Is there a right to cycle on common land?
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| Cycling across Coldham’s Common, Cambridge. There are plans to upgrade to a formal cycle track across the common. © John Sutton cc-by-sa |
On the face of it, the answer is ‘no’. Leave aside public roads (including byways open to all traffic), restricted byways and public bridleways (which cyclists may use subject to an obligation to ‘give way to pedestrians and persons on horseback’: s.30 of the Countryside Act 1968, an obligation which is presumably integral to the offence of cycling ‘without reasonable consideration for other persons using the road’, under s.29 of the Road Traffic Act 1988). On the majority of commons to which there is a public right of access under Part I of the Countryside and Rights of Way Act 2000 (CROW), the right is, ‘to enter and remain on any access land for the purposes of open-air recreation’ (s.2(1)) subject to the general restrictions in Sch.2. And para.1(a) of Sch.2 sets out that the right does not entitle a person to be on land if that person, ‘drives or rides any vehicle other than an invalid carriage’. Let’s park for a moment whether a bicycle is truly a ‘vehicle’ for the purposes of Sch.2.
But CROW is not the only statutory right of access to common land. Prior to the enactment of the CROW rights, many commons — often estimated at one fifth — were subject to rights of access conferred under older laws, and these were preserved by s.15(1): the commons to which such pre-CROW rights apply are therefore often referred to as ‘s.15 commons’.
The most significant of these pre-CROW provisions are the ‘rights of access for air and exercise’ conferred by s.193 of the Law of Property Act 1925. It is a right exercisable on commons which are now, as a shorthand, described as ‘urban commons’, but strictly, commons which, immediately before local government reform in 1974, were in the (London) Metropolitan police district, a borough or an urban district, and commons to which s.193 has been applied by virtue of a deed (revocable or irrevocable) executed by the owner under subs.(2).
The ‘rights of access for air and exercise’, conferred by subs.(1), are not attributed to any particular class of user (such as persons on foot), but para.(c) of the proviso to subs.(1) says that, ‘such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle’, and indeed, subs.(4) makes it an offence to draw or drive any of these things on a s.193 common. Para.(a) of the proviso also renders the rights subject to any byelaws or other statutory controls on the common, and para.(b) enables the Secretary of State to impose ‘limitations’ on the exercise of the rights. (In the early days of s.193, it was the practice of the Minister to impose a raft of template restrictions, similar to the byelaws applicable to public open spaces.)
In the now widely known High Court case, R v Secretary Of State For Environment, ex parte Billson, Sullivan J (as he then was) found that ‘Not merely do paragraphs (a) to (d) [of the proviso to subs.(1)] not specifically exclude horseriding, but paragraph (c), which excludes the drawing or driving of carriages, carts, et cetera, would be otiose (or addressed specifically to motor vehicles) if the public were not allowed to bring horses on to commons at all.’ He concluded (para.88) that s.193 rights did extend to horse riding on s.193 commons, adding that, ‘Riding would have been a normal way of taking air and exercise in 1925.’ (In a wry comment on the judgment, Gadsden on Commons, edited by Edward Cousins, observes at para.9–09, fn.27, that: ‘Perhaps it would be safer to say that it would have been normal for a certain section of society.’) While it is possible to criticise the judge’s reasoning (it might be said that para.(d) was there for reinforcement), the judgment has stood for nearly 20 years, was entirely consistent with the interpretation of s.193 expressed in many orders of limitation imposed by Ministers since 1925 (which regulate rather than prohibit the exercise of implied rights of access for horse riding), was consistent with one of the two opinions of the Divisional Court in the earlier case of Mienes v Stone, and simply makes sense — as Sullivan J noted (at para.90), ‘If horseriding caused a problem on any particular common then limitations and conditions could be and have been imposed prohibiting horseriding under paragraph (b) of the proviso.’
