The Welsh Assembly Government has announced a further consultation on Access and Outdoor Recreation, follow the link for more information
Below more information re
Below are a series of documents showing access agreements, or refusals to sign access agreements by the Canoe Associations.
This is an agreement regarding use of stretches of the river Teifi for canoeing.
This Agreement is between
- Llandysul Paddlers Canoe Club (“the Paddlers”)
- The following members of the Teifi Fisheries Federation (TFF), (together, “the Angling Clubs”)
- Cross Hands and District Angling Association
- Llandysul Angling Association Limited
- Llandysul Angling Association (LAA)
- Teifi Trout Association.
Llandysul Paddlers Canoe Club is a members club run by a committee of members. The main club activities are Slalom, Freestyle, Surf and Canadian Canoeing.
The Teifi Fisheries Federation is an umbrella organisation of angling clubs with fishing rights on the river Teifi.
- The Cross Hands and District Angling Association controls some 12 miles of fishing on the Towi, Cothi and Teifi rivers. Most of its waters are on the Towi and Cothi.
- Llandysul Angling Association Limited is the legal owner of over 30 miles of fishing rights on the river Teifi.
- Llandysul Angling Association is an angling club funded by member subscriptions and run (alongside Llandysul Angling Association Limited) for the benefit of its members. Members of the club are permitted to fish river beats owned by LAA Ltd.
- Teifi Trout Association offers fishing on some twenty seven miles of the River Teifi and her tributaries.
- The purpose of this Agreement is to establish arrangements between canoeists and anglers which make it easier for both groups to the enjoy using the river Teifi without conflict, recognising our common interest in the welfare of the river as a natural environment, and at the same time respecting legal rights that govern recreational use of the river.
- Llandysul Paddlers will make a contribution of £500 per annum to Teifi Rivers Trust, plus voluntary man hours for river survey and invertebrate monitoring work.
- In consideration for that sum, and for the agreement of the Paddlers to use their best endeavours to ensure that they and all canoeists comply with this Agreement and the Canoeists/Paddlers Code of Conduct, the Angling Clubs as owners of fishing rights agree not to take any legal action against the Paddlers or any canoeist in respect of any use of the River Teifi that complies with this Agreement and with the Paddlers’ Code of Conduct.
What, when and where
- Some parts of this Agreement apply all year round, some apply only during the fishing season, and some depend on the height of the water in the river.
- The dates of the fishing season each year will be as determined by Natural Resources Wales. At the start of each calendar year, TFF will notify the Paddlers of the dates for the fishing season for that year, and the Paddlers will include that information on notice boards and their website, alongside the Code of Conduct, a copy of this Agreement and information about access points.
-  The parties have agreed that Llandysul Angling Association will install a gauge on Llandysul Bridge. References in this Agreement to water height will be determined by reference to that gauge.
|What has been agreed||When it applies|
|All year||During the fishing season||Outside the fishing season|
|A||Canoeing is only permitted from the approved access and egress points (see paragraph 11)||X|
|B||Canoeing is permitted when the river is in flood, that is when the water height on the gauge at Llandysul Bridge is above 1 metre||X|
|C||Canoeing is permitted at the Paddlers’ site, slalom course and tidal reaches,||X|
|D||Outside the fishing season, canoeing is permitted on the Teifi below Lampeter Bridge||X|
|E||Wild swimming is permitted at Llandysul Paddlers site, slalom course and tidal reaches,||X|
|F||No canoeing except from approved access and egress points (see paragraph 11)||X|
|G||No canoeing on tributaries of the Teifi||X|
|H||From 17th September to 17th October canoeing is not permitted (except as permitted at B or C above)||X|
|I||No canoeing after 7.00 pm during the fishing season, except as permitted at C above.||X|
|J||No canoeing over Cenarth falls during the fishing season.||X|
|K||Avoid canoeing Llandysul park on Friday afternoons during the school summer holidays unless the river is in flood.||X|
|L||No wild camping. Camping is only to be permitted where consent has been granted by the landowner.||X|
- Additional major canoeing events during the fishing season may be permitted on receipt of a written request well in advance of the event to allow Angling Clubs to notify their members in their newsletters. Advance notice should be at least seven months.
- Commercial rafting will not be carried out by the Paddlers.
Code of Conduct
- The Paddlers’ Code of Conduct will specify that anglers should be asked where canoes should best pass them, and when passing anglers canoeists should do so as quietly as possible without unnecessary manoeuvres, in order to minimise any disturbance.
- Access information and the Paddlers’ Code of Conduct will be displayed on the Paddlers’ website. The site must indicate that any access without adhering to this Agreement will jeopardise its renewal.
- Any open river / wild swimming groups will be closely monitored by the Paddlers.
- A Paddlers identification sticker/bib is to be attached to all craft, or to the lead boat in the case of a group outing.
- A map showing the approved access and egress points, as negotiated and agreed between the Paddlers and the relevant landowners, is to be displayed at the Paddlers headquarters and on their website. Currently the approved access and egress points are at:
- Llanfair mansion and Lodge
- Llandysul Paddlers site
- National Trust Woodland above Henllan bridge
- Newcastle Emlyn Rugby Club car park
- Council owned land below Cenarth bridge
- Llechryd bridge
- Cilgerran Gorge
- If anglers are present at Alltcafan gorge then canoeists are requested to undertake portage around them.
- This Agreement and the Paddlers’ Code of Conduct are both to be displayed at the Paddlers’ headquarters and on the Paddlers’ website. The Angling Clubs will display this Agreement on club notice boards and on the clubs’ respective websites, along with the Anglers’ Code of Conduct.
- Canoeists must have the landowner’s permission to use any access and egress points. It is not the responsibility of the Angling Clubs to provide such permissions (unless they happen to be the landowner at the site in question).
- The Angling Clubs accept no liability for any loss or injury to canoeists, swimmers or observers of canoeing/swimming activities or events either on or alongside the river when using stiles or steps or any other structures that are installed for the use of the Angling Clubs’ members.
- Both the Paddlers and the Angling Clubs are to ensure that they have adequate public liability insurance to cover all eventualities in the unfortunate event of accident to either canoeists or anglers. Canoeists should have their own personal insurance against personal injury and in respect of any liability they may incur to landowners or other river users.
