New Rights of Access
6. The Act is most commonly associated with Part
I which introduces the new rights of access and provides for what
is often referred to as the 'right to roam'. Much of the evidence
submitted to the Sub-committee concentrated on progress towards
the implementation of this part of the Act. Before the new right
comes into effect, the Countryside Agency is required, under the
Act, to produce maps of the country showing which land is designated
as 'open-access'. The Act also provides for landowners and managers
to restrict the new rights of access in certain circumstances.
The Agency will set up a system to facilitate these restrictions
before the new right of access is introduced. The Countryside
Agency has set up a non-statutory national forum to advise on
implementation of the Act and on issues such as mapping and restrictions.
Highway authorities and National Park authorities are required
to set up statutory local access forums by August 2003. Other
issues, such as the available funding for the various bodies and
individuals affected by the new rights of access, have not yet
been fully resolved.
Mapping
7. Sections 4 and 5 of the Act require the Countryside
Agency to draw up and consult on maps of open country and registered
common land. The Agency has divided England into eight regions
and is at various stages of the mapping process in each region.
(See box below).
Stages in the Mapping Process
Stage 1: The Countryside Agency will produce a draft map of each region showing the areas to which there will be a statutory right of access under the Act; that is, mountain, moor, heath, down and registered common land. There will be a three-month consultation on the draft during which any member of the public can submit comments.
Stage 2: Having considered all the comments, the Countryside Agency will produce a provisional map. This is expected to be produced 68 months after the end of the consultation on the draft map, depending on the number of submissions received. Those with a legal interest in any land within the map's area can appeal to the Secretary of State after publication of the provisional map.
Stage 3: A conclusive map will be issued. The conclusive maps are expected to be published 612 months after the provisional maps, depending on appeals.
Stage 4: Following publication of the conclusive map, access rights will take effect from a date to be announced by the Secretary of State.
Stage 5: The maps will be subject to a review within ten years and no less than every ten years after that.
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Progress in each of the eight regions is shown in Figure 1 below.
Defra's PSA target is to complete the mapping exercise and open
up public access by the end of 2005. In November 2002, Alun Michael,
Rural Affairs Minister, announced that the access rights will
be rolled out on a region by region basis and that the first regions,
South East and Central Southern England, will be open from summer
2004.[5] The remaining
regions will be opened up by the end of 2005.
8. The Countryside Agency has appointed a lead contractor, Binnie,
Black and Veatch (BBV) for the mapping exercise. BBV has sub-contracted
work to: GeoData Institute (University of Southampton, providing
habitat expertise and data collection, and mapping registered
common land); Quentin Bell Organisation Limited (advising on media,
publicity and other issues); and City and West End Solutions Limited
(printing of maps).[6]
The contractor is producing draft maps using existing datasets
supplemented by aerial photography and site visits.
Restrictions
9. Section 22 of the Act allows an 'entitled person' (e.g. the
owner or farm tenant) to impose statutory restrictions on people's
use of the new rights for up to 28 days in each calendar year.
These can be for any reason, and do not require approval; but
they must be notified in advance to the 'relevant authority',
such as the relevant National Park Authority, the Forestry Commissioners
or the Countryside Agency. Restrictions under Section 22 may be
used to limit the new access rights on any part of an area of
access land, for all or part of the day, in a range of ways, for
example:
· by excluding dogs;
· by keeping people to specified routes;
· by requiring people to enter and exit at specified points
only;
· by imposing other specific conditions on use of the land;
or
· by excluding access completely.[7]
10. Using any of these options counts as a full day's discretionary
restriction on the part of the access land affected, even if the
restriction only lasts for part of the day. The 28 day maximum
must not be exceeded on any part of the land. However, there is
also scope to apply to the relevant authority for 'additional
restrictions' on certain grounds set out in the Act: for purposes
related to the management of the land, fire prevention and avoiding
danger to the public. The relevant authority will decide whether
to accept requests for additional restrictions, and there will
be a system for appealing against decisions.
11. Defra and the Countryside Agency have consulted on proposals
for regulations and guidance on the exclusion or restriction of
access. The Government planned to lay the relevant regulations
in February 2003.[8] The
Countryside Agency will produce statutory guidance on the restrictions
system for the other relevant authorities and expects to put the
system in place in the first two regions on 2 December 2003.
