Sport Northern Ireland is the leading public body responsible for the strategic development of sport in Northern Ireland, and is therefore developing as wide a range of sporting opportunities as possible to increase participation and improve performance in sport and physical recreation.
Sport Northern Ireland’s vision is to promote “a culture of lifelong enjoyment and success in sport which contributes to a peaceful, fair and prosperoussociety”. In practice, this means Sport Northern Ireland creates and develops programmes and partnerships that will address its three strategic objectives:
Increased participation in sport and physical recreation;
Improved sporting performances; and
Improved efficiency and effectiveness in the administration of sport.
3 POLICY PURPOSE AND OBJECTIVES
This policy position has been created to increase participation and sustainable access to Northern Ireland’s natural environment for sport and physical recreation in line with the relevant targets within “Sport Matters” The Strategy for Sport and Physical Recreation 2009 – 19.
The objective is to communicate Sport Northern Ireland’s position on the importance it attaches to outdoor recreation through:
3.1 Promoting the best possible access to the natural environment for sport and physical recreation within the confines of existing legislation and cognisant of the land ownership prevalent in Northern Ireland
3.2 Encouraging and supporting full access for responsible and sustainable recreation on public land through the development of policy frameworks by other public bodies – especially those that are custodians of public land.
For the purposes of this policy, “access” is considered as that which pertains to the natural environment; as opposed to the “built environment”; for the purposes of sustainable and responsible sport and physical recreation activities by non motorised sports.
Over the past 50 years there have been many attempts to define sport; SNI has adopted a broad and inclusive definition as referenced in the Council for Europe’s Sport Charter 2001:
“All forms of physical activity which through casual or organised participation, aim at expressing or improving physical fitness and mental wellbeing, forming social relationships, or obtaining results in competition at all levels.”
This working definition implies that involvement with sport is valued at all levels and abilities, however casual. Equally, this definition has also enabled arguments to be made for sport’s contribution to wider policy agendas such as health, education and community cohesion and regeneration.
6 STRATEGIC CONTEXT
6.1 “Sport Matters” The Strategy for Sport and Physical Recreation 2009–19
‘Sport Matters: The Strategy for Sport and Physical Recreation 2009-2019’ articulates the vision expressed and endorsed by respondents during the development of, and consultation on, the Strategy for Sport and Physical Recreation 2009-2019. That vision is: “…a culture of lifelong enjoyment and success in sport…” For the first time in Northern Ireland, the strategy outlines a broader Government commitment to sport and physical recreation – a commitment that extends beyond any single department or organisation and permeates the decision-making and investment processes of the Government of Northern Ireland. This commitment has been formally endorsed by the Northern Ireland Executive and Assembly
Within the Strategy there are a number of key targets that relate to increasing participation in sport and physical recreation for the general population including:
· By 2012, to have stopped the decline in adult participation in sport and physical recreation
· By 2018 to deliver at least a 3 percentage points increase in adult participation rates in sport and physical recreation (from the 2011 baseline).
· There are further targets to deliver at least a 6 percentage points increase in participation rates among women, socio-economically disadvantaged groups, people with a disability and older people in sport and physical recreation.
· The strategy has also highlighted a target that “by 2015 to have amended public policy frameworks to protect and promote access to and sustainable use of publicly – owned land in Northern Ireland for sport and physical recreation.”
This policy position paper confirms Sport Northern Ireland’s commitment to the development of outdoor recreation in the furtherance primarily of the targets for participation and places for sport and physical recreation.
6.2 The Northern Ireland Countryside Recreation Strategy 1998.
This strategy was written following the work of the Countryside Recreation Working Group which had been set up by Sports Council for Northern Ireland (now Sport Northern Ireland) and the Environment and Heritage Service for Northern Ireland (now the Northern Ireland Environment Agency).
Out of this strategy came a vision and 3 programme strands for developing countryside recreation.
The vision was to:
“Develop and sustain a vibrant countryside recreation culture in which responsible and well informed people enjoy high quality sustainable and appropriate activities in an accessible, well managed yet challenging environment; where landowners and managers are welcoming and there are accompanying benefits to local communities both in social and economic terms.”
The values were:
· Mutual respect between parties.
· Sustainable access.
· Quality of experience.
The three programme strands were:
1. Developing management structures.
2. Planned Development
3. Education and training.
This policy position paper confirms Sport Northern Ireland’s commitment to the development of outdoor recreation through promoting sustainable access to the Natural Environment while ensuring that there is mutual respect between users, activity providers and land owners / managers.