Do the s.193 ‘rights of access for air and exercise’ apply also to cycling? There has been no case directly turning on s.193, but the conventional view is that they do not. Classically, a bicycle is considered to be a carriage, and carriages are excluded by para.(c) of the proviso, as are ‘other vehicle[s]’. Indeed, it is an offence to draw or drive these things on a common under subs.(4).
‘Classically’, because there have been a significant number of cases which have had to decide whether a bicycle is a carriage, or a vehicle, for the purposes of various enactments. See, for example, Corkery v Carpenter, as to which the headnote to the report ([1951] 1 KB 102) summarises: ‘The word “carriage” in s.12 of the Licensing Act, 1872, by which “every person who…is drunk while in charge on any highway…of any carriage, horse, cattle, or steam engine…may be apprehended, and shall be liable to a penalty…or…to imprisonment…”, includes a bicycle’. S.12 remains in force today, and is also the only criminal sanction against riding a horse while drunk. The case is notable that counsel for the defendant quoted to the court the words of Daisy Bell:
‘It won’t be a stylish marriage,
I can’t afford a carriage,
But you’ll look sweet upon the seat
Of a bicycle made for two.’
The report does not tell us whether counsel sung the words, but he did point out, to no avail, that the song recognises what the law perhaps does not — that a bicycle is not a carriage.
There is a splendid exploration of some of the authorities touching on whether bicycles are carriages or vehicles in Coates v Crown Prosecution Service, an appeal to the High Court by way of case stated, against a conviction for riding a Segway (remember those?) on the pavement, contrary to s.72 of the Highway Act 1835, which makes it an offence to: ‘wilfully ride upon any footpath [i.e. pavement] or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or…wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway’ — another venerable offence which remains in force, if widely ignored. There was some confusion in the information laid against Mr Coates as to whether he was accused of riding upon the footpath, or driving upon it, but the court found that, to the extent it was necessary to make a finding, he was guilty of both, a Segway being a carriage for the purposes of the provision and the defendant was ‘driving’ it — and ‘riding’ it too. The case cites the key precedents:
- Taylor v Goodwin (1879), which found that riding a bicycle was ‘driving any sort of carriage’ for the purposes of s.78 of the Highway Act 1835, and so the appellant was guilty of furiously driving a carriage.
S.85(1) of the Local Government Act 1888 subsequently provided that: ‘…Bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highway Acts…’ (just about the only provision of that Act which remains in force: the ellipses refer not to omitted text, but to the repealed words in the section, of which the words quoted are the only words which remain extant). In the late C19, the Highway Acts provided not just for the management of highways, but the regulation of traffic using them: legislation which (greatly evolved) is now found in the Road Traffic Act 1988 and the Road Traffic Regulation Act 1984.
- R v Parker (1895), a cyclist was a person ‘having the charge of any carriage or vehicle’ under s.35 of the Offences against the Person Act 1861, and so guilty of causing bodily harm by furious driving.
- Ellis v Nott-Bower (1896), a bicycle was a vehicle used for displaying advertisements contrary to s.12 of the Liverpool Corporation Act 1889.
- A cluster of toll road or turnpike cases, Williams v Ellis (1880), Cannan v Earl of Abingdon (1990), Simpson v Teignmouth and Shaldon Bridge Company (1903) and Smith v Kynnersley (1903), to determine whether tolls applicable to carriages could be applied to bicycles — only in Cannan was it so determined, but the courts were required to interpret detailed statutory rules in each case on what could be charged and how much. The Cyclists’ Touring Club were behind some of these cases, arranging for all sorts of bicycles, including bath chairs and tricycles, to be driven over the ways concerned to test the legislation.
- Pollard v Turner (1912), not cited in Coates v Crown Prosecution Service, but worth a mention, because the offence was committed by sending out on a bicycle a boy to sell bread, contrary to s.7 of the Bread Act 1836, which required ‘any cart or other carriage’ used for that purpose to carry scales.
