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By Kevin Boone, LLB PhD
The private ownership of small woods in England is increasing at an unprecedented rate. Many people who can't afford a house with a large garden find that they can afford a house with a small garden and a plot of woodland nearby. By "small" here I mean a plot that can adequately be managed and maintained by a family -- typically ten acres or smaller.
Buyers of small woods are usually neither skilled foresters nor lawyers; and, while it is clear that woods can (and should) be maintained, it is not clear what activities other than silvicultural ones are permitted. In particular, many owners are unaware of what kind of buildings might be allowed in a wood. Such matters are mostly the domain of planning law. Other uncertainties concern the responsibility that an owner has to visitors, and even trespassers, how many trees may be felled, to what extent overnight accommodation is permitted, obligations to protected wildlife species, and many other things.
This article describes some of the relevant legal issues related to ownership of a small wood. Although it is intended for non-specialist readers, I do give specific reference to case law and statute for those who want to follow up. Although some of what follows is my opinion, I do want to make clear what specific legal instruments I am basing my opinions on.
Throughout the article I use the following abbreviations:
CJPOA -- Criminal Justice and Public Order Act (1994)
CSCDA -- Caravan Sites and Control of Development Act (1960)
CRoWA -- Countryside and Rights of Way Act (2000)
FA -- Firearms Act (1968)
GPDO -- General Permitted Development Order (2015)
OLA57 -- Occupiers liability Act (1957)
OLA84 -- Occupiers liability Act (1984)
TCPA -- Town and Country Planning Act (1990)
WCA -- Wildlife and Countryside Act (1990)
In the interests of full disclosure, I should point out that I am a law graduate and a woodland owner, but I do not practice in this area of law -- my interest in the law applied to small woods is entirely a personal one. Arguably, my legal training makes me better able to negotiate the complexities of this rather specialized area of law but in law, more than most subjects, the devil is in the details. Court cases do not necessarily establish broad, general principles, and it is difficult to advise on a particular situation without a full understanding of the facts. This article is in no way a substitute for individual legal advice, and should not be treated as such.
Comments are welcome, as always: for contact details, please
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It is difficult for a private individual or a family to manage and maintain a wood productively -- even a small one -- without some kind of storage for tools and supplies. A place out of the rain to take tea breaks is also helpful. Commercial operators will work intensively on a particular site for a short time, bringing all their tools and supplies in a truck and taking them away afterwards. This is rarely a practical proposition for owner-managers who have to work for a couple of hours on sunny evenings.
Some temporary or moveable structures might not constitute "development" at all, as understood by s.55 of the TCPA. As such, they are not subject to any planning control. So, in all likelihood, a few modest tents would not be considered development, and would not require planning approval as buildings. The qualification is necessary because if the tents amounted to a campsite, then the presence of such a site might constitute a material change of use, which would bring it within the scope of planning (more on this point later.)
The archetypal example of a not-really-temporary temporary structure is a mobile field shelter for horses. Such shelters are fitted with small wheels or skids, and can be towed around a field by a truck. A great many are in use in the UK but, for better or worse, recent court decisions have doubted whether such structures are temporary enough to avoid being classed as buildings. The result has been to make local planning authorities increasingly confident about taking action against their owners.
Case law requires planners to have regard for the size, weight, and degree of attachment to the ground of a structure, but it has never really been clear what the exact decision criteria are to be.
In Skerritts (2000) 2 PLR 102, a large marquee erected in a field next to a hotel, and used by the hotel in conjunction with its business, was held to be a building. Although it was not rigidly attached to the ground and could, in principle, be moved by a few people, the fact that it had been in place for eight months, and had an electricity supply, entitled the planners to rule that it was a development.
In Hall Hunter (2012) EWHC 2161 (Admin) agricultural polytunnels were held to be buildings, although it has to be noted that the land in question held more than seventy acres of polytunnels, along with forty or so residential caravans.
What Skerritts, Hall Hunter, and associated cases all have in common is that the structures in question were not really temporary or moveable. In Hall Hunter the polytunnels were assembled by a team of ten contractors, and it was accepted that they might well be in place for years. Manufacturers of mobile buildings, and some planning authorities, gave guidance to the effect that a mobile structure should be moved regularly -- perhaps every six weeks or so -- to escape planning control. However, the more recent "Woolley Chickens" case (2012) EWHC 2161 (Admin) casts doubt on that guidance.
In Woolley the structures in question were mobile poultry sheds. The were mounted on skids and could, in principle, be towed (although it has to be noted that they had not, in fact, been moved, and that an attempt to move them failed.) On the subject of permanence, Schiemann LJ said:
"In this case, the units were permanently in their field, and there was no limit on the length of time they would remain there – they could be there for years (...) The visual and landscape impact of the units was not affected to any material extent by any periodic changes to their position in the field."
