Minutes of the 14th Meeting of the NCAF
Barry Leathwood (Transport and General Workers Union TGWU))
Stephanie Wheeler (British Horse Society (BHS))
Jerry Pearlman (Ramblers' Association (RA))
Rowena Langston (Royal Society for the Protection for Birds (RSPB))
Mark Hudson (Country Land and Business Association (CLA))
Andrew Clark (National Farmers Union (NFU))
Richard Brown (Local Government Association (LGA))
Pam Ashton (Cyclists Touring Club (CTC))
Iain McMorrin (British Mountaineering Council (BMC))
Jo Burgon (National Trust (NT))
Observers
Hugh Craddock (Dept. for Environment, Food and Rural Affairs (DEFRA))
Graham Bathe (English Nature (EN))
Quentin Grimley (Countryside Council for Wales (CCW))
Peter Hodgson (Defence Estates (DE))
Countryside Agency Staff
Bob Roberts
Paul Johnson
Susanna Perkins
Hannah Weaver (Secretary)
(About 50 members of the public attended the meeting)
CHAIR'S INTRODUCTION
1. The Chairman welcomed everyone to the meeting. She extended a special welcome to Rowena Langston, representing RSPB, attending NCAF for the first time in place of Gwyn Williams.
APOLOGIES FOR ABSENCE
2. Apologies were received from:
Tim Bennett (NFU), Tim Marshall (Independent Member), William Bird (Independent Member), Ian Mercer (Association of National Parks Authority (ANPA)), Andrew Sutcliffe (Moorland Association (MA)).
Steve Trow (English Heritage (EH)).
MINUTES OF THE LAST MEETING (HELD ON 19TH MARCH)
3. No amendments were made.
MATTERS ARISING
4. Paragraph 5 - Reimbursement. The BHS representative confirmed that the action point regarding reimbursement had been resolved: a member of Agency staff had written to her.
5. Paragraph 21 - Local Access Forums. The LGA representative confirmed that the action point for LGA and ANPA had been completed. The LGA representative reminded members that in line with Local Authority committee processes, details of Local Access Forum (LAF) members would be publicly. He added that the LGA and ANPA will be talking in detail whether they can enhance what will be available once the regulations for LAFs are published.
6. Paragraph 33 - Information. The Chairman said there was to be a brief verbal update on information provision at this meeting and a paper at the next meeting in November.
7. Paragraph 72 - De facto and de jure access. The BMC representative stated that DEFRA had made amendments to the guidance note on de facto and de jure access and asked the DEFRA representative to explain the implications of this change.
8. Hugh Craddock confirmed that revised guidance notes had been amended but stressed that the amendment is not a change of law but a change to avoid misinterpretation. The change reflected representations made by Central Council for Physical Recreation that the status of licensees on land had been misinterpreted. He reported that the change was so minor that the revision was not circulated but that it is available on the website. He offered to circulate the revised guidance to NCAF members.
Hugh Craddock to circulate revised guidance notes on de facto access to those requesting it.
9. The BMC representative asked if the change to the guidance gives increased status to a licensee who goes by consent or by implied consent onto another persons' land. Hugh Craddock stated that there was a modified view to the status of the licensee but that DEFRA has not done anything that has changed the law.
10. The RA representative asked for a copy.
11. The CTC representative questioned the role of LAFs in the preparation of Rights of Way (ROW) Improvement Plans and the duty of local authorities. She commented that her LAF had hoped to play an important role in commenting on Rights of Way Improvement plans but that they had not been consulted directly on the draft guidance.
12. Hugh Craddock stated that the Countryside and Rights of Way (CROW) Act requires highway authorities to consult with LAFs on draft ROW Improvement Plans once a statutory LAF has been set up and that the regulations on LAFs would be published imminently. He stressed that anyone is welcome to comment on the consultation paper on ROW Improvement Plans, which was sent to NCAF.
13. The CTC representative replied that the issue was that the consultation paper was not sent to her directly as a LAF representative. A "non-statutory" LAF is not a legal entity and has no status to comment.
