Natural England

Minutes of the 5th Meeting of the NCAF

(about 85 members of the public attended the meeting)

APOLOGIES FOR ABSENCE were received from Rt. Rev Bishop Alan Chesters, Kate Parminter (Council for the Protection of Rural England), Tim Marshall (Independent Member), Jim McQueen (British Horse Society), Iain McMorrin (British Mountaineering Council), Air Commadore Simon Bostock (Moorland Association), Cllr Chris Heinitz (Local Government Association) Andrew Graham (Environment Agency), Garath Roberts (Countryside Council for Wales) 

CHAIRS INTRODUCTION

1 Pam Warhurst welcomed Susannah Perkins of the British Mountaineering Council, Martin Gillibrand of the Moorland Association and Richard Brown of the Local Government Association. 

MINUTES OF THE THIRD MEETING OF THE NCAF: 1ST NOVEMBER 1999

2. Dr William Bird noted that his comment that controlling access to open country at night was necessary, had been omitted. He asked that the minutes be amended to reflect his view.

3. The Country Land Owners representative (CLA) said paragraph f.iv. should be reworded to say 'in the vicinity of sheep' rather than 'annoying sheep' 

MATTERS ARISING

4. There were no matters arising

COUNTRYSIDE AND RIGHTS OF WAY BILL

5. The Bill was introduced by Bob Roberts. He explained that timing of the 1st reading had meant that a paper had to be provided to the Countryside Agency Board the previous week, and that these papers had been sent to Forum members for information for this meeting. Comments were wanted on the Bill, rather than the board papers. Substantive comments would be made known to the CA chairman.

6. Chris Braun explained the legislative process the Bill would go through. He estimated that the Bill might get its second reading on 20th March, go to the Committee stage the week beginning 28th March and finish mid to late May. The report stage will follow two weeks later. It will then go the Lords. Royal Assent may be received sometime in November. He explained that additional provisions for rights of way will be tabled during the committee stage.

7. The Chair suggested that Forum members put forward their general comments first. They would then look in detail at each clause of the Bill. 

8. The Bill was broadly welcomed by the representatives of the Local Government Association (LGA), the Ramblers Association (RA), the British Mountaineering Council (BMC), and the Transport and General Workers Union (TGWU). The representatives of the British Horse Society (BHS) and the Cyclists Touring Club (CTC) expressed disappointment at the content of the rights of way section of the Bill, as they felt it contained no opportunities for improving access for horse riders and cyclists, and made it easier to reduce the rights of way network. 

9. In addition to the broad sentiments expressed, a number of other general observations were made. These were:

a. The Moorland Association (MA) representative accepted that the Government were trying to maintain a balance between the different parties, but felt that the Bill did not give sufficient protection to the landowner, He also stated that there should be no access until the regulations were in place, and that it was essential that a clear distinction should be drawn between the rights of landowners and others with an interest in the land. 
b. The National Farmers Union (NFU) representative felt that the Bill would require considerable resources from local authorites and the Countryside Agency
c. The National Trust (NT) representative welcomed the attempts to link open access and rights of way, but felt that there were problems with a lack of consistency between the two categories, particularly in relation to the requirements for controlling dogs
d. The CTC and the CLA representatives said that where they did not comment on a clause it did not necessarily mean they were in agreement with it. 

PART 1 - ACCESS TO THE COUNTRYSIDE

10. The following detailed comments were made on Clause 1:

a. the BMC representative said that 600 meters above sea level should not be used as the only definition for mapping mountain, as there were mountains which were below 600m;
b. the MA representative said that the Bill was not clear as to whether access was allowed at night, and requested that the Forum have a discussion on this issue at the next meeting. He also said that it was not clear what was covered by the definition of open air recreation; and
c. the CTC representative requested that the term bicycles be replaced with pedal cycles, so that tricycles were not excluded. 

11. On Schedule 1, the RA and the Association of National Park Authorities (ANPA) representatives expressed the view that a clearer definition of cultivated land was required. The RA representative stated that in the Prentice Bill, the definition of cultivated land specifically excluded rough grazing. The NT representative also felt that classifying golf courses as excepted land needed looking at further, as there were a number of golf courses which were on common land.

