Most of us are pedestrians. Some of us may even be democrats. This paper examines one of the modern intersections of these two initially rather different kinds of personal descriptor. The central concern of the paper is the moral, social and legal ecology of scenic natural landscape. Its underlying theme is the way in which, in a wider distribution of the goods of citizenship, the concept of property is currently being reconfigured to afford novel public rights of recreational access to wild or open country. This extension of access rights over privately held land articulates one increasingly significant component of the civic republican ideal, a virtue that some have called ‘pedestrian democracy’. The purpose of the present paper is to indicate why ‘pedestrian democracy’ – in this case the self-determining, self-empowering, self-fulfilling entitlement of the citizen to walk or climb over natural terrain – may be considered both necessary and important in the 21st century. It matters not whether pedestrian access takes the form of an airy scramble up a mountain or a leisurely amble along a rural or coastal track. Nor are the relevant issues localized in one jurisdiction. They have a shared provenance in the comparative law of human property rights in respect of the natural environment.
The inescapable problem is, of course, that natural landscape tends to belong to someone else. Realty is, in this sense, a scarce resource. Even if the earth's total land surface were today divided equally between the world's population, each man, woman and child on the planet would be allotted an area measuring less than 150 metres by 150 metres. 1
Based on the world's population as indicated by the US Census Bureau at 11:53 on 27 August 2009 (www.census.gov/main/www/popclock.html).
Kaiser Aetna v US 444 US 164, 176, 62 L Ed 2d 332, 344 (1979) (Rehnquist J). On the significance of ‘excludability’, see KJ Gray, ‘Property in Thin Air’  Cambridge LJ 252, 268–9.
The late Neil MacCormick suggested that the freedom of movement guaranteed by Protocol No 4, Article 2 of the European Convention on Human Rights implicitly supports a general right of ‘access to hills, mountains, waterways and open countryside’ (N MacCormick, ‘An Idea for a Scottish Constitution’ in W Finnie, CMG Himsworth and N Walker (eds), Edinburgh Essays in Public Law (Edinburgh University Press, Edinburgh 1991) 168, 180).
Although the issue of bipedal freedom to experience the outdoors is not without its difficulties, the liberating process under discussion in this paper is closely associated with an Olmstedian vision of the civic dividend and personal vitality to be derived from shared recreational access to open spaces. 4
See RF Nash, Wilderness and the American Mind (Yale University Press, New Haven and London 1967) 106–7.
‘Walking’ in HD Thoreau, Excursions (George G Harrap & Co, London 1914) 177.
‘Wilderness is a relative condition’ (A Leopold, ‘Wilderness as a Form of Land Use’ (1925) in SL Flader and JB Callicott (eds), The River of the Mother of God (and Other Essays by Aldo Leopold) (University of Wisconsin Press, Madison 1991) 135).
W Stegner, ‘Coda: Wilderness Letter’ (3 December 1960) in R Finch and J Elder (eds), Nature Writing: The Tradition in English (WW Norton & Co, New York and London 2002) 515.
‘The Triumph of Love’ (1998) in G Hill, Selected Poems (Penguin Books, London 2006) 185.
It is precisely this connection between environment, humanity, morality and civic entitlement which the present paper seeks to explore.
1.1 A century of change
Tempora mutantur nos et mutamur in illis – times change and we change with them. In 1905 the English Court of Appeal felt obliged to condemn in damages (albeit fairly nominal damages) a group of trespassers who had trodden paths along the rocky cliffs of a privately owned portion of beautiful Cornish coastline. 10
Behrens v Richards  2 Ch 614.
Ibid 619–20. See also Blount v Layard  2 Ch 681n, 691 (Bowen LJ).
See generally KJ Gray and S Francis Gray, ‘Civil Rights, Civil Wrongs and Quasi-Public Space’ (1999) 4 EHRLR 46, 52–5.
What a difference a century makes! By the time the present paper appears in print it is confidently expected that royal assent will have been given to the Marine and Coastal Access Bill 2009. This legislation will require, over the next ten years, the creation of a new long-distance walking route ‘allowing two people to walk comfortably abreast’ along a virtually continuous four metre-wide access corridor around the entire 4,000 kilometres of English coastline. 13
Marine and Coastal Access Bill (HL Bill 137), Part 9. See Natural England, Coastal Access: Natural England's outline scheme (April 2008), paras 2.1.1, 4.3.8. The public will also have access to a ‘coastal margin’ or area of ‘spreading room’ along the shore.
Consultation on Proposals to improve access to the English coast (Department for Environment, Food and Rural Affairs, June 2007), para 8.3.
Marine and Coastal Access Bill, cl 292(2)(b). See Natural England, Coastal Access (n 13), paras 4.4.1, 4.5.1.
Consultation on Proposals to improve access to the English coast (n 14), para 2.1; Draft Marine Bill (Policy Paper) (Cm 7351, April 2008), Annex 4 (Coastal Access Impact Assessment), para 12; Marine and Coastal Access Bill Policy Document (Department for Environment, Food and Rural Affairs, Updated December 2008), para 15.
1.2 The democratization of property
When enacted, the Marine and Coastal Access Bill will complement and expand the so-called ‘right to roam’ provisions introduced by the Countryside and Rights of Way Act 2000. The CROW Act (as it is widely known) came fully into effect in October 2005 and confers on every member of the public an unprecedented right ‘to enter and remain … for the purposes of open-air recreation’ on any ‘access land’ situated in England and Wales. 17
Countryside and Rights of Way Act 2000, s 2(1).
