free access. In freshwater areas such as rivers and lakes, the fishing rights belong to the landowner. Regardless of who owns the land, fresh water fishing activities may only be conducted with the permission of the landowner or by those in possession of a fishing licence. In salt water areas there is free access to sports fishing using boats or from the shoreline. All fishing is subject to legislation to among other things protect biological diversity, and this legislation stipulates rules regarding the use of gear, seasons, bag or size limits and more.

Sweden

In Sweden, the "Allemansrätt" (lit. All men's right) has existed for many centuriesFact|date=September 2008 only as a customary law. But since 1994 it is part of the Swedish constitution. [http://www.riksdagen.se/templates/R_PageExtended____6074.aspx Regeringsformen. 2 kap, Grundläggande fri- och rättigheter] , Regeringen sv icon] As in other Nordic countries, the Swedish right to roam comes with an equal emphasis being placed upon the responsibility to look after the countryside; the maxim is "Do not disturb, do not destroy".

The "Allemansrätt" gives a person the right to access, walk, cycle, ride, ski, and camp on any land - with the exception of private gardens, the immediate vicinity of a dwelling house and land under cultivation, and with restrictions for nature reserves and other protected areas. It also gives the right to pick wildflowers, mushrooms and berries provided one knows they are not legally protected, as well as the right to visit beaches, to swim in any lake and put an unpowered boat on any water. Exception if the beach belongs to a private garden. Permission to build a private house is usually not given so close to the beach that this right is obstructed. Private bridges are not free to use for boats or bathing.

Fishing remains essentially private - apart from on the biggest five lakes and the coast of the Baltic Sea, the Sound, Kattegat and Skagerrak - and access to land by means of motor vehicles can be limited or restricted. At certain times of the year, and with certain restrictions, both fires and dogs are also permitted.

It is not free to drive a car on a private road, or to camp in a caravan on such roads, or on private parking places. This means in reality that caravan camping is best done on camping places (or rest areas along roads, even though it is not recommended).

Some differences between the Nordic countries

There are some significant differences in the rules of different countries. In Sweden exercising of the rights is overseen by the Swedish National Environmental Protection Agency - which can, for example, force the removal of a fence if it obstructs people's right to enter the property under the "Everyman's Right" (see Swedish environmental law - 'Miljöbalken 26 kap. 11 §').

Right to roam in the United Kingdom

In the United Kingdom feudalism was established and the absolute property right of the sovereign meant that all land was in some way owned by the Crown. The land owners had - and still have - a very strong position regarding their property rights. Even uncultivated land has been heavily protected mostly to preserve the land owner's hunting or fishing rights. This in turn left the general public with little access to natural areas. Even such popular sites as Chrome Hill and Parkhouse Hill in the Peak District – although of very little economic interest to the owner – have been out of access to the public.

The Ramblers' Association works to improve the rights of walkers in the United Kingdom and has been a driving force behind the recent legislation improving the public's access to the wilderness.

Scotland

In Scotland the Land Reform (Scotland) Act 2003 comprehensively codified into Scots law the ancient tradition of the right to universal access to the land in Scotland. The act specifically establishes a right to be on land for recreational, educational and certain other purposes and a right to cross land. The rights exist only if they are exercised responsibly.

The rights confirmed in the Scottish legislation are greater than the limited rights of access, which were not present in English law previously, granted in England and Wales with the passing of the Countryside and Rights of Way Act 2000. [cite web |url=http://www.defra.gov.uk/wildlife-countryside/cl/bill/factsheet/index.htm#1|title=Countryside and Rights of Way Act 2000: Fact Sheets|accessdate=2006-12-09|date=2000-03-07|publisher=Department for Environment, Food and Rural Affairs]

England and Wales

In England, after a polarised debate about the merits, rights and benefits of private landowners and public recreation, in 2000 the Government legislated to introduce a limited Right to roam, without compensation for landowners. The Countryside and Rights of Way Act 2000 was gradually implemented from 2000 onwards in order to give the general public the conditional right to walk in certain areas of the English and Welsh countryside.

Traditionally the public could walk on established public footpaths and land owners could charge a fee if people wanted to gain access to any other areas.

Angling interests successfully lobbied for the exclusion of rivers in England and Wales from CROW, leaving other river users such as swimmers and canoeists with restricted access to less than 2% of navigable water. The British Canoe Union is running the Rivers Access Campaign, to highlight the level of restrictions the public face in gaining access to inland waterways in England and Wales.

The new rights were introduced region by region through England and Wales, with completion in 2005. Maps showing accessible areas have been produced.

