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Countryside And Rights Of Way Bill


 

These notes refer to the Countryside and Rights of Way Bill
as introduced in the House of Commons on 3rd March 2000 [Bill 78]

Countryside And Rights Of Way Bill

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EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Countryside and Rights of Way Bill as introduced in the House of Commons on 3 March 2000. They have been prepared by the Department of the Environment, Transport and the Regions (DETR) with the Office of the Secretary of State for Wales in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3. The Bill contains measures to improve public access to the open countryside and registered common land while recognising the legitimate interests of land owners; amends the law relating to rights of way and amends the law relating to nature conservation by strengthening protection for Sites of Special Scientific Interest through tougher penalties and providing extra powers for the prosecution of wildlife crime.

4. This Bill has four Parts covering

  • Access to the countryside

  • Public rights of way and road traffic

  • Nature conservation and wildlife protection

  • Miscellaneous and Supplementary

PART I: ACCESS TO THE COUNTRYSIDE

Summary

5. Part I of the Bill is intended to give greater freedom for people to explore open countryside. It contains provisions to introduce a new statutory right of access for open-air recreation to mountain, moor, heath, down and registered common land. It also includes a power to extend the right to coastal land by order and allows landowners voluntarily to dedicate any land to public access in perpetuity.

6. There will be restrictions on the new right — for example, the Bill includes provisions for landowners to exclude or restrict access for any reason for up to 28 days a year without seeking permission. Landowners will also be able to seek further exclusions or restrictions on access for land management reasons. The Countryside Agency (in Wales, the Countryside Council for Wales — collectively known as the countryside bodies) and in national parks, the National Park authorities, will be able to approve such applications and, in addition, will be able to approve exclusions and restrictions on grounds of nature and heritage conservation, fire prevention and to avoid danger to the public. The Bill also includes provisions for restrictions on dogs on access land.

Background

7. There is a long history of people desiring to have greater access to open countryside. Since the turn of the last century some reforms have been made, for example the 1925 Law of Property Act which gave people the right of access for air and exercise to metropolitan and urban district commons, including large areas in the Lake District and South Wales. In 1949 the National Parks and Access to the Countryside Act provided for the creation of public access by agreement or order: some 50,000 hectares of access are thought to have been secured under this Act. Despite such measures, it is estimated that there are still around 500,000 hectares of open countryside in England and Wales where access is denied and a further 600,000 hectares where access relies on an informal or de facto basis.

8. In February 1998 the Government issued a consultation paper, Access to the Open Countryside in England and Wales1, which invited views on how best to secure more and better access to open countryside. The paper sought views on both statutory and voluntary approaches to achieving greater access, and estimated that the total extent of mountain, moor, heath, down and registered common land was some 1.2 to 1.8 million hectares or around 10% of the land area of England and Wales. The consultation paper set out key criteria against which the approaches would be judged — extent, quality and permanence of access, together with cost, clarity and certainty, and monitoring and enforcement.

9. The consultation paper attracted over 2,000 responses from a wide range of organisations and individuals, including recreational users, landowners and local authorities. Of these, a large majority supported the introduction of a statutory right of access. The Government undertook an analysis of the responses and consulted further including with other Government departments, relevant statutory agencies, and organisations representing landowners, recreational users and conservation interests.

10. In the light of the results of consultation and of a study of the costs and benefits of different approaches for securing greater public access, the Government decided to legislate to create a new statutory right of area access as part of a wider package to improve public access to the countryside. Ministers announced the decision to Parliament on 8 March 19992. The Government also published its conclusions in The Government's Framework for Action: Access to the Countryside in England & Wales3 outlining a package of measures for improving public access to the countryside. It also issued an Analysis of Responses on Access to the Open Countryside of England and Wales4 and, separately, an Appraisal of Options on Access to the Open Countryside of England and Wales5.

11. When the Government's Framework document was published in March 1999, the Government asked the countryside agencies and the Forestry Commission to report later in 1999 on access to other types of open countryside, such as woods, coastal land and riverside. The Countryside Agency recommended in October 1999 that the statutory right of access should be extended to coastal land such as beaches. This recommendation is reflected in the Bill with a power to extend the statutory right to coastal land by order.

