Natural England

NCAF 10/2 Local Restrictions on Access Land

• It sets out provisional conclusions on the key issues discussed at the last Forum meeting. Detailed comments from Forum members on these emerging conclusions will help the Agency go on to develop workable and sensible guidance for land managers and relevant authorities on the local restrictions system. 
  
• The paper also briefly summarises the process and timings involved in developing this guidance material.  

Key issues paper

2. The key issues discussed by Forum members in December (NCAF paper 9/3), and the comments of Forum members on them, have been considered by the Restrictions Working Group. This group is made up of representatives from DETR and the "relevant authorities" that will be responsible for administering local restrictions under the CROW Act - the Agency, Countryside Council for Wales, Forestry Commission, National Parks and Defence Estates. 

3. The paper at Annex 1 sets out provisional conclusions on each of the questions posed by NCAF 9/3. In some cases the question has been clarified or amplified in the light of the discussions to date. When finalised and agreed with DETR, these conclusions will provide the foundation for the regulations and official guidance on the local restrictions system. The organisations represented on the Forum will be able to comment in full on the draft guidance at the consultation stage (details below). NCAF members are invited to consider the provisional conclusions at Annex 1 and comment on them - either at the meeting, or in writing to the Agency by 30 March. 

Development of guidance material

4. The Agency will publish guidance for land managers on the local restrictions system early in 2002, before the first provisional maps of open country become available in the lead areas in the North West and South East. This will allow land managers in those areas to review the maps with a clear understanding of the scope for local management and restrictions to help accommodate access on the ground. 

5. The Countryside Agency will also prepare draft guidance for the other English relevant authorities on their responsibilities in relation to local access restrictions. In accordance with section 33 of the Act, the Agency will submit this guidance to the Secretary of State for approval. 

6. Both sets of guidance will give due weight to the role of informal access management techniques - for example positive path management, and the use of on-site information and requests for co-operation. Since such approaches require no external permission or notification, they will often represent the simplest and most practical way for land managers to mitigate any potential access impacts, and to enable small scale land management operations to proceed undisturbed. There may be a case for providing basic local advice and perhaps some grant aid to help implement such techniques in a positive way on access land. The Agency is currently drawing together examples of best practice in this field. 

Timetable

7. The provisional timetable for producing the guidance is as follows:

Mar - May 01	Write the two sets of draft guidance, taking account of views from DETR, the Agency Board, relevant authorities, NCAF and other key interests.
June - Sept 01	Public consultation (12 week period)
Sept - Nov 01	Analyse responses, revise draft guidance and propose final version to the Agency Board
Dec 01	Submit draft guidance to the Secretary of State for approval
Feb 02	Publish approved guidance

Annex 1 (NCAF 10/2)

LOCAL RESTRICTIONS SYSTEM FOR ACCESS LAND:

PROVISIONAL CONCLUSIONS ON KEY ISSUES 

FOR REGULATIONS AND THE AGENCY'S GUIDANCE

Background

For each of the key issues discussed by NCAF on 13 December under paper 9/3, this paper briefly summarises any reaction to it from NCAF members, and any steer given on it by Ministers in Parliament. It then proposes a provisional conclusion for discussion. The aim is to inform the drafting of regulations and guidance on this subject. 

The following terms are regularly used in the paper - 

Ÿ Discretionary restriction - the power to impose up to 28 days of closures or other restrictions per year under CROW s22.
Ÿ Additional restrictions - the power to apply for extra closures or other restrictions over and above the 28 days, where necessary on the specific grounds listed in sections 24 and 25 (basically land management, exceptional fire risk, or danger from things done on the land).
Ÿ Relevant authority - the authority that will process local access restrictions. This is the Countryside Agency or national park authority or, in the case of dedicated woodland, the Forestry Commission.
Ÿ Entitled person - a person entitled to impose discretionary restrictions - the owner or tenant as the case may be (but not both), and any other person with a legal interest that Government prescribes by regulations to be made under s22(3)(b) - eg perhaps holders of separate sporting rights.
Ÿ Parcels - subdivisions of access land identified by land managers for the purpose of imposing and tallying discretionary and other access restrictions.

