Natural England

Minutes of the 4th Meeting of the NCAF

(about 75 members of the public attended the meeting)

APOLOGIES FOR ABSENCE were received from Rt. Rev Bishop Alan Chesters, Barry Leathwood (Transport and General Workers Union), Kate Parminter (Council for the Protection of Rural England) and Derek Casey (Sport England), Jim McQueen (British Horse Society), Tim Bennett (National Farmers Union) 

Chairs Introduction

1. Pam Warhurst welcomed Stephanie Wheeler of the British Horse Society, Brian McLaughlin of the National Farmers Union and Richard Davison of Scottish Natural Heritage to the meeting. The Forum were told of Jim McQueen's illness and all wished him a speedy recovery.

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

2. The Moorland Association (MA) representative drew attention to an error in paragraph 15, the season for grouse should read 12 August to 10 December.

3. With this amendment, members confirmed their approval of the accuracy of the Minutes of the November meeting.

MATTERS ARISING

NCAF 2/1 Access to Other Land 

4. Tim Marshall expressed a concern that once the Bill was published the Forum members would not have any opportunity to recommend changes to the content. Bob Roberts said that it was normal for a Bill to be amended as it passed through its various legislative stages; that Forum members would be invited to advise the Agency on its detailed content once the Bill was published; and that it was to be expected that several organisations would seek to have amendments sponsored as the Bill progressed.

5. The British Mountaineering Council (BMC) representative asked that other Forum members should see the amended advice that went to the Government from the Countryside Agency, on access to coastal cliff faces. 

6. The Cyclists Touring Club (CTC) representative emphasised that they did not feel that the Government's proposals to improve Rights of Way offered 'higher rights' users sufficient improvement. The British Horse Society (BHS) supported that view.

NCAF 4/1 OCCUPIERS LIABILITY

7. The paper was introduced by Paul Johnson of the Countryside Agency

8. There was discussion on the issue of occupiers liability, all the Forum members were supportive of the sentiment expressed in the joint letter sent to the Minister by the Country Land Owners Association (CLA) representative and the British Mountaineering Council's representative (BMC). 

9. A number of specific points arose in discussion, these were:

i. the CLA representative stated that the Government's proposal that owners should carry a level of liability normally owed to a trespasser was not acceptable in relation to open access land. This view was supported by all members of the Forum;
ii. in open countryside, the BMC and LGA representatives felt users should take responsibility for their own actions and safety in relation to natural features and the natural condition of the land. Owners should carry liability for features that they had introduced (including gates and styles) or activities that they undertook as part of normal land management; 
iii. the LGA and Moorland Association (MA) representatives and Mr Tim Marshall felt that clarification was required about the distinction between the responsibility of owners and occupiers of the land, and what constituted 'the natural state of the land';
iv. it was agreed that it was a complex area of law and there were no simple solutions. This view was supported by the British Horse Society (BHS), and the Association of National Park Authorities (ANPA) representatives. The Ramblers Association (RA) representative suggested that the most appropriate way of resolving this might be to have a Law Commission review at some stage in the future, as to have one now would delay legislation;
v. the MA and the LGA representatives felt that the Forum should make it clear to the DETR that attention to the issue of liability was required and that the emphasis should be placed on achieving practical solutions;
vi. Dr William Bird stated that landowners had every right to be concerned over liability, as we were becoming a litigious society, he also said that he felt that there should be no open access rights at night.
vii. the BHS representative stated that concerns over liability often caused problem in negotiating local access agreements; and
viii. the National Farmers Union (NFU) representative suggested that the recent changes in liability law in Southern Ireland could be looked at for comparisons. 