Right to roam in the rest of Europe

Austria

The right to roam in Austria, particularly in forests and mountainous areas, is called Wegefreiheit. Since 1975 the right to roam in forests is guaranteed by Federal law. In particular, walking, running, hiking, and resting in most forest areas is automatically allowed to the public, however, horse riding, bike riding, and camping is not, and may only be practised with the land owner's permission. A large proportion of the forest area in Austria is owned by government bodies such as the "Österreichische Bundesforste", however the same restrictions still apply. In some circumstances forests may be closed to the public for environmental reasons. The situation in mountainous areas is less clear, and differs from state to state. Some states, such as Carinthia, Styria, and Salzburg guarantee a right to roam in mountainous areas (usually defined as above the tree line), for all recreational activities. In other states, such as Tyrol, Lower Austria, and Burgenland, no explicit right to roam exists and land owners reserve the right to deny access. In practice, however, such restrictions are rarely enforced, since mountain tourism is an important industry in Austria. [cite web
url= http://www.rockprojects.com/download/OEAV_Rechts_Infotext_2004.pdf
title= Wegefreiheit im Wald und im Berggebiet
work = AV-Rechts-Infotext 2004
publisher= Austrian Alpine Club
language= German
]

Belarus

Article 13 of the Constitution of Belarus guarantees that all forest and farm land is publicly owned. [cite web
url=http://ncpi.gov.by/constsud/rus/constitution.html
title= Constitution of Belarus
publisher= Government of Belarus
language= Russian
] [cite web
url=http://www.law.by/work/EnglPortal.nsf/6e1a652fbefce34ac2256d910056d559/d93bc51590cf7f49c2256dc0004601db?OpenDocument
title= Constitution of Belarus, English Translation
publisher= Government of Belarus, National Legal Internet Portal of the Republic of Belarus
language= English
] 40% of the country's territory is covered by forest [cite web
url=http://hdr.undp.org/en/reports/nationalreports/europethecis/belarus/belarus_2005_en.pdf
title= Belarus: Window of Opportunity (see Table 15, page 66)
publisher= United Nations
language= English
] , approximately the same amount is devoted to agriculture. [cite web
url=http://tourism.tut.by/cgi-bin/countries.cgi?id=83
title= Belarus Tourist Information
publisher= Belarus Portal tut.by
language= Russian
]

According to the Forest Code (Article 42) "citizens have the right to freely stay in the forest and collect wild fruits, berries, nuts, mushrooms, other food, forest resources and medicinal plants to meet their own needs." [cite web
url=http://www.pravo.by/webnpa/text.asp?RN=HK0000420
title= Forest Code of Belarus
publisher= Government of Belarus
language= Russian
] Citizens also have the right to camp in the forest and to start campfires. [cite web
url=http://gosinspekciya.gov.by/information/vopros/55/
title= Questions and Answers
publisher= Government Inspectorate for the Protection of Animals and Plants
language= Russian
]

Criticism

In recent years population growth has increased pressure on some areas popular for hiking and increased mobility and affluence has made previously remote areas more accessible. There is some concern that some recreational users have limited understanding of the economic and natural systems they are exploring, though significant harm or damage is unusual, the main concerns being disturbance of sensitive species of wildlife (particularly by dogs), and litter.

The 1992 Rio Convention on Biodiversity (subscribed to by 189 countries) expressed some caution about the potential effect of unlimited access, especially in tropical forests, where slash and burn practices undermine biodiversity. For this reason, broad public access rights are challenged in some countries' resulting Biodiversity Action Plans.

Critics of a general right of public access sometimes assert that it threatens the management practices of property owners who have created and preserve many environmentally important qualities. It has also been argued that newly created access rights should lead to some form of financial compensation for private landowners.

See also

*air rights
*campsite
*crown land
*easement ("the right of use over the real property of another")
*land rights
*open access (disambiguation)
*prior appropriation water rights
*property
*public space
*public trust doctrine
*riparian water rights
*trespass
*protected areas of Finland
*tourism in Sweden
*Open Spaces Society

External links

* [http://www.norway.org.uk/policy/environment/access/access.htm Norwegian embassy info on the right of access]
* [http://www.naturvardsverket.se/sv/Att-vara-ute-i-naturen/Allemansratten--en-unik-mojlighet/ Allemansrätten: Swedish National Environmental Protection Agency] sv icon
** [http://www.naturvardsverket.se/en/In-English/Menu/Enjoying-nature/The-right-of-public-access/ Information in English]
* [http://www.sverigeturism.se/smorgasbord/smorgasbord/natrecspo/nature/every.html Allemansrätten: tourist information]
* [http://www.ymparisto.fi/default.asp?contentid=104523&lan=en&clan=en Everyman's Right in Finland (Booklet in English, German, and French)]
* [http://www.defra.gov.uk/wildlife-countryside/cl/bill/factsheet/index.htm England and Wales Countryside Rights Of Way act fact sheets]
* [http://www.opsi.gov.uk/legislation/scotland/en2003/2003en02.htm Land Reform (Scotland) act explanatory notes]

Notes


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