Natural England

Minutes of the 6th Meeting of the NCAF

(about 120 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), Mr Tim Bennett (National Farmers Union), Mr Chris Braun (DETR), John Osmond (MAFF), Steve Trow (English Heritage) Andrew Graham (Environment Agency).

CHAIRS INTRODUCTION 

1. Pam Warhurst welcomed Barney Holbeche of the National Farmers Union (NFU), John McKay, and Richard Davison of SNH, Stephen Cane of MAFF and Gail Dyson of the DETR. The Chair thanked Simon Bostock for hosting the excellent and informative site visit the previous day.

MINUTES OF THE FOURTH MEETING OF THE NCAF:13TH MARCH 2000 

2. The Royal Society of the Protection of Birds (RSPB) representative noted that the minutes should say quiet recreation rather than quite recreation. 

3. The National Trust (NT) representative said that his comments in paragraph 11, should say common land, not heath land.

4. The British Mountaineering Council (BMC) representative requested that paragraph 14 be amended to reflect the BMC's wish to be consulted if small areas of open land which contain crags are excluded from the mapping on the grounds of size.

MATTERS ARISING

5. The Cyclists Touring Club (CTC) representative noted that she had not received a response to her request for a definition on private rights under clause 45.

NCAF 6/1 UPDATE ON THE COUNTRYSIDE AND RIGHTS OF WAY BILL

6. The paper was introduced by Bob Roberts. He explained that Part 1 of the Bill had been dealt with, the committee were currently dealing with Part 2 and aimed to complete this by the end of the week, and that part 3 and the entire committee stage should completed by the end of May.

7. The Association of National Park Authorities (ANPA) representative asked if there was any opportunity for influencing the government whilst they were giving further consideration to some of the amendments. Bob Roberts advised that Countryside Agency were following up the amendments in detail with the Minister, but that if other organisations had particular amendments they wanted to support they should write to the Minster directly.

8. Tim Marshall asked if there were any indications as to the likely reaction of the Lords to the Bill. Bob Roberts replied that he did not know.

9. The Chair asked if the Countryside Agency could prepare a list, giving details of the amendments that the Government were giving further consideration to, and circulate it to the Forum members. 

NCAF 6/2 IMPACT OF PUBLIC ACCESS ON GROUSE MANAGEMENT

10. The paper was introduced by Nadia Little, she explained that this was an independent piece of work by Professor Peter Hudson who was an accepted authority on grouse. She invited the Forum to comment on the paper, and also to raise any thoughts they had on what they had seen on the site visit the previous day.

11. The paper was well received, and the Forum took the opportunity to debate the issue of the effect of dogs on grouse moors. Several members felt that dogs should be excluded from grouse moors during the nesting season, and at other times should only be permitted if they are on a short fixed length lead. Other detailed comments were:

a. the Moorland Association's (MA) representative welcomed the paper by Peter Hudson as it reinforced may of the concerns moorland owners and keepers have. He particularly supported the recommendations for linear access and control of dogs;

b. the Country Land Owners (CLA) representative noted that dogs were the biggest problem for grouse and also for sheep. He recommended that dogs be excluded from open country between 1st April and 31st July, and that at all other times dogs should be on a short fixed length lead. He also noted that trying to harmonise the rules about dogs on rights of way and open access land may cause a problem, and as such it would be better to concentrate on resolving the issue of dogs on open access land first;

c. the Ramblers Association (RA) representative expressed the view that there were already adequate provisions in the Bill to protect grouse during the nesting season. He disagreed with the recommendation that people should walk in groups;

d. the RSPB representative said that the period during which dogs had to be kept on a lead was insufficient, and that this should be extended to 5 months to take account of moorland birds' breeding seasons;

e. the ANPA representative said that dogs should be banned between March and July, and on a short fixed length lead for the remainder of the year. He also said that when harmonising the rules on dogs on open access land and rights of way, the position should be that dogs should be on a lead at all times; and

f. the Local Government Association (LGA) representative supported the views expressed on dogs and also made the point that as well as causing problems for grouse and livestock, dogs could also cause a problems for small children.

NCAF 6/3 RESTRICTION OF USE BY THE PUBLIC

12. Bob Roberts introduced the paper. He explained that the guidance was not yet complete, and that there was no guarantee that it would be compatible with the secondary legislation when it was drafted. He explained that the paper was being put to the Forum at this early stage as it provided an opportunity for the principles and thinking to be examined. He asked for comments on the general structure and approach, and also for detailed comment on the contents.

13. The chair welcomed the opportunity for early involvement in the document, and invited the Forum to give their general observations first and detailed comment later.