12. On clause 2 the following detailed comments were made:

a. the Royal Society for the Protection of Birds representative (RSPB) said that they had hoped that recreation would be expressed as quiet recreation;
b. the BHS representative noted that the wording of the Bill implied that horse riding and cycling were not quite recreation;
c. the MA said that those in breach of schedule 2 were only trespassers, which was insufficient, and that there should be some greater legal powers for enforcement;
d. the BMC representative was concerned that schedule 2 prohibited using the land for a commercial purpose, as this could effect people guiding users on access land;
e. the CLA, MA and NFU representatives sought clarification on why the term owner had been defined as including tenants, instead of (as is usually the case) differentiating between owner and occupier and tenants; and
f. the ANPA representative recommended that schedule 2 should start 'no person with out lawful authority'. 

13. On clause 3 the CLA representative suggested that before access to coastal land was considered a full environmental impact assessment should be undertaken. Chris Braun said that the Minister had stated that there would be full consultation and a regulatory impact assessment carried out before the right of access was extended to coastal land.

14. On clause 4 the CLA representative said that there should be a definition of areas which were too small to map. Bob Roberts reminded the Forum that previous advice had been that small areas in certain parts of the country could provide a valuable recreational resource. He said the Countryside Agency would have the discretion to propose what the smallest mapped unit would be, and that this would be written into the Countryside Agency guidelines on mapping. This approach was supported by the BMC representative, who said that the term 'useful purpose' should not be interpreted so as to exclude small but valuable areas, she also added that the BMC would like to be consulted if small areas containing crags were to be excluded from the mapping on the grounds of size.

15. There were no comments on clause 5

16. On clause 6 the RA representative was concerned that there was no right of appeal for persons other than landowners on the mapped areas. He said it was conceivable that the public may wish to appeal on areas of land that had been omitted from the map. 

17. On clause 7 the RA representative question the need for mapping appeals to be conducted in private, he asked if the Countryside Agency supported this clause. Bob Roberts replied that the Agency felt that all appeals should be heard in public, unless there was some very good reason not to.

18. On clause 8 the ANPA representative asked what the Countryside Agency's view was on delegating appeal powers. Bob Roberts replied that careful thought needed to be given to establishing the best and most effective mechanism for dealing with appeals.

19. The RA representative stated that there was an omission in clause 9, as there was no statement which said the map was conclusive evidence of the existence of a right of access.

20. There were no comments on clause 10.

21. The following detailed comment was made on clause 11:

a. the LGA representative emphasised the importance of 11(2)(c); and 
b. the CLA representative requested that the CA be given a power to ensure that access points be mapped. Bob Roberts responded saying that the Agency agreed that it would be helpful to all concerned if information points were shown clearly on maps. 

22. On clauses 12 and 13 the NFU, CLA, NT and MA representatives expressed concern over the wording of the clauses on occupiers liability. 

a. The following detailed comments were made: 

i. The CLA representative said that the word natural should be removed, or reworded to say features of the landscape. Or alternatively the Bill should carry a list of features which the landowner was not liable for;
ii. the NFU representative was concerned that the liability clauses as they stood increased the risk to the landowner; and
iii. the NT representative said that the wording could leave landowners responsible for safety in relation to redundant or historic features. 

b. The RA representative said that the purpose of wording in sub section (2) was not obviously apparent;
c. The BMC representative was pleased to see that the Forum's advice on liability had been taken into account, and said they would not object if the landowners wished to try and reduce their liability further. 

23. There were no issues arising from clause 14

24. The following views were expressed on clause 15:

a. the RSPB representative expressed a concern over the status of 1925 metropolitan commons. He said that their view was that there would be benefits to treating them as access land as conservation closures could then apply;
b. the ANPA representative asked what the philosophy was regarding existing access agreements, Chris Braun responded saying that they were trying not to reduce existing rights, particularly where higher rights would be lost if Section 1 was transposed on to existing agreements. 