What Woolley appears to decide is that for a structure to be moveable, and therefore not a building, not only must it be capable of being moved, and not only must it actually be moved, but its movement must have some consequence. Merely dragging a temporary building around a field (or wood) as an attempt to escape planning restrictions will not suffice.
This decision appears to bring under planning control a whole range of structures that would never previously have been considered relevant: pop-up sheds, box trailers, semi-permanent tents, and so on. Owners of small woods might hope that the kinds of temporary structure they might use would be too insignificant to be subject to the Woolley judgement, but in principle that might not be the case.
In passing I should note that Schedule 2, Part 4, Class A of the GPDO appears to permit temporary buildings even if they have the size, permanence, or degree of attachment to qualify as development. It allows:
"The provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land."
One might think that forestry works fall within the remit of "operations ... carried out .. on land" but it seems not. Although it has been argued in the courts that "operations" ought to be given its natural meaning, it seems that "operations" here must be read as "development operations." Per Sullivan J in Hall Hunter:
"...the polytunnels were not temporarily required in connection with operations, they were erected in connection with the use of the land for agriculture."
Having said that, my experience is that planners do not seem to take an adverse interest in substantial forestry-related structures that are truly temporary, despite the Hall Hunter decision.
Finally, and for the sake of completeness, I point at that forestry, as an activity, is not considered development at all in the TCPA. It isn't development to fell trees and stack them up, even if the stack is the size of a house. Unfortunately, forestry is poorly defined, as I explain later.
It has to be concluded, then, that any temporary or moveable buildings used in a woodland must satisfy the test in Woolley, or be permitted on other grounds. That is, they must be genuinely moveable, actually moved, and moved for a specific purpose, not just as a technicality. This might apply, in principle, even to tents if they are left permanently in place.
In general, a woodland owner who wants to put up a shed or building for purposes of forestry should not have to resort to showing that it is not "development" for the purposes of the TCPA. Schedule 2, Part 4, Class E of the GPDO allows:
"The carrying out on land used for the purposes of forestry, including afforestation, of development reasonably necessary for those purposes consisting of (a) works for the erection, extension or alteration of a building; (b) the formation, alteration or maintenance of private ways; ..."
There are, as always, restrictions: notably that the development must not amount to a dwelling. There are no restrictions on the size of the wood, nor that it be used for commercial purposes.
Class E certainly allows for tool/storage sheds, and has been held in the past to allow a provision for personal hygiene. It should allow for wood storage and drying facilities, but one planning authority is trying to argue otherwise at the time of writing.
All forms of development in Class E are subject to a 28-day notice period -- you must inform the local authority of your intention to exercise your permitted development rights; then the planners have 28 days to object. If they don't object, they are deemed to have no objections. The planners will almost certainly object if you start building before they have stated that they have no objections -- bizarrely, although full planning applications may allow for a retrospective grant of permission, it seems that permitted development benefits from no such flexibility.
The 28-day notice period is interpreted strictly, and cannot be extended, even by agreement. Planners are not permitted to try to extend the period by technical means (per the Court of Appeal decision in Murrell (2010) EWCA Civ 1367). However, a recent planning appeal decision supported the planners -- even after considering Murrell -- who failed to respond in 28 days, and claimed that they had no onus to do so since development had already started. Although some people have advised that it is better to submit notices when the planning department is under-staffed (such as at Christmas) and unlikely to be able to respond in 28 days, this sounds like bad advice to me. If the planners are able to use technical breaches of Class E to claim that they need not respond in 28 days, that leaves them open to make such claims for non-technical, substantive grounds as well. while such claims might ultimately not succeed, nobody needs the hassle of a planning enforcement action, even one which cannot ultimately succeed.
A notice under Class E is not a planning application, although the planners will most likely treat it as one. That is, they will use the same administrative procedures that they do for full applications. They will probably publish the plans and consult neighbouring landowners, even though any potential objections from neighbours are of no relevance. A positive feature of the Murrell decision is to reinforce the fact that whether something is "reasonably necessary" (for agriculture in that case, but presumably for forestry also) is an objective test, not a matter of planners' discretion. There had been evidence (including in Murrell itself) of both planners and planning inspectors -- who should certainly know better -- acting as if they had a right to refuse agricultural development on the basis that it was out of line with local development policies. Planners are allowed to concern themselves with "siting, design, and external appearance," but not with whether it should be built or not (provided it is lawful under Class E).
In theory, the planners are not even entitled to object to a notice under Class E on the basis that they have no evidence the building will actually be used for forestry. There is a widespread belief -- perhaps justified -- that many so-called forestry buildings in small woods are actually used to store barbecues and camping equipment. However, the Class E notice procedure will almost certainly go more smoothly, and take less time, if the woodland owner is actually engaged in forestry work, and can prove it.