See KJ Gray and S Francis Gray, Elements of Land Law (5th edn OUP, Oxford 2009), paras 10.7.47–10.7.50.
CROW Act 2000, ss 1(1)–(2), 16.
CROW Act 2000, s 2(1)(b), Sch 2.
Access to the Open Countryside in England and Wales (Department of Environment, Transport and the Regions Consultation Paper, February 1998), para 3.10. Legislation covering Scotland goes even further than the CROW Act 2000. It confers a right of entry upon land for recreational and other purposes which is not restricted (as under the CROW Act) to defined or specifically mapped areas of ‘access land’, but is applicable to all land in Scotland subject only to certain express exclusions (see Land Reform (Scotland) Act 2003, ss 1(1)-(3), 6).
It is readily apparent that modern statute law is turning on its head much of the historic disinclination to recognize public rights of access to privately owned scenic landscape. 22
Arden LJ has spoken of ‘a rebalancing of private and social interests in land … a sea change in the law's approach to the rights of members of the public to the reasonable enjoyment of the English countryside’ (R (Ashbrook) v East Sussex County Council  EWCA Civ 1701 ).
G Parker and N Ravenscroft, ‘Land, Rights and the Gift: The Countryside and Rights of Way Act 2000 and the Negotiation of Citizenship’ (2001) 41(4) Sociologia Ruralis 381, 394.
CA Reich, ‘The New Property’ (1964) 73 Yale LJ 733, 787.
See, however, JL Anderson, ‘Britain's Right to Roam: Redefining the Landowner's Bundle of Sticks’ (2007) 19 Geo Int'l Envtl L Rev 375, 434 (noting that, during the passage of the CROW Bill, certain parliamentary critics derided its provisions as ‘the product of a society verging on socialism’).
CB Macpherson, ‘Capitalism and the Changing Concept of Property’ in E Kamenka and RS Neale (eds), Feudalism, Capitalism and Beyond (Australian National University Press, Canberra 1975) 120.
J Rifkin, The Age of Access: How the Shift from Ownership to Access is Transforming Capitalism (Penguin Books, London 2000) 15.
2 The necessity for ‘pedestrian democracy’ – a hiatus of legal entitlement
It is possible that in England there was once a ‘golden age’ which acknowledged some generalized right of access to privately held land for purposes of travel and recreation. Over the centuries there is certainly strong evidence of a network of ancient ways and footpaths, many of which survive to the present day, facilitating journeys between isolated communities or pilgrimage to sacred locations. In medieval times there may even have been an acceptance of some early form of the right to roam over open uncultivated land, but any entitlement of this kind was gradually extinguished, from the 16th century onwards, by the enclosure movement. The dim recollection of such entry as of right has been said merely to reflect ‘the gulf which existed between the medieval historian and the modern lawyer’. 28
Loder v Gaden (1999) 78 P & CR 223, 239 (Brooke LJ).
For the most part recreational access to the land of others came to rest on remarkably fragile foundations. There is little English authority dealing explicitly with the question of common law rights of non-consensual public access to open country. Quite simply, the issue has seemed so clear that for at least 250 years nobody has seriously thought to suggest the persistence at common law of any universally enforceable entitlement to enter another's land for recreational purposes. Certain special cases apart, 29
In England and Wales certain limited rights of public access to the countryside have been conferred by a fragmented range of statutory and other initiatives (as, for example, by the National Parks and Access to the Countryside Act 1949 and through the presumed dedication of footpaths under the Highways Act 1980) and by certain common law doctrines relating to local customary right and presumptions of long-lost grant. See TJ Bonyhady, The Law of the Countryside: the Rights of the Public (Professional Books, Abingdon 1987); Gray and Gray (n 18), paras 10.7.34 –10.7.45.
It is trite law that a bare licence confers no proprietary or possessory entitlement on the entrant (Thomas v Sorrell (1673) Vaugh 330, 351, 124 ER 1098, 1109), but merely ensures that he cannot be treated as a trespasser. As Martin B trenchantly announced in Bolch v Smith (1862) 7 H & N 736, 745–6, 158 ER 666, 669–70, ‘[i]f I avail myself of permission to cross a man's land, I do so by virtue of a licence, not of a right. It is an abuse of language to call it a right.’ See likewise Winter Garden Theatre (London) Ltd v Millennium Productions Ltd  AC 173, 188 (Viscount Simon).
Thomas v Sorrell (1673) Vaugh 330, 351, 124 ER 1098, 1109. See also Wood v Leadbitter (1845) 13 M & W 838, 844, 153 ER 351, 354 (Alderson B).
Entick v Carrington (1765) 19 Howell's State Trials 1029, 1066 (Lord Camden CJ). Another report of the same case quotes the Chief Justice as saying that ‘[o]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave’ ((1765) 2 Wils KB 275, 291, 95 ER 807, 817).
Spedding v Fitzpatrick (1888) 38 Ch D 410 (Cotton, Fry and Lopes LJJ).
2.1 Extremely limited rights of recreational user in England and Wales
The conclusion to be drawn from any historical survey is clear. Prior to the commencement of the CROW Act 2000, the law of England and Wales conferred on members of the public only extremely limited rights of recreational user in respect of land and water, 34
Likewise Scots law traditionally recognized no right of unconsented recreational access to another's land (Earl of Breadalbane v Livingston (1790) M 4999, as aff'd (1791) 3 Pat 221; Dyce v Lady James Hay (1852) 1 Macq 305, 312–5), although in practice the recreational visitor was left largely immune from legal sanction (see KGC Reid, The Law of Property in Scotland (Butterworths, Edinburgh 1996), para 182).