25. There were no issues arising from clause 16.

26. There was a general consensus of opinion on clause 17 that by- law powers should be used sparingly or they may cause confusion, particularly when an access area was in more than one local authority area. 

a. The following detailed comments were made: 

i. the MA representative said that the Bill gave local authorites the power, but no obligation to do things;
ii. the CLA representative said that by-laws were not an ideal solution and it would be better to have primary legislation which is consistent across the country;
iii. the NT representative agreed that by-laws may introduce inconsistency, but that they would not want to loose their existing powers; 
iv. the BMC representative stressed the importance of having clear and consistent rules so that the public were not confused;
v. Bob Roberts replied saying that the advice to the Agency board had been that by-law powers should only be needed for exceptional circumstances. Chris Braun agreed, and said that to make the offences in Schedule 2 criminal offences would be heavy handed, but that the by-law provision was included to provide extra teeth in the circumstances where Schedule 2 proved to be inadequate. 

b. Conflicting views were then expressed regarding the need for criminal sanctions when users were in breach of Schedule 2. The following detailed comments were made:

i. the LGA representative said that local authorities would need funding and guidance if they were given the power to create by-laws;
ii. the MA representative said that if by-law powers were not considered to be necessary, some of the offences listed under schedule 2 should be made a criminal offence;
iii. the CLA representative agreed that making all breaches of Schedule 2 a criminal offence was too heavy handed, but he said that the existing provision was not adequate, he advocated that national regulations possibly modelled on the Peak Park By-laws would be the most practicable solution;
iv. the RA representative said that it was not necessary to criminalise activities such as bathing, and that the local authority code of practice should contain guidance on by-laws;
v. the BMC representative expressed concern that activities such as bathing could be criminalised, she said that criminal sanctions should be kept to a minimum, and where they were considered necessary full justification should be given for the decision; and
vi. the RSPB representative stated that proposed sanctions for disobeying closures might be inadequate, particularly for nature conservation closures. He said that a clear signal was required to reinforce the importance of respecting local restrictions. 

27. There were no comments arising from clauses 18 and 19.

28. The following detailed points were raised on clause 20 and 21:

a. The BMC representative made the following comments: 

i. there should be a right of appeal for the public as well as those who have an interest in the land, 
ii. that requests for closures were made widely known, so that the public had a chance to defend their interests; and
iii. that the mistake of not giving the public the right to request that the local authority enter into access agreements in the 1949 act should not be repeated. 

b. the RA representative said that section 20 (3) was not clear, and could be interpreted as allowing restricting all access to linear access permanently. If this is not the case then there should be a cross reference to clause 21. He expressed his concern that this clause was contrary to the spirit of open access. Chris Braun replied that the clause had been included to allow access to continue on a linear basis rather than close altogether. But that he would look again at the general point made;
c. the LGA representative said that there would be a difficulty in administering closures on the ground if they were dealt with by a remote body. He advocated that the relevant authority should work closely with the local authorites;
d. the MA representative said it was important to develop as system that was quick and flexible, so that requests for closures could be administered quickly. He said that not being able to close on a Saturday would cause problems as most shoots shot on Saturdays, he also said the proposals for dog control were inadequate;
e. the CLA representative warned that if the closure system was cumbersome, landowners may apply for more closures than they needed to ensure that they get the days that they actually want;
f. Bob Roberts replied saying that it could be difficult to reconcile the need for transparency with the need for speed in administering the closure system. He said that the Agency would be looking at the systems which have been developed in the Peak Park and elsewhere; and
g. the ANPA representative said that speaking from experience it could prove easier to administer once the system was up and running on the ground, than seems the case looking at the theory. 

29. On clause 22 the ANPA representative said that the wording should be changed as management of land was inadequate, it should say management of land and livestock.

30. On clause 23 the RSPB representative said that restricting access to some natural features such as bogs and mires might be justified on safety grounds in some cases.