Notifying discretionary restrictions

Issue 1: Should regulations require one-off registration of a suitable pattern of smaller land parcels with the relevant authority before the option to limit discretionary restrictions to such smaller parcels can be exercised? 

RA: Yes. Walker needs certainty.CLA: Registration a useful option, but should not reduce flexibility. NFU: Registration should be encouraged as good practice but not required.MA: Seems the only way to achieve certainty for owners and users.

Provisional conclusion 1

The Act does not allow such restrictions to be imposed without any notification, or notified after the event, even where they are minor. Annex 2 sets out the likely main elements of the advance notification that will be necessary. The summary conclusions relevant to Issue 1 are:

Ÿ There should be no requirement on the entitled person to pre-register.
Ÿ But they should be able to do so voluntarily, to make it easier and quicker for them to notify restrictions to the relevant authority.

Issue 2: Should the land parcels to which discretionary restrictions apply be required to relate to recognisable physical boundaries or features on the land, and/or to clear patterns of land use or management such as grouse drives? 

RA: Yes.MA: Yes - and users should have to consult a map showing these.NFU: Use of physical boundaries would be clearer & should be encouraged.

Provisional conclusion 2

Issue 3: If the owner chooses not to pre-register any parcel structure, what land should discretionary restrictions be tallied against? 

RA: The whole contiguous area of access land belonging to that person. CLA/NFU: The arrangements should be more flexible than this. 

Provisional conclusion 3

Allowing minor discretionary restrictions at short notice

Issue 4: Should minor discretionary restrictions be possible at short notice where the entitled person is pre-registered with the relevant authority? 

RA: Yes - with a minimum of 24 hours' notice. MA: Yes.CLA: Yes. Owner could post standard official notices on the land to inform public. But if he gives full notice, this responsibility should lie elsewhere. 

Provisional conclusion 4

As noted earlier, the entitled person has the option not to register at all, so long as he provides adequate written notice of each restriction according to the periods prescribed in regulations. 

Issue 5: Are the criteria at Annex 3 the right ones for defining a 'minor discretionary restriction' for this purpose? 

RA: Criteria are OK.MA: Criteria are OK.

Provisional conclusion 5

Issue 6: Is there a case for restricting short notice notification of discretionary restrictions to cases where land reasonably nearby remains open? 

RA: Yes - people can't plan alternatives without notice. Regs could require.CLA: Owner won't always be able to ensure land is available nearby.MA: Should be best practice, not a requirement.

Provisional conclusion 6

Issue 7: In what circumstances should it be possible to give additional restrictions outline approval earlier in the year (as apparently contemplated by sections 24(2)(b)(i) and 25(2)(b)(i)), subject to notification of details like exact place and time when known?

MA: Approach needs to be available. One example is bracken spraying in a case where the discretionary allowance has been used up. 

Provisional conclusion 7

Impact of discretionary restrictions on additional restrictions

Issue 8: Where someone is entitled to discretionary restrictions but wishes to apply for 'additional' ones, should they be required to show first that all of their discretionary restriction days have been used or are otherwise 'spoken for'?

RA: Yes.CLA: Owner should be able to keep some of the 28 days for unforeseen needs. Perhaps they should all be kept for circumstances where advance notice is not realistic, and additional restrictions used for 'planned' closures. MA: Owner cannot 100% predict future requirements for 28 days. MINISTERS SAID IN PARLIAMENT: "A landowner will normally be expected to use most or all of the 28-day period for land management purposes before being allowed to close land under [section 24]." [House of Commons 15a, col 482]

Provisional conclusion 8

1. on bank holidays or additional weekend days when discretionary restrictions would not be possible because of the limitations in s22(6) and s22(7); and
   
2. on any grounds for which use of discretionary restrictions would be inappropriate - eg to deal with a period of exceptional fire risk during a drought (see issue 11). The criteria tables will provide guidance on such circumstances.  