This policy position is underpinned by the following 3 fundamental principles:
· Creating the best possible access to the natural environment for sport and physical recreation must be regardless of race, age, ability or location, so as to encourage a lifelong healthy lifestyle pattern and equitable opportunities for all to participate.
· That increased access must be mirrored by responsible and sustainable usage and therefore users must follow sound environmental ethics such as the Leave No Trace principles.
· That access to private land should principally be through agreement of landowners.
8 THE POLICY
8.1 Sport Northern Ireland believes in the importance of access to the natural environment for sport and physical recreation as a major contributor to the health and mental well being of our population.
8.2 Sport Northern Ireland is committed to the principles of “Leave No Trace – Ireland” and believes that this message should be adopted and communicated by organisations as a clear and common ethic, promoting access to the natural environment for Sport and Physical Recreation.
8.3 Sport Northern Ireland believes that all public land that is suitable for Sport and Physical Recreation should be fully available for sustainable and responsible Sport and Physical Recreation
a. Sport Northern Ireland has committed to work with Forest Service to support their recreational strategy and develop an action plan that creates opportunities for enhanced use of forests for sustainable Sport and Physical Recreation
b. Sport Northern Ireland has committed to work with Northern Ireland Water to support the development of a recreational policy that creates opportunities for enhanced use of their sites for sustainable Sport and Physical Recreation
c. Sport Northern Ireland is committed to continue to support the National Trust in the development of access.
d. Sport Northern Ireland is committed to continue to support other public agencies including District Councils, the Mourne Heritage Trust and the CausewayCoast and Glens Heritage Trust in the development of improved access to the natural environment.
8.4 Sport Northern Ireland also believes in the right of farmers and landowners to be protected from irresponsible users and heightened liability from access to their land.
8.5 Sport Northern Ireland therefore believes that access to private land should principally be by agreement rather than asserted. However, there may be occasions whereby assertion of a critical right of way is essential, where agreement cannot be reached and the right of way is of significant interest and importance to society.
8.6 Sport Northern Ireland believes that users must be responsible for their own actions and liabilities when participating in activities in the natural environment.
8.7 Sport Northern Ireland believes that all navigable inland waterways should be afforded the equivalent status as public land and therefore be open for access for non-motorised sustainable recreation as is the case with the marine environment.
8.8 Sport Northern Ireland believes that the next Outdoor Recreation Strategy / Action Plan for Northern Ireland should include improved guidance and agree targets for councils with respect to implementing the 1983 Access Order to improve and increase the number of Public Rights of Way and permissive paths in Northern Ireland.
8.9 Sport Northern Ireland believes that any future review of the 1983 Access Order should provide a greater level of statutory access to public land and promote the principle of agreement with private landowners as well as considering the liability afforded to a recreational user.
APPENDIX 1 BACKGROUND INFORMATION
1. RELEVANT LEGISLATION
The laws concerning access to the countryside are complex and inextricably linked with other legislation such as Occupier’s Liability legislation. However, the aim of this policy position is to clarify Sport Northern Ireland’s position in relation to these pieces of legislation. This policy position does not seek the changing of the current legislation but rather to seek ways to improve and increase access within the current regime of law. However, if legislation were to be reformed – the statements within this position paper highlight some recommendations that could be taken forward to improve access for sustainable and responsible sport and physical recreation.
Northern Ireland has a similar legal system to that of England and Wales, based on common law regarding land ownership and public rights of way. However, the Northern Ireland Courts have dealt with considerably fewer issues regarding access or rights of way than the English courts. It is assumed that they would follow English precedents when applying common law principles – although there is no guarantee of this.
1.1 Common Law Principles.
A number of common law principles apply in Northern Ireland:
A public right of way.
· Is deemed as a highway that any member of the public can use.
· May be created specifically or through “deemed dedication” by the public openly using it regularly over a period of time with the knowledge of the landowner.
· May be limited to certain users – i.e. walkers only, or walkers and cyclists/horse riders.
· Is a permanent legal entity – “i.e. once a highway always a highway.”
A public right to roam over land.
· This cannot arise through a tradition of use and therefore there is no legal right to roam over open land. However, on much of the open land in Northern Ireland there has been de-facto access. This is whereby the landowners turn a blind eye to the usage, which people mistakenly assume is a right as there is a long history of use over many years.
A right to use land for “lawful sports and pastimes”.
· This can be acquired by the tradition of local inhabitants but not by the public at large through the use of a common area through registering it with the local council. Often this is used to protect village greens etc. from becoming developed.
· This occurs when a person is on land without legal entitlement. It is normally a civil rather than a criminal offence.