31. There were no comments arising from clauses 24,25,26,27,28,29,30, or 31.

32. The NT representative said that the term 'opening' in clause 32 would need clearer definition.

33. There were comments arising from clauses 33 and 34.

34. The following comments were made on clause 35:

a. the NT representative said that the wording was not clear: and
b. the MA representative commented that it gave regard to where new access should go, but no regard to whether access should be over that land at all. 

35. The Chair asked if there were any additional comments that the Forum members wished to raise on part 1 of the Bill. In response the following comments were made:

a. the MA raised the point that there was no mention of compensation for landowners in the Bill; and
b. Dr William Bird asked why local access forums were not mentioned. Chris Braun replied that this was because it had been decided that they did not need a statutory basis to carry out their advisory role. 

PART II - PUBLIC RIGHTS OF WAY

36. The following comments were made on clause 43 and 44:

a. The ANPA representative was concerned that clauses 43 and 44 did not go far enough to deal with the damage caused to unsealed roads. He said that the wording should be extended to include 'unsealed, unclassified country roads'
b. The CLA representative suggested that it could be an offence to drive a vehicle on a restricted byway. The RA representative replied and said that as it related to the Road Traffic Act it would be;
c. the BHS representative welcome the creation of restricted byways and asked if it now meant that horse drawn vehicles were no longer classified as a vehicle. Bob Roberts replied that it was the intention to make restricted byways available to horse drawn vehicles, but as far as he was aware this did not alter the classification of the carriage as a vehicle. 

37. The CTC representative welcomed the creation of a new category under clause 45 for horse riders and cyclists but expressed disappointment that there would be no requirement for the maintenance of a 'reasonable surface'.

38. The CTC representative asked what private rights meant under clause 46. Wendy Thompson agreed to find out and let her know.

39. The RA representative queried why Schedule 5, clause 1, sub section 3 was included in the Bill, Wendy Tompson responded, saying it was a query to follow up with DETR.

40. There were no comments arising from clause 47.

41. The following comments were raised over clause 48:

a. the BHS representative asked if local authorities would be able to use creation orders to establish new restricted by ways. Chris Braun said that in principle they could be if the Secretary of State used his power to amend the relevant primary legislation by regulation.
b. the RSPB representative expressed disappointment that measures to allow closure for nature conservation reasons had not appeared in the Bill. 

42. There was concern expressed by the BHS and CTC representatives and Dr William Bird that the proposed legislation could result in losses to the rights of way network. The following comments were also made on clause 49: 

a. the CLA representative said the wording should be changed to land management rather than agriculture and forestry, as the latter excluded diversification and horses;
b. the NT representative expressed disappointment that there was no provision to deal with heritage preservation;
c. the BHS representative expressed concern that Schedule 6 talked about extinguishment and closure, but did not make any reference to creation, which was incompatible with the Government's policy on no net loss;
d. William Bird said that losses to the network had an impact on the whole population as the network provided a valuable recreation and health resource to all sections of the population;
e. Bob Roberts responded, saying that the Countryside Agency were not happy that the principal of no net loss has disappeared. He also said that the Agency were worried that the emphasis Schedule 6 placed on highway authority's duties towards certain classes of applicant could mean that they neglected other areas of work; and
f. Chris Braun said that Section 6 was simply creating additional provision, as any body could still ask to create, divert or extinguish a right of way or object to such a proposal. He said that the process was seen as modernisation as it placed a requirement on local authorites to review their networks and make management plans. 

43. The CLA and CTC expressed reservation about the provisions included in Schedule 7. The following detailed comment was made:

a. the CLA representative said it was odd that it had been restricted to urban areas, and that it would be simpler to include all areas;
b. the CTC representative expressed concern that rights of way could be closed on the grounds of crime prevention. She said she would like to see a clear requirement for evidence that rights of way were assisting criminal activity before they were closed. 

44. There were no comments arising from clauses 50 and 51.

45. Under clause 52 Dr William Bird asked if new footpaths created to reach access land could be lost if the land they crossed became excepted. Bob Roberts replied that it was unlikely, as the new routes would generally be established as permanent rights of way. The CTC representative asked that consideration be given to giving higher users rights on these new rights of way. 