10. The Observers made the following observations on the paper and debate:

i. The English Nature (EN) observer supported the general view of the Forum on this issue. He stated that concern over liability already caused problems on nature conservation grounds as potentially valuable habitats, such as dead trees, were removed by landowners for fear that they may pose a threat to users. He said that clarity was essential about which features owners and occupiers were liable for, and that in achieving this the present tendency to 'tidy up' natural features should be discouraged. 

ii. The DETR representative said that he had listened carefully to the debate, and read the BMC and CLA's letter with care. The problem was turning principles in to practice. A law review would take considerable time, and it may be that when the Bill is introduced it may not be able to have any other provision other than the duty owed to a trespasser. He felt that is was still not clear what needs to be done, but that this may be addressed further during the parliamentary stages of the Bill. He also said that the issue of liability affected areas of the law beyond just access to the countryside, and this also had to be taken into consideration. But he emphasised that Government were listening and recognised the seriousness of the concerns that has been expressed. 

11. In response to the DETR observers comments the CLA representative expressed disappointment at the DETR's approach. He suggested that if a Bill were introduced proposing a level of liability equivalent to that currently owed to trespassers, there would be an obvious and unavoidable cost to the landowners which they would seek to recover from Government. 

12. The Chair summed up the discussion by saying that there seemed to be a strong measure of agreement on this issue from members of the Forum. This was that the formula on occupiers liability in the framework for action needed to be revisited, without causing undue delay to the progress of access legislation. And that the sentiment expressed in the British Mountaineering Council / Country Landowners Association letter was widely supported, and should be promoted to Government.

NCAF 4/2 CODE OF PRACTICE FOR USERS

Discussion on tone and general content

13. Paul Johnson introduced the paper. He emphasised that in the absence of a published Bill, the Countryside Agency had set down an outline structure and an outline of possible content rather than a draft code. He asked for comments on the general structure, content and tone.

14. There were conflicting views on the tone of the paper. The ANPA, BMC and BHS representatives felt the tone of the document was patronising. The LGA and CTC representatives and Mr Tim Marshall thought that clarification was required on who the target audience was. They felt that if the code was aimed at inexperienced users, its tone was pitched at the right level. 

15. There was a general consensus that the code should carry evidential status, and set out in detail the users' rights and responsibilities.

16. A number of further points arose in the discussion, these were:

i. the BMC representative felt that the document should be expanded to include a section on encouraging and helping to manage educational use of access land;
ii. the LGA representative stated that the existing Country Code should be adapted to take account of the user code of practice for open country, rather than have two unrelated codes;
iii. the RA representative thought that the best option would be to have a succinct Code with evidential status, backed up by a publication similar to 'Out in the Country' produced by the Countryside Agency; 
iv. the CLA representative raised the point that the landowner and occupier was subject to legal proceedings if they did not adhere to their code, but that this did not seem to be intended to apply to the users and their code. He felt that the landowner had inadequate powers of enforcement against unreasonable behaviour;
v. the MA representative expressed disappointment in the tone and content of the draft codes and argued that to be workable they must state clearly what is, and what is not, allowed in the exercising of open access rights. He suggested that the solution was to have 2 sections, one simply and clearly laying down the ground rules and the other explaining the benefits of the new rights and giving guidance on how best to enjoy them; and
vi. the Royal Society for the Protection of Birds (RSPB) representative stated that they would like to see some text included which explains the limits of the new right. 

DISCUSSION ON guidance in the code

17. Following the general discussion on the tone of the code, there was a more detailed discussion on the guidance contained within the code, with all members of the Forum making specific comments on the content. These were as follows:

a. Dr William Bird felt that there should be some guidance on how the public could express complaints and comments. He asked who would any comments be addressed to. Bob Roberts replied that the Countryside Agency were currently considering this, and that it would largely depend on what the issue was. He suggested that detailed issues would be dealt with at a local level probably through the countryside service of a local authority. Local but generic issues might be considered by a Local Countryside Access Forum. The Countryside Agency would take an interest in national policy issues. 

b. The LGA representative felt that: 

i. paragraph A2 should be expanded to include local post offices and village notice boards; 
ii. paragraph F4 should apply to nature reserves and conservation land as well as farm land;
iii. paragraph G9 should say 'take heed of advice given by rangers, and please follow any requests that they make';
iv. paragraph J3 should say 'leave the gate as you find it'; and
v. paragraph K3 should be expanded to say if you need to park your car, only do so in areas designated for car parking. 

