His lordship takes on the law of the land

Oliver Tickell reports on an Earl who won't move on walking rights
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The Independent Online
IRRESISTIBLE force, in the shape of the law, is moving towards an immovable object, in the shape of the 9th Earl of Macclesfield, in a dispute over access to the 2,000 acres of prime Oxfordshire countryside which form the Earl's ancestral estate.

Little known legal powers dating from 1949 could force the Earl, Lord of 13th-century Shirburn Castle near Watlington, to open a tenth of his estate to the public - even though he is fiercely opposed to access to his land beyond the existing footpath.

His Lordship's position regarding his estate is simple. "Today I have sole rights and sole enjoyment. Why should I give that up? Why pick on someone who has a title and land and is in the Establishment?"

Oxfordshire County Council, taking its lead from a couple of increasingly- vocal pressure groups, has other ideas.

Both the Ramblers' Association and The Land Is Ours campaign this summer occupied the Earl's land at Shirburn Hill on the Chilterns escarpment, driving home their demand for a right to roam over his woodland and chalk downland with magnificent views over the Thames Valley. And now the Earl has received formal notice from Oxfordshire that it wants to negotiate an "access agreement" under the 1949 National Parks and Access to the Countryside Act, that would allow the public onto his private land for recreation and enjoyment.

He is in no mood for negotiation, however. The council's move is "selfish greed", he insists, while public access would damage the grassland, designated a Site of Special Scientific Interest (SSSI).

"To pick on this site is lunacy," says Macclesfield. "It should be protected. You know what people are like. They will all come in and dig up botanical samples. This move would allow the public to mess about wherever they like."

But the county council is not about to take no for an answer. "We are trying to establish a friendly dialogue," says councillor Brian Hodgson, who steered the resolutions through committee. "But, of course, we are aware of the fact that we could seek an access order if negotiations go nowhere."

Under the 1949 Act, local authorities can make an "access order" against a land owner who refuses to negotiate an access agreement. In practice only a few dozen such agreements have been made since 1949, and just a handful of access orders. A landowner can appeal to the Environment Secretary against an access order, which may result in a public inquiry.

But if the Earl chooses confrontation, he will have few supporters. English Nature, the statutory conservation agency, has "no objection in principle" to allowing the public onto Shirburn Hill. "Access is perfectly compatible with chalk grassland," says Oxfordshire conservation officer Keith Payne. "Our policy on our own National Nature Reserves is to have access wherever possible, and we would take the same view in this case."

George Monbiot of The Land Is Ours campaign claims that more access to Shirburn Hill would benefit the environment. "Due to the absence of active management, sycamore trees have been allowed to invade and smother the rare downland flowers," he says. "Such neglect has only been possible because no one - apart from trespassers like me - has been able to see it."

Macclesfield rejects Mr Monbiot's suggestion of poor husbandry as "slander", arguing that he is not allowed to cut down the sycamore since "Shirburn Hill is a SSSI and as such its management is in the hands of English Nature."

But Keith Payne says the claim is "not strictly true ... we would need to be consulted, but if he wants to chop the sycamore down we would not stop him. We will approach him over the next year to obtain some positive management of the site."

Macclesfield would be best advised to enter negotiations with Oxfordshire, advises David Sykes, access officer with Lancashire County Council - which successfully made an access order on land in the Bowland Forest 20 years ago.

"To seek an access order is the option of last resort," he says. "And can be a difficult legal process. But an access order is far more onerous on the landowner. An access agreement can provide for annual payments, temporary closures for shoots and forestry, restrictions such as a ban on dog-walking, and is of finite duration.

"But an access order remains in force in perpetuity, compensation is paid as a one-off, and no conditions can be attached. An access agreement brings much greater benefits to all parties - not least the landowner."