- This Agreement will have effect for 12 months from the date on which it is signed. The Agreement will be reviewed annually and may be renewed or amended by agreement between the parties. Breaches of this Agreement may be noted and taken into account when considering renewal and/or whether the terms of the Agreement should be amended.
- This Agreement (including its Appendices) constitutes the entire understanding and agreement between the Paddlers and the Angling Clubs relating to the use of stretches of the river Teifi for canoeing and any other matters covered in this Agreement, and supersedes any previous understandings, agreements, negotiations and discussions between the parties on any matters covered in this Agreement.
- “Canoeing” should be interpreted broadly and consistently with the objectives of this Agreement. Canoeing includes Slalom, Freestyle, Surf, Canadian Canoeing, Rafting (other than commercial rafting) and similar activities.
- This Agreement is governed by the laws of England and Wales and is subject to the jurisdiction of the courts of England and Wales.
Continued on next page….
This Agreement is made on the ………. day of …………………………., 2013 [insert date]
on behalf of Llandysul Paddlers Canoe Club by …………………………………………………
[insert name and role above]
on behalf of Cross Hands Angling Association by …………………………………………………
[insert name and role above]
on behalf of (1) Llandysul Angling Association Limited, and (2) Llandysul Angling Association by Ian Thomas, Chairman
on behalf of Teifi Trout Association by …………………………………………………………….
[insert name and role above]
Llandysul Paddlers Canoe Club contact details:
Cross Hands Angling Association contact details:
Llandysul Angling Association contact details:
Room 101, Porth Hotel,
Teifi Trout Association contact details:
Draft Teifi Access Agreement. Dec 2011
- Unrestricted canoeing is allowed outside the fishing season except for above Lampeter bridge and tributaries.
- A gauge is to be installed on Llandysul bridge.
- Commercial rafting will be entirely at the discretion of Llandysul Paddlers and will only be permitted at times of high flood when the reading on the gauge is above 1.0m. This rule applies all year round and the same code of conduct will be observed by both paddlers and rafters.
- During the fishing season canoeing will be permitted from the recognised access and egress points negotiated by Llandysul Paddlers between the hours of 10.00 am to 7.00 pm. The 7.00 pm deadline is to be observed at all times. A map showing the approved access and egress points is to be displayed at the Paddlers headquarters and on their website. Currently the approved access and egress points are listed as follows:
Llanfair mansion and Lodge
Llandysul Paddlers site
National Trust Woodland above Henllan bridge
Newcastle Emlyn Rugby Club carpark
Council owned land below Cenarth bridge
- The Teifi identification sticker is to be attached to all craft or the lead boat in the case of a group outing.
- Additional major canoeing events during the fishing season may be permitted on receipt of a written request well in advance of the event to allow angling clubs to notify their members in their newsletters.Advance notice should be at least seven months.
- Canoeing code of conduct to specify that anglers be asked where canoes should best pass them, and when passing anglers canoeists are requested to do so as quietly as possible without performing acrobatics, in order to minimise any disturbance.
- During the fishing season wild swimming will be permitted at the Llandysul Paddlers site only. Any open river groups will be closely monitored by the paddlers.
- No wild camping.Camping is only to be permitted where consent has been granted by the landowner.
- Access information and code of conduct to be displayed on paddlers’ website. The site must indicate that any access without adhering to this agreement will jeopardise its renewal.
- No canoeing over Cenarth falls during the fishing season. Additionally if anglers are present at Alltcafan gorge then canoeists are requested to undertake portage around them.
- No canoeing from 17th September to 17th October except at Paddlers site, slalom course and tidal reaches, as this is peak fishing season, unless the river is in flood when the water height is above 1.0m on the gauge.
- Avoid canoeing Llandysul park on Friday afternoons during the school summer holidays unless the river is in flood.
- No liability is accepted by angling clubs for any loss or injury to canoeists, swimmers or observers of canoeing/swimming activities or events either on or alongside the river when using stiles or steps or any other structures that are installed for the use of angling club members.
- No levy will be charged for the use of angling club property although a donation to Teifi Rivers Trust for environmental work would be appreciated.
- Agreement to be reviewed annually.
- Canoeists must have landowner’s permission to use any access and egress points. It is not the responsibility of angling clubs to provide such permissions unless they happen to be the landowner at the site in question.
- This agreement and the Paddler’s code of conduct are both to be displayed on Llandysul Paddlers website and those of the angling clubs affiliated to the Teifi Fisheries Federation.
- Both Llandysul Paddlers and Teifi angling clubs are to ensure that they have adequate public liability insurance to cover all eventualities in the unfortunate event of accident to either paddlers or anglers.
Merthyr Tydfil Angling Association
Rec’d 14/10/2014 from Aberfan canoe club
Thank you for the offer to meet to discuss an access agreement on the River Taff but due to the advice provided by our governing body Canoe Wales would request that any discussions regarding access are arranged through them.
The main contact is:
National Development Officer,
National White Water Centre,
Aberfan Canoe Club
Cyfarthfa Park Lake
We welcome canoes for taster days on the lake as and when requested.
Gentlemen – Committee,
See the reply from Aberfan canoe club to our offer for access. We will discuss this in the next meeting.
I think you need to write to CW and get a formal reply from them it seems that they are still pressurising paddlers to ignore any offers of conditional access and are still recommending trespass as the ay forward until WG grant global access – this may come after the next elections! NRW will be reviewing the fishing license in 2015 and some of the proposals on the table give cause for concern. It remains to be seen which of these proposals is adopted but my sources in NRW say it will not encourage angling in Wales, the worst proposal is the adoption of the passport system used on the Wye as part of the license, this could include paddling, how this would work is unknown. The unilateral approach by NRW to hatchery closures probably means that they will just impose a system and ignore any suggestions from anglers.
Access – Ogmore Angling Association access agreement
6 Feb at 5:24 PM
We have a long standing arrangement with Bridgend Canoe Club that goes back 15 years. They have access to a section of the river to run a slalom event on one weekend each year.
The dates are agreed each year and members are informed to avoid that stretch of the river.
The arrangement works well for both parties.
We do however suffer from locals taking a canoe down the lower sections of the river on hot weekends in the summer which is a real pain.
Secretary Ogmore Angling Association
Message sent from my iPhone
British Outdoor Professionals Association
PO Box 9, Llandrindod Wells,
Powys. LD1 6WJ
PERMISSION GRANTED FOR CANOEING ON THE WELSH DEE TO AVOID CONFLICT.
