Breadcrumbs
NCAF 9/3 Local Restrictions on Access Land
Comments are invited from the Forum on the issues raised and the further action required.
Summary of restrictions system under CROW Act
2. The main provisions for local restrictions under of the CROW Act are as follows, with the key changes made in Parliament italicised:
a. Section 21 explains the terms used. It makes clear that both complete exclusion of the public and other forms of local restriction are possible under the sections that follow. Restrictions may potentially confine use of the new rights in any way - including to specified routes, to those who enter at specified places, or to people who do not have dogs with them.
b. The relevant authority that administers the system is to be the national park authority within a national park, the Forestry Commission in relation to dedicated woodland, or the Countryside Agency in relation to any other access land in England.
c. Section 22 allows the owner or tenant of an area of access land (or any other person with a prescribed interest) to exclude or restrict access for any reason for a total of up to 28 days in any calendar year. This excludes bank holidays and may not include more than four days at the weekend. Saturday restrictions of this type may not be between 1 June and 11 August, while Sunday restrictions of this type may not be between 1 June and 30 September. No approval is required, but the relevant authority must be notified in advance. Regulations may set out rules under which the boundaries of the land affected must be determined.
d. Under section 23, dogs may be excluded, at the owner's discretion, from managed grouse moors (for up to five years at a time) or lambing enclosures of up to 15 hectares (for up to six weeks per year). (This new provision is in addition to the requirement in Schedule 2 to keep dogs on short fixed leads between 1 March and 31 July, and at any other time in the vicinity of livestock.)
e. Sections 24 and 25 allow anyone with a legal interest in access land to apply to the relevant authority for a direction excluding or restricting access where this is necessary for the purposes of:
• management of the land by the applicant (an expression given a wide meaning by Ministers in Parliament);
• fire prevention, during exceptional weather conditions or in the event of an exceptional change in the condition of the land; and
• avoiding danger to the public from anything done,
or proposed to be done, on the land or adjacent land.
In considering such an application, the relevant authority must
have regard to the existence of the 28 day power above and the
extent to which, and purpose for which, it has been exercised.
There is provision for emergency restrictions on the same grounds
(section 31), and for appeal if the relevant authority turns down
the application (section 30).
f. Section 26 allows the relevant authority to impose restrictions or exclusions to protect wildlife, geological or heritage features as necessary, without application, in the light of expert recommendations from the relevant statutory agencies.
g. The local access forum must be consulted on any
direction that would apply for longer than six months.
3. In all cases, the exclusions or restrictions described above
relate only to the new rights under the Act: they do not affect any
pre-existing rights of area-wide access, or any public rights of
way. They sit within the context of the wider limitations on the
new access rights set out by Schedules 1 and 2 of the Act. These
limit on a national scale the land affected by the rights and the
activities included within them.
4. The Countryside Agency has the power (under section 33) to issue guidance to other relevant authorities on these matters. This guidance requires approval by the Secretary of State, and must be published - and national park authorities and the Forestry Commission must have regard to it.
Issues to be resolved
5. As discussed in NCAF papers 6/3 and 7/2, the Countryside Agency plans to issue guidance to land managers on the local restrictions system, to complement the statutory guidance to relevant authorities referred to above. Now that the legislation has completed its passage, we can begin to firm up on the drafting of this guidance. It will necessarily turn to some extent on the form that detailed regulations take when these are made under section 32. The Agency will seek a full input into the drafting of these regulations.
6 Nothing in the changes made during the passage of the Bill through Parliament has significantly altered the Agency's overall view of the content and style of this guidance to land managers, as outlined in the two NCAF papers. However, a number of important issues need to be resolved, and these are described in the main body of this paper.
Forum views are invited on these issues, to help inform the detailed drafting of the guidance.
Flexibility of discretionary restriction powers
7. It is desirable to allow reasonable flexibility in the use of discretionary (28 day) restriction powers, in order to:
a. allow land managers to make the best possible use of their available 28 days to limit any impact from access on their own use of the land;
b. keep to a minimum the area of access land over which access is restricted at any one time; and
c. minimise the need for land managers to seek approval for routine restrictions,
without making it unduly difficult for the public to find out about or understand the restrictions that are imposed. Some of the developments since the Forum last considered the restrictions issue have helped in these respects - notably the decisions to allow some weekend restrictions within the 28 days, and the special dog exclusion powers for grouse moors and lambing enclosures. The Agency now needs to get the details right in relation to two further issues on this front.
Applying access to smaller parcels of
land
8. Section 22 allows a discretionary restriction to be applied to any part of a mapped area of access land, subject to the regulations to be made under section 22(8). These may require the boundaries of the affected area to be determined in accordance with specific rules. The aim will be to leave scope to confine restrictions, if the owner wishes, to the area immediately affected by (say) a land management activity. The owner would then only be counted as using one of his 28 days in relation to the area(s) specified. The practical effect would be to multiply the number of days on which some kind of access restriction could be imposed somewhere on the land - but to make it more likely that some part of the land would remain unrestricted at the same time.