14. The Forum were generally supportive of the tone and principles of the document, the following general comments were made:

a. The RA representative welcomed the approach taken and felt that the Agency had done well in clearly differentiating between the 28 day closures and other closures; 

b. the NT representative said that he like the principles of the document, but was confused over the decision making process as there was insufficient detail on the principles of the closure mechanism over and above the 28 days. Bob Roberts explained that this was because the document was incomplete, and did not yet deal with the process for additional closures; and

c. Tim Marshall and the BMC representative asked about the role representative bodies of user groups would have. They felt that they should be used as a conduit to inform users of closures. The LGA representative pointed out that not all users would be members of representative bodies and that other means of communication would still be required. 

15. The Chair reminded the forum that the subject of information dissemination would be discussed at the next meeting. 

16. The following detailed comments were made on the paper:

a. The CLA representative suggested that:

i. For greater clarity Paragraph 7.10 should contain a reference to the statutory maps;
ii. closure, should be listed as one of the purposes in paragraph 26;
iii. the criteria for additional restrictions needs to be defined;
iv. the criteria for retrospective notification should be extended to 4 hours as this would enable a morning or afternoons shooting to take place; and
v. the requirement to ensure that alternative access land will be available may prove difficult as it may not be in the control of the person applying for the closure; 

b. Bob Roberts replied saying that the definitions in the paper had been taken directly from the Bill to ensure consistency; closure could be listed under paragraph 26; and that he was interested in views on what was an appropriate time period for short term closures. He also explained that at present he did not know what criteria would be used as nothing had yet been finalised;

c. The RA representative said that:

i. in relation to paragraph 27, clause 21 of the Bill was discretionary and was not restricted to things set out in paragraph 26;
ii. is paragraph 30 indicative of what will be in the regulations; and
iii. retrospective notification might encourage owners to always notify in retrospect, and that he was not happy with the principle of this. This view was supported by Tim Marshall;

d. Bob Roberts responded, saying that the regulations had not yet been drafted. In making these suggestions the Agency could influence them. 

e. The MA representative welcomed the paper, and made the following detailed comments:

i. excluding Saturdays from discretionary closures will cause problems for shooting;
ii. he was concerned that paragraph 30 section 4 placed the onus on the land owner to ensure everybody was properly informed. He recognised that this was a difficult area, and offered to assist the Countryside Agency in finding a solution; and
iii. he supported the reference to access points;

f. the National Farmers Union (NFU) representative made the following detailed comments:

i. he was concerned that there were restrictions on closing over weekends and bank holidays as this could cause problems for farmers when lambing;
ii. he asked under paragraph 30, what criteria will be used to assess whether the land owner has undertaken sufficient actions to ensure public safety; and
iii. noted that there is a significant gap between the requirements for de minimis restrictions, and other restrictions. He welcomed the flexibility that retrospective applications allowed, but would like to see more flexibility in the notice periods for other restrictions;

g. the LGA representative stated that there appeared to be confusion over Annex 1, regarding highway authorities, district councils and local authorities;

h. the English Nature (EN) observer expressed general support for the paper and made the following detailed comments:

i. the definitions of exclusions, restrictions and closures used in the paper needed to be checked against the definitions in the Bill;
ii. he asked if the Forestry Authority were now classed as a relevant authority; and 
iii. retrospective closures were a good idea, but what would happen if people failed to notify the relevant authority.

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

a. the Agency recognised the contrast between the de minimis and normal requirements of the closure regime. He explained that this was as a result of the requirement to give the pubic adequate notice for safety and also to allow for information dissemination;

b. the table at Annex 1 reflects what is in the Bill, hence the inclusion of district councils;

c. the Agency will look again at the definitions and accuracy of the wording;

d. people who abused the retrospective notification procedure might loose the benefits of reduced liability to users - but he agreed that this needed to be looked at further.

NCAF 6/4 ACCESS TO LAND AT NIGHT

18. The paper was introduced by Andy Wistow

19. There was lively discussion on this issue, with general agreement that there should be no blanket ban on access at night. There were however conflicting views on how to deal with the practicalities of access at night and the period during which access should be allowed. The following detailed comments were made:

a. the BMC representative reminded the Forum that this had been debated during the committee stage, and that the Government's view was that a blanket ban on access at night was unenforceable, and as such it would be impractical to legislate;

b. Dr William Bird agreed that it would be difficult to enforce a ban, but not impossible, he said that the costs of access at night outweighed the benefits particularly when the disturbance of wildlife and farm animals was taken into account. He also felt that that giving people a right of access at night would make it difficult to challenge people who were suspected of illegal activities. He recognised that there were some benefits in being able to access land at night, and that a suitable compromise might be to ban access at night unless prior permission of the landowner had been obtained. The British Horse Society (BHS) representative supported this view;

c. The CTC representative said that banning access at night would mean long distance walkers would be unable to participate in their activities as they would be unable to walk through the night. She suggested that the best solution would be to allow access at night with prior notification to landowners. This view was supported by the Transport and General Workers Union (TGWU) representative and the LGA representative.