Woodland owners should be aware that local authorities can withdraw permitted development rights completely, by means of the notorious "Section 4 direction." The effect of such a direction is to make developments that are normally decided on objective grounds -- such as forestry buildings and paths -- discretionary, and subject to full planning approval. Except in a few instances, such directions can only be issued after consultation, but purchasers of land already covered by such directions will be bound by them. Section 4 directions can be challenged by way of judicial review, but this is ruinously expensive. If you are considering buying a wood, your legal advisor should be able to tell you if such a direction is in force (it should show up on a "local land charges" search.)
Rather irritatingly, while at one time planners were not allowed to charge a fee for handling planning applications in situations where a Section 4 direction had withdrawn permitted development rights, recent changes in the law now allow them to do so. Since the usual fee for full planning applications is now over £400, this is a most unwelcome change.
Although it might not be obvious, all land in England is held to have some specific use or other. The law sets out (sometimes, and with varying levels of detail) how land of a particular class may be used.
"Agricultural" and "equestrian" uses of land are different, for example, although the associated plots of land may themselves be indistinguishable on the ground -- you can't lawfully ride horses recreationally on agricultural land, although you can pasture them. Using land for a different purpose than that for which it is presently used is a material change of use, and subject to planning control.
The regular use of woodland is likely to be "forestry," something which has no clear definition either in statute or case-law. However, felling and replanting trees is undoubtedly forestry, as most likely is extraction of timber and conversion to firewood. The status of ancillary operations like machining or finishing timber, or creating wooden products, is less clear.
The Millington case, (1999) EWCA Civ 1682, might offer some general guidance in this area. Owners of a commercial vineyard had branched out into the production and sale of wine, which the local planning authority deemed to be a change of use. The question of law was whether wine-making was an ancillary activity of viniculture or, more broadly, whether creating a finished product was ancillary to the production of the agricultural raw material. The answer seems to be 'yes'.
However, reading the full text of the judgement, I find it hard to avoid the impression of a certain amount of sentimentality. Per Mantell LJ:
"For generations, in Somerset and elsewhere they have been making cider on the farm. To suggest that it is not a farming activity or ancillary to the growing of apples would be an affront to common sense."
Taken at face value the Millington decision would seem to permit, for example, the construction of a drive-through burger outlet on a dairy farm. After all, if cider-making is ancillary to apple-growing, isn't slaughtering and burger production ancillary to raising cows?
For the moment, anyway, it would seem that woodland activities that are traditional and give people a warm fuzzy are likely to be considered "forestry." So charcoal burning and hurdle-making are likely to be acceptable, bio-fuel distillation perhaps less so.
Even if an activity amounts to a change of use, it might be permissible for a short time. Schedule 2, Part 4, Class B of the GPDO allows:
"The use of any land for any purpose for not more than 28 days in total in any calendar year (...) and the provision on the land of any moveable structure for the purposes of the permitted use."
There are some restrictions that might be relevant, particularly related to caravans. However, as there are specific regulations that apply to caravans in woodlands, the 28-day rule might not need to be applied to them (see below.)
The 28-day rule permits occasional use of a woodland for camping, bushcraft activities, recreational shooting, archery, parties, etc. The 28 days need not be contiguous and, in practice, the limit is hard to enforce in woodland.
It is not clear to me, and I have been unable to find any relevant case law, what the relevant boundaries are of "any land" for the purposes the 28-day rule. It would seem strange if the entirety of a five-hundred acre plot were subject to the same limits as a five acre plot, and yet I can't find any definitive statement that it isn't. The question typically arises in situations where a farm-owner lets adjacent fields to the organizer of a car-boot sale, and claims that the adjacent fields have independent limits (it would be 14 days in this case, rather than 28.) Local authorities have successfully acted against landowners who do this; but at the same time I am aware of one individual who has re-registered a one-acre field as fourteen separate plots, so that he can live in a caravan on each plot in rotation for 28 days. It isn't clear to me whom the registered owners of the sub-plots are (if it isn't the same person), and this seems a highly technical and contrived way to get around a regulation. Nevertheless, the last I heard he was still living there.
The 28-day rule noted above does not apply to "caravan sites," but there are provisions in the Caravan Sites and Control of Development Act (1960) which are similar, and sometimes more generous.
s.3(1) of the CSCDA allows up to three caravans to be sited for up to 28 days in any year, on a plot of land of five acres or larger, that has not been built on.
s.8 allows for (in principle) any number of caravans to be stationed on land used for the purposes of forestry for "a particular season." There is no recent case law concerning how long a "season" is. Forestry work isn't really seasonal in the way that, for example, growing soft fruit is. There seems to be a consensus that a season is less than a year -- logically it must be -- but whether it is two weeks or two months is not at all obvious.