14. The Chairman urged people to circulate papers to non statutory consultees where appropriate and that all views are welcome whether they are statutory consultees or not.
15. Hugh Craddock said that he hoped non statutory forums are treated in the same way as statutory forums. He added that consultation papers are sent to local authorities and he hoped that they would circulate them as necessary.
16. The Chairman enquired as to whether the LAF had been able to consider the paper. The CTC representative replied that they had.
17. Referring to paragraph 12 of the previous minutes and to Regulation 19
(3)(G), the RA representative asked if Hugh Craddock could give guidance on exercising discretion for right of audience at an enquiry by a commentee - specifically whether those who made a representation will be given permission for right of audience. He also asked if DEFRA would be giving advice to the inspectors of the criteria they should use in exercising their discretion.
18. Hugh Craddock confirmed that such persons would be heard with permission from the inspector and that permission should not be unreasonably withheld. He added that if permission is not given then Regulation 33 (6) gives the right to submit evidence which the inspector must consider.
19. Regarding guidance, he added that the Planning Inspectorate does produce internal guidance for its inspectors.
20. The NFU representative enquired if DEFRA intended to issue guidance on the regulations. Hugh Craddock replied that DEFRA are intending to issue a circular for local authorities on implementation of part I and how local authorities should interpret their role in making maps available to the public.
21. The RA representative stated that this question of guidance to inspectors is a long running issue and asked for assurance that guidance will be made public. Hugh Craddock said that this requires further thought and would ensure the Forum is informed.
22. The NFU representative asked whether there is provision in the regulations for sending provisional maps to those with a legal interest. Hugh Craddock replied that the procedure for provisional maps is similar to that for draft maps - they will be sent to local authorities, parish councils, public libraries and posted on the internet.
NCAF 14/1 LESSONS LEARNED FROM THE PRODUCTION OF AND CONSULTATION ON THE DRAFT MAPS FOR MAPPING AREAS 1 AND 2
23. Bob Roberts introduced the paper. He emphasised the value of roadshows in the consultation process. The Agency was not required to run these roadshows but they have proved to be an extremely valuable form of information exchange. They have been expensive in terms of time and money but have been worth it. He also emphasised that there have been over 8000 formal responses and that it is good to receive so many comments at this stage rather than commenting at a later stage or not at all. The provisional map publication date has been put back so that the Agency can consider all these comments fully. The other lesson learned is regarding small areas. It became evident from comments that the discretion for excluding small areas is too rigid. The Agency will re-visit the way in which the criteria for assessing small areas are applied in the methodology.
24. The CLA representative asked whether the 8000 comments were 8000 people or 8000 queries. He expressed concern over owners and managers knowing what is going on. Bob Roberts replied that of the 8000 representations some have been on multiple land parcels.
25. The CLA representative asked whether site visits were being used to used to corroborate aerial photography and suggested that site visits should be done on a random basis as well as specific sites which appear to have a problem. Bob Roberts confirmed that the Agency had in fact done random site visits before publication of draft maps and are doing so now for the provisional maps. A site visit will also be carried out on a parcel at appeal if it has not been visited already. He stated it is an expensive exercise in terms of time but the Agency wants to get it right. The Agency is acquiring aerial photography as it is flown but it is a slow and difficult procedure.
26. Regarding small areas, the CLA representative asked what adjustments had been made. Bob Roberts replied that the change was to the application of the criteria - a parcel must now meet one or more of the criteria not all. He confirmed that this amendment would be published.
27. Referring to the loss, by fire, of the common land register for East Sussex, the CLA representative asked what would happen if common land that is not registered is mapped. Bob Roberts stated that the Agency is not confident that the data for that area is correct so will adopt the approach of 'if in doubt, leave it out'.