Indeed the liberality of de facto recreational access in England and Wales was frequently attributed to a broadly shared consensus that licences of reasonable access could never mature into, or be confused with, entitlements of access. During much of the last century courts were consistently anxious not to construct rights of access from ‘acts of kindly courtesy’ lest this should ‘drive landowners to close their gates in order to preserve their property’ (Attorney-General v Antrobus  2 Ch 188, 199 (Farwell J)).
See Marsh v Colby 39 Mich 626, 627 (1878); McKee v Gratz 260 US 127, 136, 67 L Ed 167, 170 (1922) (Holmes J); State ex rel Thornton v Hay 462 P2d 671, 676–7 (1969); Stevens v City of Cannon Beach 854 P2d 449, 456–7 (Or 1993), cert den 510 US 1207, 127 L Ed 2d 679 (1994).
Matthews and Van Ness v Bay Head Improvement Ass'n 471 A2d 355, 365–6 (1984); Raleigh Ave Beach Ass'n v Atlantis Beach Club, Inc 879 A2d 112, 119–21 (NJ 2005); Bubis v Kassin 960 A2d 779, 783–7 (NJ 2008). See GS Alexander, ‘The Social Obligation-Norm in American Property Law’ (2009) 94 Cornell L Rev 745, 801–7.
R (Beresford) v Sunderland CC  1 WLR 1327  (Smith J).
See Earl of Coventry v Willes (1863) 9 LT 384, 385; Hammerton v Honey (1876) 24 WR 603, 604.
Blundell v Catterall (1821) 5 B & Ald 268, 294, 299–300, 303–4, 106 ER 1190, 1200–3; Brinckman v Matley  2 Ch 313, 324; Williams-Ellis v Cobb  1 KB 310, 320–1; Alfred F Beckett Ltd v Lyons  Ch 449, 482E-F; Adair v National Trust for Places of Historic Interest or Natural Beauty  NI 33, 41j.
A tolerated trespass can sometimes shade, by virtue of the landowner's acquiescence, into an implied licence (see Lowery v Walker  1 KB 173, 195–6; Canadian Pacific Railway Co v The King  AC 414, 424, 428 (Lord Russell of Killowen)).
2.2 A doctrinal rationale
One reason for the resistance to any generalized common law entitlement of recreational access is highly conceptual in origin, but is no less significant for being so. English law has traditionally refused, in all but the most anomalous contexts, 42
See eg Re Ellenborough Park  Ch 131.
This distaste for iura spatiandi is echoed in many other jurisdictions (see eg Stevens v Headley 62 A 887, 892 (NJ Ch 1905); Randwick Corpn v Rutledge (1959) 102 CLR 54, 74; Drye v Eagle Rock Ranch, Inc 364 SW2d 196, 208–9 (1963); Smeltzer v Fingal CC  1 IR 279, 286; Murphy v Wicklow CC (Irish High Court, 19 March 1999); Kanak v Minister for Land and Water Conservation (NSW) (2000) 180 ALR 489, 497).
International Tea Stores Co v Hobbs  2 Ch 165, 172; Attorney-General v Antrobus  2 Ch 188, 198–9 (Farwell J); Re Ellenborough Park  Ch 131, 184 (Evershed MR). See Skrenty v Harrogate BC (Chancery Division, 26 October 1999) (‘it might be more than a little presumptuous for me not to follow Antrobus’).
See Attorney-General v Antrobus  2 Ch 188, 208, where a claim of public right to visit and wander around the megalithic monument at Stonehenge was castigated as ‘simply extravagant’ and as an attempt ‘to dispossess the [landowner] of his property’ for which no ‘serious argument’ could be adduced.
3 The importance of ‘pedestrian democracy’ – the geography of hope
If the common law tradition offers only the most fleeting support for public rights of access to the recreational outdoors, the question still poses itself why, in the 21st century, such entitlements should be regarded as important. What social or moral traction can be claimed by the cause of ‘pedestrian democracy’? To this challenge a number of varied responses present themselves. In sum, they take the form of an assertion that active recreational engagement with the natural environment is today not simply some kind of optional experiential bonus or extra, but has become – perhaps always was – vital for the survival and flourishing of the civil and ecological communities of which we humans are a part. The issue is one not of election, but of prudential necessity. The social and legal space constituted by wild or open country is intimately bound up in a complex web of factors and perceptions relating to environmental responsibility, public health, personal and psychological well-being, aesthetic sensibility, historic memory, sense of place, citizenship, human right, distributive equity and social inclusion.
The central message is that natural landscape is not ethically neutral – it has a deeply moral dimension. It is, as Wallace Stegner said, ‘a part of the geography of hope’. It is therefore significant that the modern statutory promotion of public access entitlements in the British countryside has been driven by some recognition of the values implicit in ‘pedestrian democracy’ and of the social and moral benefits to be derived from the realization of this civic goal. But, in precisely this respect, today's legislator has simply arrived rather late at the understanding so eloquently expressed two millennia ago by the Roman poet, Virgil: ‘fortunatus et ille deos qui novit agrestis’ (blest too is he who knows the rural gods). 46
Georgics II 493 (TF Royds (tr), Eclogues and Georgics (Dent, London 1946) 115).