Commentary on clauses

Chapter I — Clauses 1 to 3 and Schedules 1 and 2: General

12. Clause 1 sets out the categories of access land to which the public are to acquire a right of access. Land which is wholly or predominantly mountain, moor, heath or down is defined as "open country". Open country will qualify as access land if it has been shown on a map issued by the countryside bodies. The bodies will be responsible for deciding the extent of any mountain, moor, heath and down. Land over 600 metres above sea level immediately qualifies as access land, as does registered common land because it is registered under the Commons Registration Act 1965, but the bodies will in due course also include these categories of land on their maps. Access land will also include land which under clause 16 is dedicated by the owner to permanent public access.

13. Clause 1 also provides, by reference to clause 15(1), that land to which there is an existing statutory right of access for recreation — such as under section 193 of the Law of Property Act 1925 or under an access agreement or order made under Part V of the National Parks & Access to the Countryside Act 1949 — will not be regarded as access land for the purposes of the legislation. The new statutory right will not apply to such land, but the existing right of access will endure.

14. Clause 1 provides that, even within areas of land mapped under subsection (1), land of the descriptions set out in Part I of Schedule 1 — such as cultivated or developed land — should be regarded as "excepted land", to which there is no right of access whilst it remains of that description. Paragraph 11 (Part II) of Schedule 1 requires that, in order to qualify as excepted land, any necessary planning consents must have been granted. Land over which there are byelaws in force made by the Secretary of State for Defence for the purposes of military training or national defence will also count as "excepted land": the new statutory right will not apply, but any existing access provided for in the byelaws (where applicable) will continue.

15. Clause 2 gives people a right of entry onto access land (defined in clause 1) for the purposes of open-air recreation, provided that they do not break any of the restrictions set out in Schedule 2. By virtue of subsection (3), the right does not apply where entry is prohibited in or under any other public legislation. The Schedule restricts activities and behaviour which are not compatible with the quiet exercise of the right of access. In particular, sub-paragraphs (1)(a)-(c) exclude the use of any vehicle (including bicycles), craft (on water) and horse-riding. Schedule 2 includes specific restrictions for the control of dogs, including a requirement for dogs to be kept on leads during the designated period, and in the vicinity of livestock. People who break any of these restrictions will lose their right of access for the remainder of the day, and may be treated as trespassers by the owner of that land.

16. Paragraph 3 of Schedule 2 allows the Secretary of State (or the National Assembly for Wales) to amend by regulations the list of restrictions in paragraphs 1 and 2 (but not the restrictions relating to the control of dogs). Paragraph 4(2) of Schedule 2 allows the Secretary of State (or the National Assembly for Wales) to amend by regulations the designated period each year during which dogs must always be kept on leads. By virtue of paragraph 6, any of the restrictions in Schedule 2 may be lifted by the relevant authority with the consent of the owner, so that the public may exercise wider rights than those normally permitted (this provision might be used to allow people, for example, to exercise the right of access on horseback, or without keeping dogs on leads during March to June).

17. Clause 3 allows the Secretary of State or the National Assembly for Wales (in Wales) by order to extend the statutory right of access to all or any part of the foreshore and land adjacent to the foreshore. In making such an order, the Secretary of State (or the National Assembly for Wales) may modify the application of this Part of the Bill in so far as it applies to access to the foreshore.

Clauses 4 to 11 and Schedule 3: Maps

18. Clauses 4 and 5 require the countryside bodies to draw up and consult on maps of open country and registered common land.

19. Clause 4 provides for open country and registered common land to be separately identified. It also allows the countryside bodies to exercise their discretion to apply a minimum size threshold in deciding whether to map an area of open country, and to map the boundary of open country to an appropriate physical feature. This discretion does not apply in the mapping of registered common land.

20. Clause 5 sets out a procedure for public consultation on draft maps. The countryside bodies will take any comments during the consultation into account when revising the maps, which they will issue as provisional maps.

21. Clause 6 allows for a right of appeal to the Secretary of State (or the National Assembly for Wales) against the showing of any land on provisional maps as access land. The right may be exercised by anyone with an interest in the land, which includes the owner, a tenant, a commoner, or generally anyone with any rights over the land (see the definition of "interest" in clause 41). An appeal against the showing of land as open country may be brought on the grounds that the land is not wholly or predominantly open countryside, and (where relevant) that the boundary of the land should not have been mapped to a nearby physical feature. However, an appeal against the showing of land as registered common land may only be brought on the ground that the land is not registered common land under the Commons Registration Act 1965 (see the definition of registered common land in clause 1). On determining an appeal, the Secretary of State (or the National Assembly for Wales) may confirm the map with or without modifications, or he may direct the relevant countryside body to prepare a new map (which may be of the land subject to the appeal, or all or part of the map on which the land is included). If a new map is prepared, further consultation will then take place on the new map in draft form.

