Breadcrumbs
NCAF 7/2 Restrictions guidance
Introduction
1. This paper briefly outlines the approach likely to be taken by the Countryside Agency's proposed guidance to land managers on applying for 'additional' local restrictions on public access to open country and common land under the new Bill. The guidance will apply to England only. A draft of the guidance as a whole will come to NCAF later in the year: what follows is merely an early outline of some of the likely content.
Background - the earlier sections of the guidance material
2. The guidance on 'additional' restrictions referred to in this paper will form one section of the proposed Countryside Agency guidance material for land managers on the arrangements for managing and where necessary restricting public access under the new legislation.
3. NCAF members saw an early outline of some of the earlier sections of this guidance material at their May 2000 meeting. As a reminder, these sections are likely to explain in particular the restrictions and controls that apply to all access land nationally (e.g. under Schedule 2 of the Bill), the role of positive access management (through for example creation and maintenance of paths and tracks) and the role of discretionary '28 day' restrictions.
4. The earlier sections of this guidance will also explain the importance of choosing in each case the least restrictive option consistent with local circumstances, and will illustrate the range of restriction types available (e.g. complete or partial exclusion of people or of dogs, seasonally or otherwise; limiting the points at which people may enter or leave land; limiting the scope for particular activities; or constraining access to linear routes or in other specific ways). This explanatory background material will be equally relevant to the section that then follows on 'additional' restrictions, which is outlined below.
Outline of section on 'additional' restrictions
5. The section should explain that unlike positive access management and 28-day discretionary restrictions, any additional local access restrictions will require prior approval by "the relevant authority" - that is, the Countryside Agency, the national park authority or, in the case of woodland subject to an access dedication, the Forestry Commission.
6. The section should then explain that the Bill sets out the following specific grounds on which application for additional restrictions may be made:
a. for land management purposes
b. for fire prevention during exceptional weather conditions;
c. to avoid danger to the public; or
d. to implement emergency restrictions on any of the above grounds.
7. The section should add that there are special arrangements for implementing restrictions that are necessary for nature conservation, heritage, defence or national security reasons. These will be based on expert advice by the relevant statutory agencies or on the judgement of the Ministry of Defence about its operational needs. There will be no provision for land managers to apply for restrictions on these grounds (though a land manager could use the 28 day discretionary restriction power for these as for other reasons). .
Criteria for additional restrictions
8. The section should explain that applications for additional restrictions are considered individually on their merits and may be approved, approved with modifications or refused by the relevant authority. It should say that the authority's decisions will reflect specific criteria as to the circumstances in which additional restrictions may prove necessary for each of the purposes referred to at paragraph 6 above. Wherever possible an application should show that the restriction applied for is consistent with these criteria. Otherwise it will be considered solely on its merits - but with the onus on the applicant to show that additional restriction is necessary.
9. These criteria will be consulted on by the Agency later in the year and will form a key part of the restrictions guidance. They will reflect the expert advice the Agency has received on the impact of access on grouse management, and the expert advice now being commissioned on the impact of access on livestock management and the best approach to fire prevention restrictions. The criteria will be approved by the Secretary of State for the Environment as part of the guidance to be given by the Agency to national park authorities under clause 31(1)(a), and will therefore have evidential status in the event of any legal dispute.
10. One function of the criteria should be to suggest the circumstances in which:
a. any restrictions are likely to be approved for specific dates proposed by the individual applications;
b. it might be appropriate to authorise recurring restrictions at the same time each year; or
c. an approval might authorise access restrictions on up to a specified number of days during a specified period, with the exact restriction dates set locally at short notice according to circumstances on the ground, e.g. for particular management operations that require exclusion of the public.
11. The guidance should also annex, for information, parallel criteria as to the circumstances in which the restriction powers for nature conservation, heritage, defence or national security purposes (see paragraph 7 above) are likely to be exercised.
Application process
12. The section should explain the process for applying for additional restrictions, covering these points in particular:
a. there might be a main period of [two months] each year during which applicants are encouraged, and perhaps given practical incentives, to submit their applications: the aim would be to facilitate efficient processing of applications and ensure that approved restrictions can be effectively publicised;
b. only someone with a legal interest in the land may apply: this would include the owner, any tenant or shooting tenant, or commoners;
c. the various legal interests in a particular area of access land should so far as possible co-operate when deciding what additional restrictions, if any, are required - otherwise their applications may conflict with each other;
d. in the case of commoners, there are specific rules (to be set out in regulations under clause 30(1)(e)) about who may apply;
e. where an application for additional restrictions is refused, the relevant authority will give a specific reason for the refusal. An applicant may appeal to the Secretary of State if he considers that the decision is inconsistent with the published criteria, or is a decision that no reasonable authority could have made in all the circumstances.
13. Detailed guidance should be annexed about the steps land managers need to take to register initially with the relevant authority, to submit applications for additional restrictions (or notify discretionary ones), or to appeal against a decision taken by the relevant authority. The guidance would reflect the detailed regulations to be produced under clause 30(1)).