This is not, of course, to say that in more recent times the business of walking across open country has been overlooked as a valuable, healthy, even overtly political form of activity. Wordsworth, Coleridge and Ruskin are well known to have roamed the Cumbrian fells. 47
See generally MH Nicolson, Mountain Gloom and Mountain Glory: The Development of the Aesthetics of the Infinite (Cornell University Press, Ithaca NY 1959) 388–93.
‘Walking’ in Thoreau (n 5) 154–5.
J Muir, A Thousand-Mile Walk to the Gulf (ed by WF Badè, Houghton Mifflin Co, Boston and New York 1916).
LM Wolfe (ed), John of the Mountains: the Unpublished Journals of John Muir (Houghton Mifflin Co, Boston and New York 1938) 427. See Nash (n 4) 122–40.
R Solnit, Wanderlust: A History of Walking (Verso, London 2002) 59.
At any level and no matter how trivial the expedition, the activity of bipedal locomotion across landscape is always important. Rebecca Solnit reminds us that walking is ‘the intentional act closest to the unwilled rhythms of the body, to breathing and the beating of the heart … a state in which the mind, the body, and the world are aligned’. For Solnit, ‘the mind is also a landscape of sorts and … walking is one way to traverse it’. 52
E Muir, An Autobiography (Hogarth Press, London 1954) 217.
3.1 Citizenship, distributive equity and social inclusion
One of the multi-stranded elements inherent in the concept of ‘pedestrian democracy’ relates to themes of citizenship, civic equality and distributive equity. Carol Rose may possibly have overstated the point some years ago when she reflected a view that ‘unique recreational sites ought not to be private property’. 54
CM Rose, ‘The Comedy of the Commons: Custom, Commerce, and Inherently Public Property’ (1986) 53 U Chi L Rev 711, 780.
KJ Gray, ‘Equitable Property’ (1994) 47(2) CLP 157, 188–206.
A common law doctrine of ‘prime necessity’ emerged some time ago (see Attorney General of Canada v Toronto (1893) 23 SCR 514, 520; Minister of Justice for the Dominion of Canada v City of Lévis  AC 505, 513) and has recently been revitalized in New Zealand (see Vector Ltd v Transpower New Zealand Ltd  3 NZLR 646 –, ; Sky City Auckland Ltd v Wu  3 NZLR 621 –). The doctrine requires that certain valued commodities controlled by monopoly suppliers which are ‘indispensable for the preservation of the public health’ are therefore held on trust ‘for the benefit of the general public’ and must be made available on terms which are ‘fair and reasonable’.
See Gray and Gray (n 12) 85–6.
J MacAskill, We Have Won The Land (Acair, Stornoway 1999) 38.
The story is told in KJ Gray, ‘The Ambivalence of Property’ in G Prins (ed), Threats without Enemies (Earthscan Publications, London 1993) 153–4.
Shared access as of right to scenic natural terrain also engenders a heightened sense both of civic responsibility and of participation in an integrative society of equals. It was Justice William O Douglas of the United States Supreme Court who wrote of the ‘citizenship of the mountains’ where ‘[p]overty, wealth, accidents of birth, social standing, race [are] immaterial’. 60
WO Douglas, Of Men and Mountains (Gollancz, London 1951) 211, 293.
See JB Jackson, ‘Jefferson, Rousseau, and After’ in HL Jackson (ed), Landscape in Sight: Looking at America (Yale University Press, New Haven and London 1997) 175–82.
CA Reich, ‘The Individual Sector’ (1990–91) 100 Yale LJ 1409, 1445.
The civic sentiments and the political philosophy disclosed in such views clearly transcend national boundaries. It is noticeable that the access provisions of recent or imminent legislation in Britain have been explicitly premised on the perceived imperative of ‘promoting social inclusion’ 63
Scottish Executive, Draft Land Reform (Scotland) Bill: Consultation Paper (February 2001), para 1.5. For identical references to the importance of social inclusion, see Draft Marine Bill (Policy Paper) (n 16), Annex 4, para 11.
Access to the Open Countryside in England and Wales (n 21), para 3.50.
Consultation on Proposals to improve access to the English coast (n 14), Annex A, para 5.10.
Draft Marine Bill (Policy Paper) (n 16), Annex 4, para 7. There is ‘a widespread perception that the public has a right to access beaches and the foreshore’ (ibid, para 4).
Access to the Open Countryside in England and Wales (n 21), para 3.67.
Declaration of the United Nations Conference on the Human Environment (UN Doc A/Conf.48/14/Rev 1) (1972) 4 (Principle 1). See also D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991–92) 28 Stan J Int'l L 103; C Miller, Environmental Rights: Critical Perspectives (Routledge, London 1998) 1–2; A Dobson, Citizenship and the Environment (OUP, Oxford 2003) 90–1.
3.2 Personal well-being and psycho-social connection
Another extremely significant factor in the modern movement toward ‘pedestrian democracy’ has been a growing acknowledgement of the beneficial personal and psychological effect of encounters with nature and wild country. An influential school of economists now concedes that environmental values must be taken into account in measuring the quality of life and human well-being. 69
P Dasgupta, Human Well-Being and the Natural Environment (OUP, Oxford 2001). See also A Berleant, Living in the Landscape: Toward an Aesthetics of Environment (University Press of Kansas, Lawrence 1997) 37–9.
RS Ulrich, ‘Visual Landscapes and Psychological Well-Being’ (1979) 4(1) Landscape Res 17; WL Parry-Jones, ‘Natural landscape, psychological well-being and mental health’ (1990) 15(2) Landscape Res 7.