Anglers and Landowners on the Welsh Dee around Llangollen have taken the groundbreaking step of permitting access for canoes on certain sections.
Canoe events have been held on the Welsh Dee in the past but in recent years permissions have not been sought. The Anglers and Landowners will now grant access to allow all parties to enjoy the fabulous waters of the Welsh Dee.
Huw Evans Chairman of Llangollen Maelor Angling said “I am pleased that after detailed discussions the Anglers and Landowners can offer this permission to avoid conflict. The result will be that Anglers can pursue their pastime peacefully and Canoeists can enjoy the world class paddling the Welsh Dee offers. The Anglers recognise the importance of the river to trade in Llangollen with large numbers of Anglers and Canoeists visiting every year.”
Chris Charters Hon Gen Sec of the British Outdoor Professionals Association said “We welcome the access permission as a way forward. It has taken over 12 months to achieve permission compatible with angling use. The access will reduce conflict and allow use throughout the year on certain stretches. I believe it will bring a huge boost to the local economy particularly during the winter months.”
In addition to the general permitted access it is hoped that International and tour events will return boosted by the recent Olympic canoeing success.
For event dates availability on the Dee please contact Chris Charters
BOPA is hosting The Wye White Water Workshop & Tour 26th – 28th October and similar on the Dee in January and the Usk in February
BOPA Have also assisted in negotiating Access agreements for the Rivers Wye, Usk, and several more
For more details: – British Outdoor Professional Association, P.O.Box 9, Llandrindod Wells, and Powys. LD1 6WJ Tel: 01497 847638 email: email@example.com
NOTES TO EDITORS:
1. A copy of the permission for use is attached.
2. Conflict between Anglers, Landowners and Canoeists has been ongoing since 2004 when Canoe Wales launched a campaign for unrestricted access to all inland waterways in Wales.
3. The Welsh Government Sustainability Committee report concluded that local agreements such as this are the only way forward.
4. The permission has been granted by the 3 main Angling clubs on the Welsh Dee being Corwen and District, The Midland Fly fishers and Llangollen Maelor Angling together with Land and Riparian owners.
5. There is no right of navigation on the Welsh Dee above the tidal reaches at Chester.
6. For further information contact Huw Evans on or Chris Charters on firstname.lastname@example.org
CONDITIONS FOR PERMISSION TO USE THE WELSH DEE FOR CANOEING.
Access is permitted in the areas on the dates and times specified at paragraphs 5-8 below for non-powered craft excluding rafts.
The granting of access does not establish any right of navigation or prescriptive rights to the users. Intellectual property rights shall remain vested in the Owners.
No commercial events may be organised or events filmed without the owners permission. Users must use the designated access and egress points which are shown on the maps and signs.
No other access or egress points shall be used unless in an emergency.
There is no access allowed above the bridge at Glyndyfrdwy.
Unrestricted access is allowed from the 20th October-31st March from below the Horseshoe Falls (canal side) to the Llangollen town weir (Wrexham road side).
Between the 20th October and 31st March a maximum of 6 weekend tours may be organised. The Organisers to notify and agree with the Owners the dates and details.
Access to be from below Glyndyfrdwy Bridge with additional access/egress at below the Horseshoe Falls (canal side), Mile End Mill (canoe centre side), Llangollen Town weir (Wrexham road side) and the Ty Mawr country park (Cefn Mawr side).
Between 1st April-19th October canoeing is allowed when the water height is above 3 feet on the Midland Fly fishers gauge or 9 on the Mile End Mill gauge, until such time a designated website is established.
Access to be from below Glyndyfrdwy Bridge with additional access/egress at below the Horseshoe Falls (canal side), Mile End Mill (canoe centre side), Llangollen town weir (Wrexham road side) and Ty Mawr Country Park (Cefn Mawr side).
Between 1st April-19th October access is allowed to the Serpent’s tail, Chain Bridge, Llangollen between 10 am-3 pm daily.
Access to be from the King’s Bridge or Chain Bridge rocks. No access above the King’s Bridge during this period other than on the high water agreement at paragraph 7 above.
Egress at Mile End Mill Canoe Centre or Llangollen town weir (Wrexham road side).
No launching before 10am with all users to vacate the waters by 3pm.
All users must have in force insurance covering personal and public liability.
Organisers of tour events must carry out health and safety checks before each event. The Organisers shall put in place adequate safety precautions and have in force insurance covering personal and public liability for each event.
The owners with 3 months notice may cancel permission.
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THE UNITED USK FISHERMENS ASSOCIATION
Chairman – Mr Nicholas S Brabner Vice-Chairman – Sir Richard Hanbury Tenison KCVO
c/o Gliffaes Lodge
Crickhowell Powys NP81RL
Tel: 01874 731122
2nd February 2007
Welsh Canoeing Association
Upper Cwm Nant Gam
Canoe Usk Access Agreement
Last Wednesday evening the UUFA Committee convened and, as I told you in my letter of 20th January 2007, we discussed your letter to me of 6* January 2007.
The Committee was both disappointed and saddened that the WCA is taking the line that they wish to use the river at any time without the consent of the landowners/occupiers according to WCA interpretation of what is and what is not ‘environmentally friendly’ and, as a consequence, have put aside an Agreement which has served us both well for over 23 years. The Committee realize that this is a politically motivated move to encourage legislation in Wales that will provide unconditional access to all waters in Wales, even for those already with access agreements. We feel aggrieved that you should choose the Usk to be included in such an ambition when canoeists have enjoyed canoeing on the Usk for at least 23 years at no cost and without any contribution to the upkeep ofr the river system other than the cost of a postage stamp. We are not sure that the WCA has given sufficient thought to the reaction of its membership and those from whom it receives sponsorship in taking this attitude.
Our Agreement on the basis of dates was originally recognised by both parties as the clear way with which to recognise easily when canoeing is permitted and therefore when permission could be sought. It was also recognised that the fishing season was the indicator that is easily accepted as the period for ‘not canoeing’ and one which avoided conflict of interests to a large extent.
For generations fishermen have complied with the laws of fishing, paid for the licence and for the right to fish on particular water either through owning the water or as a tenant.
Non compliance is dealt with in the courts. Regrettably the same is not the case for canoeists who break the terms of our Access Agreement (which many do) with impunity.