- Corkery v Carpenter (1951), see above
The difficulty is that all of the cases wrestle with language in legislation enacted in an era before cycling was popular, and bicycles were at best primitive and eccentric. Wikipedia refers to the ‘second bicycle craze‘ in the 1890s (the first craze in the 1860s and 70s hardly meriting the description). It is all very well to look at s.72 of the Highway Act 1835, or s.12 of the Licensing Act 1872, and conclude that Parliament sought to regulate passage along roads by users who were not on foot (or if on foot, were in control of animals). In those circumstances, it was reasonable to assume that Parliament intended to apply the controls — on riding or driving on the pavement, or riding or driving while intoxicated — to a widespread class of users including those unanticipated at the time, viz, cyclists, as they applied to horse riders, carriage drivers, drovers and sumpters.
But what of s.193 of the Law of Property Act 1925? S.193 originated as a backbench amendment to what became s.122 of the Law of Property Act 1922, later consolidated in the 1925 Act. It was enacted long after cycling had become commonplace, and over thirty years after s.85 (as enacted) of the the Local Government Act 1888 abolished local byelaws on cycling, declared cycles to be carriages for the purposes of the ‘Highways Acts’ (certainly including the Highway Act 1835), and required cyclists to carry lights at night and to ring a bell when passing other carriageway users. If horse riding was ‘a normal way of taking air and exercise in 1925’, so too was cycling. Yet s.193 has nothing to say on the subject. It can hardly be said that Parliament was not cognisant of cycling in 1922, yet it conferred a right of access which, as we have seen, extends to horse riding — and surely includes, for example, swimming (where possible), dog walking and pram pushing — and expressly restricted only the use of ‘a carriage, cart, caravan, truck, or other vehicle’, a class of things which, in this context, carries a strong implication of heavy conveyances which might injure the common and interfere with the exercise of the rights of access and rights of common. Even if ‘other vehicle’ might otherwise be said to include a bicycle, the euisdem generis rule of construction suggests that a cycle no more belongs in the class than a skateboard or a scooter. It is no argument to say that mountain biking in the twenty-first century is far more intrusive than cycling on paths in 1922: what matters is the intention of Parliament at that time.
This blog does not assert that cyclists are among those who may exercise the rights to air and exercise under s.193 — only that the point is not, in Pannageman’s view, free from doubt. Arguably, the same considerations arise under schemes of regulation and management made under Part I of the Commons Act 1899, which typically confer (in the words of the current template scheme contained in the Schedule to the Commons (Schemes) Regulations 1982 (SI 1982/209)), ‘a right of free access to every part of the common and a privilege of playing games and of enjoying other kinds of recreation thereon, subject to any byelaws made by the Council under this Scheme.’ And whatever the position with legal rights, there can be no doubt that such rights may be regulated, or perhaps even suppressed, by byelaws or limitations to the contrary.
And the CROW right of access, which is excluded from a person who, ‘drives or rides any vehicle other than an invalid carriage’? Well, in R v Parker, which we met above, a cyclist was a person ‘having the charge of any carriage or vehicle’ under s.35 of the Offences against the Person Act 1861, although I have not seen a report of the case to ascertain whether the court found that a bicycle was both a carriage and a vehicle. But the CROW restrictions on the right of access in Sch.2 to CROW are imported largely unchanged from the Second Schedule to the National Parks and Access to the Countryside Act 1949, where they applied to land to which access was conferred under an access agreement or order. What is notable about that Second Schedule, however, is a certain assonance with the approach in section 193 of the 1925 Act: neither provision expressly refers to horse riding or cycling. There is no parallel in the Second Schedule to the 1949 Act to para.1(c) in Sch.2 to CROW, which excludes a person who, ‘has with him any animal other than a dog’ — although the Second Schedule does exclude a person who, ‘takes, or allows to enter or remain, any dog not under proper control’. Just as we may infer that the 1925 Act and 1949 Act rights are available to horse riders for want of an exclusion where one might be expected, so the exclusion of carriages (in the 1925 Act) and vehicles (in the 1949 Act) is not necessarily intended to exclude cyclists from enjoying those same rights. Whether the same argument can be spun forward into the CROW Act is another matter. For what it’s worth, I can confirm that the small team of civil servants involved in drafting Part I of the CROW Bill did expect cycling to be excluded by virtue of the reference to vehicles. But we shall need a doughty successor to Robert Billson to answer these questions for certain.