This awareness of the therapeutic or regenerative value of the walk through nature can be expressed in a hundred different ways and with varying overtones of transcendental or spiritual connotation. Even the most hardened atheist can attest to the humanizing and socializing qualities of engagement with the natural environment. Percy Bysshe Shelley, for example, had no difficulty in announcing his call to a place in ‘the universal sun’ where, briefly at least, ‘all things seem only one’:
Away, away, from men and towns,
To the wild wood and the downs, –
To the silent wilderness
Where the soul need not repress
Its music …. 71
PB Shelley, ‘To Jane: The Invitation’ (1822) in T Hutchinson (ed), Shelley: Poetical Works (OUP, Oxford 1967) 668–9.
Most of us can even make the leap to an assessment of moral value. High and open places lend a certain moral elevation. 72
There is some deep sense in which the mountain-top experience makes us more decent human beings. On the transcendental aspects of exposure to wilderness, see Gray (n 55) 199–202. On the emerging links between natural law theory and ‘ecological morality’, see further J Holder, ‘New Age: Rediscovering Natural Law’ (2000) 53 CLP 151.
‘Walking’ in Thoreau (n 5) 179. To place this quotation in historical context, see KR Olwig, Landscape, Nature, and the Body Politic: From Britain's Renaissance to America's New World (University of Wisconsin Press, Madison 2002) 183.
Steep Trails (Sierra Club Books, San Francisco 1994) 92 (first published 1918).
See A Pope, ‘Essay from The Guardian’ in JD Hunt and P Willis (eds), The Genius of the Place: The English Landscape Garden, 1620–1820 (MIT Press, Cambridge MA 1988) 205.
M Shoard, This Land Is Our Land: The Struggle for Britain's Countryside (2nd edn Gaia Books, London 1997) 79.
Solnit (n 51) 14.
JM Cohen (tr), The Confessions (Penguin Books, Harmondsworth 1953) 382.
Solnit (n 51) 15, 23.
This nexus between ambulation and cogitation introduces us to a further dimension of the wholesome impact of engagement with the natural environment – a dimension that imparts an extended meaning to the phrase ‘environmental health’. The pedestrian traverse of scenic landscape is also an exploration of the country of the mind. It is about self-discovery, the quest for meaning and significance, about locating oneself in time and place amidst what is often otherwise a rootless existence. Walking is not simply a method of enlarging terrestrial experience; it is a journey into the solitude of the soul (whether this last term be understood in a religious sense or not). A distancing from this experience can entail wistful, ineffable loss: AE Housman's ‘blue remembered hills’ represented ‘the land of lost content … the happy highways where I went and cannot come again’. 80
AE Housman, A Shropshire Lad (1896) XL.
Kenneth Olwig has written, illuminatingly, of the etymology of the word country, relating it to basic connotations of that which is opposite or contrary. 81
Olwig (n 73) 240.
KJ Gray, ‘Foreword’ in J Holder and D McGillivray (eds), Locality and Identity: Environmental Issues in Law and Society (Ashgate Publishing Ltd, Aldershot 1999) 11.
Certainly this analysis sits easily beside much landscape literature which emphasizes the constant perceptual interaction between the viewer and that which is viewed. 83
In writing about ‘an intimate bond of person and place’ and an ‘interpenetration of landscape and experience’, Arnold Berleant describes an aesthetic engagement that ‘rejects the traditional separation of viewer and object in favor of their total absorption in environment’ (Berleant (n 69) 23, 35–6).
Y-F Tuan, ‘Thought and Landscape: The Eye and the Mind's Eye’ in DW Meinig (ed), The Interpretation of Ordinary Landscapes (OUP, New York 1979) 89–90.
DE Cosgrove, Social Formation and Symbolic Landscape (University of Wisconsin Press, Madison 1998) 13, 17.
DE Cosgrove, Geography and Vision: Seeing, Imagining and Representing the World (IB Tauris & Co, London and New York 2008) 73.
H Zahniser, ‘The Need for Wilderness Areas’ (1956–57) 59 The Living Wilderness 37, 43 (Winter–Spring).
Heightened awareness of mortality in Arcadia is, of course, the subject of Nicholas Poussin's Et in Arcadia Ego. See S Schama, Landscape and Memory (Alfred A Knopf, Inc, New York 1994) 517–9; Cosgrove (n 86) 75–6.
J Passmore, Man's Responsibility for Nature (2nd edn Duckworth, London 1980) 106–7.
It is ultimately a matter of individual persuasion or conviction whether, or to what degree, one invests such environmental experience with spiritual content. 90
For an extreme example, see JC Nagle, ‘The Spiritual Values of Wilderness’ (2005) 36 Envtl Law 955. See generally CJ Glacken, Traces on the Rhodian Shore: Nature and Culture in Western Thought from Ancient Times to the End of the Eighteenth Century (University of California Press, Berkeley 1967).
‘Walking’ in EV Mitchell (ed), Pleasures of walking: an anthology of works by Belloc, Dickens, Trevelyan, Beerbohm and others (Spurbooks, Bourne End 1979) 58 (first published 1934).
‘The Hetch Hetchy Valley’ in J Muir, The Yosemite (Century Company, New York 1912) 256.
J Finley, ‘Traveling Afoot’ in Mitchell (ed) (n 91), 17.