Over the span of our Agreement the Usk has changed greatly and the riparian owners and fishermen are well tuned to the needs of the European designated SAC status of the river and of the European Directive for the discipline of the Water Framework Directive and the Habitat Directive. We have already committed and spent over £1 million in compliance with these Directives over the last four years, an investment hi our asset for the future.
We wish you to know that we are still willing to ratify the 2001 Agreement even though it is time expired or enter into a new Agreement. If you do not agree we will continue to grant permission to paddle to those that ask so to do on the terms of the expired 2001 Agreement.
I have copied this letter to the bodies listed below so that there is full understanding of our position.
N S Brabner Chairman
Countryside Council for Wales Country Landowner and Rural Business Environment Agency Wales Forestry Commission Sports Council for Wales Wales Assembly Government Welsh Salmon and Trout Association Wye & Usk Foundation
Welsh Canoeing Association
BRECON LD3 9PH 17/11/2006
Usk Access Agreement
Thank you for your message on my answering machine about the signing of the Usk Access Agreement.
WCA has to consider all access agreements entered into, in terms both of their effectiveness and of compliance with our environmental protection policy. The Usk agreement has not been revisited for some time, which has led to the agreement being listed as ‘unsigned’. However, as no formal discussion has taken place between the parties since the last signing, the full text of the agreement has remained unchanged on my website and I have been continuing to take bookings on the middle section, in accordance with it.
Now that the question of signing has been raised, I have to say that WCA would not be able to sign another agreement in the form of the present one, which does not confirm to our environmental protection policy.
WCA policy is to seek agreements which enable paddling to take place on all occasions when it would be environmentally sound to do so, and to restrict it on those occasions when it can be demonstrated that it would not. WCA believes that consideration should be given to the ecology and biodiversity of the river corridor on a wholistic basis. With one exception, the terms of the current agreement take no account of environmental protection. On the contrary, the agreement actively discourages paddlers from making the decision to paddle on the basis of appropriateon advance booking.
Environment Agency have undertaken to carry out an assessment of rivers to determine levels for each at which canoeing would be environmentally benign. We would also wish to consult with the CCW before making any judgements based on environmental protection.I would be interested to hear your observations, and I look foward to hearing from you.
Access Officer. !hariwood, WCA Access Development Officer
Cymdeithas Ganwa Cymru – Cor’restru’r yng Nghymru heb cyfran cyfalaf Rhif 2478971
Welsh Canoeing Association – Registered in Wales as a company by guarantee without share capital No. 2478971 Swyddfa Gofrestredig – Canolfan Tryweryn, Frongoch, Bala, Gwynedd
David Hart, a leading QC, has provided unequivocal legal advice which confirms once and for all the position about the lawfulness of canoeing and other paddlesports on rivers. The advice could not be any clearer that there is no general public right.
This confirmation helped win a recent legal case by Llangollen Maelor Anglers and Midland Flyfishers, both represented by Paul Stafford of Dispute Support Solicitors, Pershore, and supported by Fish Legal. The case was against Mr. Andy Povey, a canoeist and stand up paddleboarder.
Mr. Povey had paddled through waters controlled by those fishing clubs and outside of the terms of a permissive access arrangement granted by Welsh Dee Partnership on behalf of those fishing clubs and several other angling clubs and riparian owners which allows access 365 days a year to one of the best stretches of white water in Europe on the River Dee in North Wales. Mr Povey, when challenged by anglers, refused to say he would not trespass again and later boasted about his trespass online.
An application for an injunction to restrain Mr Povey from paddling outside the terms of the permissive access was sought in the High Court. However, after some initial resistance, Mr Povey decided he did not wish to fight the application and has undertaken to the High Court to stick to the terms of the permissive access and to contribute towards the clubs’ legal costs.
This follows a court case in 2011 and 2012 in which Mr. Andrew Biddulph issued a court claim against a Fish Legal member club claiming £4,000 in damages for what Mr Biddulph appeared to portray as interference with his right to navigate the River Dove. However, his court claim made little sense and after an application to the court by Fish Legal, Mr Biddulph was ordered by the court to rewrite his claim or withdraw it and pay legal costs. He withdrew and was later ordered by the court to pay over £10,000 to Fish Legal in legal costs, some of which he continues to pay by monthly instalments.
David Hart QC’s full legal advice – commissioned by Fish Legal – is available for download in the notes below, but the first 5 points of his summary could not be any clearer:
- There is no general Public Right of Navigation (PRN) on English and Welsh non-tidal rivers for canoeists.
- A PRN can only be established by long use of vessels on the relevant stretch of river, fulfilling all of the criteria below [these are set out more fully in David Hart QC’s ‘full’ Advice of September 2015].
- That use must have been regular and habitual, and must have made the river of substantial practical value as a channel of communication or transport.
- The time for which that use must be established is ‘time immemorial.’
- The law is entirely clear on the above issues.
Canoe campaigner Reverend Dr Douglas Caffyn (who is not a lawyer) has claimed publicly since 2004 that there is a general public right of navigation, based only on the conclusions of his Masters thesis. Rev Caffyn commissioned legal advice of his own from Lisa Busch QC in August 2016 in response to David Hart QC’s advice.
Although Lisa Busch QC’s advice raises the possibility that a court might reach a different conclusion on the issue in future, she concedes repeatedly that David Hart QC is right about the current law. Further advice from David Hart QC for Fish Legal confirms that none of the points raised by Lisa Busch QC successfully undermines the long held position of Fish Legal and the Angling Trust (consistent with all legal commentators, textbooks and decided case law) that there is no general right to take boats or other water craft onto non-tidal rivers in England and Wales without the permission of the riparian owner(s).
The Angling Trust, the representative and national governing body for angling, together with Fish Legal, has been pressing British Canoeing (formerly the British Canoe Union or BCU) to accept the clarity of the legal position for many years. The canoeing governing bodies in England and Wales have repeatedly published statements that there might be a general right of navigation on all rivers, that the law is unclear generally and has even advised paddlers how to evade land and fishery owners when paddling without permission.
Many angling clubs and fishery owners have in recent years suffered a steady increase in unlawful canoeing throughout England and Wales which has often prevented them fishing in peace, with many paddlers quoting the canoe governing bodies and/or Rev Dr Caffyn as their justification for doing so.