There is a legal definition of a caravan in the 1960 Act, and it is quite generous concerning size and construction. However, there seems to be little benefit in siting a really huge caravan, since there is no clear legal guidance on how long beyond 28 days it may remain in place.
If the caravan is not used for habitation, or not used often, then it might be classed as a temporary or moveable building when not in actual occupation. Some people might find it useful to keep a caravan for storage, and spend nights in it occasionally. For better or worse, the Woolley decision casts doubt on whether that would now be considered lawful if the caravan were permanently kept in the wood.
I think it is fair to say that local planning authorities have a bit of a reputation for being sticklers for legal technicality. My favourite more-than-my-job's-worth planning story is how in 2012 not one, but two, planning authorities took action against people for flying a "Jolly Roger" pirate flag on a pole. It will probably surprise most people that flags are subject to planning restrictions at all but, in fact, the relevant legislation is contained in the The Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations (2012). These regulations contain a long list of flags that may lawfully be flown (aren't you glad that our tax money is so well spent?) and, unsurprisingly, the Jolly Roger is not included.
In fairness, though, when it comes to agriculture and forestry, the planners have a difficult job. These activities are absolutely necessary for the health and well-being of the nation, and yet the rural English landscape is highly valued and deserving of protection. Moreover, people do sometimes try to exploit the planning system to their own advantage, and to the detriment of the community.
Nearly all the evidence I have (leaving aside the occasional Jolly Roger incident) is that the planners try to discharge their duties fairly and efficiently. They are nearly always happy to offer advice, free of charge, and are usually sympathetic when they feel that they can't accept some planning proposal.
Most planning decisions can be appealed, and an appeal by way of an exchange of written documents is usually free of charge. Of course, if you require legal representation, that will rarely be cheap: I'm told that a planning appeal where lawyers are involved costs each side an average of £7000 (in a planning appeal costs are rarely awarded against the losing party.)
Appeals are heard by a ministerial body, the Planning Inspectorate. Unfortunately, appeals can take six months or more to be heard, so in many cases it might be quicker to negotiate with the planners, so far as that is possible.
Planning authorities are entitled to take enforcement action against a person whom they believe to be in breach of regulations; such action might demand the removal of an offending building or the cessation of some activity. These actions can also be appealed, but failing to either comply or appeal is a criminal matter, and subject to fines. Surprisingly, planners are entitled to enter private land without permission to check for unlawful development or activity. In reality, it is more often neighbours who monitor planning breaches.
The rules on tree felling are set out in the Forestry Act (1967) and its amendments, and are generally not contentious. In short, you need a licence from the Forestry Commission to fell more than five cubic metres, or sell more than two cubic metres, of trees per calendar quarter, with a few exceptions. Exceptions that might be relevant to small woodlands, and where there are no volume limits include the following:
Tree diameters are measured at "breast height," which is now standardized as 130cm above ground.
Estimating tree volume is difficult, and it's easy to see how disputes might arise in principle about whether, for example, a particular bole is a stem or a branch -- there are no restrictions on lopping branches. In practice, however, these problems seem not to have given rise to legal action.
Many small woodlands are under-managed and overgrown, and it's unlikely that family management will exceed the licence-free limits for felling, bearing in mind that there is no limit on the number of trees less than 10cm diameter that may be thinned. However, it's not particularly difficult to get a licence from the FC to fell more trees if the work needs to be done, or if there is a plan for replanting.
Although rare in woodlands, trees might be subject to a tree preservation order (TPO) issued by the local authority, and to fell such a tree is an offence. TPOs are local land charges, and should show up during the purchasing process -- your legal advisor should be able to tell you if TPOs are in force (unlikely).
As the owner/occupier of a woodland, you bear some responsibility for the safety of other people on your land, whether they are present with or without your permission.
The guiding legislation here is the OLA57, particularly s.2, which is a
refreshingly clear, and worth reading in its entirety. The key statement is
"The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."
Notice that the word "reasonable" occurs twice in this one sentence, and what it amounts to in each case is a matter for the courts.
The main risk posed to visitors to woodlands (and probably trespassers) is from falling branches; although entire trees do fall, this is a very rare cause of injury. Falling branches, sadly, account for a significant number of injuries and fatalities. There is a good deal of case law concerned specifically with falling branches.
The landmark case regarding duty of care in these circumstances probably remains Noble (1926) 2 KB 332: no liability attaches in situations where reasonable inspection would not have revealed a defect in an apparently-healthy tree. A similar line was taken in Caminer (1951) AC 88: here the tree owner was deemed to be negligent in not inspecting the tree at all, but was ultimately not liable because a reasonable inspection would not have revealed the defect.
