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(1868) LR 3 HL 330, (1868) LR 1 Ex 265. Here again, liability is strict and it is a much
simpler matter for the claimant to base a claim in Rylands v Fletcher than under the more
complex rules of common law or the Defective Premises Act 1972 in which it is necessary
to prove fault.
Bearing in mind that, at present, liability in negligence is in the process of being
curtailed by the courts, whereas liability in nuisance and indeed strict liability may be
expanded, it seems sensible ﬁrst of all to consider the question of strict liability before
proceeding to look at the common law of negligence under the Defective Premises
However, the possibility of common law claims should always be considered as
should claims for breach of statutory duty where there has been a breach of building
regulations made under the Building Act 1984.
10.12 COUNTRYSIDE AND RIGHTS OF WAY ACT 2000
The Countryside and Rights of Way Act contains measures intended to improve public
access to the open countryside and registered common land, while also recognising
the interests of landowners. It has some impact on the law relating to occupiers’ liability
and the law of trespass. The Act amends the law relating to rights of way and nature
conservation and is intended to give people greater freedom to explore the countryside.
It provides a new statutory right of access for open-air recreation to mountain, moor,
heath, down and registered common land (the ‘right to roam’).
In some instances the Act amends the Occupiers’ Liability Act 1984 by inserting new
sections, notably s 1(6A) and (6B) to relieve the burden on landowners in respect of
people crossing their land to enjoy the countryside. Section 2(1) of the Countryside
and Rights of Way Act 2000 provides that an occupier owes no duty of reasonable care
in relation to a risk which is the result of the existence of any natural feature of the
landscape, nor in respect of any river, stream, ditch or pond whether or not this is a
natural feature. Nor is any duty owed in relation to a risk of injury caused when passing
over or through any wall, fence or gate, except when making correct use of the gate or
style. Plants, shrubs and trees are treated for the purposes of the Act as natural features of
the landscape even when they have been planted on purpose. However, the new s 1(6A)
of the 1984 Act does not exclude the occupier’s duty if he has done something on the land
either recklessly or with the express intention of creating a risk to entrants.
When a court is considering whether a duty is owed, and the nature of any such duty
to persons in the exercise of their rights under the Countryside and Rights of Way Act
2000, it is required to have regard to the fact that the right should not place any undue
burden on the occupier, to the importance of maintaining the character of the countryside
and to any relevant guidance given under the Act. The character of the countryside
could include any historic or archaeological features of interest. Clearly, the Act creates
situations when people entering land with a right to do so under the 2000 Act are in a less
advantageous situation than trespassers under the 1984 Act.
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