46. There was general support for the creation of improvement plans under sections 53 and 54. The following detailed comment was made:

a. the LGA representative welcomed the introduction of improvement plans, as he saw them potentially as a bidding document. He suggested that it would be sensible for the highway authorites to liase with the Countryside Agency on more than just national trails when they were putting their plans together;
b. Dr William Bird suggested that the improvement plans could link in with the objectives of the 'Coronary Heart Framework', and that the local authorities and heath authorities should work together to promote walking. He suggested adding a sub clause 53(2)(e) reading 'promotion of physical activity';
c. the BHS representative said that local authorites should also have a duty to implement their plans;
d. the RA representative expressed concern that the wording of 53(2) could be seen as encouragement of rationalisation of the network. He said that there should be wording inserted which made specific reference to not reducing the net length of the network; and
e. the ANPA welcomed the requirement for local authorites to produce plans, and also said that these should be used as bidding documents, with ring fencing of rights of way money. He also said that he would like to see a requirement for local authorites to produce annual reports on progress. 

47. There were no comments arising from clause 55

48. The following comments were made on clause 56:

a. the CLA representative said that the wording on enforcement duties to prevent obstruction should say 'on the definitive map at that time'
b. the BHS representative asked if section 56 4aii was an open invitation to travellers to camp on rights of way. (Bob Roberts replied that it was not the intention, and that existing powers were still in place to deal with such issues); and
c. the CTC supported the Countryside Agency's intention to seek amendment to extend this section to deal with obstructions caused by ploughing. 

49. There were no comments arising from clauses 57,58,59,60 or 61.

50. The chair invited the Forum to make any general comments that had not been addressed during the discussion. These were as follows:

a. The RA representative suggested that a provision be included in the Bill, for the Countryside Agency to be obliged to complete provisional maps, if they had not done so after a period of years;
b. the BHS representative supported the sentiment expressed by the RA, and said that there should also be a duty imposed on counties to undertake historical research into the existence of rights of way;
c. the CTC representative expressed general disappointment with the Bill, she felt that it offered nothing new for cyclists. She would like to see the following included: 

i. a right for cyclists to claim use of bridle ways in the same way that horse riders can currently;
ii. removal of the requirement for cyclists to give way to other users;
iii. cycle tracks to be shown on the definitive map; and 
iv. she said that the Bill would do nothing to help implement the national cycling strategy. 

d. the ANPA representative said that they would be pressing for the legislation to enable highway authorites to delegate rights of way and other access duties and powers to national parks;
e. the BMC representative said that there should be compulsion on the Countryside Agency to take forward implementation of the right to a fixed timetable, including coastal land. She also said that some of the activities included in schedule 2 are currently taking place on existing open access land, and that where this is happening there should be sensitive interpretation of schedule 2. 

50. Bob Roberts summed up the discussion with the following comments:

d. though time limits were not included in the Bill, there was considerable pressure on the Agency to deliver open access, and that the Secretary of State would appear to have power to ensure that delivery on the ground happens;
e. the Countryside Agency's stance in relation to definitive map closures is to support the closure of the definitive map based on historical evidence only when evidence has been produced that historic rights have been properly researched ;
f. the Countryside Agency has sympathy with the case for improvements to bridle ways and the need to make better provision for cycling;
g. successful implementation will need new money, and he hoped that local authorites and the Countryside Agency would receive sufficient funding;
h. there is scope for subsidiary within the Bill for local authorities to delegate their rights of way powers and duties to National Parks; and
i. the Countryside Agency is keen for consultation on access to coastal land to take place. 

FUTURE AGENDA ITEMS

51. The following areas are likely to be discussed at the next meeting:

progress of the Bill in committee;
draft codes of practice;
guidance on Countryside Agency operating procedures;
an update on pilot mapping;
advice to local authorites on local access forums; and 
access to land at night. 

The July meeting will contain an update on the Bill's progress and a discussion on communications, publicity and information.

DATES FOR THE NEXT MEETING

52. The dates for the future meetings of the National Countryside Access Forum are as follows:

15th/16th May - Yorkshire
19th July - London
27th September - South West
13th December - London