The Angling Trust & Fish Legal have long supported (and continue to support) the use of voluntary access agreements – made locally by those who know the water best – to provide managed access to rivers in ways which do not interfere with angling or cause damage to often fragile water environments. However, British Canoeing has often refused to sign up to such agreements and has discouraged paddlers from considering them, unless they offer access at all times and water heights. In doing so, they have fundamentally undermined such local arrangements by repeatedly refusing to accept the law.
Mark Lloyd, Chief Executive of the Angling Trust & Fish Legal, said: “We encourage our member clubs and fishery owners to provide more access to canoes and other water craft, but the canoeing governing bodies in England and Wales have made this very difficult by irresponsibly suggesting that paddlers may go where they like without permission and refusing to accept reasonable conditions within access arrangements.
“We hope that David Hart QC’s very clear legal advice and the costly experiences of Mr Povey and Mr Biddulph will now lead to a more sensible position from the canoeing governing bodies and the small minority of individual paddlers who have taken a militant approach to this issue in recent years.”
The Angling Trust & Fish Legal have written to the Canoeing Governing Bodies demanding that they:
- Recognise and accept the law as it is (rather than as they would prefer it to be);
- Recognise the clear legal rights of our members;
- Stop (wrongfully) asserting that the law is unclear;
- Stop discouraging paddlers from considering or entering into voluntary access agreements or arrangements;
- Stop encouraging paddlers to ignore the legal rights of others, commit trespass, and obstruct water bailiffs, anglers, fishery owners and riparian owners;
- Contribute constructively to a position in which there are more opportunities for people to go paddling, while respecting our members’ lawful rights.
- David Hart QC’s Advice 28th September 2015
- David Hart QC’s Further Advice 26th May 2016
- David Hart QC’s Further Advice 8th January 2017
Halsbury’s Laws of England (including Wales since 1535)
It is based on the rule that ownership of land is defined by boundaries on the surface of the land and includes all the land beneath the land owned down to the centre of the Earth and all the airspace above it to the limits of the Universe
Canoe Wales: Steve Rayner
After several years of disengagement, Canoe Wales is now seeking to re-engage fully with the access community across Wales and has aligned its policies and practices closely with those of the UK National Governing Body, British Canoeing. To this end we have recently formulated a ‘position statement’ relating to access and environmental issues (latest draft set out in full below) and have engaged with key stakeholders in a number of current access-related issues (summarised below).
Canoe Wales Waterways and Environment Position Statement 2016
Canoe Wales believes:
- in increasing the opportunities for paddlers to participate in their chosen sport;
- that paddlers should be able to enjoy water responsibly in ways that are compatible with the conservation of the environment and wildlife;
- therefore, in developing and promoting access to and along the waterways of Wales, to increase sustainable water-based recreation while protecting and conserving the natural and urban environment;
- that the decision whether or not to paddle at any location in Wales at any time is the responsibility of the individual paddler, who should take into account such advice and guidance as may be available to support that decision;
- that paddling activity in Wales should be governed primarily by the statute and common law of England and Wales and by everyone’s responsibilities to respect the rights of others;
- that paddling does not, in general, affect fish stocks in rivers; but that at certain times of year, especially when river levels are low, there may be some potential for grounding of boats which could disturb spawning fish; and that paddlers should endeavour to minimise this risk;
- that paddlers have a public right of navigation on tidal waters in and around Wales and on waterways in Wales where there is a statutory or dedicated right of navigation;
- that published research contests the assumption, long-held by some parties, that rights of navigation on physically-navigable, non-tidal rivers in Wales are private except where deemed otherwise by statute; but acknowledges the different opinions on the legal position where public rights have not been recognised;
- that public or private rights to the use of waterways do not in themselves grant paddlers any rights to cross land to access those waterways;
- that any legislation enacted to provide equal rights for the use of non-tidal waterways in Wales must incorporate management measures that serve all parties and the public and help to achieve wider social, recreational and economic benefits;
- that appropriate management measures, with or without changes in legislation, are an acceptable means of agreeing shared use of waterways when they:
- are agreed, collaborative and inclusive, where all parties share the same rights and responsibilities; are managed jointly and locally; and help to protect the environment and respect the rights of all user interests;
- are without prejudice to the views of the legal position of either Canoe Wales or riparian owners and other interests; and6
- neither confirm nor reject any party’s views or interpretation of the legal situation;
but that such Arrangements shall not invalidate public rights to non-tidal waters should it subsequently be established that such rights have not been extinguished or the historic use of such waters is recognised to provide that right.
Canoe Wales will:
- encourage paddlers to paddle where they have the right to do so, within the law and with respect and consideration for others and the environment;
- work with the other home nations to share information for the benefit of the paddling community around the
- encourage paddlers to seek permission to access the water when it is clear and unambiguous in law that they do not have the right to do so;
- promote good environmental practice and responsible use and consideration for others on all waters;
- work constructively with partners, agencies, the local community, interest groups and clubs to support and develop the shared use of physically-navigable non-tidal waters when environmental conditions (especially water levels) are suitable;
- in particular, work with Natural Resources Wales and others to minimise the risk of paddlers disturbing important species and habitats including spawning fish;
- develop management measures with partners, agencies, the local community, interest groups and clubs, with or without changes in legislation, to protect the environment and enable the wider use of all waterways at all times;
- make such arrangements publicly available to paddlers for self-regulation; and encourage paddlers to follow the guidelines of such arrangements; and
- will not regulate or police such arrangements or grant access to any waterways; but will promote sustainable canoeing by advising paddlers to paddle only when conditions are
Current Canoeing Access Issues
River Access Arrangements
Canoe Wales is very keen to develop partnerships with other river users to promote and work towards sustainable canoeing throughout Wales. Canoe Wales has joined the Navigation Steering Groups of the Wye and Usk Foundation and Welsh Dee Partnership, which have negotiated for their respective rivers navigation arrangements with riparian owners, angling associations and commercial paddlesport operators; with the support of Local Authorities and Natural Resources Wales.
However, these arrangements – which are often held up as exemplars for canoeing Voluntary Access Agreements – have not been agreed by representatives of recreational paddlers and do not meet our criteria for ‘appropriate management measures’ (see above), so we are unable to endorse these arrangements as they stand.
We believe it is critical that such arrangements gain endorsement from the National Governing Body if they are to continue to be promoted as exemplars, so to this end we have asked both bodies to discuss with us the scope for amending their arrangements to make them acceptable to recreational paddlers and to allow us to endorse and promote them. The Wye and Usk Foundation is currently resisting such discussions, while the Welsh Dee Partnership has shown some willingness to explore options.