1.2 Access to the Countryside (Northern Ireland) Order 1983.
This legislation gave responsibilities to district councils to “assert, protect and keep open and free from obstruction or encroachment any public right of way”
It also gave district councils responsibility to propose long distance routes and the power to secure access to open country for recreation by agreement or order. The two councils in the Mournes area have been actively pursuing access to open land through agreement.
In respect of both agreements and orders, payments can be made by the district councils to the landowners concerned.
It also gave district councils responsibility to propose long distance routes and the power to secure access to open country for recreation by agreement or order. A number of councils especially in the Mournes are actively pursuing access to open land through agreement.
In respect of both agreements and orders, payments can be made by the district councils to the landowners concerned.
1.3 The Recreation and Youth Service (Northern Ireland) Order 1986.
While not specifically mentioning countryside access this legislation ensured provision of facilities for recreational, social, physical and cultural activities by district councils.
A number of district councils have used this provision to create permissive path agreements between themselves and a landowner by which the landowner allows access to their land over a designated route.
These agreements generally run for a number of years and do not create a public right of way over the route. District councils may agree to provide insurance cover to landowners in respect of the route.
1.4 Occupiers’ Liability Legislation.
One of the greatest concerns that landowners have with respect to access is regarding the whole issue of occupiers’ liability.
Occupiers (who may not necessarily be the landowner) of land have a “duty of care”, towards people who come on to their land.
Two pieces of legislation affect this duty of care:
· The Occupiers’ Liability Act (Northern Ireland) 1957
· The Occupiers’ Liability (Northern Ireland) Order 1987
The 1957 Act deals with the liability towards visitors. A visitor is someone who has been invited on to the land by the occupier. The occupier of land owes a common duty of care to visitors.
A “visitor” can also be applied to people who cross the land without the owner’s express permission but where he does not object to them doing so (“tacit consent” users).
The 1987 Order deals with the liability towards a trespasser. A person who has neither the right nor permission to be on the land is deemed to be a trespasser. The duty a landowner owes to trespassers is lower than that owed to visitors.
A trespasser who is injured will have to show that it was the state of the premises or something done there which caused the injury.
The primary case on this issue is Tomlinson v Congleton Borough Council  in which the court of appeal found in favour of Congleton Borough Council with respect to a young man who had dived into open water and broken his neck.
The Tomlinson case provides an example of the common sense approach courts adopted in relation to trespassers. In that case Lord Hutton commented:
“ ….it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or cliff and impose upon him a duty to do so.”
What this case clearly demonstrates is that it is very difficult for visitors or trespassers to successfully claim compensation for accidents which occur in the natural environment.
This case indicated that landowners have little to fear from accidents which occur as a result of the natural state of their land. There is no known reported case of adult trespassers successfully suing a landowner because of an injury caused due to natural features arising in the natural environment
However, different considerations may still apply to man-made structures on land such as walls, gates or stiles.
In this case , Lord Hoffmann also commented that if the man had been a visitor:
“I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding, or swim or dive in ponds or lakes – that is their affair.”
However, the law of access is complex, and the perception of landowners is that in an increasing claim culture, providing access puts them at real risk. A number of landowners report that successful actions under both the 1957 and 1987 legislation have been brought against them which have predominantly been settled out of court. There is little information on these cases as it appears the insurance companies do not want this information divulged. The landowners have grave concerns that Government Offices have played down the risks to which they have been exposed in the past and are likely to be increasingly exposed in the future.
2. LAND OWNERSHIP IN NORTHERN IRELAND
There are approx 1,336,000 Hectares in Northern Ireland.
Of this over 6.5% are in public ownership (87,000 Ha) and just under 1% is owned by the National Trust (12,000Ha)
Forest Service 76,000Ha
Water NI 8,637 Ha
National Trust 12,000 Ha
In July 2009 The Minister for Agriculture and Rural Development launched the new Forest Service Recreation and Social use of Forestry Strategy. This strategy is a positive step in the development of increased opportunities for recreation. Furthermore the 2010 Forestry Bill has given a statutory right of access to all forests by pedestrians and a duty has been placed on the Forest Service to take account of recreation in all their forest planning.
Almost 4% of the total area of Northern Ireland is inland water (51,000 Ha).
Much of the remaining land is agricultural (80%) comprising of over 30.000 active farm units; approximately half of which are under 20 Ha.
