Public Rights of Way: Pausing to Enjoy the View vs Camping

1. Introduction

Public Rights of Way (PROWs) are highways under common law, granting the public the right to "pass and repass." Courts have consistently debated the extent to which incidental activities, such as pausing to rest or camping, fall within this right. This article analyses key case law and statutory provisions to clarify the legality of pausing briefly versus camping on PROWs. Judicial decisions and academic commentary establish that short pauses are generally lawful, whereas camping exceeds the scope of highway rights and risks liability under the Highways Act 1980.

2. Case Law

2.1 Passing and Repassing as the Core Right

• Hickman v Maisey [1900] 1 QB 752
  The defendant used a highway to observe and record racehorse activities. The court ruled this use unlawful, emphasising that public rights on highways are limited to "passing and repassing" and activities reasonably incidental to it.
  Commentary: Rodgers (2014) describes Hickman as "the high-water mark of judicial restrictiveness" (Law of the Countryside), but its principle continues to define the boundaries of lawful highway use.

2.2 Broadening the Scope of Reasonable Use

• DPP v Jones [1999] 2 AC 240 (HL)
  Protesters peacefully assembled on the verge of the A344 near Stonehenge. The House of Lords departed from the restrictive Hickman approach, holding that public use of highways extends to "reasonable, peaceful, and non-obstructive" activities compatible with the highway’s primary purpose of passage.
  Commentary: Lord Irvine LC stated that highways are "open-air spaces where a range of reasonable activities might occur" (DPP v Jones). Dyson (1999) notes that this decision broadens permissible highway activities but maintains limits on obstruction (Modern Law Review, 62 MLR 543).

2.3 Stationary Use and Obstruction

• DPP v Verma [1996] RTR 121
  Parking for purposes unrelated to passage was deemed an obstruction, reinforcing that stationary activities must align with the highway’s purpose.

• Herrick v Kidner [2010] EWHC 269 (Admin)
  Protest structures on highway land were ruled an unlawful appropriation of public space.

• CPS v Riley [2016] EWHC 2255 (Admin)
  Blocking a highway was held to violate s.137 of the Highways Act 1980.
  Analysis: These cases demonstrate judicial intolerance for prolonged or obstructive uses of highways, particularly where structures or vehicles are involved.

3. Statutory Framework

• Highways Act 1980, s.137
  This section states: "If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence…" Camping, involving overnight occupation with tents or structures, typically constitutes an obstruction unless justified as a reasonable and lawful use, which case law suggests it is not.

• Countryside and Rights of Way Act 2000 (CROW Act)
  The CROW Act grants public access to open country and registered common land for passage on foot but explicitly excludes camping or prolonged occupation.

• Criminal Justice and Public Order Act 1994
  This Act empowers police to remove trespassers, including those camping in tents or vehicles, from land where they have no lawful right to remain.

4. Academic Commentary

Legal scholars reinforce the distinction between brief pauses and camping:

• Rodgers (Law of the Countryside, 2014) argues that brief resting or picnicking on a PROW is permissible, but camping constitutes an unlawful obstruction due to its extended duration and occupation of space.

• Woolley (Rights of Way Law and Practice, 4th ed, 2016) clarifies that public rights do not extend to using highways as places of residence or for prolonged stays.

• Dyson (Modern Law Review, 1999, 62 MLR 543) highlights that DPP v Jones expanded permissible activities but maintains obstruction as the key legal boundary.

• The Law Commission Report No. 280 (1999), Rights of Access to the Countryside, confirms that camping falls outside the statutory rights granted by the CROW Act, reflecting Parliament’s intent to exclude such activities.

5. Permissive Rights

• In England and Wales, a landowner cannot lawfully grant permission for camping on a Public Right of Way (PROW), as it constitutes a wilful obstruction under section 137 of the Highways Act 1980, infringing on the public's inalienable right to pass and repass, regardless of the landowner's consent. While permission might avert private trespass claims, it does not provide legal excuse for blocking the highway, and camping remains a criminal offence. Similarly, no right to camp can arise through long usage or prescription, as prescriptive rights under common law or the Prescription Act 1832 are limited to easements like passage or utilities that could be granted by deed, and camping's obstructive nature conflicts with statutory prohibitions, preventing its acquisition even after 20 years of continuous use.

6. Conclusion

• Pausing to Enjoy the View: Lawful, as it is incidental to passage and aligns with the "reasonable use" principle established in Hickman v Maisey and DPP v Jones.

• Camping on a PROW: Unlawful, as it involves prolonged occupation, obstructs passage, and violates s.137 of the Highways Act 1980.

• Academic Consensus: Brief pauses are permitted, parking is incidental to the highway's vehicular purpose, though there is no absolute "right" to park indefinitely, but camping exceeds the lawful scope of PROW rights.

• The distinction hinges on duration and purpose: short, incidental pauses are consistent with highway rights, while extended occupation, such as camping, constitutes obstruction and trespass.

(I'm not a lawyer, this is just an opinion not legal advice)