The McLellan case, (2005 QBD (TTC), Bristol, unreported) suggests that inspection need not be particularly thorough or expert, so long as it is reasonably regular. This decision is supported by Atkins v Scott (2008, unreported) where trees were inspected from the ground, and the defect was too high up to be noticed.
Nearly all the case law suggests that a woodland owner must inspect trees in regions where visitors may be lawfully present, except perhaps in very remote locations. The tree owner may escape liability in a case where no reasonable inspection would have revealed the defect, but it would not be wise to rely on this.
Most court rulings have held that inspection need not be very onerous, nor carried out by experts. A dissenting voice is that of MacDuff J in Poll (2006) EWHC (QB) 4BS50394:
"Nevertheless in my judgement a level two inspector would have been looking for (a concealed fungal bracket). He would have appreciated that decay could lie beneath this overhang (...) It would have been imperative to feel carefully into the space -- to scrape and discover."
I don't believe Judge MacDuff is asking us to "scrape and discover" in every tree -- this would be an impossible burden. However, he does seem to be expecting us to be able to identify the type and configuration of tree that might harbour a defect that needs to be examined thoroughly. Not only is this ruling somewhat out of line with most authorities, it would be extremely impractical to implement. The overwhelming majority of people who work with trees are not expert arboriculturalists, and there probably are not enough experts in the country to inspect every tree that might offer a hint that it is merited.
In the last few years, some tragic and contentious cases have been settled out of court. While nobody would wish any further grief to the families of the victims, this does mean that a number of legal questions -- such as the degree of expertise expected in a person who inspects trees for safety -- remain unanswered.
Although it won't affect many woodland owners, a person who is on your land under a "right to roam" provision is not a "visitor" (s.3(1) CRoWA) -- the CRoWA makes it clear that its provisions are not intended to create an additional burden for landowners. However, there could still be liability for deliberate or reckless mismanagement.
A person using a public footpath in or alongside a wood will probably be treated the same as a person on a highway, and a visitor's duty of care is owed. Similarly, a person exercising a legal duty to visit the land, such as a planning inspector, is a visitor.
It is often glibly stated that no liability attaches to the owner of a healthy tree that causes injury, and this may be true. In practice, however, trees can be unhealthy in ways that are hard to detect; land owners would do well to institute some policy of regular inspection, and it would be very risky to ignore a tree that was obviously diseased or dangerous.
According to the OLA84, a duty of care is owned to trespassers if
As ever, the presence of so many instances of the word "reasonable" makes interpretation difficult.
Whether there are risks in a woodland is something that should be fairly obvious on inspection of the land. The main risk, as with legitimate visitors, is likely to be from unstable tree branches; but trespassers might be exposed to dangers that legitimate visitors never encounter -- a trespasser might not keep to paths, for example.
In addition, whether there are likely to be trespassers should also be fairly clear. If the woodland contains, or borders, a public footpath or some other clear track, and is not in the remote highlands of Scotland, then it's a fair bet that people will wander in, either nefariously or innocently. Innocent trespassers are often dog-walkers and children: neither are respecters of property, and where dogs go you can be sure their owners will follow. Children seem to be drawn to the forbidden and dangerous.
The real problem in interpretation of the OLA84 is that of deciding whether the risk is one which a land-owner ought to protect trespassers from. I've certainly heard it argued that the owner of a wood need not be expected to protect trespassers from any risks at all. Sadly, the usual victims of this kind of thinking are children, and experience has shown that courts take a dim view of landowners who allow children to come to harm, even as trespassers. For both legal and ethical reasons, woodland owner ought to take some trouble to insure that the wood is safe, both for wanted and unwanted visitors.
Despite the implications of the Government's occasional publicity, there are no legal restrictions on private individuals using chainsaws for private purposes. There is no requirement for insurance, nor for any training. Most dealers will sell you a chainsaw without any evidence that you even know which end to hold. There are, of course, approved training schemes, and they are not particularly expensive -- cheaper than a funeral, anyway.
If your incompetent handling of a chainsaw causes injury or damage, then the usual law of negligence would apply. Of course, that would true if you used a hand saw, or even a nail-file; but you have much less time to rethink your felling strategy once the chainsaw starts to bite.
Quadbikes and similar vehicles can be very useful in woodland management. Within the wood, they are subject to the same considerations as chainsaws: you need no particular training or insurance, but both are advisable. Quadbikes are a rising source of fatalities among agricultural workers, and almost all the fatalities so far could have been avoided by the use of proper safety equipment.
An additional consideration is how to get your quadbike to the wood. No special regulations apply to transporting it on a trailer: you can tow 750 kg with an ordinary car driving licence. Many quadbikes are, or can be made, road legal; they will be registered with the DVLA either as private light goods vehicles, or light agricultural vehicles. It's very difficult to change the registration class, so think carefully when you buy. Road-legal quadbikes from motorcycle dealers will usually be registered as light goods vehicles; from agricultural plant suppliers usually as agricultural vehicles. If you are buying new, then you may get a choice but, as it's essentially irrevocable, choose carefully. In both cases, a standard car driving licence is all that is required, although quadbikes often have motorcycle-style controls, which will be unfamiliar to car drivers.
