Breadcrumbs
CROW ACT SCH. 2: Restrictions to be observed by persons exercising right of access: commercial activities
Purpose of this paper
Background
The Countryside and Rights of Way Act 2000 gives a new right of access, on foot, to open country (mountain, moor, heath and down) and registered common land. Section 2 of the Act states:
Any person is entitled by virtue of this subsection to enter and remain on any access land for the purpose of open-air recreation, if and so long as –
he does so without breaking or damaging any wall, fence, hedge, stile or gate, and
he observes the general restrictions in Schedule 2 and any other restrictions imposed in relation to the land under Chapter II.”
Schedule 2 to the Act lists those general restrictions to be observed by persons exercising the new right of access. But owners and occupiers may, if they wish, still give permission for, or tolerate, those activities listed in Schedule 2 that are lawful.
BMC Concerns
The British Mountaineering Council (BMC) is concerned that their educational and training activities may be restricted where they are undertaken on land to which the new right of access will apply, because by virtue of Schedule 2(1)(t) these activities may be regarded as an activity “organised or undertaken for any commercial purpose”.
The restriction on activities organised or undertaken for commercial purposes was included in the Act because the Government did not think it would be right for access to be exploited for commercial gain, without the landowner having any opportunity to object or share in the reward.
The BMC would prefer to undertake its educational and training activities on access land as of right rather than rely on the permission or agreement of landowners. But, whether such activities can be undertaken by virtue of the right of access will depend on whether the restriction on activities organised or undertaken for a commercial purpose in Schedule 2(1)(t) applies to them.
Definition of “commercial purpose”
The Act does not define the words “commercial purpose” in Schedule 2(1)(t) so the words must bear their natural and ordinary meaning. The Concise Oxford English Dictionary defines “commercial” as “having profit as a primary aim rather than artistic (etc) value”. This appears to be a helpful definition in considering whether an activity should be regarded as being organised or undertaken for a commercial purpose under Schedule 2(1)(t). However, this cannot be an authoritative statement of the law because ultimately only the Courts can decide whether Schedule 2 applies to such activities.
It follows that if educational and training activities do not have profit as their primary aim, under this definition, these activities should not be restricted under Schedule 2(1)(t). But, for the reasons given above, it is not possible to give a definitive view on whether these activities would be permitted on access land.
DEFRA action
DEFRA is considering whether to produce general guidance on how to identify whether or not an activity should be regarded as organised or undertaken for commercial purposes. However, this may not be possible as each activity needs to be considered on a case by case basis, which necessarily involves a careful consideration of the nature of the particular activities, including the context in which those activities are organised or undertaken. In many instances this will depend not on the activity but the organisation undertaking it. What may be permissible by a school, might not be permissible by a private company.
DEFRA has discussed this with Iain McMorrin, who has provided a helpful list of the organisations involved. Although the BMC would like an exemption for all educational and training activities, this is not possible under the Act.
DEFRA (CYD 2)
September 2003