Where on a particular area of access land the discretionary allowance is split between two or more people in accordance with any regulations that are made under s22(5) - eg where there is a separate sporting rights owner - each entitled person should be able to keep up to three 'contingency days' from their allowance, but would need to account for their remaining discretionary days if seeking an 'additional' restriction.

Issue 9: What advice should be given to relevant authorities on their duty (under s24(3) etc) to have regard to the purposes for which the applicant for an additional restriction has exercised, or proposes to exercise, any power that he has to impose discretionary restrictions? 

RA: Restriction on lesser grounds (eg pop festivals) should limit eligibility for additional restrictions.CLA: Should interpret land management broadly, including pop festivals etc. Avoid a definitive list of activities, but give examples to illustrate breadth of scope. CLA: If the applicant has used discretionary days indiscriminately to prevent access, that should affect the relevant authority's decision. NFU: Use of 28 days should not weigh formally against getting additional restrictions. But land management organisations should promote good practice.MA: If owner seeks additional, should have to justify use made of 28.ANPA: Give national guidelines, but with scope to accommodate local circumstances.IND: Important to tell public the reason for any kind of restriction. MINISTERS SAID IN PARLIAMENT: Relevant authority is entitled to refuse an additional restriction if it asks owner why 28 day power not used for this purpose and receives no satisfactory response. [HOL 5 October 00, col 1776] 

Provisional conclusion 9

Where it proves necessary to close land or restrict access for land management reasons, the 28 day allowance is the first port of call. Additional land management restrictions are designed chiefly to deal with unusual circumstances that the 28 day power is inadequate to cope with. If the grounds for a land management restriction are predictable and normal, the starting presumption should be that use of the 28 day power on the relevant parcels of land will accommodate them. Where it appears to the relevant authority that sensible use has not been made of the 28 day power, given the known pattern of needs on land of this type, this would affect its decision on a proposed additional restriction. 

Issue 10: Should the duty referred to at Issue 9 be linked to the criteria (see the final section of this Annex) that will guide the relevant authorities on whether additional restrictions are necessary?

RA: Yes - and to a management plan that the owner should be required to deposit.

Provisional conclusion 10

The onus will be on the applicant to supply sufficient information about the need for the restriction, and about the use of any discretionary power that he has, to allow an informed decision to be made by the authority on these matters. 

Safety and fire risk restrictions

Issue 11: Should any of these questions be answered differently where an application is for safety or fire risk restrictions, rather than for land management restrictions? 

RA: Probably, so long as robust criteria are used.CLA: Fire/safety grounds should not involve use of 28 days.MA: Fire risk should not involve use of 28 days.MINISTERS SAID IN PARLIAMENT: the 28 days are relevant where land managers are undertaking activities with health and safety implications (eg shooting, bracken spraying) - but the relevant authority should not require use of the 28 days re natural hazards like fire. [This paraphrases House of Commons 12, col. 368 and 15b, col 491]

Provisional conclusion 11additional restrictions under s25. The relevant criteria table should set out what kinds of restriction may be available if necessary on this front, taking into account the constraints imposed by the Act itself. The starting presumption underlying this table should be that some access land is intrinsically dangerous, and people using the new rights should in general be responsible for their own safety, and for that of any children or others in their care. 

For risks arising from activities being undertaken on the land by or for the owner/tenant, or with his permission, the 28 day allowance should be used. As discussed above, most of his discretionary allowance may need to be accounted for before any additional restrictions on these grounds will be considered. 

Issue 12: Are there any exceptionally dangerous man-made landscape features that will justify particular restrictions?

CLA: Man-made landscape features were not exempted from the occupier's liability under CROW s13(2) - so closures should be available on request to protect him from claims relating to risks from these features.

Provisional conclusion 12hidden risks (whether they arise from man-made features or natural features) may often be the key priority, rather than imposing legal restrictions. 

Issue 13: To what extent can determination of the need for fire risk restrictions be 'automated' by production of special Meteorological Office indexes? 