28. The RA representative expressed concern that there are small areas which people thought were on the map but now due to the change in methodology may not be, and that they may not know they have been 'missed'. He asked how the Agency intended to make the changes easy for the public to see. Bob Roberts stated that the Agency had been advised not to put extra layers on the map because it may compromise the statutory information. The Agency is investigating with the mapping contractors how to make it easier to view the changes on the internet. He also explained that the public could see the maps for comparison on screen in Countryside Agency offices in Cheltenham, London and Manchester.
29. The RA representative also enquired
i) what proportion of submissions for parcels to be added had succeeded or had failed;
ii) what was the percentage of those failed submissions compared to submissions that had succeeded; and
iii) whether there were patterns in a specific area or with particular staff or consultants' views.
Bob Roberts clarified that it is the Agency that makes the decisions as to what goes on the map and not its contractors. At this stage the Agency is unable to give percentage figures for outcomes of comments because the process is still running. He expressed concern at the level of representations requesting parcels be added to the map which are found, following a site visit, to not meet the criteria. The issue seems to be interpretation of improved and semi-improved grassland. Once provisional maps for area 1 are published, the Agency is happy to talk to people and inform them of how they are applying the methodology with examples
30. With regard to East Sussex, the RA representative expressed doubt over the approach adopted by the Agency and wanted assurance of the work that the authorities in East Sussex, the Agency or its consultants are doing to reconstruct the records. He also suggested that records from enquiries of the commons register should be used. Bob Roberts stressed the Agency should only put common land on the map where it is confident of its designation. The map can be revised when the record is complete.
31. The CTC representative enquired how many maps had been sent out and where the responses had come from, in particular which areas had high or low response rates. She expressed concern that not enough copies of draft maps had been sent out, particularly where a group of people need to comment. Bob Roberts reported that around 7000 free map sheets were distributed and that maps are also available to buy (at cost price) and are on the internet. Maps were sent to all parish councils in the mapping area and the clerks were encouraged to circulate them.
32. The CTC representative also enquired whether the consultation periods were any more flexible because the consultation period for area 4 is over the winter months, including Christmas, and for area 7 the period is over the summer holidays. She reported that circulating and seeing the maps and looking at parcels of land for area 2 was very hard due to the snow and Christmas. These problems will be faced again with the provisional maps. Bob Roberts agreed that it is difficult, even more so for the staff completing site visits when snow is on the ground but stressed that it is very difficult to change the timetable to avoid holidays and still meet the Government commitment.
33. The CTC representative asked whether the Agency had done an analysis of responses.
34. Bob Roberts replied that comments had been analysed by
- geography;
- type;
- whether the comment was for or against the inclusion of land; and
- whether it was a comment on open country or registered common land.
35. The BMC representative expressed concern about small areas, supporting the comments made by the RA representative. He sought assurance that small areas would be considered if they contain a recreational feature, for example, small crags, cliffs and historical sites, and whether recreational interest could be more important than size of land. Bob Roberts confirmed that recreational features are included in the criteria.
36. The TGWU representative enquired about a small area with no point of interest but is regularly used. Bob Roberts clarified that the CROW Act does not change existing rights.
37. The NFU representative expressed concern that the number of comments had risen following the closing date and commented that the Agency should be more rigid that nothing is accepted after the closing date. Bob Roberts said the final count of comments had been done at the very end after acknowledgement letters had been sent. He confirmed that no late comments had been accepted.
38. The NFU representative asked whether the consultation report feedback would be generic or individual to the commentee. Bob Roberts confirmed that the feedback from comments would be made individually.
39. The NFU representative expressed concern at the changing criteria for small areas and would like to have seen a consultation exercise on the changes. He asked how the Agency would be revisiting maps in light of the new criteria. Bob Roberts said that the criteria hadn't changed, the change is that a parcel now only has to meet one or more of the criteria, not all of them. This will only effect a few very fragmented areas.
40. The NFU representative also expressed concern that the explanatory text for excepted land on maps is not clear and stated that excepted land should not be included on the map. Bob Roberts explained that excepted land must be shown on the maps because it meets the criteria for open country and registered common land.