An advantage -- probably the only advantage -- of agricultural registration is that such vehicles are exempt from road tax and MOT testing. It should go without saying that this form of registration is designed for vehicles whose road usage extends to crossing from one field to another. Using such a vehicle for any other purpose is likely to be unlawful. There are probably restrictions on the number of road miles that may be covered in one journey, although I have searched the relevant legislation in vain for a definite ruling.
Private light goods vehicles require MOT testing with the same schedule as cars, and are subject to tax, £60 per year at the time of writing. However, there are no restrictions on road usage, beyond those that an insurer may impose. A quadbike registered in this way will probably find a wider market when it is sold.
Unless the woodland is a workplace where people are employed, there is no legal obligation for the owners to take out public liability insurance. However, such insurance need not be expensive, and can provide a certain amount of piece of mind.
Most insurers will expect land-owners to behave "reasonably" (there's that word again), and an obligation to do so is likely to be part of the contract. So insurance by itself does not relieve the woodland owner of the need to inspect trees, or to stack logs safely, or use fencing or signage where appropriate. If the owner does all those things diligently, then it could be argued that there is no need for insurance, as the owner will not be liable for accidents. However, as the case law shows, it is not easy to predict the way a judge will rule when "reasonableness" is at issue.
Be aware that most woodland insurance that is affordable is negotiated on a block basis, with fairly standard terms, the costs being shared equally among subscribers. A policy of this sort is unlikely to cover high-risk activities like shooting, or chainsaw operation.
Small woods are usually subject to private rights of way, and often to public rights of way as well.
Small woods are usually subject to easements of access -- both benefit and burden. A 'benefit' of such an easement is a right to cross somebody else's land to get to your own; a 'burden' is a right for somebody else to cross your land. An easement of access may be for foot traffic only, or include some measure of vehicular access. Easements will be negotiated when the land is sold, and the agreement takes the form of a covenant.
Like most covenants, easements of access 'run with the land.' That is, although they may be created in an agreement between buyer and seller, they will typically be binding on future owners. If your land has the burden of an easement of access, then it will be unlawful (but not a criminal matter) to obstruct it. In many cases, the easement will be accompanied by a covenant of maintenance -- the person with the benefit of the easement undertakes to share the maintenance of the path with the owner of the land it crosses. Often the exact distribution of maintenance costs is left deliberately vague, because they are difficult to predict. This can cause some contention when the woodland is sold, and it is advisable
to keep a record of what maintenance has, in fact, cost -- if anything.
Public rights of way are in a different legal category from private easements of access. The legal framework is set out in the tortuously complex Highways Act (1980) and its various amending statutes. Obstructing a public right of way is a criminal, not a civil, matter. Local highways authorities can prosecute, or take remedial action at the land-owner's expense, if a public right of way if obstructed. Many small woods are crossed or bordered by public footpaths, and owners should be aware of their responsibilities. In principle, rights of way shown on Ordnance Survey maps are not conclusive -- the local highways authority maintains the "definitive map" of rights of way. It is very rare for recent OS maps to be in error about such matters, however, although the limitation of map scale might make precise location difficult.
It should be obvious that a public right of way should not be blocked by locked gates or walls, but allowing vegetation to obscure the path, or disturbing the surface, could also amount to obstruction. The width of a particular public right of way can be contentious. The local authority should record the width, if it is known, on the definitive map; but most often it is unknown, or vague ("Varies from 1m to 5m"). Government guidance suggests that footpaths should be cleared to a width of 1.5m, and bridleways to 3m.
Although landowners may not obstruct public rights of way, they are entitled to make them unappealing, so long as that does not amount to an obstruction. There is a public footpath along the Chess Valley in Hertfordshire that has been constrained to a minimum width with barbed-wire fencing, with "keep out" notices every few yards. Dropping piles of dung next to footpaths is another favourite tactic in some regions. Although these manoeuvres are unneighbourly, they are not unlawful.
In any wood that is actively being managed, particularly for extraction of timber, it is likely that tracks will develop -- by accident or design -- leading in and out of the wood. Such tracks are often more obvious, and more appealing to walk on, than any public footpaths that existed previously. In such situations, it might be advisable to place polite notices indicating where the footpaths really are. This is particularly important if the wood contains hazards that a casual wanderer might not notice.