RA: Up to the Agencies - but must apply the system consistently.MA: Use some regional or national formula.BMC: Don't be mechanistic - use knowledge of wardens/keepers (cf Peak).RSPB: Flammability varies widely with vegetation type, fire history etc.RSPB: Local fire service etc have an input to make.ANPA: Met Office "Flood Watch" system relevant? Driven by EA data.

Provisional conclusion 13

The role of criteria tables

Issue 14: How should the criteria best encourage consistent decision making by relevant authorities? 

RA: Support idea of criteria - consult us on them in draft.MA: Make them as detailed as possible.BMC: Tables should guard against frivolous local restrictions.

Provisional conclusion 14

Issue 15: How should the relevant authority satisfy itself that an additional exclusion or restriction is necessary? 

RA: Require owner to deposit a management plan, as context for applications.MINISTERS SAID IN PARLIAMENT: "We expect [the Agencies] to adopt criteria that fully protect the legitimate interests of the owners, occupiers and managers of land"... [Section 24] envisages "the minimum restriction necessary for the activity to take place". [HOL 5 October 00, cols 1783-4]

Provisional conclusion 15

Issue 16: How much scope should relevant authorities have to use their discretion when deciding whether restrictions are justified in a particular case? What approach should be taken where an applicant seeks restrictions on grounds not covered by the criteria tables, but within the scope of the powers under the Act? 

MA: Use discretion only where criteria don't cover circumstances - in which case consider case on merits.

Provisional conclusion 16

Issue 17: Should there be any difference in the criteria to be adopted for dedicated access land?

(No specific reaction from NCAF members.)

Provisional conclusion 17

Annex 2 (NCAF 10/2)

OUTLINE OF LIKELY PROCEDURE

FOR NOTIFYING/APPLYING FOR

LOCAL ACCESS RESTRICTIONS

Default form of notification/application

A1. Regulations under s32(1)(a) and (c) could say that unless he has voluntarily pre-registered with the relevant authority (see below), a person will notify or apply for a local access restriction by sending the authority completed form X, which among other things will detail:

the specific area of access land concerned, delineated on a map extract of suitable scale;
the nature of his legal interest in the land;
the nature, location and timing of the restriction;
the purpose for which a legal restriction is being imposed or sought;
for a discretionary restriction - 
the number of days on which the entitled person may restrict access over the land in question each calendar year. For the owner or tenant as the case may be, this number will normally be 28 - but where there is a separate owner of sporting rights over the land, any regulations made under s22(3)(b)/22(5) could provide for this allowance to be split in some prescribed fashion; and
the number of days 'spoken for' (ie already used, or notified for later use) during the current calendar year.
for an additional restriction - 
the reason why it is felt necessary to impose a legal restriction, having regard to the detailed criteria to be set out in the guidance; and
the extent to which and purposes for which the applicant has used (or notified for later use) during the calendar year any discretionary allowance to which he is entitled for the land in question.

Voluntary pre-registration with the relevant authority

A2. Regulations could provide that:

an entitled person may simplify the process of notifying individual discretionary restrictions by pre-registering with the relevant authority, as a one-off act, the information referred to at (a), (b) and (e)(i) of paragraph A1 above. Where appropriate this could include details of any subdivisions of the land that the entitled person wished to use when imposing restrictions. This information could be periodically updated. There might be some limitation on the frequency of updates by each entitled person - eg no more than one per year; 
once a voluntary pre-registration was made in this way, the relevant authority would issue special authorisation codes enabling the entitled person to notify subsequent discretionary restrictions clearly and easily by telephone or email, subject to the appropriate notice requirements. 

Annex 3 (NCAF 10/2)

CRITERIA FOR SHORT NOTICE NOTIFICATION

OF MINOR DISCRETIONARY RESTRICTIONS

(AS DISCUSSED BY NCAF IN DECEMBER 2000)

• Restriction affects less than 5 hectares for less than 5 days  

OR

 

• Restriction lasts less than 4 hours (however much land is involved)
  

 

AND IN EITHER CASE

 

• Restrictions do not prevent people from reaching other access land
  

(see provisional conclusions 5/6 as to how these criteria might be developed