Restricted and confusing access to and along waterways is a problem for us all, not just canoeists. Swimmers, boaters, walkers, rowers and anyone wishing to participate in watersport are restricted to using rivers that have undisputed access or where restrictive permission has been granted. The following notes refer to England and Wales only. The law is different in Scotland where the Scottish Canoe Association can advise.
The bed and banks of all rivers and canals are privately owned. There is a right of access on all rivers and canals maintained as navigations subject to a payment for a license where required. Where navigations have been abandoned it can be unclear if there is still a public right of access.
A right of access is known to exist on some other non-tidal rivers based on Common Law and historic use. Known examples are the River Wye below Hay-on-Wye, River Lugg from Leominster and the River Severn between Pool Quay near Welshpool and Stourport. It is not known how such rights might apply to other unregulated rivers.
In nearly all cases there is a public right of access on tidal waters. The right may be subject to a payment of harbour dues and restrictions due to security/exclusion zones or use by the Ministry of Defence. The tidal limits on waterways are shown on Ordnance Survey maps.
In addition there is the work of Revd Douglas Caffyn. The thesis, and a supporting synopsis of this work entitled "Boats on our rivers again” follows on from his earlier work "The Right of Navigation on Non-tidal waters and the Common Law "2004. All are available at www.caffynonrivers.co.uk.
We have been given the RIGHT TO ROAM But not PERMISSION TO PADDLE!
This information is based on an exercise carried out by the BCU in 1980/81 to find out from member federations of the International Canoe Federation (ICF) the position in their respective countries concerning access for canoeing. A summary of responses follows; where there is more recent information available, this is also included. The ICF have also recently highlighted the access situation in England and Wales and compared it to the situation worldwide through and article in their in House publication.. Planet Canoe.
Access to water in England and Wales is restricted due to the common conception that permission is needed to access and use water that is not tidal or does not have a public right of navigation. In other countries, access to water is unrestricted, and permits those involved in non-powered water sport to use both inland rivers and lakes
There is a huge tourism market for canoeing in other countries ... you just have to drive around and see the adverts etc for places to canoe ..canoe hire etc. Go to Spain and watch the Ribadesella race and see how many thousands go along to watch.. look at how many paddle down the Sella on a normal day hiring canoes and having a wonderful day out ... This is replicated the world over...
The UK has a wonderful network of inland and coastal waters that are amongst the best in Europe but for those tourists wishing to canoe here the situation is very confusing and off putting.
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.
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 reuired 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?
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.
Trespass (under civil law)
If you are canoeing privately owned water without permission, then you might be trespassing. Simple trespass is a civil offence, not a criminal offence. Damages can be awarded against the trespasser (i.e. a fine), or an injunction can be issued to prevent repetition of trespass or to restrain threatened trespass. It is not a police matter unless a criminal offence is committed; this would only be if wilful or malicious damage was done, there was a conspiracy to commit trespass, there was behaviour likely to cause a breach of the peace or it was a case of aggravated trespass.
If you are challenged whilst paddling, please be courteous and polite whatever the situation. Avoid anything that could be interpreted as a breach of the peace or conspiracy to trespass (i.e. criminal offences). If you are challenged by an authorised official you could be obliged to give your name and address, If you are accused of trespass and genuinely believe you are exercising a public right of navigation or are paddling within the terms of an access agreement, you should say so and refuse to admit trespass. There is no case if you can prove that you are within your rights or have permission. Where you have a legal right the law requires you to exercise the right reasonably with due consideration for others.
Aggravated Trespass (under criminal Law)
The Criminal Justice Act 1994 introduced the new criminal offence of aggravated trespass. This should not be confused with ordinary trespass, which is a civil offence. To commit aggravated trespass you must first be trespassing; whilst trespassing you must also have the intention of obstructing or disrupting a lawful activity (such as hunting, shooting or fishing) or intimidating those engaged in such lawful activities Canoeists should not fall foul of this new law if they canoe in a peaceful and considerate manner. We have no indication as to how the Police the Crown Prosecution Service and the Courts will interpret the act where paddlers in pursuit of their sport, a lawful activity, might be involved.