c. The NT representative said that the sequence of the guide was important, and that all aspects of planning a trip should be brought together under one section. 

d. The NFU representative suggested that experience should be drawn from compiling other codes, such as Codes of Good Agricultural Practice. (He had no specific advice to give on the matter of gates, but suggested the best advice would be to leave the gate as you found it.) 

e. The CTC representative felt that the wording in the paper on gates was correct, and reflected the advice that they gave to their members. 

f. The CLA representative suggested that the most appropriate wording for gates would be 'if the gate is fastened open, leave it open; if not, close it'. He also said that:

i. paragraph F3 only applies to sheep, not livestock in general;
ii. paragraph F4 was right to encourage people to keep dogs on a lead when any notice requires them to do so, but that the default position should be that dogs should always be on a lead unless signs say otherwise;
iii. paragraph G5 is badly worded, and should be redrafted; and
iv. paragraph G8 should say in the vicinity of sheep, rather than out of control in a field of sheep. 

g. The RA representative proposed that: 

i. paragraph B2 should be expanded to explain the danger cattle in fields can pose, especially to people who are accompanied by dogs;
ii. paragraph G5 should be clearer, as people may not know what they can and can not take from the countryside; and
iii. paragraph H3 should include a suggestion that people should familiarise themseles with map reading techniques. 

h. The RSPB representative felt that as a general principle the code should explain the new right and then expand on it with an explanation. e.g. 'your dog is welcome under the new right, as long as he is on a lead'. 

i. Tim Marshall said that: 

i. section C should draw attention to the possibility of closures related to high fire risk; and
ii. the list included in G8 is not exhaustive and should state these are examples of things you are not allowed to do. This section should also emphasise the responsibility of the user. 

j. The BMC representative felt that: 

i. paragraph H3 was vague - what is common sense ? It should be reworded to be expressed as a matter of observation, rather than a matter of common sense;
ii. paragraph H4 - 'Deep open countryside' should be replaced with 'remote', what constitutes bleak weather ? The wording generally needs to be tightened up; and
iii. a paragraph should be included which states that 'those responsible for educating and training young people in open countryside should ensure all participating are all suitably briefed, equipped and organised. 

k. The MA representative said that: 

i. the Moorland Association's position is that access should be via access points as the only practical means of ensuring that all walkers are informed of the closures, paragraph A3 should say if you have not consulted a map, enter open access areas via an access point, as these can give you up to date information about short notice closures;
ii. section C should state that you may not light any form of fire on a moor;
iii. paragraph D3 should state that access points are shown on Ordinance Survey maps, this was view was supported by the CLA;
iv. section F, the default position should be that dogs are (welcome as long as they are) on a lead, the section also needs to be expanded to include where wildlife are present;
v. section G. The code should define clearly what is meant by 'open air recreation'. The Moorland Association would seek to exclude picnicking, especially during the nesting season when birds might be denied access to a nest for sufficiently long to chill its eggs;
vi. access at night to open access areas should not be allowed for security reasons; and
vii. Paragraph G8 should form the foundation for a section on rights and responsibilities, but careful consideration is required of the contents. 

l. The ANPA representative made the following detailed comments: 

i. paragraph B3 should be moved to the start of the document;
ii. grass should be defined as a crop;
iii. the code should include some guidance about managing large groups of people on open land e.g. making sure messages about shutting a gate get through to the person at the back;
iv. paragraph G5 requires careful editing to ensure its legality;
v. paragraph K is not necessary; and
vi. the Country Code should be adapted to be consistent with this code of practice. 

m. The NT representative suggested that the code should include links to relevant bylaws. He also felt that the code should be welcoming in tone and address specific issues such as wheelchair access. He felt that the code would be more accessible if it included cartoons and pictures to lighten the tone. 

n. The BMC representative said that they had produced six codes which were relevant to this discussion, and that they were prepared to make them available to the Forum members for information. He did not feel there was any reason why access at night should be excluded as it offered valuable training opportunities for young people. 