Although public rights of way are classified by use -- footpath, bridleway, etc. -- those uses apply only to users, not to owners, of the path. It sometimes surprises walkers that public footpaths actually belong to somebody; but this should really be obvious -- if the land had no owner, there would be no need for a particular right of way. So the fact that a piece of land you own is signposted "public footpath" does not mean that you cannot drive a car, or even a lorry, along it if you wish. Of course, you should do this carefully if you have to do it at all, because walkers and horse-riders will probably not expect to encounter vehicles on a footpath. Driving a car on a footpath with the intention of intimidating walkers could be seen as an obstruction, as well as an assault at common law. If the vehicle actually makes contact with another person, then that would amount to a battery, or even a more serious offence, depending on the injury sustained.
Many animal species have some legal protection, and some of these species are regularly found in British woodlands. The governing legislation is predominantly the Wildlife and Countryside Act (1981), as amended. Broadly, it is an offence intentionally to kill or capture a protected animal, or to interfere with its breeding sites. In nearly all cases a licence can be obtained to circumvent the protection if there really is no alternative but, in general, such measures are unlikely to be needed in woodland management.
It is an offence under the WCA intentionally to capture, kill, or injure bats, badgers, and dormice, or interfere with their habitats.
Although many woodland owners regard deer, especially Muntjac, as vermin, they can not legally be trapped or hunted outside of designated seasons, or at night. There are hugely complicated rules about which species can be hunted, how, and when; anybody who needs to do this should take expert advice. Unlike in large commercial plantations, owners of small woodlands can probably protect young trees from deer more easily by passive means (shelters, etc) than extermination; and firearms are likely to create a serious hazard to neighbouring landowners in a wood that is only a few hundred yards across.
All wild birds have some measure of protection -- even crows, which are generally regarded as pests. As well as killing the birds themselves, it is an offence to destroy a nest intentionally, or take eggs. It is probably not unlawful to fell a tree that turned out to contain an active nest that could not be seen, but reckless disregard for bird nesting could still be problematic.
In practice, there are other good reasons to do most tree felling in autumn or winter, when the risk of destroying an active nest is small, so problems should not normally arise. So-called "Schedule 1" birds are subject to more stringent protection, and damage to nests that falls short of destruction could be prosecuted. With the possible exception of the barn owl, which sometimes roosts in trees, these birds are unlikely to be encountered in an English woodland.
Some birds may lawfully be trapped or shot in particular ways at particular times -- pheasants, partridge, etc. A "general licence" is issued annually containing a list of species that can be killed without restriction for the protection of agriculture -- typically this list includes crows. At the time of writing, the general license has currently been withdrawn pending a legal challenge.
Great crested newts are amphibious, and sometimes found around woodland ponds. Unless you have the expertise to survey for these animals, pond management work should normally be carried out in the winter, when they are unlikely to be present.
Despite the number of signs suggesting the contrary, trespassers (as such) cannot be prosecuted. Plain trespass is not a crime; it is, at most, a tort -- a wrong for which a remedy may exist in the civil courts.
Three distinct classes of trespassers typically cause problems for woodland owners: casual trespassers, poachers, and squatters.
In any large wood, or any wood that is near a public right of way, some measure of casual trespassing is inevitable. Trespass of this sort is usually either unwitting ("I didn't know it wasn't a footpath"), done out of general curiosity, or to take a short-cut. Most owners of small woodlands are proud of their woods and happy to show them off; but it is legally perilous to sanction trespass: the duty of care owed to an authorized visitor is much higher than that owed to a trespasser, and regular trespassory use of land can, in the end, create rights for the trespasser.
It will almost certainly be impossible to interest the police in trespass of this sort -- by itself it is not a crime. However, there are a few circumstances in which the police might take action.
In practice, none of these situations is common, and occasional trespass may have to be tolerated. It can be controlled by signage, regular working in the wood, and polite but firm guidance to trespassers. In principle, a right exists at common law to remove trespassers using "reasonable force," but it would be a brave, or foolhardy, landowner who tried to use it against unauthorized visitors who are doing no harm.
To prevent regular trespass turning eventually into a right of way (which generally takes a minimum of twenty years), the landowner should take steps to indicate that no right of way is intended -- these steps might include fencing and signage. A procedure is defined in s.31(6) of the Highways Act 1980 by which a landowner can file a declaration that no public right of way is intended -- the local council should be able to advise on how to invoke this procedure.
Poaching is entering another person's land to take game animals or rabbits. There are many specific offences related to poaching, and a poacher might also be committing theft, aggravated trespass, and wildlife offences. For better or worse, "lamping" for rabbits, often from public footpaths, is quite common around woodland. The police have wide powers to deal with poaching, and should certainly be involved if it is suspected.
Small woods do not, on the whole, make good places to set up an unlawful dwelling. Access is often poor, there are usually no services, and woods are cold, dark, and gloomy at night. Nevertheless, it does happen.