Much of the great North American wilderness writing of the 19th century was, of course, infused by a transcendentalist form of ‘moral environmentalism’. 94
RF Nash, ‘Aldo Leopold's Intellectual Heritage’ in JB Callicott (ed), Companion to A Sand County Almanac: Interpretive & Critical Essays (University of Wisconsin Press, Madison 1987) 64.
Cosgrove (n 85) 185.
RW Emerson, ‘Nature’ (1836) in J Porte (ed), Ralph Waldo Emerson: Essays & Lectures (The Library of America, New York 1983) 10.
SJ Cummins, Autobiography and Reminiscences (Walla Walla, Wash 1914) 46, quoted by A Kolodny, The Land Before Her: Fantasy and Experience of the American Frontiers, 1630–1860 (University of North Carolina Press, Chapel Hill and London 1984) 240.
Nicolson (n 47) 345, 368–9.
Schama (n 88) 447. See generally Nash (n 4).
Cosgrove (n 85) 226–9; D Cosgrove and V della Dora, ‘High Places’ in D Cosgrove and V della Dora (eds), High Places: Cultural Geographies of Mountains, Ice and Science (IB Tauris & Co, London 2009) 5.
Douglas (n 60) 278. See Gray (n 55) 201–2.
Whether or not one shares such spiritual reflections, there is a further abstract or cerebral aspect of landscape experience that is important for the psycho-social well-being of the modern citizen. In a world of constant dislocation and discontinuity – brought about by the demands of educational opportunity, career mobility, family responsibility and much else – there has been a generalized loss of any ‘sense of place’. Geographical roots and participation in long-term community have largely withered away. Self-perceptions of identity and connectedness have been weakened; the historic memory of belonging and integration has greatly diminished. Yet a regular engagement with a world of natural beauty can be an effective means of preserving certain fixed reference-points that impart a degree of permanence, locality, continuity and security to an ever-changing existence. Thus, for example, James Trombley is able to extrapolate from ‘an organic identification with place’ to a ‘tacit understanding between subject and object whereby the environment is designated as both source and reflection of basic human values’. 102
JA Trombley, ‘“A Simultaneous and Joined Identity”: The Eco-communitarian Ideal in Wallace Stegner's American West’ (2005) 13 Cercles 25, 27–9.
L Stephen, ‘In Praise of Walking’ in Mitchell (ed) (n 91) 20.
It is quite clear that in Britain recent legislative initiatives relating to the expansion of recreational access rights have been motivated, in part, by an appreciation of the deeply personal benefits conferred by exposure to the natural environment. It could not, of course, be expected that the explanatory and consultation materials outlining various government proposals would detail these benefits in the particularly moral or spiritual terms discussed in the paragraphs above. But it is significant that recurring reference has been made – in more secular language – to the role of outdoors activity in promoting good mental hygiene and balanced personal adjustment. The Consultation Paper preceding the introduction of the CROW Bill declared that walking ‘can provide real benefits to people's physical and mental well-being’, by enabling citizens to ‘experience the wonders of wildlife and the beauty of fine landscapes’ and ‘to refresh their spirits’. 105
In order to possess what you do not possess
You must go by the way of dispossession.
In order to arrive at what you are not
You must go through the way in which you are not.
And what you do not know is the only thing you know
And what you own is what you do not own
And where you are is where you are not. 104
TS Eliot, ‘East Coker’ (1940) 140–146, in The Four Quartets (Faber and Faber, London 1959).
Access to the Open Countryside in England and Wales (n 21), Foreword and para 1.8.
Ibid, para 3.66.
Ibid, para 3.67.
Scottish Executive, Draft Land Reform (Scotland) Bill (n 63), para 1.5.
Draft Marine Bill (Policy Paper) (n 16), Annex 4, para 24, Annex A3.1. This Policy Paper contains further reference to ‘personal well-being through access to the natural environment’ (Annex 4, para 11).
Ibid, Annex 4, para 7.
3.3 Public health concerns
An almost inseparable component of the motivation toward recreational access legislation in Britain has been an increasing concern for the sheer physical health of the general population, although this rather prosaic rationale is not unconnected with a perceived need to reduce the fiscal burdens falling upon the nation's health services. The unwelcome prospect of an ageing and physically inactive population has become a major driver of policy and planning. Some years ago the Labour government declared its aim of ensuring by 2020 that 70% of the population is reasonably physically active. 111
See Game Plan: a strategy for delivering Government's sport and physical activity objectives (Department for Culture, Media and Sport/Strategy Unit Report, December 2002). (Activity level was rated in 2002 at 32%.)
Access to the Open Countryside in England and Wales (n 21), paras 1.8, 3.50, 3.66. ‘Walking in the fresh air is one of the best forms of exercise for everyone’ (ibid, para 3.67).
Scottish Executive, Draft Land Reform (Scotland) Bill (n 63), para 1.5.
Draft Marine Bill (Policy Paper) (n 16), Annex 4, Annex A3.1.
Ibid, Annex 4, para 31, Table 4.
3.4 Ecological consciousness and ecological conscience
A further aspect of the importance of ‘pedestrian democracy’ lies embedded in the biological foundations of human behaviour, a perspective which, in turn, is intimately bound up with the place of humans within the ecological system which causes the natural world to cohere. Perhaps the most dominant insight of the last half-century has been a developing awareness of the interconnectedness of the entire physical and biological world. James Lovelock's ‘Gaia thesis’ emphasized an understanding of the earth as a self-sustaining homeostatic system ‘acting in the manner of a single organism to sustain its own life’. 116
J Lovelock, Gaia: a New Look at Life on Earth (OUP, New York 1979). See D Cosgrove, ‘Landscapes and Myths, Gods and Humans’ in B Bender (ed), Landscape: Politics and Perspectives (Berg Publishers, Providence RI 1993) 300.