d. the RA representative expressed the view that night time walking was part of the freedom to roam, and that restricting night access was unnecessary as there were sufficient controls in existing legislation to protect landowners from poachers and many other illegal activities;

e. the CLA representative said that access to land at night increased the danger to visitors and also had the potential to increase to the costs to other people if things went wrong. He said that the potential for an increase in stock rustling with access at night and also the greater disturbance to wildlife needed to be recognised. The NFU representative agreed with these views and pointed out that pest control was often carried out at night, during which access should be restricted.

f. the ANPA representative said that it was not necessary to have a blanket ban on access at night, particularly in areas where there was no grouse shooting. He felt that by-laws would be the best solution for dealing with areas where night access would pose a problem. This view was supported by Tim Marshall and the BMC and NT representatives;

g. the MA representative stressed that the landowner must know who is coming on to their land at night for practical reasons, he said that rights of way allowed access at night, and provided a sufficient resource for those who wanted to walk at night;

h. the RSPB representative agreed with the views expressed by the ANPA, BMC and NT representatives, and added that where it would be a particular problem the provisions for additional local closures should be adequate; and

i. the SNH observers explained that in Scotland they had considered restricting access at night but had given up as it was too complex, and the short winter day length meant that it would be impractical to impose. They recognised that there were real concerns regarding crime, and have amended their outdoor access code to reflect the concerns over access at night.

NCAF 6/5 DRAFT GUIDANCE TO LOCAL AUTHORITIES ON LOCAL ACCESS FORUMS

20. Nadia Little introduced the paper, she explained that the Countryside Agency board had already seen the paper, and had put forward the following recommendations:

a. the local authority should lead in the selection of members from constants mirroring those of the National Countryside Access Forum, however this should be flexible enough to take into account local needs;
b. the crucial position of chair should be carefully considered with the Countryside Agency;
c. local authorities should have full membership, and
d. only independent members need be appointed be open competition.

She asked that the forum give consideration to the content of the guidance.

21. The Forum were supportive of the paper. The general consensus was that that the membership of local access forums should be fully representative of a broad range of views. There was also support for the suggestion that there should be some mechanism established to disseminate best practice amongst local access forums. A number of detailed points arose during the debate. These were:

a. The RA representative said that:

i. the wording in paragraph 10 should be changed to reflect the fact that national parks have appointed rather than elected members, (he suggested that the word elected be deleted);
ii. paragraph 12 should say increase, rather than improvement;
iii. in paragraph 16 insufficient thought is given to rights of way; and
iv. recreation interests should be of paramount importance, and that the inclusion of health, trade union and transport interests are not really necessary;

b. the CTC representative disagreed with the RA's views on the interests that should be represented on local access forums. In particular she felt health interests and trade unions should be represented as they had an interest in promoting the interests of the less privileged in society. The BHS, LGA, and TGWU representatives supported this view strongly;

c. The NT representative said:

i. that recreation strategies needed to encompass air and water, and needed to think wider than rights of way and open country; 
ii. the link between AONB's and national parks was indistinct and needed to made clearer;
iii. it was unclear who decided the appropriate geographic area;
iv. paragraph 14 should stress that local access forums have a non statutory status; and
v. there should be some consideration given to establishing federation of access forums to enable networking to take place between local access forums and also between NCAF and local access forums;

d. the ANPA representative commented that the demand on Countryside Agency resources would be too great if they made a commitment to being an observer on every local access forum;

e. the BHS and the MA representatives noted that a number of areas had already set up pilot access forums, and by an large the interests represented conformed to those set out in the guidance;
f. William Bird said that he was glad to hear that other Forum members felt that the inclusion of health interests on local access forums was important. He also noted that the requirement for monitoring was good, but added that there would be some benefit in devising a mechanism for disseminating best practice amongst local access forums;

g. the CLA representative made the following comments:

i. paragraph 15 should include an option for the chair to close meetings to the public if particularly sensitive issues are being discussed;
ii. paragraph 44, no interests should be paramount;
iii. paragraph 46, every effort should be made to establish fully representative forums from the start, as important issues will be discussed; and
iv. paragraph 48, re-appointments should be staggered to ensure continuity;

h. the BMC representative noted that members of local access forums should not necessarily be local persons, but persons with good local knowledge;

i. the MA representative made the following comments:

i. paragraph 17 needed to include a reference to review and management of practical aspects of access; and
ii. paragraph 18 should include a reference to ensuring the respect for the legitimate needs of users and owners.