Meanwhile Powys County Council has published revised access arrangements for the launching of canoes from Council-owned land at Glasbury, covering the 5-mile stretch of the Wye immediately upstream of the statutory right of navigation which starts at Hay-on-Wye. In making this arrangement the Council has liaised with riparian owners, angling associations and Natural Resources Wales; as well as Canoe Wales and commercial canoe operators. The tenet of the arrangement is that the Council will permit launching of canoes from its land between 10am and 4pm subject to paddlers and operators abiding by a code-of-conduct that includes restricted landing rights downstream of the launch point. While Canoe Wales is concerned that the time constraints (which have long been in place) may be unnecessarily restrictive, we acknowledge that this is an arrangement that is intended to promote both shared use of the river and protection of the environment, so we are prepared to endorse this arrangement for a trial period of 12 months.
Green Paper – Access to Inland Water – Consultation
An abridged version.
5.2 Access to inland water
Access to inland water has long been a contentious issue and has been the matter most fervently discussed by stakeholders during the review. With increasing reports of tension, in some cases open hostility, between various users it is clear that there is a need to consider ways of alleviating the situation.
Sustainability Committee inquiry
In response to a petition from Canoe Wales, the Petitions Committee of the National Assembly for Wales held an inquiry into access to inland water in 2008. It recommended that a wider ranging inquiry be undertaken to allow for greater representation of the issues.
The subsequent Sustainability Committee inquiry into access to inland waters was launched in 2009.17 The Committee took written and oral evidence from a wide range of interests including statutory agencies, angling, canoeing and other organisations. The inquiry served to highlight the deficit in opportunities, as well as the contested nature of rights to and on water for recreation. The recommendations were wide ranging and covered matters relating to, among others, access agreements, environmental quality, and enforcement
For more information on the Sustainability Committee Inquiry into Access to Inland Water in Wales 2009
“The recommendations of the report are focused primarily on those participants in water-based activities who are the more experienced, committed users, and are members of clubs or national governing bodies such as anglers or canoeists. Whilst we accept a number of the recommendations we do not intend to restrict our activities on this issue to ones that meet the needs of only a minority of participants.”
With this in mind the Welsh Government provided over £2.6 million of funding through the Splash Water Recreation fund between 2008/9 and 2013/14 to encourage new and improved opportunities. Whilst the fund provided opportunities for many more people to enjoy water recreation, its impact in establishing new access provision was limited. The Welsh Government remains committed to increasing opportunities for public access to land and water, in particular for families and children. Opportunities for responsible recreation on and next to inland waters near to where people live are increasingly important to enable greater participation in physical activity by people of all means and abilities
Voluntary Access Arrangements
The Sustainability Committee’s report advocated that in the short term efforts should focus on establishing voluntary agreements and it has long been the policy of the Welsh Government to promote their use. Funding was first provided for pilot projects in 2007/8, the most notable of which was the Wye and Usk River Plan project, which established an access arrangement on parts of the Rivers Wye and Usk, alongside on-line and other information to encourage responsible use. The water level in the river is the key determinant of when the river should be accessed by canoes, and gauges which can be checked on-line provide information for prospective users. The report also advocated a new approach to access agreements, which sought to address the barrier to progress caused by the traditionally drawn up agreements that required parties to sign formal documents setting out conditions of use. It is the Welsh Government’s view that access arrangements should be drawn up by landowners and riparian owners, consulted upon, and then put in place. Access under such arrangements could be all year round, at certain times of year or depend on water levels. They could also determine what types of activities can sensibly take place on any given stretch of water at any given time of year. These arrangements should primarily be focussed on three elements:-
Access & Outdoor Recreation Green Paper;
i. protecting the natural environment
ii. ii. having no detrimental impact on land management; and
iii. iii. having respect for the needs of other users.
Access arrangements along the lines noted above need not be perceived as an acknowledgment that rights do not already exist nor should they be perceived as acknowledgment that they do. The Welsh Government is of the view that such arrangements should not be seen as setting out the limits of use, but rather the opportunities available for responsible shared use of the water. There may be merit in considering legislation to establish a statutory level of access on which to base such arrangements. Even with the certainty of statute determining who has access to inland waters in Scotland, there continues to be areas where local interests agree voluntary management arrangements. These are in place to allow for better quality of experience for all users. For example, arrangements can designate a stretch of river for fishing for a certain number of days per week and canoeing for the other days. These arrangements are the result of negotiations between all the interests, including local authorities, and help to promote better understanding and tolerance.
The Sustainability Committee made several recommendations related to appointing a lead body with responsibility for identifying areas of inland water where access arrangements might be appropriate and to negotiate for non-motorised recreation access in those areas.
These recommendations primarily focussed on legislating for a lead body but there is an argument for agreeing without the need for legislation the appointment of a body that can usefully negotiate with all of the key interests.
Assertions over universal access
In order to better understand the opposing views over the existence of a universal right of access below is a summary of the assertions made by those claiming that rights already exist and those of the view that they do not.
Existing universal rights (the argument for)
· The universal right of navigation dates back to time immemorial (nominally 1189AD). At this time all land in England (Wales was subject to its own laws until 1284AD), including non-tidal river beds and banks, were owned by the Crown and similarly to tidal would have been dedicated for public use.
· That there is evidence to show that universal public access to water for navigation for commercial and recreational purposes was recognised by medieval jurists (legal commentators) as far back as the thirteenth century.
· The Magna Carta and other ancient statute provided protection for established universal access rights. Their subsequent repeals did not revoke the rights, only the protection of those rights.
No existing universal rights (the argument against)
· That there is no reliable historical evidence or modern common law precedence to confirm a universal right of access.
· Modern leading commentaries (including Halsbury’s Laws of England and Woolrych on Waters) do not endorse the view of existing universal public of access to non-tidal waters. The general consensus is that the beds of non-tidal waters are not vested in the Crown; therefore they are most likely to be owned by the riparian owners or the adjoining landowners.
· That statute covered specific significant rivers, including the Thames and the Trent. It does not imply universal access but rather denotes the opposite.
· That there is no statute allowing for universal access.
Agreed assertions over universal access
There are also a limited number of areas where advocates and opponents of a presumed universal right of access agree. These include:
· That public navigation exists where a river or channel is made navigable at public expense or by a public authority; has been freely devoted to public use for a long time; or has been made to replace a channel over which there was public access.
