Natural England

Open Access Legislation: Restrictions Guidance (AP03/11)

Background

1.          CRoW will introduce, in regional stages from summer 2004, new legal rights of public access for open-air recreation over "access land" - consisting primarily of mapped areas of open country (essentially mountain, moor, heath and down) and registered common land.  

2.          In addition to a range of national limitations on where the new rights apply and on what activities they encompass, CRoW provides scope for local restrictions to be imposed where appropriate.   This local restrictions system is administered by "relevant authorities" - normally the Agency or the national park authority.   The Forestry Commission is relevant authority for woodland that is voluntarily "dedicated" under the Act as CRoW access land.

3.          CRoW section 33 empowers the Agency to issue statutory guidance to the relevant authorities on how they should exercise their functions in relation to these local restrictions.   The goal is a nationally consistent operation.   The final guidance must be submitted to the Secretary of State for approval before it is issued, and the other relevant authorities must have regard to it when they take their decisions about local restrictions.  

4.          Regional commencement of the new rights is due to begin in the lead mapping areas (south east and central southern England) from Summer 2004.   To honour the Ministerial commitment to provide time for necessary restrictions to be put in place ahead of commencement of the new access rights, the local restrictions system will need to open for applications in these two areas in January 2004.   Accordingly we need to finalise the guidance to relevant authorities for submission to the Secretary of State in July this year, and for publication during October.   We plan to publish parallel guidance for land managers at the same time.   This will reflect the same approaches and principles, but will not require approval by the Secretary of State.  

Why now?

5.          This paper has been brought to the Board now:

a.       to brief the Board on the process and timing for producing the guidance and on the key principles on which it is likely to be based;  

b.      to ask it to mandate Pam Warhurst and one other Board member to make a strategic input to the finalisation of the guidance, and then to sign it off on the Board's behalf. 

6.          The relevant authority guidance will run to some 150 pages and would therefore make a very unwieldy Board paper.   In addition, the timing of the work is such that the guidance would not be ready for the May meeting, but the July meeting would be too late to revise it in the light of Board views.   We have recommended, therefore, that the Board delegate the approval of the guidance to the Deputy Chair plus one other member.   It would be possible for the whole Board to consider the draft guidance by correspondence, however.

Key principles

7.          The key principles for the guidance are:

a.       It should list the inbuilt limitations that limit the scope of the new rights and how people will be able to use them.   It should spell out that neither these nor the CRoW local restrictions affect existing access rights, permissions or traditions.  

b.      It should emphasise the importance of using informal management techniques as a way to minimise problems on the ground and, where appropriate, to complement the use of legal restrictions.   In doing this it will aim to minimise the costs of unnecessary red tape for both relevant authorities and land managers.  

c.      It should encourage relevant authorities, in cases where legal restrictions are contemplated, to promote the use of the least restrictive option that will meet land management and other needs.   This is about getting the right type of restriction (e.g. complete exclusion versus lesser, more targeted forms of restriction) in the right place at the right time.  

d.      For discretionary restrictions (whereby the landowner or tenant have an entitlement of up to 28 days per calendar year on which to restrict access for any purpose they choose), this promotion is effectively confined to seeking to influence management decisions in order to avoid unnecessary closures.  

e.      The guidance should help relevant authorities determine whether notifications of 28 day restrictions are legally valid by explaining the complex rule base set out in the Act.  

f.       For directions (which authorise local restrictions not covered by the 28 day allowance), the guidance should set out detailed procedures and criteria to help relevant authorities satisfy themselves (as the Act requires) that a direction is necessary in all the circumstances of a particular case.   It should also give them guidance on how, as the Act requires, they should take into account the applicant's use of the 28 day power, if he has one, when assessing the need for a direction.

g.      For nature conservation restrictions, the guidance should advise the other relevant authorities to follow the step by step procedures we have already agreed with English Nature for determining whether a legal restriction is necessary on these grounds.

Consultation 

8.          We have developed these principles in close consultation with the National Countryside Access Forum.   Seven papers about this subject have been discussed with the Forum since February 2000.   We issued a public consultation document in early 2002 about our proposed approach in guidance and our emerging criteria for decision making.   These have since undergone substantial reworking to meet points raised during consultation meetings and in responses to the consultation paper.

9.          During this same period we have worked particularly closely with Defra, the Countryside Council for Wales, the Welsh Assembly Government, the National Parks and the Forestry Commission about the detailed procedures and criteria on which the associated regulations and guidance should be based.   Most recently this included an intensive two-day seminar with these bodies, working through the detail of the text and discussing residual issues.  

10.        In addition to continuing to work with these bodies and receiving strategic input from the two mandated Board members, we propose to convene two further full-day meetings in May with national representatives of:

a.       the Country Land and Business Group (CLA), the National Farmers' Union, the Moorland Association, the British Association for Shooting and Conservation and the National Trust;   and

b.      the Ramblers' Association, the Open Spaces Society, the British Mountaineering Council and the Central Council for Physical Recreation.  

These meetings will allow final views on our draft procedures and criteria to be fed in before we fine tune them for submission to the Secretary of State.  

11.        The Annex summarises the key stages in finalising this guidance before the restrictions system opens for business in January.

Costs and risks associated with the guidance

12.        Part of the function of this guidance is to minimise bureaucracy and thereby any unnecessary costs on land managers and relevant authorities.  

13.        The main risks in relation to this guidance, and the strategy for minimising them, are that: 

a.       We do not deliver the guidance in time to open the local restrictions system in the lead areas by the beginning of 2004.   Our strategy has been to work intensively to produce a good working document for discussion at a workshop held in mid March with all relevant authorities.   We are now doing further development work to take account of conclusions from that event.   With the help of strategic input from two Board members, we are on track to submit to the Secretary of State in July.  

b.      The relevant authorities do not act in accordance with our guidance or find it unclear - leading to inconsistent decision making around the country and therefore exposure to appeal/legal challenge.   We cannot guarantee that individual National Parks or the Forestry Commission will follow what the guidance says: they are only required by the Act to have regard to it.   But we can maximise the likelihood of their doing so by listening to their views - which we have been doing throughout - and by continuing to involve them, and colleagues from Wales, in the detail as the document is finalised.   That will limit our scope for unilateral changes to the document, but will give us the best chance of national consistency.  

c.      The guidance is 'wrong' - either in its factual summary of the legal system, or in the criteria it proposes as the basis for decisions, leafing to successful appeals or legal challenges.   We check our legal facts meticulously - and have access to legal advice if necessary.   We have conducted research on some of the key land management and other issues (e.g. grouse management, lambing, safety, fire, nature conservation) to help ensure that we correctly identify the circumstances in which a legal restriction is genuinely likely to be necessary.

d.      A 150 document is regarded as too long and detailed, bringing the access      process and the Agency into disrepute.   Promoting the guidance to owners and the wider public will require a simpler document highlighting the main principles and pointing to the detailed guidance on our website.

Annex 1

Remaining key stages in finalising CRoW local restrictions guidance

March 2003      -    two day seminar with Defra, relevant authorities and CCW/NAW

April 2003       -    Further development work plus Board discussion 

May 2003         -    Two national meetings with key bodies

May 2003         -    Main strategic input by mandated Board members

June 2003         -    Further work leading to submission to Project Board

July 2003          -    Mandated Board members sign off relevant authority guidance

July 2003          -    Submission to Secretary of State for statutory approval

Sept 2003         -    Mandated board members sign off Land Manager Guidance

Oct 2003          -     Publication of both sets of guidance

Nov 2003         -     Distribution and training

Jan 2004           -     Open for applications for directions in lead mapping areas