A Leopold, ‘Some Fundamentals of Conservation in the Southwest’ (1923) in Flader and Callicott (eds) (n 6) 95.
A Næss, ‘The shallow and the deep, long-range ecology movement. A Summary’ (1973) 16 Inquiry 95. See also B Devall and G Sessions, Deep Ecology (Gibbs M Smith Inc, Salt Lake City 1985).
B Commoner, The Closing Circle: Nature, Man, and Technology (Alfred A Knopf, New York 1972) 33.
DW Meinig, ‘The Beholding Eye: Ten Versions of the Same Scene’ in Meinig (ed) (n 84) 39.
This holistic perception of the organic link between humans and their environment inevitably draws attention to the biosocial origins of human interaction with natural landscape. It also serves to uncover certain primal reactions to the environment as habitat. Deeply secreted in the unconscious biological memory is an understanding of land as a source of food and survival. From this elemental recognition arises an imperative need, in Aldo Leopold's phrase, 121
A Leopold, ‘Wherefore Wildlife Ecology?’ (1947) in Flader and Callicott (eds) (n 6) 337.
Rachel Carson wrote poignantly of reading the landscape ‘like the pages of an open book’ (R Carson, Silent Spring (Ballantine, New York 1979) 27).
JD Porteous, ‘Urban Environmental Aesthetics’ in B Sadler and A Carlson (eds), Environmental Aesthetics: Essays in Interpretation (Department of Geography, University of Victoria, BC 1982) 69.
J Appleton, ‘Pleasure and the Perception of Habitat: A Conceptual Framework’ in B Sadler and A Carlson (eds) (n 123) 39–40.
K Lorenz, King Solomon's Ring (Meridian/Penguin Books, New York 1997) 193 (first published 1952).
J Appleton, The Experience of Landscape (revd edn, Wiley, Chichester 1996) 63–7.
Evolutionary ‘habitat theory’ thus postulates that aesthetic pleasure in landscape is still derived ‘from the observer experiencing an environment favourable to the satisfaction of his biological needs’. 128
The pleasure afforded by open parkland has been linked with the evident preference of early humans for ‘open, grassy environments, with large herds of gregarious herbivores’ (see KW Butzer, ‘Environment, culture, and human evolution’ (1977) 65(5) American Scientist 572, 579–80).
C Salvesen, The Landscape of Memory: A Study of Wordsworth's Poetry (Edward Arnold, London 1965) 199–200.
SC Bourassa, The Aesthetics of Landscape (Belhaven Press, London and New York 1991) 67–8.
Of course, these biosocial perceptions of recreational experience are scarcely reflected in any explicit form in the legislative history of access rights in Britain. Instead, the organic character of the nexus with landscape is compressed into rather tamer, bureaucratic language which advocates the benefits of a deeper ‘understanding of the natural environment’ 132
Consultation on Proposals to improve access to the English coast (n 14), para 2.1; Draft Marine Bill (Policy Paper) (n 16), Annex 4, para 12; Marine and Coastal Access Bill Policy Document (n 16), para 15.
Land Reform (Scotland) Act 2003, s 1(3), (5).
Access to the Open Countryside in England and Wales (n 21), para 3.65.
This link between ecological consciousness and ecological conscience is ultimately the most important rationale for the statutory recognition of ‘pedestrian democracy’. Writing in the 1940s, Aldo Leopold believed that ‘[t]o promote perception is the only truly creative part of recreational engineering’. 135
‘Conservation Esthetic’ in A Leopold, A Sand County Almanac (OUP, Oxford 1987) 173 (first published 1949).
Compare the recognition, within the Australian Aboriginal concept of land entitlement, ‘that the clan belongs to the land [rather] than that the land belongs to the clan’ (Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 271). In relation to the overriding duty of the Aboriginal to ‘look after country’, see Gray (n 55) 181–8.
‘Foreword’ in Leopold (n 135) viii.
‘The Land Ethic’ in Leopold (n 135) 204.
‘A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise’ (ibid 224–5).
Ibid 209. See also JB Callicott, ‘The Conceptual Foundations of the Land Ethic’ in Callicott (ed) (n 94) 196.
‘The Land Ethic’ in Leopold (n 135) 204, 207. Leopold thought it ‘inconceivable … that an ethical relation to land can exist without love, respect, and admiration for land, and a high regard for its value … in the philosophical sense’ (ibid 223).
Some three decades later even the sceptical John Passmore was inclined to agree that ‘the West now needs not only a new concept of nature but a new set of moral principles to act as a guide in its relationships with nature’. 143
Passmore (n 89) 186.
Wallace Stegner described A Sand County Almanac as an ‘almost holy book in conservation circles … one of the prophetic books, the utterance of an American Isaiah’ (Stegner, ‘The Legacy of Aldo Leopold’ in Callicott (ed) (n 94) 233).
CD Stone, ‘Is Environmentalism Dead?’ (2008) 38 Envtl Law 19, 24.
Dobson (n 68) 83–140; J Bendik-Keymer, The Ecological Life: Discovering Citizenship and a Sense of Humanity (Rowman and Littlefield, New York 2006) 99.