The police will usually take no action against squatters who are living peaceably alongside legal owners; indeed they have no particular powers to do so if no crime is being committed. However, there is a power under s.61 of the CJPOA to remove them if they park more than six vehicles, threaten the legal occupiers, or cause damage. This power is discretionary, and normally exercised only against "traveller" communities and the like, that are cause widespread disturbance.
The 'proper' procedure for removing squatters is to seek a possession order from the County Court, demanding their eviction. If you act quickly -- generally within 28 days -- and the squatters are in a building, you can ask for an interrim possession order from a county court. If granted by the court, the IPO must be served on the squatters with two days. Failure to comply with an IPO -- generally by leaving the land -- is a criminal office, and the police might take action. In practice, however, woodland squatters are usually not occupying buildings, so the IPO procedure is inappropriate.
The full possession procedure is time-consuming and expensive, particularly if legal representation is required. In principle, if the order is granted then an order of costs may be made against the squatters; in practice, the squatters will probably not pay, or be unable to.
Owners of woodland -- or any open land -- are between a rock and a hard place when squatters move in. Peaceable squatters are difficult to remove lawfully but, if they are not removed, the land-owner is probably in breach of planning regulations. There have been situations where local authorities have taken legal action against land-owners for failing to remove squatters, rather than taking action against the squatters themselves. Worse, after a period of time -- typically ten years -- squatters can begin proceedings to claim ownership of the land under adverse possession. So however well-disposed and sympathetic a woodland owner might feel, it is imperative to take action to remove squatters.
With this situation as it stands, it is hardly surprising that there are organizations which will attempt to remove squatters without legal action. These businesses work on the borders of legality: there is a common-law right to remove trespassers, even using reasonable force, but "reasonable" is hard to judge correctly, and it takes considerable force to remove a group of people who really don't want to go. Forcible evictions will usually require the police to be present, and will be extremely expensive.
Squatters, like more casual trespassers, are likely to be discouraged from entering land that is clearly private, and obviously occupied.
From earlier discussion, you probably won't be surprised to find that it is very rare indeed for anybody to get official sanction to live in his or her own wood, in a building or in anything else. Ironically, it is easier to live as a trespasser on somebody else's land than lawfully on your own.
The few occasions where approval has been granted for a dwelling have been subject to strict conditions -- most onerously that the building may not be transferred to a new owner.
At any given time, however, a few people are living year-round, more-or-less openly in their woodland, in dwellings of various degrees of permanence. They get away with this either because nobody notices, or because the planners lack the resources or incentive to challenge them, or they are openly deceptive. It is permissible to live in a caravan on woodland for 28 days for any purpose, and probably longer for forestry work; some people seem to be able to stretch this 28 days until it becomes more-or-less permanent. In a few striking cases, whole families have lived in caravans, and been an established part of the local community -- paying local taxes, attending schools, and having voting rights -- without being challenged by the planners.
If a person can occupy a substantially-completed dwelling for four years, or a caravan for ten, then the planning authority loses the right to take enforcement action. Recent statute law and court decisions have clarified, however, that such occupation must be open. People have gone to great lengths to try to exploit the four-year limitation period -- notoriously, a Surrey farmer constructed a mock-Tudor folly behind a forty-foot wall of straw bales. At the time of writing, he has exhausted his legal routes of appeal, and is demolishing it.
Even if you can use the four-year or ten-year limitation periods, and even if you can get the local planning authority to issue a Certificate of Lawful Development, that does not create a right to build anything else. The planners might not be able to prevent you living in your caravan or tin shack after that time, but that doesn't mean that you can lawfully build a house on the same site.
It should not be a problem for the owner of a small wood to construct such modest buildings as are necessary for its upkeep, provided that the proper notice procedure is followed carefully. The long-term use of semi-permanent structures, rather than buildings, is becoming increasingly open to challenge. Woodland may be used for non-forestry purposes for a certain amount of time each year; this is helpful because 'forestry' has no clear legal definition.
Owners of woodland have a duty of care to lawful visitors and even, to a lesser extent, to trespassers. It is wise to look for, and mitigate, obvious hazards, particularly diseased trees. Insurance might be appropriate in some cases.
Many small woods contain, or border, public rights of way, and there is a duty on land-owners to keep them unobstructed.
Care must be taken to avoid harming certain animal species, notably bats, badgers, dormice, wild birds, and great crested newts.
Trespassers of various kinds are a feature of small woods, and it may not be possible to prevent trespass completely. However, trespass should not be blithely permitted, as it can eventually create rights for the trespasser. Signage, fencing, and evident usage by the owner might reduce the amount of trespass.
While many people hanker to live "off grid" in the middle of a wood, there are few legal ways to do this for an extended period of time.
[ Last updated Sun 21 Mar 2021 05:46:32 PM GMT ]