22. Clauses 7 to 8 and Schedule 3 set out a procedure for the hearing of appeals, and functions in respect of appeals for the Secretary of State (or the National Assembly for Wales) to delegate their powers.

23. In Clause 7, an appellant (or the relevant countryside body) may elect for a hearing of the appeal (rather than for the appeal to be determined by correspondence), and the Secretary of State (or the National Assembly for Wales) may decide to deal with any case by means of a hearing or a local inquiry, whether or not one has been requested. Subsection (2) of clause 7 provides (by reference to subsections 250(2) to (5) of the Local Government Act 1972) that, where a hearing or inquiry is held, witnesses may be required to attend and give evidence, and costs may be awarded. Costs arising from any planned hearing or inquiry which does not take place, may also be awarded under subsection (3) where the hearing or inquiry has been requested by either of the parties.

24. Clause 9 provides for a provisional map to be confirmed as a conclusive map once all appeals (in relation to the land shown on the map) have been determined, or, if there were no appeals (or any appeals were withdrawn), after the period for lodging appeals has passed. The Secretary of State (or the National Assembly for Wales) may at any time direct the countryside body to confirm any part of a provisional map in respect of which there are no appeals outstanding. A conclusive map will incorporate any modifications made by the Secretary of State (or the National Assembly for Wales) on appeal.

25. Clause 10 requires the countryside bodies to review a statutory map within ten years and not less frequently than every ten years thereafter (or any other periods specified by the Secretary of State or the National Assembly for Wales by regulation). On review, the bodies must consider both whether land shown on the map as open country or registered common land remains of that description, and whether other land should now be shown as open country or registered common land. The Secretary of State (or the National Assembly for Wales) may make regulations under subsections (2)(k) and (4) of clause 11 setting out the procedures for a review, and applying the procedures for appeals set out in clauses 7 and 8.

Clauses 12 to 14: Rights and liabilities of owners and occupiers

26. Clause 12 provides that the right of access does not increase the liability of a person interested in the land in respect of the state of the land or things done on it. It also provides that persons interested in the land will not be liable for the breach of any covenant restricting the use of the land, and that the statutory right takes precedence over the covenant. Under subsection (3), use of any path in exercise of the right of access cannot support a claim for the existence of a right of way.

27. Clause 13 amends the Occupiers' Liability Act 1957 so as to reduce the liability of occupiers of land owed to those exercising the right of access to the same level which would be owed to trespassers, but further provides (by amending the Occupiers' Liability Act 1984) that occupiers will owe no liability to those exercising the right of access, nor to trespassers, in respect of natural features of the landscape on land accessible under the new right of access.

28. Clause 14 introduces a new offence of displaying a notice containing false or misleading information on or near access land (or a way leading to it) likely to deter the exercise of the statutory right. The offence is similar to an existing provision relating to rights of way (section 57 of the National Parks and Access to the Countryside Act 1949). The offence would apply, for example, to notices forbidding access to access land, or purporting to indicate that access land is closed when it is not, and would attract a fine on conviction of up to level 1 on the standard scale (currently £200). The courts may order that an offender should remove the notice, and a further offence — attracting a penalty of level 3 (currently £1,000) on the standard scale — is committed if the offender does not comply with the order.

29. Clause 15 defines the categories of land to be treated as accessible to the public (under other enactments) for the purposes of excluding the operation of the statutory right of access under clause 2(1). It also extends the provision of any local or private enactment granting rights of access for open-air recreation to the inhabitants of a neighbourhood, so that they may be exercised by the public generally. (Such limited rights in particular arise under schemes made under the Commons Acts 1876 and 1899.)