9. These questions arise:
a. Should the regulations require one-off registration of a suitable pattern of smaller land parcels with the relevant authority before the option to limit restrictions to smaller parcels can be exercised?
b. Should such a pattern of smaller land parcels be required to relate to recognisable physical boundaries or features on the land and/or to clear patterns of land use such as grouse drives?
c. If the owner chooses not to pre-register any parcel structure, should discretionary restrictions be tallied against the mapped unit of access land as a whole?
Allowing minor restrictions to be notified at short notice
10. Section 22 does not leave room for minor discretionary restrictions to be notified after the event: there must always be prior notification. Yet it may sometimes be inconvenient to work out the exact location and timing of restrictions substantially in advance - and some owners may prefer not to have to give lengthy notice of (for example) shooting days. Subject to the regulations to be made under section 32(1)(a), it may be possible to allow notification of minor discretionary restrictions to be given at relatively short notice, so long as sensible conditions are satisfied.
11. It seems self-evident that in the event of short notice notifications, the system would need to put the onus clearly on the occupier to tell the public of the restriction, and make known convenient alternatives.
12. These questions arise:
a. Should one-off registration with the relevant authority (see 9a above) be a precondition of telephone or email notifications?
b. What should be the qualifying criteria for a 'minor' notification? (Annex 1 summarises our current thinking following the Forum's discussion in May.)
c. Is there a case for restricting short notice notification to cases where land reasonably nearby remains open?
d. 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?
e. How might the relevant authority satisfy itself that the
exclusion or restriction is 'necessary for the purposes of the
management of the land by the applicant' (section 24 (1))?
Impact of discretionary restrictions on additional
restrictions
13. The Act requires a relevant authority, in considering an application for an 'additional' restriction under section 24 or 25, to have regard to the existence of the 28 day discretionary power and the extent to which, and purpose for which, it has been exercised.
14. These questions arise:
a. Should the 28 day allowance for land affected by a proposed additional restriction have been used or otherwise 'spoken for' (by notifying the relevant authority of how and when the remainder of the year's allowance is to be used) before any additional restrictions may be considered?
b. What advice should be given to relevant authorities on their duty to have regard to "the purposes for which [the owner or tenant] has exercised or proposes to exercise" the 28 day power?
c. Should there be any linkage to the criteria (see 17 below) that will guide the relevant authorities on whether additional restrictions are necessary?
d. Should any of these questions be answered differently where an application is for safety or fire risk restrictions, rather than for land management restrictions?
Safety and fire risk restrictions
15. The Agency is commissioning work to help inform the guidance to relevant authorities on the use of their powers under section 25. The starting point will be that the section relates to things done on the land, rather than to dangers intrinsic to the landscape. Indeed, the authorities have no power to direct restrictions relating to natural features of the landscape. It is not for them to keep people safe whenever they visit access land: the chief responsibility for the walker's safety and that of his children will lie with the walker.
16. These questions arise:
a. To what extent can determination of the need for
fire risk restrictions be 'automated' by production of special
Meteorological Office indexes?
b. Are there any exceptionally dangerous man-made landscape
features that will justify particular restrictions?
The role of criteria tables
17. The Agency will wish to develop robust criteria:
a. to help land managers to assess whether to make use of informal access management, discretionary local restrictions or additional local restrictions; and
b. to guide all relevant authorities' determination of applications for additional restrictions so that decisions are consistent and fair.
18. We envisage doing this in relation to several of the major land use issues that will arise on access land including sheep systems, forest management (eg in relation to the land which the Forestry Commission dedicates as access land), commercial events on access land, and safety. The tables will reflect the findings of several research contracts let by the Agency to clarify the extent to which access restrictions are required for these purposes. There will also be information on the approach to be taken to nature conservation and heritage restrictions.
19. These questions arise:
a. How detailed should the criteria be to encourage consistent decision making by relevant authorities?
b. How much scope should relevant authorities have to use their discretion when deciding whether restrictions are justified in a particular case?
c. 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?
d. Should there be any difference in the criteria to be adopted for dedicated access land?
Next steps
20. Following discussion of these issues by NCAF, and by the Agency's Board on 14 December, further discussions will be held with the relevant authorities and with DETR. These discussions will be informed by the further research that is in hand on fire risk and safety issues.
21. Draft guidance for land managers on the restriction arrangements will then be produced and NCAF members will be invited to comment on this (probably by correspondence). A formal consultation exercise will follow, after which the guidance for relevant authorities (incorporating that for land managers) will be finalised and submitted to the Secretary of State for approval. The approved guidance needs to be available by early 2002 in readiness for publication of provisional maps for the lead areas, and for any possible 'fast track' rights that Government decides to introduce.
Annex 1
PROPOSED CRITERIA FOR SHORT NOTICE NOTIFICATION OF MINOR DISCRETIONARY RESTRICTIONS
• Restriction affects less than 5 hectares for less
than 5 days
OR
• Restriction lasts less than 4 hours
AND IN EITHER CASE
• Restrictions do not prevent people from reaching other access
land
(See also Question 12c in main paper)
