Landowners’ Guide to Wild Swimming: What the law really says

The UK Government announced a consultation into 13 new bathing sites in England this week, a consultation which closes on Monday 23 March and the full details can be found here.

Whilst many of the areas proposed as new bathing sites already benefit from existing public access, there’s no better time for land managers to remind themselves of their rights when trespassers swim in inland waterways on land that they own or manage.

There is no general right to swim in non-tidal waters in England and Wales. Therefore, whether someone is permitted to swim in a river or lake largely comes down to the generosity of the landowner.

In general terms the riparian owner of the adjacent land has certain rights over the water and can choose whether to permit swimming or fishing there, and the situation remains the same whether the land is private or public. The swimmer, on the other hand, has no more right to swim in a lake within a municipal country park than they have to swim in the lake of a private landowner.

It is also worth noting that the Countryside & Rights of Way Act 2000 only granted a right for access on foot and did not extend to swimming or the use of paddle craft.

If CLA members have watercourses on their land, then we would recommend erecting suitable signage. Whether the signs are placed for the purpose of highlighting the landowner’s permission or the absence of their permission to the user of the lake, both the content and position of the signage will be important.

As a minimum, signs should be legible and visible to the user and should make the position regarding permission or its absence clear to the lay user. You could consider placing these signs by the lake in a visible spot, particularly at known entrance points, you could also put them on your land at known access points or where cars are often parked for their owners to swim.

It’s good practice to remember that the wording should be aimed at the user and informed by the situation. Also worth noting is that simply setting out ‘private’ or ‘private land’ may be taken to relate to the land adjoining the river not the river itself.

The signage should be photographed in situ with a date recorded, which should happen as a matter of course in the metadata in a digital camera, but if you are relying on printed records, try and ensure the photo has a date recorded on it. It is important to remember that you may be relying on the evidence of the signage years later so keep the image safe.

Additionally, you should consider the ongoing maintenance of the sign. Noting that it is not uncommon for such signs to be quickly vandalised or removed and also taking further photos in situ when the signs are maintained so you can prove continuity of x

Use is likely to be considered to be “with force” where the user has been made aware of the landowner’s objection. If this is done verbally it should be done calmly and politely and it would then be important to keep a contemporaneous dated, written record of every time this is done, together with notes on the place where the discussion took place and that it was made clear that the swimmer was trespassing.

Members should also consider making a landowner statement and deposit under S31 (6) of the Highways Act 1980, setting out that there is no intention to create further public rights of way on the land. This will prevent the build-up of any rights that might give way to successful claims for additional rights of way that could allow the swimmer to access water bodies. You must remember that such declarations do not, however, protect you from claims of historic routes.

For further advice on this topic, CLA members can reach out to the CLA legal team.