18. The observers made the following specific comments on the user code:

i. The EN observer supported the comments made about dogs. He said that the most important message to get across was that users were welcome in the countryside and that they have a statutory right to exercise their right responsibly, but that irresponsible behaviour removed that right;
ii. the Environment Agency (EA) observer supported the EN observer's view. He also felt that the codes should explain land types in detail, so people were aware of where they can and can not go. He also recommended that the Country Code should not be amended until the two codes of practice were refined and finalised. 

19. Bob Roberts reminded Forum members that the document was not a draft code. It reflected the Agency's understanding of Government policy, which would become much clearer when the Access Bill was published. He summed up the discussion by saying that it had provided very helpful guidance. He took the main points as being that:

i. the code should focus on simple core messages, and make rights and responsibilities clear early; 
ii. writing for the target audience is very important; most advice was that the code should be aimed at the inexperienced user rather than assume a high level of knowledge, and its style needed to be clear and simple (but not patronising!);
iii. there may be a need for more than one document (perhaps a summary 'code', and a wider explanatory document) to ensure that a consistent message gets across to the intended audience in different ways; and
iv. there needs to consistency between the code for users of open country, and the established (or revised) 'Country Code', which has wider applicability. 

20. He said that once legislation had been published a proper draft code would be produced, and widely consulted on.

NCAF 4/3 OCCUPIERS' CODE

21. The paper on the occupiers' code was introduced by Andy Wistow. He asked that the Forum focus on the content of the draft code, and also to try and identify where any areas had been omitted.

22. The discussion was detailed with the Forum members making specific recommendations, on the content of the code. These were as follows :

a. The CLA representative made the following detailed comments: 

i. paragraph 1 should include the term 'others';
ii. paragraph 8, was the wrong term;
iii. paragraph 11 should include permissive paths; and
iv. paragraph 15 is important and needs to be clarified as soon as possible; 

b. the BMC representative felt that the following should be included in the code: 

i. occupiers should respect user rights;
ii. users should be made aware of installed features;
iii. occupiers should not obstruct users of open countryside;
iv. occupiers should respect the environment;
v. occupiers should understand that they have liability for features introduced into the landscape; and
vi. users should understand that they are liable whilst on or using natural features 

c. the LGA representative felt that he needed to see more detail before he could comment. He raised the point that the code assumed that landowners are private citizens, and that this was often not the case with public sector bodies owning substantial amounts of land. 

d. The CTC representative felt that paragraph 5 placed too much responsibility on the landowner to find out if their land was included as open access land. She felt it would be more appropriate for the landowners to be informed in advance that their land had been included, so that they were fully aware of the situation. The CLA and BHS representatives fully supported this view. 

e. The NFU expressed a concern that access was not the only public policy that affected farms, and that there could be conflicts between access and other land management requirements, such as SSSIs. Advice on this needs to be integrated into the code. 

f. The RSPB representative felt that the structure of the code was helpful, but that paragraph 14 should include address the health and safety issues of closures of natural hazards. 

g. The RA representative felt that the code should make reference to landowners' behaviour . He also made the following detailed comments:

i. paragraph 6 should include a reference to not poisoning protected birds;
ii. public rights and responsibilities should also be included under land owner responsibilities; and
iii. paragraph 10 needs expanding to include a reminder for proper access on inheritance tax exempt land, permissive paths and rights of way. 

h. The NT representative made the following detailed comments:

i. paragraph 5 needs to pick up the procedure for determining open access land;
ii. closures and restrictions need separate guidance as they are a complex area, and
iii. Paragraph 17 should deal with all other aspects of access.

i. The MA representative felt that paragraph 6 should be expanded to make clear the landowners' rights and responsibilities. He also felt that the section on management issues should be expanded to include detail on closures.

j. The ANPA representative made the following detailed comments:

i. a definition of grass as a crop should be included;
ii. paragraph 10 needs to bring together in to one code the process for defining open country, including existing access provisions; and
iii. owners should be given honorary ranger status on their own land, this helps raise the level of information provision and also gives owners a greater degree of control.

k. The NT representative asked if the role and responsibilities of the Local Access Forums should be included in the code of practice.

