Essex Area Ramblers

At the heart of walking in Essex

Nettles, Thistles and Trespass

http://www.countrylovers.co.uk/wfs/images/eat-nettles6.jpg

Question:

Can you deviate over an electric fence into the adjacent pasture (no crops, no livestock) to avoid a stretch of nettles. The farmer was not amused and accused them of trespass and demanded an apology. The attached file gives the background.

It is likely to happen more often as paths are now only cut once per year and only about one-third of the ECC path network is cut at all. We have RA maintenance work groups and are endeavouring to set up more - however ramblers’ members are getting older.

Answer:

The problem is of course that thistles, nettles, brambles, etc. growing on a field-edge path should be dealt with by the highway authority (being natural vegetation growing out of the surface of the path in most instances). So it would not be a case of deviating because of an obstruction caused by the landowner (as described at the bottom on p17 of the blue book). There is a lengthy discussion of what happens in the case of obstruction due to natural causes (p.18) but that concentrates on paths destroyed by erosion so does not help.

I think therefore that all you can do is:

1. If possible report any such problem to ECC before a led walk.
2. Be aware that you are trespassing - that can't be denied.

3. If challenged politely explain why you have deviated from the path; explain that you have reported the problem to ECC (or that you will be doing so) and urge the farmer to do the same. Lord Mansfield's words in Taylor v Whithead (p.17 of the blue book) do give common sense support for deviating in this way but don't give you the right to do so (however I don't suppose that quoting from a 1781 court case will cut much ice with an irate landowner!)
4. Trespass is not a criminal matter so don't worry too much - although I do agree that an altercation of this kind is most unpleasant.