75% of agricultural land has Less Favoured Area (LFA) status and much of this is classified as ‘severely disadvantaged’
3. Research / Surveys and Reports
3.1 Access to the Northern Ireland Countryside 1994.
This report, which was commissioned by EHS, SCNI and NITB, outlined a number of key findings:
i) Public access to the wider countryside is severely restricted;
ii) A high proportion of the population visits the countryside and values it for recreation;
iii) Recreational opportunities are primarily in country & forest parks or on roads;
iv) A small number of routes have been and continue to be developed;
v) There is a plethora of Government agencies involved in countryside recreation – but no lead or co-ordinating body;
vi) There is a lack of awareness among some district councils of their statutory responsibility for developing access to the countryside;
vii) There is also a lack of awareness among the recreational users of the responsibilities of local councils;
viii) There are significant concerns among the farming community regarding increased access.
3.2 Green Exercise and Health Study 2005.
In 2005 the Countryside Recreation Network (A UK wide based network representing all the key organisations with a remit for countryside recreation) commissioned this major piece of UK wide research on green exercise and health.
· Green exercise is defined as physical activity whilst being directly exposed to nature.
· The outcome of this was that there was a clear relationship between physical health and green exercise – but also strong correlations with respect to mental health and well being – as humans have a natural affinity for green spaces.
3.3 Review of the 1998 Countryside Recreation Strategy 2009
In March 2009, Sport NI and the Northern Ireland Environment Agency (NIEA) commissioned Outplan Ireland Ltd. to carry out a review of Northern Ireland’s first Countryside Recreation Strategy which was published in 1998.
The assignment fell into 3 stages:
A review of the impact of the 1998 Strategy’s recommendations in realising its ‘vision’ for countryside recreation
A review of the impact of the Countryside Access and Activities Network (CAAN) in implementing the Strategy
Recommendations for future action based on these findings.
This review highlighted that the first Countryside Recreation Strategy had been effective in delivering increased and sustainable participation in Countryside Recreation. Critically the development of the Countryside Access and Activity Network (CAAN) had been instrumental in facilitating communication between key stakeholders including landowners, managers and users at a strategic level. However, in the intervening years much has changed and the review has highlighted a series of recommendations including:
a) CAAN’s ‘Network’ meetings should change in format and frequency.
b) Maximise research to develop a sound evidence base for a new Outdoor Recreation Strategy.
c) Develop CALG’s membership and operation to be more strategic and cross-cutting.
d) Develop a Policy Statement from the Northern Ireland Executive on the importance of Outdoor Recreation .
e) Government should prepare a new Outdoor Recreation Strategy for Northern Ireland.
f) The lead co-ordinating Department and any other key Departments should be resourced and mandated to progress the Strategy.
g) Establish a National Access Forum with clear Terms of Reference.
3.4 Trends in Outdoor Recreation 1995 – 2008
In August 2008, Sport NI and the Northern Ireland Tourist Board commissioned the CAAN to undertake a research project to assess the trends in 23 outdoor recreation activities during the last 13 years.
The project covered 23 different adventure activities on Land, water and air but did not include walking, cycling and horse riding – as these activities required a study in of themselves (currently being undertaken)
Some of the activities that were considered in the original 1995 research study were omitted because they do not require public access to the natural environment. Angling was initially included within the scope of the project however during the course of the data collection phase it was withdrawn as it was recognised that it merited a more in-depth and detailed report, addressing the specific issues affecting angling within Northern Ireland.
The research highlighted a number of key factors including those below which are relevant to this policy:
1. Most activities under consideration in the study have experienced growth in participation levels although often was greatest amongst those not affiliated to clubs or National Governing Bodies. In all activities, female participation is significantly lower than that of males and disabled and ethnic minority participation is also low.
2. The availability of cheaper equipment has had a positive impact on participation levels in a number of activities and it was apparent that the number of venues used by almost every activity has increased.
3. The number and frequency of events has increased for several activities eg adventure racing, fell running and field archery, leading to increased participation from visitors outside Northern Ireland
4. The development of new innovative facilities, particularly the canoe trail network, the advent of low cost airlines and improved road network from the Republic of Ireland to the Northern Ireland have all contributed to increased numbers of visitors from outside Northern Ireland.
5. A number of activities reported increased numbers of participants travelling to Great Britain, Europe and further afield in order to participate and compete in their chosen activity due to a lack of access and facilities in Northern Ireland.
6. There has been an increase in the number of private estates that encourage use of their land for recreational activities.
7. There has been a significant increase in the number of commercial outdoor activity providers operating in Northern Ireland over the past 10 years. These are primarily concentrated in Co. Down.
3.5 Access to PublicLand Survey
In 2010 CAAN was tasked by Sport Northern Ireland to undertake a study into current access provision on public land for a range of sports. This study has provided a lot of detailed information on the range of sites that are available around for sport and physical recreation. While some activities such as walking have a reasonable level of access to public land – other sports have limited opportunities.