Hi, I live in Wales where I have recently discovered that horse riding is permitted on S193 registered commons. My question is where do I find which commons have been so registered? I approached Crown Estste’s Agents who were unaware that horse riding was permitted anywhere other than byways and bridleways!
The Welsh Government site lle.gov.wales is an online mapping system, which includes a layer for ‘Open Access – Other Statutory Access Land’. Sites which are shown in this layer can be interrogated to reveal whether they are s.193 land (or whether there is some other explanation for their inclusion).
Unfortunately, however, the site is painfully slow, and frequently fails to load the mapping data, meaning it’s often useless.
Thanks Hugh, I wasn’t aware of the site, but after struggling with it I could not raise and indication of S 193 commons and the site says it excludes Commons ith Deed of Grant, which I believe may have the link to horse riding. On a second matter, can the landowner of a 1965 Reg common (which he attended (with Council the Commissioner’s meeting in 1971), suddenly now issue ‘private’ grazing rights that are not previously recorded on the Register? I always thought the 1965 Act extinguished any rights not actually Registered at the time and the landowner could not have Rights as he is the landowner.
Many thnaks, Mike.
As an alternative, you can look in the National Archives discovery catalogue for deeds in the series MAF 3/… which relate to the common of interest. If the common might be s.193 because of location wholly or partly within a former urban district, try old maps to see the boundaries of pre-1974 local government.
Sorry, there is no simple answer to your new question.
Thank you for such a well-researched piece. I am a non-legal man in the street. Today I had a small discussion with a mountain-biker when he nearly flattened my dog (free-roaming on open access land – Painswick Beacon). Although the land is privately owned, it has a golf course on it and is regularly used by dog walkers, horse riders etc to exercise their animals. Lead exercise isn’t enough, so we need somewhere to let them have a good run.
Anyway, I wasn’t sure who should be more careful, the cyclist or I. This was not on a common pathway (it was the 5th fairway I believe). The cyclist demanded that I put my dog on a lead and that I was being reckless. This doesn’t feel right to me as it’s impossible to have full-control on a free-roaming dog and that’s the point of the free-exercise, they can have a wander around and runabout.
From your article, I understand that there is some debate as to wether mountainbiking is a form of exercise allowable on common land and I would welcome your view in this situation as to whom should be taking more care when not on a footpath, the animal owner or the cyclist.
Many thanks and I hope that you have a point of view, clearly not taken as a legal argument.
Simon
Hi Simon, thanks for your comment. As it happens, Painswick Beacon is precisely one of those commons to which the blog is addressed. It is a ‘s.15’ common, because the rights of access to the common are conferred under s.193 of the Law of Property Act 1925. This is because of a deed executed by the late Detmar Jelling Blow, the lord of the manor, on 4 November 1930, under s.193(2), applying s.193 to the Painswick manorial commons.
The effect is that dog walking is certainly allowed on the commons, and cycling possibly (the question addressed by the blog). There may, however, be an order of limitation in place, made by the Minister, which controls the exercise of these rights — I’m afraid I don’t know. The order could, for example, prohibit cycling in certain places, or require dogs to be kept under close control.
Leaving aside that possibility, one would hope everyone enjoying their rights of access would behave responsibly: cyclists taking particular care when cycling off paths (and that may be unwise in these wet conditions anyway), and dog walkers keeping their dogs under supervision and trained to return at call.
Hi John. The theme I’ve explored is that the use of a term in several C19 Acts does not necessarily mean it is intended to have the same meaning in much later enactments, particularly where the scope of that term has evolved in ordinary language. But yes, I take your point. In relation to s.48(4) of CROW, it’s hard not to conclude that ‘vehicles’ includes cycles.
