Natural England

NCAF 10/4 Permanent Access Dedications under the Countryside and Rights of Way Act 2000

In addition, regulations to be made under CROW will allow the owner of any land including mountain, moor, heath, down or registered common land to remove or relax the list of excepted activities at Schedule 2 of the Act, in order to permit selected additional activities that he believes should be allowed to take place on the land in the future. In both cases these arrangements are then binding on all subsequent owners of the same land.

2. This paper examines the new dedication power in more detail, considers the scope for dedications to be made in practice, and raises specific questions for discussion by NCAF members. 

Background

3. The concept of a permanent access dedication is not entirely new. Since 1922 it has been possible for the owner of a rural common to make an irrevocable deed making the land subject to the same statutory access rights and limitation powers as urban commons. In practice though most or all of these deeds were made revocably, and some have indeed since been revoked.

4. Equally it has been possible since 1949 for local planning authorities to make irrevocable access agreements with the owners of areas of open country. In practice the access agreements actually entered into under these or other statutory powers were invariably made for fixed periods, typically 20 or 25 years. 

5. In advising Government in October 1999 on the best way to improve access to woods, watersides and the coast, the Agencydrew attention to the scope to create a new power for landowners to make irrevocable access dedications over any type of land without having to rely on local authorities being prepared to make legal agreements with them to give effect to such arrangements. It was argued that this would greatly simplify the process of granting permanent access rights where the owner was minded to do so. Government was receptive to this idea, and incorporated such a unilateral dedication power into the CROW Bill from the outset. 

The Section 16 power in more detail 

6. Under CROW section 16 and the regulations to be made under it, any owner of land will be able to make a dedication:

1. permanently applying to land other than open country and registered common land the same access rights on foot, and the same associated provisions (e.g. for local access restrictions, and to limit the owner's legal liability to the visiting public), as will apply under Part 1 generally; and 
   
2. where he wishes to provide for other recreational uses too, making a dedication on any suitable type of land (including open country or registered common land) that, to supplement access on foot, creates other new rights - for example to cycle, or ride a horse, or swim, or camp on the land. The owner can do this by expressly relaxing the standard limitations on the new access rights that will normally apply on access land under CROW Schedule 2.  

7. The access rights thus created will not apply on any land within the area dedicated that is:

1. excepted land of the types listed in CROW Schedule 1; or
   
2. 'section 15 land', while prior access rights are in force over it (e.g. under a 1949 Act access agreement or local act of Parliament).  

8. A landlord wishing to dedicate land will have to involve anyone with a leasehold interest in any of it, in a way to be prescribed by regulations. The regulations may also prescribe any other legally interested parties who need to be involved in the dedication process. 

9. Anyone holding land on a lease of at least 90 years will be able to exercise the same dedication powers over the land as a freeholder could, but only in relation to the remaining term of the lease. He will not be required by the Act to involve his landlord in this process. (A tenant would need though to satisfy himself that nothing in the lease to him would make dedication without consent actionable.) 

10. The powers in CROW section 16 commenced on 30 January, but the steps to be taken in making a dedication are still to be set out in regulations. Until these regulations are made, dedications will not be possible. DETR's current intention is to issue draft regulations for consultation during the summer. Regulations will include the form of the dedication to be used for the purpose. New access rights will come into force over dedicated land when an order is made under section 2 commencing the access rights either generally, or for land over which a dedication is (or has been) made.

Dedication and local access restrictions

11. The full suite of local access restrictions set out in CROW Part 1 Chapter II will be available on dedicated access land. Such restrictions will qualify the access rights available there under the Act itself. They will not affect any other access rights available over the land. So for example a dedication could not be used as a mechanism to restrict access to a town or village green. 

Dedication and freedom of future land use

12. A dedication will not prevent land from becoming excepted land in the future. Where an owner wished to (or was willing to) do this - e.g. ruling out unsuitable future uses of the land such as development - he could do so by making a permanent management agreement under section 39 of the Wildlife and Countryside Act 1981 with either the local planning authority or the Countryside Agency (which from 1 April will be newly empowered by CROW section 96 to enter into such agreements). 

Dedication and occupiers' liability

13. One effect of dedication will be to remove completely (except in cases of deliberate harm or recklessness) the occupier's legal liability towards anyone - whether a recreational user or some other kind of visitor - for any injury that is:

1. caused by the presence of natural features of the landscape, trees, ponds or watercourses on the land; or
   
2. sustained by someone crossing or using a wall, fence or gate other than by proper use of a gate or stile. 
   

14. Even in relation to risks caused by man-made features on the land such as mineral workings, or by the occupier's activities there, the level of liability owed to the public is confined by the Act to the low level normally owed to a trespasser. Section 13 also requires the courts, when considering what the occupier might have done to reduce a risk that contributed to an accident, to take particular account of the importance of maintaining the character of the countryside and the fact that the access rights should not place an undue burden on the occupier - financially or otherwise.

Why owners may wish to dedicate

15. Making a permanent access dedication is a big step for a landowner, committing as it does all future owners of the land to public access, subject to the limitations and local restriction powers set out in the Act. Nevertheless there are various reasons why the dedication power may be significantly used:

1. as an act of philanthropy by private owners, landowning charities etc.;
   
2. as a permanent memorial to the current landowner, or to someone close to them;
   
3. to improve the local or national image of the estate, company, agency or authority that owns the land; 
   
4. because the owner wishes to improve local opportunities for enjoying a particular recreational activity, e.g. horse riding;
   
5. where land is already held for public access (e.g. by a local or national park authority or a relevant landowning trust), to put this public use on a more secure and consistent basis;
   
6. to secure public access permanently before the current owner disposes of the land;
   
7. to formalise control of public use, and/or reduce the occupier's liability, on land where access is already established by tradition or permission, but not by legal right;
   
8. to qualify for specific financial incentives that could be offered to persuade private landowners to take up the dedication option - for example:
   
   1. under a special new Lottery programme offering one-off lump sums in return for making dedications; or
      
   2. by increasingly targeting dedicated and other access land for a growing share of the money currently invested in the countryside from the public purse, and gearing this investment to the long term positive management of land that is permanently available for public use; 
      
9. through possible preconditions on certain existing forms of grant aid - e.g. Lottery grants for the acquisition of some types of land; and 
   
10. to show that landowning Government departments, Government agencies and other quasi-public bodies are leading by example and willingly accepting their part of the responsibility for providing improved access to the countryside.  

16. Even at this very early stage, there have been clear indications of interest in dedicating land, subject to getting the detail of the arrangements right, from the Forestry Commission, the Woodland Trust and a number of water companies.

Points for discussion

17. Forum members are invited to discuss the issues raised by the above analysis, including in particular:

1. what could be done to maximise the practical incentives for private landowners to dedicate;
   
2. what should be done to maximise the amount of public and quasi-public land dedicated; and
   
3. how any perceived disincentives to dedication, or any other potential problems associated with use of this new power, could best be overcome within statutory and budgetary constraints.