NCAF 6/6 DRAFT CODE OF PRACTICE FOR OCCUPIERS AND USERS

22. Andy Wistow introduced the paper and explained that in the light of the detailed contents of the Bill, the draft occupier and user code had been simplified and amalgamated into one document. He explained that there was no benefit in replicating primary legislation in the codes, as the purpose was to give a simple and understandable message. He invited comment on the content and also the tone of the document.

23. The paper was generally well received by the Forum, with a number of positive comments being put forward. These were as follows:

a. the CLA representative asked if the codes still had evidential status, Bob Roberts replied that there was no need for the codes to carry such status as the legislation was comprehensive in its coverage of what was permissible on open access land;

b. Tim Marshall noted that it may be difficult to enforce the dogs on a lead policy when land owners dogs were seen to be running free. He also noted that the legislation may make activities which had been previously allowed, such as bathing in mountain tarns, illegal;

c. the NFU representative said:

i. under the landowner rights and responsibilities, the wording should be changed, so that it reads 'all land is actively used';
ii. the section on dogs is good;
iii. the section on excepted land is good, but may need adjusting in the light of the debate on intensive grassland;

d. the BMC representative felt that a more proactive approach was required for informing the public about their rights and responsibilities, he also asked if educational activities would be excluded as they were organised activities;

e. The RA representative said that he like the general approach that had been taken, and made the following detailed comment:

i. the code states that if the public fail to adhere to their rights and responsibilities they could be prosecuted, but it does not say the same for the landowners; and
ii. page 7 states that PROW crossing excepted access land will not normally be affected, his understanding was that they would never be affected;

f. the MA representative made the following comments:

i. the definition of open land in annex 2 needs to be expanded to make it clear exactly what constitutes open land;
ii. the public benefits of accessing land via access points needs to more positively promoted, the guidance as it stands gives contradictory advice over access points;
iii. the final sentence under landowners rights and responsibilities should be amended, to say 'They must not put up misleading notices, or otherwise discourage or dissuade public access, but they may publish notices encouraging walkers to follow routes for nature conservation or management reasons;
iv. on dry moorland picnicking should be restricted to specific areas such as car parks or picnic areas;
v. flying model aeroplanes and kites should be included in the list of exempted activities, as these activities can cause considerable disturbance to wildlife; and
vi. he was still concerned over owners legal liability for things which were not the natural state of the land;

g. the CLA representative said:

i. the use of access points could be promoted in a more positive light;
ii. a standard open access marker should be developed, and then used consistently across the country;
iii. the box on page 3 should also say weekends and bank holidays;
iv. the code should give some indication of the authority of rangers and wardens; and
v. the code should say you can not use a metal detector anywhere;

h. William Bird welcomed the positive tone of the code and supported the CLA and MA representatives' view on emphasising the positive benefits of entering land via access points;

i. the ANPA representative felt that the wording for excepted activities was clumsy and would benefit from rewriting, he also noted that there was insufficient reference to by-laws;

j. the CTC representative said that the definitions for open access land needed to be made very clear, she said that the code should say in the introduction that users should not assume that land is open access land unless they have checked it is on a map;

k. the BHS representative said that the code should contain guidance to horse riders on de facto access land;

l. the NT representative made the following comments:

i. care needs to be taken to ensure that the language is consistent, clear and accurate;
ii. the code will need to be regularly updated, and should include a reference to local access forums and the availability of information;
iii. the tone of the document could be lightened up;

m. the EN observer said that the section on frequently asked questions was very good. However the most useful single question is "Do I have a statutory right of access to this land", this should be included. He also noted that under the exempted activities section, events should say games if it is to be consistent with the wording in the Bill;

n. Andy Wistow welcomed the advice and said that the Agency would consider it carefully in redrafting the code.

ANY OTHER BUSINESS

24. The CTC representative asked if it would be possible for the CTC and the BHS representatives to have the opportunity to advise the Forum on access to the countryside on bike or horseback. The Chair responded, saying the in the future the Forum could be more proactive in putting forward advice, but at the moment their primary role was to provide advice which related to implementing the Countryside and Rights of Way Bill.

25. William Bird asked if it would be possible to check for incidences where formalising access under the Bill will restrict access. The BHS representative supported this request, and reinforced the concern they had over loss of de facto access for horse riders on open access land. Bob Roberts replied saying that the Bill did introduce restrictions on land where there were non before, but that clause 15 of the Bill makes sure that existing statutory higher rights are not removed when the Bill becomes law.

26. The chair informed the Forum that she had met with the chair of the Welsh Countryside Access Forum and had a constructive meeting. She told the Forum that she would be meeting regularly with her opposite numbers in Wales and Scotland to keep all parties up to date on activities happening over the borders.

DATE OF THE NEXT MEETING

27. The next meeting of the NCAF will be on the 19th July in London - the venue has yet to be confirmed.