Taking photographs from a public right of way may raise legal issues. In this article, Simon Odell CMLI examines some of the considerations members should bear in mind.

    Stile
    Image: Simon Odell / HCC

    Members should be aware that taking photographs from a public right of way (for example as part of a LVIA or LVA) may raise legal issues. We asked our solicitors to see if it was possible to clarify some of these…

    Lawful use

    In legal terms, public footpaths and public bridleways are forms of public highway. The public has the right to use a public highway for any reasonable purpose provided they do not create an obstruction or nuisance. Unreasonable use of a public highway amounts to trespass, and wilful obstruction of a highway (without lawful authority or excuse) is a criminal offence. Whether the use of a public highway is reasonable depends on the particular circumstances.

    In addition, some areas of the countryside are actually designated as “access land” under the Countryside and Rights of Way Act 2000. Any commercial activity on such land requires the permission of the land owner.

    Other restrictions may apply to some public places such as Royal Parks.

    Privacy

    As well as the question of lawful use of the path or land from which photographs are taken, issues of privacy may arise. Article 8 of the European Convention on Human Rights (which is recognised in domestic law) protects the right to respect for private and family life, including access to private information and access to or intrusion into one’s personal space. In some cases photographs including individuals and/or their homes may, depending on the circumstances, infringe the Article 8 rights of individuals, particularly if such photographs are published.

    Conclusions

    It can be seen from the above that the legal position when taking photographs from public rights of way is not straightforward.

    The Landscape Institute therefore recommends that practitioners are particularly diligent about the considerate use of rights of way and courtesies when entering onto land.

    Members should discuss any concerns with their clients, and they may wish to suggest alternative options. Solutions might involve not taking photography from the public right of way, asking the client to agree permission with the adjacent landowners, or others.

    The Landscape Institute is not able to provide definitive advice to its members regarding this matter, which depends on the particular circumstances of each case. The information in this blog is provided as general information only and may not be relevant or apply in your particular situation.

    If in doubt, members should seek their own legal advice.

    (This blog was edited shortly after publication to correct text and reconcile it with the guidance published in https://landscapewpstorage01.blob.core.windows.net/www-landscapeinstitute-org/2020/04/12275-LI-Technical-Guidance-02-20-v2.pdf)

    6 COMMENTS

    1. Thanks for looking into this issue, Simon. Does anyone happen to know if there is case law to clarify that taking photographs is a reasonable incidental activity when exercising our right of way? A second issue to look out for is whether there is any legal distinction between taking photographs in a personal capacity and taking those same photographs as part of a commercial or work activity. It is common and accepted public practice to take photographs from rights of way without issue, so long as they don’t jeopardise privacy or some other reasonable concern. Therefore, I suggest the legal clarity we might seek would be most useful where there is a highly contentious instance, such as where a land owner is specifically hostile to our client’s activity. But in such cases, which I hope will be few and far between, there are also likely to be wider legal and security concerns and specific legal advice might be sought as part of the project anyway.

    2. A further perspective I have heard about is not a legal one but a cultural one. Taking photographs in certain places or at certain times may cause alarm to ‘sensitive’ communities. I suppose there’s no easy answer here, other than to be completely open and inclusive of our purpose with local community leaders before going in, and to carry appropriate ID or information leaflet to give to anyone who’s a bit unsure of our motives.

      I read of an unfortunate student who decided to sneak into a particular ‘multiple deprivation’ housing estate early morning to take their photos. Unfortunately they were spotted, the gossip quickly spread, and the local newspaper decided this was headline material, using all sorts of adjectives to imply we should all be worried. That then sensitises a much wider community. Huge backfire. I guess that a risk assessment ought to have picked up this kind of issue. But anyone might get caught out at some point in their career.

    3. How is Google getting away from the privacy issue on the Street View then? Maybe we should blur the house number and the number plate in the LVIA photos…

    4. In seeking to better inform the planning process I consider landscape architects are doing everyone a favour, anyone objecting to someone taking landscape photos from a public place ought to find something else to worry about.

    5. Thanks Simon. I am not even sure legal rights are the main issue. Most people who confront you will not listen to reasoned arguments on legal rights despite how calmly you speak to them, and I have learnt through many a bad experience to walk away and come back another day! Given that our job is often made harder by those same property and landowners wilfully neglecting their own legal obligations to maintain PROWs across their land, I have often thought that reporting them to the relevant PROW authority is a suitable course of action (revenge!).

    6. I often find professional judgement with regards to how economical with the truth depending on the person you’ve met, whilst staying within the code of conduct! Having been chased by tractors, or my car blocked in, or notes left, pulling up survey markers, letting cows loose in the field to knock over your survey markers or people dancing/ rude gestures in the desired view etc that eventually after a chat and they’ve calmed down. I explain I am neither there to support or block the development, but yes our company is being paid by the developer. However, it is because they are required to provide a LVIA for their application i am simply gathering required baseline evidence to the best of my ability report what the impact of the development would be and as best guide the design in the first instance to reduce the impact and then eventually mitigation. This often leads to offers of taking views from within their own private land, or allowing you to park on their land and reduce the walk required etc. In return I suggest they contact the LPA/ developer/ attend public consultation and rather than shouting how awful it is to have a discussion and have it noted requests for design changes/ additional planting etc as it’s a lot harder to say no to those, requires another report, or a quick design change, where as saying it’ ruins the view, only requires a refer to LVIA report. It’s led to good design being adopted (always hard to push the client sometimes) and also some extra viewpoints and montages to appease landowners with considerable sway, which is always more £££ for us. everybody wins?

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