41. The NFU representative asked about the change of methodology for openness. He also supported the CTC representative's comments about consultation periods over Christmas and the fact that offices are closed over Christmas which is especially bad if this coincides with the end of the consultation period. Bob Roberts replied that it will not be changed, just explained further to avoid misunderstanding. He reiterated that the procedure for consultation is standard and rigid.
42. The NT representative asked when the revised methodology will be published and whether it will be applied to the provisional maps.
43. Bob Roberts stated that the only change is regarding small areas and that this has been applied on production of the provisional maps so that maps for Areas 1 & 2 will be consistent with subsequent areas. He confirmed that the revised methodology will be published at the same time as provisional maps.
44. The NFU representative asked how the definition of openness could be changed without changing the methodology. Bob Roberts replied that the Agency is not changing the way it is doing the mapping, but trying to get through more clearly how it is doing it.
45. The NFU representative asked how those wanting to make an appeal could do so without clear criteria in the public domain.
46. The CLA representative supported the NFU representative's comments and stated that he understood that the criteria would not be published.
47. Bob Roberts confirmed that it would be published.
48. The RA representative asked how the public will spot what has been missed off on provisional maps. He also asked whether there were particular areas with omissions so that any pattern could be seen.
49. Bob Roberts stated that the Agency is trying to make the maps on the website more user friendly so that the public can view both maps side by side. He said that the Agency welcomes anyone to their offices in London, Manchester and Cheltenham to view the maps in high resolution on screen with guidance by an officer.
50. Hugh Craddock clarified that East Sussex County Council has had a duty since 1994 to reconstitute the records destroyed by fire and hopes that they will now make better progress with this. Regarding LAFs receiving copies of maps, he advised that LAFs can make copies of the maps for its members. On the issue of the timing of consultation periods, he commented that this may clash with other activities all times of year and that it cannot be changed.
51. The Chairman thanked everyone for a useful discussion.
CROW ACT - ORAL UPDATES ON PROGRESS TOWARDS IMPLEMENTATION
Information
52. Paul Johnson reported that work was in hand preparing for the next stage of mapping. Progress is also being made on the Country Code, the latest stage of this is working with Central Office of Information (COI) on how to consult on and develop it with particular interest in trying to ensure it reaches children of 7-11 age group. The Agency aims to complete the consultation by summer 2003. Also, the Agency is working with CCW, Scottish Natural Heritage, Forestry Commission and English Nature to create common visual symbols. He added that the Agency is working on dissemination of access and restriction information which will include guidance to the public and to land managers on how the system will work.
53. The Chairman reminded members that there will be a substantive item on information at the next meeting in November.
54. The RA representative enquired about the work on the National Access Database project.
55. Bob Roberts responded that the Agency is talking to Government about the benefits of making available information on all forms of access. The Agency is commissioning a feasibility study on the technical aspects and how to promulgate information. A report on this is due soon which will inform ongoing discussions on funding. The project is a joint one with CCW. NCAF members expressed strong support for the project.
Local Access Forums
56. Susanna Perkins reported that the regulations are due to be published imminently. The Agency is working with DEFRA on creating advice to highway authorities on setting up Forums and further guidance for LAF members to be published later this year. The Agency plans to offer briefings and seminars for highway authorities for when they are ready to set up LAFs in their areas.
57. Hugh Craddock advised that the Secretary of State will issue a circular to local authorities.
Mapping
58. Bob Roberts listed the following important dates in the mapping timetable:
- 29th July - Provisional map for area 1 published
- 3rd September - Draft map for area 3 published
- 30th September - Provisional map for area 2 published
- 30th October - Draft map for area 4 published
59. The RSPB representative gave an update that the RSPB are looking at the implication of open access to their reserves, in particular the issue of conservation. She reported that this is one of the issues discussed at regular Wildlife Access Advisory Group (WAAG) meetings. WAAG consists of members from CCW, EN, NT, RSPB, Wildlife Trusts, JNCC, National Park Authorities and the Countryside Agency. The group assists EN in developing guidance on nature conservation and the potential for both management measures and statutory restrictions and closures. WAAG has recognised the need for research and monitoring to help refine guidance.