MJ Smith, Ecologism: Towards Ecological Citizenship (Open University Press, Buckingham 1998) 99.
See H Rolston III, ‘Duties to Ecosystems’ in Callicott (ed) (n 94) 246.
In examining the subject of recreational access to scenic natural landscape, this paper has endeavoured to locate recent legislative initiatives in Britain within a wider context of environmental ethics. In introducing universal and generally indefeasible rights of public access to much of rural Britain, the Countryside and Rights of Way Act 2000 and the Land Reform (Scotland) Act 2003 represent quantum steps on the road toward ‘pedestrian democracy’. The remarkable innovations brought about by these statutes are likely, in the near future, to be handsomely supplemented by a new Marine and Coastal Access Act.
Of course, challenges and difficulties remain. The call for open access will inevitably extend to woodland, rivers and other inland water. Much of the mapping process which underlies the CROW Act is flawed and, indeed, the very methodology of mapping is arguably misconceived. At the time of writing, Parliament has yet to finalize the detailed provisions relating to coastal access and the process for determining the line of the ‘coastal route’. 149
The Marine and Coastal Access Bill completed its passage through the House of Commons committee stage on 14 July 2009 and was due to continue to the next stages of Report and Third Reading in the Commons in October 2009.
The Marine and Coastal Access Bill requires, in delphic but conventional fashion, that a ‘fair balance’ be struck between ‘the interests of the public in having rights of access over land and the interests of any person with a relevant interest in the land’ (cl 292(3)).
See House of Lords and House of Commons Joint Committee on Human Rights, Legislative Scrutiny: Marine and Coastal Access Bill; Government Response to the Committee's Thirteenth Report of Session 2008–09 (HL Paper 142/HC 918, 14 July 2009), paras 1.1–1.10.
Not the least difficult issue involved in the extension of ‘pedestrian democracy’ centres on the question whether monetary compensation can be claimed by landowners who are compulsorily subjected to the intrusion of recreational visitors. Neither the CROW Act 2000 nor its Scots analogue contains any general provision for compensation, a stance likely to be replicated under the imminent coastal access legislation. Some time ago the government announced ‘a working presumption’ against paying compensation, taking the view that coastal access should be ‘open to all and free at the point of use’, 152
Draft Marine Bill (Policy Paper) (n 16), Annex 4, para 11.
Consultation on Proposals to improve access to the English coast (n 14) para 8.3. DEFRA indicated (ibid) that, in view of the likely provision of grant aid to landowners and farmers for environmental improvements around the coast, it was inferable that ‘there should be few if any instances where compensation might be payable.’
Banér v Sweden (1989) 60 DR 128, 140, 142; Huber, Staufer, Staufer, Sportanglerbund Völklabruck & Eckhardt v Austria (1996) 22 EHRR CD 91. See ECHR Protocol No 1, Art 1.
Pennsylvania Coal Co v Mahon 260 US 393, 416, 67 L Ed 322, 326 (1922) (Holmes J).
State of Alaska v Arnariak 941 P2d 154, 156 (1997). See Nollan v California Coastal Commission 483 US 825, 831, 97 L Ed 2d 677, 685 (1987); Dolan v City of Tigard 512 US 374, 384, 129 L Ed 2d 304, 316 (1994).
Preseault v US 100 F3d 1525 (1996); Hash v US 403 F3d 1308 (Fed Cir 2005); Blendu v US 75 Fed Cl 543 (2007); Ellamae Phillips Co v US 564 F3d 1367 (2009).
Divergences of view – such as those evident in relation to the question of compensation for mandatory recreational access – should not distract attention from the uniquely ethical issues which underlie the expansion of access opportunities. Indeed, it may be said that these differences of approach are indicative of varying degrees of philosophical commitment to the goal of environmental welfare. Recreational access rights in the United States have not received the same degree of recognition or protection as is provided by current British legislation. 158
See Anderson (n 25) 417–30. See also JG Sprankling, ‘The Antiwilderness Bias in American Property Law’ (1996) 63 U Chi L Rev 519.
The phrases are those of Bertrand de Jouvenel, written long before the modern awakening of environmental awareness in Europe. See JF Huntington (tr), Sovereignty: an inquiry into the political good (CUP, Cambridge 1957) 202.
But rights are not irrelevant. In Britain the silent reciprocal of the citizen's heightened responsibility to care for land has been a dramatic intensification of the public entitlement to derive enjoyment from land. The human obligation to ‘look after country’ finds its complement in a human right of access to nature and to the recreational amenity afforded by wild or open spaces. 160
It need hardly be said that human rights are not a proper subject of cash transaction. On this analysis, the imposition of compulsory recreational access carries no right to money compensation for the affected landowner, whose pay-off (if required) is met, in all but the most unusual circumstances, by the ‘average reciprocity of advantage’ implicit in the access scheme.
This is not to imply that, in the context of recreational access to natural terrain, entitlements are unlimited by considerations of reasonable user. Excessive exercise of rights (eg by large numbers of people) may pose a substantial menace to environmental conservation and require the imposition of management strategies (see CM Rose, ‘Rethinking Environmental Controls: Management Strategies for Common Resources’ (1991) Duke LJ 1).
Postscript On 12 November 2009, some time after the submission of this paper for publication, the Marine and Coastal Access Bill 2009 completed its parliamentary passage and received the royal assent.
Kevin Gray - Professor of Law and Dean of Trinity College, Cambridge, UK; Professor of Law, National University of Singapore