· That public right of navigation may be extinguished by statute; by order of Natural Resources Wales (in Wales only and in restricted circumstances); or as a result of natural causes.
Access & Outdoor Recreation Green Paper
There is clearly a need to encourage greater collaboration and cohesion between those who hold these opposing views in the interest of more responsible and harmonious use of rivers. Establish greater clarity and certainty over where people can go and what they can do there is perhaps one approach to moving this debate forward.
Establishing a regulatory framework
Legislating to establish the rights and responsibilities associated with inland waters could potentially provide the clarity and certainty needed to allow for local access arrangements to be established that are deemed fair and sensible; help to build consensus and reduce conflict; and could help to establish levels of liability to protect landowners. Existing unfettered activity (perceived as legal or otherwise) could then be brought within a contemporary legislative and regulatory framework. During the review a limited range of representations were received on what might be included in legislation. Views on the matter overwhelmingly rested in one of two camps – those who saw an opportunity to legislate to confirm unrestricted access to inland waters and those who objected to legislation to create unrestricted access to inland waters. There are potentially many options in between these positions, which should be heard and considered. Views are sought on what, if anything should be covered by any new legislation.
These could include:
i. Legislation in relation to a statutory body (as covered in the section above), could allow for one organisation to help establish access arrangements and help enforce those arrangements.
ii. ii. In addition to i. above the statutory body could have the powers to designate stretches of water for recreational access with certain conditions, including the type of use, time of the year and environmental considerations.
iii. iii. To consider water within the same framework for land that is set out in option B [“remove restrictions”] above, where existing restrictions applied to access land are lifted to allow greater access to water.
iv. iv. To consider water within the same legislative framework for land that is set out in option C [“revise access”] above, where the existing definition of access land (under the CRoW Act) is extended to include other areas, in this case water but with restrictions and exceptions where needed to prevent detriment to users, land management or natural environment.
v. v. Legislation could establish powers for licencing commercial craft for use on Welsh rivers where legislation allows. One of the key concerns voiced during the review was the use of rivers by commercial organisations without a contribution to the maintenance of the waterways or banks.
vi. Access & Outdoor Recreation Green Paper
vii. vi. A further option would be to consider inland water within the same legislative framework for land that is set out in option D above, where a general right of access is moderated by certain restrictions to safeguard other interests, such as angling, heritage and nature conservation. This is already the case in Scotland where the Land Reform (Scotland) Act 2003 intentionally applied the same provisions to both land and water – even to the extent that core path status can be applied to rivers.
The following is part of an instruction to the Local Access Forums.
My Association sits on an access forum due to the fact that we are land owners. Only land owners will be invited Another name for ACCESS is RIGHTS of WAY.
This of course applies to Camarthen and other local authorities etc.
Lead Civil Servant Catrin Dellar.
Access to water Welsh Gov / NRW Ongoing.
Note – To Local Access forums
From Welsh Gov.
Take an active interest in promoting access to water.
It would be helpful if LAF considered potential areas for new or improved access to water (lakes rivers and the coast) and identified any obvious barriers that could be resolved.
The following is the response to Welsh Gov by NRW. This is the from the above question.
Question 12: What approach do you advocate to improve opportunities for responsible access for recreation on inland waters?
We agree with the consultation paper’s analysis of the current legislative framework covering outdoor recreational access to inland waters and that there are at times considerable tensions between stakeholders. The situation will need to improve in order to deliver the aims and associated benefits that Welsh Government is seeking for this aspect of outdoor recreation. If WG brings forward options for change, further work will be needed to consider the benefits and impacts on the various recreational users, for the management of natural resources, on land / riparian owners and other rights holders.
There are an estimated 22,000 acres of lakes, 2,400 miles of sea-trout rivers and 2,500 miles of wild brown trout rivers together with 750 miles of coastline, the vast majority of which is available to the travelling angler. Around 55,000 rod licences are sold annually in Wales raising around £1.2m. The value of angling on inland waters was estimated in 2005 to be around £74m (£32m Gross Value Added)4 bringing important tourism, socio-economic, health and well-being benefits. It also helps to support high quality river and still-water fisheries, and the network of clubs that are valuable to local communities.
Figures derived from the University of Brighton1 and amended to reflect current Voluntary Access Arrangements (VAAs) indicate that about 4.6%2 of the total main river length of Wales is available for paddle sports. Significantly less of this is suitable for disciplines that require a white water environment. In addition there are around 152km of navigable canals.
Between 2008 and 2011 the percentage of the Welsh population participating in fishing or non-motorised water sport activity showed no significant change with an increase from 10% to 12% for both activities.
3 Welsh Outdoor Recreation Survey: Key Facts for Policy and Practice (May 2013) states that:-
‘There are also a substantial number of people taking part in more active pursuits, especially running, road cycling,
outdoor swimming, or mountain biking. These are increasingly popular, often as a ‘lifestyle’ activity.’
‘More active pursuits were also amongst the top activities in terms of future preferences, in particular off-road cycling, road cycling and water sports’ ‘Encouraging these more active pursuits could provide significant health benefits to entirely new participants’3
‘The Economic Impact of Outdoor Activity Tourism in Wales 2014’ (Visit Wales) concluded that: “The majority of visitors express an intention to return to Wales for activities, however, certain groups are discouraged from un- dertaking activities such as kayaking in Wales due to confusion and dispute over access to land and water. Access is therefore a key issue to be tackled in order to encourage further success of the sector in Wales’
4. Voluntary Access Agreements (VAAs): VAAs have been the Welsh Government’s preferred tool for improving access and reducing conflict over a number of years. VAAs have provided useful agreed access, although they are limited in extent and availability compared to the overall resource. Case studies of arrangements have been consid- ered previously. The Evaluation of SPLASH Grant Scheme 2008 – 2012 stated that ‘few of the arrangements have provided meaningful new access.’