60. The Chairman thanked the RSPB representative and said that it is important that there is feedback from WAAG on a regular basis.
61. The BHS representative expressed disappointment that there was not an update on the discovering lost ways project.
62. The Chairman will look into reporting on all work areas at future meetings.
NCAF 14/2 RESTRICTIONS CONSULTATION AND UPDATE
63. Paul Johnson introduced this short paper. He reported that there's a lot of work happening behind the scenes on internal logistics, for example, computer system capability and developing a unit to process restrictions.
64. The RSPB representative highlighted the importance of resource availability to ensure adequate information dissemination.
65. The LGA representative welcomed the sentiment that the system has got to be simple and be locally relevant and accessible rather than centrally driven.
Presentation on Safety on Access Land by Ken Taylor, Asken Ltd
66. Susanna Perkins explained that Section 25 of the CROW Act gives powers for land managers to apply for restrictions on public access where necessary for safety and exceptional fire risk. There are also powers for the relevant authorities to make such restrictions without an application being received. In considering the need for restrictions for public safety, the relevant authorities must bear in mind the obligations which arise from existing legislation, specifically, Health and Safety at Work Act, occupiers liability and the mines and quarries Acts. The Agency let a contract to Asken Ltd to research health and safety on access land. Ken Taylor from Asken Ltd reported its findings. A copy of his presentation is attached.
67. The CLA representative stressed the importance of resources and feared that the Local Authorities do not have the funds to implement this system. He stated that land managers should not be out of pocket and stressed that the issue of proper resourcing must be considered.
78. The TGWU representative stated that legislation requires landowners to complete risk assessments based on the number of employees (more than 5 employees requires a written risk assessment, less than 5 does not). He wondered whether there is provision within legislation for having a written risk assessment for less than 5 employees.
69. Ken Taylor agreed with the TGWU representative's understanding of the legislation. He stated that the NFU have developed a model risk assessment which they promote to their members, which emphasises the need to keep records. Also, if circumstances change significantly, there is a legal obligation to review those assessments. Landowners with active mines or quarries should consider doing this where adjacent land becomes access land as the risk of someone trespassing may increase.
70. The NFU representative stated that agriculture is a dangerous occupation and that risks must be taken seriously. He stressed that risks often arise on adjacent land or on routes to access land and that the Agency need to be aware of off site implications.
71. The LGA representative commented that Asken's recommendations were sound and encouraged a common sense approach. He suggested that the list of options for land managers should include discussion with insurers.
72. Ken Taylor was concerned that approaching insurance companies could encourage them to put premiums up unnecessarily whereas his research showed that risks are small.
73. The CTC representative enquired whether there is any work being done to quantify the risk of zoonoses.
74. Ken Taylor said The Scottish Executive and Food Standards Agency have published a report recently which investigated incidents on farms. NFU have published a guide to open farms and a series of HSE booklets is also available. This is something that can be best managed through education.
75. The NT representative thanked Ken Taylor for a good presentation and good reinforcement of current practices. In NT's experience most accidents are through slips and trips. More education and awareness raising would be important.
76. The BHS representative stressed the importance of information, for example, people may not know the difference between types of bull or be able to identify suckler herds. She wondered whether this was something that could be added to the Country Code.
77. The NFU representative replied that there is often no on site information on suckler herds and bulls. He suggested that there should be generic standard information which gives the public the same information across the country.
78. Ken Taylor reported that between 1991 and 2000 there had been 27 reported incidents involving members of the public and livestock, 8 of which were fatal. This illustrates that serious risks that don't happen often. It is important to keep these risks in context.
79. The RA representative requested a copy of the presentation and report by Asken. He commented that these issues were discussed by a working party set up by CLA before the CROW Act. A report was published, and if there was a real problem the insurers would have picked it up and premiums would have gone up.