Furthermore, there is little commonality in the policies and approaches to access and facilities for recreation by the various public bodies.
4. 2007 MourneNational Park Debate.
· In the Mournes the landowners have tolerated access which has lead walkers to assume they have a right to walk, because they have always done so. This is known as “de-facto” access.
· The “de-facto” access that there has been in the Mournes had the potential to be threatened by the very contentious issue of the National Park. Whilst the relationship between the recreational users and landowners have historically been good, a number of landowners had indicated that if a National Park was forced upon them they would consider closing off access to the mountains.
5. 2007 Representation to the Office of Law Reform.
The Countryside Access and Activity Network (CAAN), the Ulster Farmers Union (UFU) and the Northern Ireland Agricultural Producers Association (NIAPA) jointly presented a report to the office of law reform requesting that the occupiers’ liability legislation be revised. However, the Office of Law Reform have very clearly indicated that there is no need to revise the legislation given that there were few cases against land owners.
6. Situation in Great Britain
6.1 Countryside and Rights of Way Act (England & Wales) 2000.
The Countryside and Rights of Way Act 2000 (also known as CROW) was brought in to England and Wales only.
It extended the public’s ability to enjoy the countryside whilst also providing safeguards for landowners and occupiers.
It created a new statutory right of public access on foot to open land comprising mountain , moor, heath, down, and registered common land.
It improved the rights of way legislation by encouraging the creation of new routes and clarifying uncertainties about existing rights and also introduced powers enabling the diversion of rights of way to protect sensitive designated areas.
It placed a stronger duty on Government Departments to have regard for the conservation of biodiversity and the protection of sensitive designated areas as well as strengthening the legal protection for threatened species.
It provided better management arrangements for Areas of Outstanding Natural Beauty (AONBs)
A large proportion of the countryside in England and to a lesser degree Wales, is owned and managed by large scale farms.
6.2 Land Reform (Scotland) Act 2003.
The access legislation in Part One of the Land Reform (Scotland) Act 2003 aimed to make it easier for people to enjoy the outdoors and to be clear about what they can do. In essence there is a right of responsible access to all land in Scotland.
The access laws included a package of related measures which are:
A clearer legal basis for access.
Responsibility as the key principle for using access rights and managing land.
Safeguards for privacy, land management and conservation.
New duties and powers for local authorities and other public bodies.
Adequate resources to make the proposals work well.
It should be noted that much of the land in Scotland is owned by large estates and in essence the new access law reflected the desire for the population of Scotland to access Scottish land.
7. Situation in ROI
A new ten-year trails strategy was launched subsequent to a major public consultation.
The strategy is aimed in part at addressing lack of exercise with 66 per cent of the population not meeting the minimum levels of physical activity recommended by World Health Organisation but also it is intended to contribute to increasing the annual eco nomic value of international walking and cycling tourism (presently valued at £144 million per annum).
A first step in implementing the new strategy is the setting up of a National Trails Office (NTO) linked to the Irish Sports Council with an annual budget of €429,000. The task of the NTO is to guide the implementation of the strategy including the establishment of new trails and the improvement of existing facilities. There are approximately 8,300 kilometres of developed walking trails including thirty-two National Waymarked Ways managed through a government-funded and supported committee system.
From a Northern Ireland perspective this initiative, and the strategic approach being adopted, gives food for thought particularly as the health and tourism benefits being sought have, at least, equal relevance here. There is also the issue of tourism being increasingly marketed on an all-island basis and it would be logical to strive for optimum trans-frontier harmonisation of approach to tourist centred access to the Natural Environment.
The Occupiers Liability Act 1995 determines that a land owners’ duty of care to a recreational user of his/her land is extremely limited being equivalent to the duty of care owed to a trespasser on that land. The Act also provides that a landowner should not intentionally injure persons or damage their property, or act “with reckless disregard” for their safety. The intention of this legislation had been to assure landowners that their liability in relation to recreational users of their land was minimal. However, there is evidence to suggest that it has not fully achieved its objective with an increasing tendency for exclusion notices to be erected on private land.
8. Situation in other states of Europe
Everyone in the Scandinavian countries has a right of access to the natural environment, originally a traditional right but now set out in the legislation governing the right of access (“allemannsretten”). This right is based on respect for the natural environment and that visitors must always show consideration for farmers and landowners, other users and the environment. Most of the other states have a range of legislation governing access not too dissimilar to that in Northern Ireland. However, there is a strong tradition within European States to create a very extensive network of trails, Public Rights of Way and facilities / infrastructure for outdoor sports (often called nature sports in Europe).
This document is available in other accessible formats on request and on-line at www.sportni.net