30. Clause 16 allows the owner of land to dedicate access over it, so that the land may be treated as access land for the purposes of the general right of access under clause 2(1). Such dedications are irrevocable (but land which has been dedicated under this clause may nevertheless become excepted land). The person dedicating the land may provide that any of the restrictions set out in Schedule 2 should not apply to the land, so that, for example, people may exercise the right of access on horseback. The dedication may be subsequently amended in order to exclude further restrictions, but not so as to reimpose any restrictions. Land may be dedicated under this clause even if it would otherwise be access land (because it is open country or registered common land). This will allow the person dedicating the land to lift any of the restrictions set out in Schedule 2, and dedication will ensure that the land remains access land even if it ceases to be open country or registered common land (unless it becomes excepted land). Subsections (2) and (3) allow the Secretary of State (or the National Assembly for Wales) to make regulations, including regulations prescribing the form of dedication, requiring its notification to the countryside body, and making provision for the dedication of land where interests are held in the land other than by the owner of the fee simple.

Clauses 17 to 19: Miscellaneous

31. Clause 17 provides for a new power to make byelaws. Where necessary, access authorities (defined in clause 1 as the local highway authority, or in national parks, the National Park authority) will be able to make byelaws to preserve order, to prevent damage on access land in their area, and so as to avoid undue interference with the enjoyment of the land by others. Byelaws will not affect the exercise of rights of way crossing the land to which they apply. Byelaws will need to be confirmed by the Secretary of State (or the National Assembly for Wales). Once confirmed, they may be enforced by any other county or district council in whose area lies the land affected by the byelaws.

32. Clause 18 provides for access authorities to appoint wardens on access land, to give advice both to access users and land owners, to secure compliance with the restrictions set out in Schedule 2, and to enforce byelaws. Wardens will have a right of access to access land, but must produce evidence of their appointment if required. Wardens will generally have no powers to undertake any activities on the land which would cause damage to the owner.

33. Clause 19 permits access authorities to erect notices indicating the boundaries of access land and excepted land, and notifying the public of the general restrictions set out in Schedule 2, and any exclusions or restrictions in force under Chapter II. Authorities may also contribute toward the cost of such signs provided by anyone else (such as the owner or user groups): they are not obliged to do so.

Chapter II — Clauses 20 to 31: Exclusion or restriction of access

34. Clause 20 defines exclusions or restrictions of access for the purposes of Chapter II (clauses 22 to 32), and gives examples of the forms which such exclusions or restrictions of access might take. Subsection (4) explains that, for the purposes of the Chapter, the "relevant authority" is the countryside body, or, where the land falls within a National Park, the National Park authority.

35. Clause 21 explains how landowners (or, where the land is subject to a farm tenancy, the tenant) will have discretion to exclude or restrict access for up to 28 days each calendar year, with the exception of weekends and public holidays. A closure for any part of a day counts as a whole day for the purposes of the 28 day limit. The Secretary of State (or the National Assembly for Wales) will have powers to alter by regulations the days on which these discretionary exclusions or restrictions may not take place. He, or they, will also be able, by regulations, to vest the discretionary right to exclude or restrict access in any combination of persons with an interest in the land (such as the tenant and those with sporting rights), but only so that, taken together, their rights do not exceed 28 days in any year. The person exercising the discretion will be required to inform the relevant authority of the exclusion or restriction.

36. Clauses 22 to 24 and clause 26 set out the circumstances in which exclusions or restrictions may be permitted if they have been directed by the relevant authority or, in the case of defence or national security, by the Secretary of State. In every case, the authority (or the Secretary of State) may impose only the minimum restriction consistent with the purpose for which it is sought. Exclusions or restrictions for the purposes of land management, the prevention of fire, the prevention of danger to the public, nature conservation, heritage, defence or national security may be for a fixed period or may take place at a time to be determined by a designated person.

37. Clause 22 allows the relevant authority to exclude or restrict access for the purposes of land management. In deciding whether to approve such applications, the authority must take into consideration the use made or intended to be made by the applicant of his discretionary power to exclude or restrict access for up to 28 days each year. This requirement will only apply if the applicant is entitled to exercise the discretionary power.

38. Clause 23 enables the relevant authority to exclude or restrict access where there is particular risk of fire, or to protect the public from any danger by reason of anything done or intended to be done on the land. Any person with an interest in the land may apply, or the relevant authority may initiate such an exclusion or restriction itself. In deciding whether to approve an application, the authority must take into consideration the use made or intended to be made by the applicant of his discretionary power if the applicant is entitled to exercise the power.