If a bicycle is not a vehicle, then cyclists are not allowed on restricted byways, since the rights are for pedestrians, those on horseback or leading a horse, and a right of way for vehicles other than mechanically propelled vehicles.
In Rights of Way definitions, there is no specific RoW for cyclists, only that a bike is equivalent to a horse, thus bridleways, byways, etc. Cycle paths and the like are granted access by landowners, councils etc but not a legal right to access enforced on the landowner. A cycle path can be removed at any time. A RoW can’t.
Not really Tim. Rights for cyclists on bridleways are granted by s.30 of the Countryside Act 1968. And cycle tracks are statutory highways over which there is a right of way for pedal cycles. A cycle track can be enforced against the landowner. Or do you mean to refer to cycle tracks on roads, or shared-used pavements?
Although we often call them ‘urban commons’ today, I doubt that, in 1922, the drafters expected s.193 to apply (automatically) only to urban commons: they would have been well aware that Ilkley Moor, and much of the Lake District, was within the area of urban district councils. I think (but haven’t researched this) that the original intention of the Society was to confer a legal right of access to all common land, but conceded a more limited right in exchange for a prohibition on fencing commons without Ministerial consent, which meant that it would be almost impossible physically to exclude access to other commons too.
No, we don’t, and you are right. As you know, I’m for the purposive approach to statutory interpretation, what was the knowledge and statutory intent of the drafters – For example, I can’t believe that the intent was to deliver a blanket probibition on perambulators, children’s hobby horses, scooters, skateboards and roller skates… and as I have suggested, it would be entirely logical that they would intend to control gypsies and encampments (and I would suggest that the way that the clause includes camping and fires alongside the mention of carriages etc. in the manner it does is supportive of this interpretation) however, as much as I would wish to, I still cannot rule out that they might well have wished to control the use of pedal cycles too, particularly as I suspect the intent of the act at the time, aimed as it was at urban commons, was less likely to have envisaged places like Ilkley Moor or the New Forest as it’s core application.
Yes, what are now ss.193 and 194 were a response by the Society (for which I now work) and others to the de facto abolition of the manorial property system (copyhold), and the expected rapid deterioration in management of commons consequent on it. The drafting was less than perfect, but a colossal advance in the protection of commons for the public good (rather than commoners specifically). But we still don’t quite understand what s.193 was intended to mean… .
Interesting commentary in ADM milling ltd vs Tewkesbury Town Council, 2011 at paragraph 48, that suggests just how hard it ay be to ascertain the true intention at the time of enactment:
“Sections 193 and 194 were not part of Sir Benjamin Cherry’s original scheme for the 1925 property legislation. They were inserted by amendment as the Law of Property Act 1922 was making its way through the House of Lords. They have their origins in an agreement reached between the Land Union (representing landowners) and the Commons Preservation Society. This may explain the lack of precision in the language of these sections compared with the quality of draftsmanship elsewhere in the Act.”
Hi Kieran, yes I think the concern in 1922 was more focused on gypsy encampments than cycling. Perhaps it’s time that the CTC (now Cycling UK) reprised its early C20 role in testing the legislation?
A fantastic post Hugh. You rightly highlight what I consider to be a perverse outcome whereby “air and exercise” somehow seems to not encompass cycling. I have always believed that the context of the S193 clause was written to prohibit gypsy encampments rather than to truly to prohibit what was, at the time, a common recreational pastime.
Regards CROW, its interesting that clear provisions were put in to allow Schedule 2 restrictions to be suspended in order to permit horse or cycle access, something that it appears has been rarely if ever utilised.
Funnily enough, given my already reckless and ‘highly illegal’ off-road cycling activities, I have been tempted recently to buy a longbow and start practicing archery on a nearby S193 common – I suspect that one should quite quickly bring the broad definition of ‘air and exercise’ to the attention of the powers that be 🙂