5. Taking forward significant numbers of new arrangements would be subject to:
- Provision of additional resources (time and money)
- Clear outcomes for such a programme of new VAAs (in line with Government’s aim of increased opportunities for more inclusive participation in responsible recreation near to where people live)
- The willingness of the different stakeholders to engage with establishing new arrangements
- Acceptance that it would take some time to negotiate significant numbers of new arrangements. There have been varying degrees of difficulty building a consensus between numerous stakeholders – given the position of different interests outlined in the Green Paper. The agreement of many riparian, rights and land holders is needed to put new arrangements in placeRadford, A.F., Riddington, G. and Gibson, H. (2007). Economic evaluation of inland fisheries: The economic impact of freshwater angling in England & Wales. Environment Agency. Bristol. ISBN 978-1-84432-851-2, 165pp.
- Uncertainty as to the permanence of VAAs – access arrangements are by permission and while many have been sustained over an extended period they can also be withdrawn or withheld at any time
- Variability in the terms of the access provided are locally determined – such as dates and time access is per- mitted; river levels considered acceptable; ingress/egress points. Such local variation does provides sensitivity to local conditions, other rights holders interests and providing protection for species or habitats
- i) and ii) Lead Body: A lead body would require additional resources to increase its capacity and would still be subject to a number of the issues identified above.
In our view the starting point, before any other improvements, is a widely understood and accepted legislative frame- work [rather than the current position as set out in the Green Paper]. This is needed in order for any lead body to deliver significantly improved recreational access to inland waters. This is the case even if new legislation was limited to clarifying/asserting, unambiguously to all interests, the limits of the right of navigation to tidal waters and existing specifically named statutory navigations. From an accepted statutory position the taking forward of an ap- proach based on providing more VAAs could flow. (The alternative of extending existing legislation or providing new access rights to inland waters is considered below).
Amended or new legislation could also establish the powers and duties for lead body[s] to develop, negotiate, im- plement and potentially manage the access, whether by VAAs or otherwise. Such duties and powers would need to provide for responsible recreation [see points elsewhere, notably Question 14] and for example, sustainable natural resource management, and protection of habitats and species as appropriate. Improvements in current access and participation will also require additional resources to deliver.
- Remove restrictions to be observed by people exercising rights of access: Opportunity may exist to
remove, relax, or change the general restriction in the Countryside and Rights Of Way Act (CROW) Schedule 2 (1)
(b) and (i) that relate to water recreation related activities. The precedent for this approach has already been set by the Access to the Countryside (Coastal Margin) (England) Order 2010 which has made changes to Schedule 2 of the CROW Act in England.
Such changes could facilitate activities like wild swimming in water bodies within open access land. Work would be required to identify the extent of appropriate and environmentally sustainable opportunities within existing CROW land. Alongside this change, defining in PROW legislation that ‘usual accompaniments’ could include carrying a non- motorised craft along a PROW to legitimately access adjacent water bodies, would help support improved access to water bodies.
In addition there could be clarification of ‘No. 648 The Forestry Commission Byelaws, 1982’ to set out that it is legal to carry a canoe, kayak, or [non-motorised] craft to an accessible waterbody located within CROW dedicated woodland estate managed by NRW.
- Revised Access – CROW: If WG was minded to revise CROW to include water consideration could be given to extend the definition of access land to include all larger streams and rivers g. to those defined as ‘main rivers’ in accordance with the Water Act 2014. ‘Main rivers’ are generally larger streams and rivers, but may also include smaller watercourses of local significance from a flood risk management perspective (these would need omitting). There are approximately 646 main rivers in Wales. Work would be required to ascertain if the stretches of watercourses designated as main river are appropriate and suitable for water recreation.
For many main rivers NRW would advise that managed access arrangements, additional to the CROW rights, would be required to protect the natural resources and manage potentially conflicting activities. Such access arrangements would avoid or more likely complement the variety of restrictions and exclusions that might be applied to CROW access ‘waters’, for varying periods of time, to control activities taking place. If and how the rights applied to commercial operations would need to be considered.
An example where an access arrangement is in place alongside new access rights is on the River Tay in Scotland. On the Tay, following the Land Reform (Scotland) Act 2003, the voluntary agreement restricts rafting companies from using a specific stretch of the river on 2.5 consecutive days during the salmon angling season. There is no restriction on commercial rafting during the closed season, and the agreement places no restriction on other water users such as canoeists and kayakers.An approach similar to that outlined above has the potential to make larger middle and lower courses of rivers across Wales available for inclusive water related activities more suitable for families and young children. However, the resulting impacts on other interests and the suitability of using defined main rivers for recreation purposes would need further investigation and careful consideration.
As an alternative, a mapping exercise could be undertaken to define the waterways and other inland water bodies as areas to which amended Schedule 2 activities could be undertaken, in a similar way to the current definitions and mapping of CROW open country. We would expect such an approach to require significant resources both to frame within legislation and regulations, and to identify and map appropriate sites individually. As outlined above there would need to be further consideration of the benefits and impact on all interests. We would also expect significant resouces to be required to implement a regime of exclusions and restrictions, to promote and inform people about responsibly accessing such areas for recreation, and to manage the access in practice e.g. provision and upkeep of ingress and egress points, signage etc.
- Legislation to licence commercial craft: Should rights of access for water related recreation be extended across Wales, NRW would recommend considering the registration or licencing of commercial operators within Wales.
The Environment Agency Briefing note ‘Raising canoe hire standards in the River Wye’ 7 demonstrates why there is a need, and how this can keep people safe on the water, and promote consideration for the environment. Herefordshire Council made the decision in 2014 to introduce a mandatory licensing scheme in the county requiring operators to meet the British Canoeing approval standard or equivalent. Powys County Council’s current decision is not to progress with a Pleasure Boat Licencing scheme.
- – New rights and responsibilities: Wales has a population density of 148 residents/km2 6 (circa twice that of Scotland). In addition Wales is easily accessible from the large population centres of England. The accessibility of Wales to a significant proportion of the UK population, and the potential pressure this could place on the Welsh environment, land and riparian owners, and existing rights holders should contribute to the decision making process regarding extension or otherwise of rights or setting out of new rights and responsibilities
Any option to extend responsible access to all waters in Wales would need to be accompanied by a legally enforceable access charter similar to that in Scotland. The access charter would need to set out core principles to ensure the protection of the natural environment, wildlife, and features of cultural and historical significance, whilst ensuring no detrimental impact on land/riparian management, and whilst respecting the needs of other water users. [See also our response to Q14].
There should be opportunity to ensure guidance and good practice, including for invasive non-native species (INNs), becomes embedded within the charter of responsible recreation associated with new rights and responsibilities.
Welsh Anglers – Access Agreements Event at Senydd
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