Presentation on Fire Risk Forecasting by David Henderson, ADAS
80. Susanna Perkins explained that Section 25 of the Act also gives powers to relevant authorities to restrict access where necessary to prevent fire where exceptional conditions of weather and exceptional change in the condition of land occur. Ministers also made very clear in Parliament that these powers should not be used to combat routine fire risk. She reported that the Agency has commissioned research into the causes and history of fire. The Agency intended to set up an automated system to measure the extent of fire risk, and therefore indicate where these conditions occur which allow the powers under Section 25 to be used. The Met Office and ADAS were awarded the contract early this year and will produce a final report next summer.
81. David Henderson reported on progress so far. A copy of this presentation is attached.
82. The CTC representative enquired whether climate change had been taken into account. She also enquired whether the severity of the impact of fire is effected by its accessibility by fire appliances.
83. David Henderson reported that climate change is being considered. The models being developed need to be supplemented with local knowledge and sensible land management decisions as to whether restriction of access is the appropriate course of action to prevent fire.
84. The NFU representative suggested that the fire risk forecasting system could not account for fires started by accident or arson. He suggested that the model should take into account how frequently the sites are visited, when they are visited and how they are used.
85. David Henderson supported this point. He agreed that the presence of people is an important factor and is part of the local knowledge that needs to be considered before a decision is taken. Information specific to the land in question, for example, slope, soils and vegetation, would also need to be included in the calculation of fire risk.
86. Bob Roberts said that the next step is to decide what use to make of this information system. The Agency would like to see broader use of the system than just Agency use. He reminded that rural visitors often report fires and that excluding access might reduce the likelihood of a fire being reported in time to prevent serious damage. The Agency was considering these and other aspects of how the system could be used to best effect.
87. Paul Johnson added that evidence from Dorset showed that incidents of fires had risen dramatically during foot and mouth because arson was able to proceed without interruption on land where access was restricted.
88. The RSPB representative reported that Dorset had carried out similar research into incidents of fire. She said the Agency should consider the impact of fire on nature conservation interests, particularly habitats that are highly vulnerable to fire but important to nature conservation like mature heather which is inherently flammable.
89. David Henderson agreed that these addition pieces of information would be considered.
ANY OTHER BUSINESS
90. The TGWU representative questioned the accessibility of NCAF minutes and enquired whether minutes could be more widely circulated in draft form.
91. The Chairman agreed that draft minutes could be circulated publicly.
92. Hugh craddock offered to circulate the consultation paper on the review of the access element of agri-environment schemes to members.
93. The Chairman commented that she is now a member of the Rural Affairs Forum for England to which she reports from NCAF.
QUESTIONS FROM MEMBERS OF THE AUDIENCE
94. Two questions were tabled.
Kate Ashbrook asked what feedback each representation will get, whether the response will be specific and how soon after publication of provisional maps the feedback will be received.
Bob Roberts said that the minimum each representation will get is the conclusion, whether the land is on or off the map. He said that it is unlikely that it will include a reason why the land is on or off but that any subsequent questions will be answered. He added that feedback will be sent out after the provisional maps have been published and that most should be received within a week.
Ian Clements expressed concern about the increased penetration of off road motorbikes. This was noted by the meeting.
Rowena Langston asked what progress had been made with appropriate assessments, as required by the Habitats Directive for Natura 2000 sites, of the implications of open access in respect of Section 26 of the CROW Act 2000.
Bob Roberts said that the Agency is working closely with English Nature on this.
The EN representative added that the methodology had been agreed and was to be tested in 4 pilot sites. EN are advising the Agency on the sensitive features and the Agency are assessing access demand. If after that there are still problems a more detailed assessment will follow. The process will be reviewed after these pilots.
ARRANGEMENTS FOR NEXT MEETING
95. The Chairman confirmed that the next meeting will be held on Tuesday 19th November 2002, venue to be confirmed.