39. Clause 24 sets out provisions for closing or restricting access to land in the interests of wildlife and habitat conservation, or to protect sites of historic or archaeological importance. The relevant authority will be responsible for imposing such exclusions or restrictions of access, but in England, it must have regard to any advice given by the Nature Conservancy Council (English Nature) or the Historic Buildings and Monuments Commission (English Heritage), as appropriate. In Wales, a National Park authority must have regard to any advice given by the Countryside Council for Wales (for proposals with respect to wildlife and nature conservation) or the National Assembly for Wales (Cadw — for proposals with respect to sites of heritage or archaeological importance). The Countryside Council for Wales must have regard to any advice given by the Assembly (Cadw) on exclusions or restrictions to protect sites of historic or archaeological importance. The body to whose advice the relevant authority must have regard is known as "the relevant advisory body".

40. Clause 25 provides for directions which exclude or restrict access on grounds of nature conservation, heritage, land management, fire or danger, to be revoked or modified by the relevant authority, after consulting where reasonably practicable the person (or his successor in title) who initially applied for the exclusion or restriction (or, in the case of nature conservation or heritage closures, consulting with the relevant advisory body). It also requires long-term or annual exclusions or restrictions to be reviewed at least every five years, with the same obligations to consult.

41. Clause 26 provides for the Secretary of State to exclude or restrict access for the purposes of defence or national security. Where such exclusions or restrictions last for five years or more, the Secretary of State must review them at least every five years. The Secretary of State may revoke or modify a direction given under this clause.

42. Clause 27 outlines the provisions for a reference by an advisory body in relation to exclusions or restrictions proposed under clause 24. Where the advisory body has given advice and the relevant authority has decided not to authorise the exclusion or restriction (or otherwise to act in accordance with the advice), the advisory body may make a reference to the Secretary of State (or to the National Assembly for Wales), who may require the authority to make such exclusions or restrictions as he (or it) thinks fit. This provision does not apply to proposals with respect to sites of historic or archaeological importance in Wales, because Cadw is an executive agency of the National Assembly for Wales.

43. Clause 28 makes provision for an applicant for a direction under clauses 22 and 23 (exclusions or restrictions in interest of land management, fire or danger), to appeal to the Secretary of State (or the National Assembly for Wales) where the relevant authority decides not to act in accordance with the application. On hearing the appeal, the Secretary of State (or the National Assembly for Wales) may require the authority to make such exclusion or restriction as he (or it) thinks fit. Subsection (5) provides for clauses 7 and 8 (and Schedule 3) to apply to the procedure on appeal as they apply to the procedure on appeals against provisional maps.

44. It may be necessary to exclude or restrict access to land in an emergency. Clause 29 provides that the Secretary of State (or the National Assembly for Wales) may make regulations to enable the relevant authority to exclude or restrict access in such circumstances for up to three months. Subsection (2) allows the regulations to apply any of the other provisions in Chapter II, with modifications, to a direction given under this section — for example, to allow for consultation (possibly after the direction has been made) with advisory bodies where the restriction or exclusion is made in the interests of the protection of wildlife.

45. The Countryside Agency, and the Countryside Council for Wales are responsible for administering the provisions for exclusions and restrictions under Chapter II outside the National Parks. Clause 31 sets out the powers of these two bodies to issue guidance to National Park authorities on their role in administering these provisions within National Parks. The countryside bodies' guidance will need approval from the Secretary of State or the National Assembly for Wales, and must be published.


1 Published by the Department of the Environment, Transport and the Regions and the Welsh Office, February 1998. Available free of charge from: DETR Free Literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237.

2 Hansard, House of Commons Debates. Cols. 22-33.

3 Published by DETR March 1999. Available free of charge from: DETR Free Literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

4 Published by DETR February 1999 (Full Report): Price o10 ISBN 1 85112 159 5. Available from DETR Publication Sale Centre, Goldthorpe Industrial Estate, Goldthorpe, Rotherham, S63 9DL. Tel. 01709 891318, Fax. 01709 881673. A summary document is available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

5 Published by DETR March 1999 (Full Report): Price o45 ISBN 1 85112 158 5. Available from DETR Publication Sale Centre, Goldthorpe Industrial Estate, Goldthorpe, Rotherham, S63 9DL. Tel. 01709 891318, Fax. 01709 881673. A summary document is available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

 
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