23. The MAFF observer suggested that the definitions for mapping open access land should be included in paragraph 3.

24. Bob Roberts summed up the discussion with the following points:

i. specific guidance will be produced for Local Authorities on their powers and authority with regard to local access forums;
ii. the Countryside Agency needs to ensure that landowners get plenty of opportunity to make their views known about the detail of mapping;
iii. the detail of procedures for applying for local closures and other restrictions might be best dealt with in an annex to the code; and
iv. the Countryside Agency will be producing guidance which sets out how they will deal with issues such as mapping consultation so the procedures are transparent.

NCAF 4/4 MAPPING ACCESS LAND - IDENTIFICATION OF MOUNTAIN, MOOR, HEATH AND DOWN.

25. The paper was introduced by Roger Ward. The paper was based on the assumption that legislation will not precisely define mountain, moor, heath, and down.

26. Tim Marshall questioned why paragraph 4b, was contrary to the view sent back to the Countryside Agency at the last Forum meeting. Bob Roberts replied that it reflected what the Countryside Agency understood to be government policy.

27. The CLA representative asked whether the mapping was to be based solely on desk studies, or whether additional field work would be carried out. Roger Ward responded, saying that though it was hoped that many areas would not need additional field work, some would require field survey and or aerial photography to supplement existing information.

28. The RSPB representative felt that the definition of heath should be expanded to include 'usually on sandy soils'.

29. Dr William Bird said that small areas could be important, and should be mapped, particularly when they were close to centres of population. He also asked if cultivated land on downland would be mapped. Roger Ward responded, saying that the cut off size for small areas had yet to be resolved. As far as cultivated land was concerned, large areas existing at the time of mapping would not be included as a general rule.

30. The NT representative asked what confidence the Countryside Agency had in the accuracy of the existing Commons registration maps. Roger Ward replied that Commons were defined absolutely by the commons register, though the registers were not always in an adequate state for easy public use. the boundaries of Common land would therefor need to be re-digitised from the registers before maps of open country based on them could be produced.

31. The RA representative questioned that fact that there was no reference to the word 'open' in the paper. Roger Ward said there was no commonly accepted, sharp definition of the term 'open', so that it would be necessary to use some judgement during mapping, then the consultation process would confirm whether there was general acceptance of the interpretation of this characteristic.

32. The ANPA representative suggested that definitions might be aided by the use of landscape assessments. He also recommended that for downland the term 'undulating ground' was too specific and should be removed.

33. The RSPB representative was concerned about defining the boundaries of Common land, when there was no specific boundary or feature on the ground. Roger Ward responded, saying that mapping would follow the registered boundary of the Common land, even though he appreciated that their may occasionally be confusion where the boundary on the ground was not obvious. Further consideration should be given to this.

34. The BMC representative expressed the view that mapping mountain using a height definition of over 600 metres could be limiting and result in some land being excluded, which should be mapped. He also expressed the view that as coastal cliffs were being recommended for inclusion they should be included in the working definition of mapped land. Roger Ward responded saying that the height definition would not prevent mountain land lower than 600 metres being mapped, and that coastal cliffs were being dealt with as part of coastal land.

ANY OTHER BUSINESS

35. The MA representative put forward the view that access to open land at night should only be allowed if the user had notified the owner in advance of intended use. He also requested a discussion on access at night at a future meeting.

36. The CTC representative requested that their paper be circulated to members of the Forum after the meeting.

37. The LGA representative requested a discussion on access to open country at night, at a future meeting.

DATE OF NEXT MEETING

38. The following provisional dates were suggested for future meetings of the NCAF:

3rd March - Venue London, To discuss the draft countryside Bill

31st May / 1st June site visit and meeting in Yorkshire

27th July - meeting London

27th September - meeting South West

5th December - London