Rights of Way
12. Part II of the Act contains provisions designed to reform
and improve rights of way. The Government decided to legislate
on rights of way in response to concerns that changes in country
lifestyles over the last century had resulted in many footpaths
falling into disuse and a loss of the knowledge of where rights
of way exist. The provisions in the Act relating to rights of
way include:
- a requirement on local highway authorities, except the London
Boroughs, to carry out a review of rights of way and publish an
improvement plan by 20 November 2007;
- a provision for Roads Used as Public Paths (RUPPs) to be reclassified
as a new category of way known as a Restricted Byway having a
right of passage for non-motorised users;
- a new right for land managers of agricultural and other types
of land to apply to a council for certain types of orders diverting
or extinguishing footpaths and bridleways, and a right of appeal
against a council's refusal; and
- a provision to allow local authorities to divert or close
rights of way for the purpose of crime prevention in certain urban
areas, and for protecting the safety of children and staff in
school grounds.
1. Sections 53 to 56 of the Act prescribe a cut-off date of 1
January 2026 by which all footpaths and bridleways created before
1949 must be recorded on definitive maps. The provisions also
provide for the extinguishment of certain rights of way which
have not been claimed by the 2026 deadline. The Government may
extend the deadline by regulations under section 56.
Other provisions
Access Forums
2. Under section 94 of the Act and regulations under this section,
highway authorities and National Park authorities are required
to set up local access forums by 7 August 2003. Regulations under
the Act require highway authorities and National Park authorities
to appoint members to the forum and ensure a balance is maintained
on the forum between those representing various interest groups
.[9] The Countryside Agency
will be required to have regard to the views of forums in relation
to Parts I and II of the Act, specifically the draft maps, longterm
restrictions, the appointment of wardens, proposals for bylaws
and wider access issues contained in rights of way improvement
plans.
3. The Countryside Agency has also set up a non-statutory National
Access Forum to advise it on the development of policy and procedures
on access to open countryside and rights of way. A range of interest
groups is represented on the Forum including the Ramblers' Association,
the Country Land and Business Association, the Local Government
Association, the National Trust and the National Farmers' Union.
A member of the Countryside Agency board is also on the Forum
along with two independent members. The Forum is chaired by the
Deputy Chair of the Countryside Agency, Pam Warhurst.
Role of Local Highway Authorities
4. Local highway authorities will have several new duties and
powers under the Act. The new duties mainly relate to the provisions
in Part II of the Act on the rights of way network and include
requirements:
- to establish local access forums by August 2003;
- to publicise the effects of redesignation of roads used as
public paths (RUPPs);
- to keep for public inspection: registers of applications for
definitive map modification orders; declarations as to the existence
of highways made under section 31(6) of the Highways Act 1980;
and a register of applications for diversion and extinguishment
orders made by landowners;
- to prepare a rights of way improvement plan within five years;
- to deal with notices served on them relating to removal of
obstructions;
- to have regard to needs of people with mobility problems when
authorising the erection of stiles or gates;
- to publish reports on delivery of rights of way functions;
and
- to make decisions on landowner applications for diversion
and extinguishment orders within four months.
The Government estimates that the overall costs of these additional
duties "involve an additional sum of between £12 and
£19 million a year for local authorities ... and the additional
cash in the local authority settlement is within that bracket".[10]
The additional funds are distributed to local authorities from
central government through the Revenue Support Grant (RSG). The
allocation to each local authority is determined by the standard
spending assessment (SSA) which is composed of seven major service
"blocks"; the funding for the new duties under the Act
forms part of the Environmental Protection and Cultural Services
Block. As the RSG is not hypothecated, the additional £12-19
million for the new duties under the Act is not ringfenced for
that purpose.
The RSG has not been increased to take into account the additional
discretionary powers local authorities have under the Act. These
mainly relate to land designated as open-access under Part I of
the Act and include powers:
- to make and enforce bylaws relating to access land;
- to appoint wardens for access land;
- to erect notices indicating boundaries of access land and
excepted land;
- to enter into agreements to provide means of access to access
land;
- to provide access in absence of agreement with land owner;
- to remove obstructions to access land;
- to make combined legal event and definitive map modification
orders, and to prepare consolidated definitive maps;
- to order the removal of overhanging branches from bridleways;
and
- to create, stop up and divert rights of way for crime prevention
etc.
Our perspective on progress to date
1. We strongly support the objectives of the Countryside and
Rights of Way Act. We welcome the Government's efforts to
balance the sometimes competing demands of different interest
groups in relation to access to the countryside. Indeed, we were
struck by the many common causes between those bodies often on
different sides of the debate and applaud the efforts of these
groups to work together both at a local and national level to
ensure the successful implementation of the legislation. We also
recognise the work that has been done to date and the progress
that has been made towards implementing a very complex piece of
legislation.
2. It would therefore be especially disappointing if progress
were not continued and the proposed timetable for implementation
were allowed to slip. Similarly, we believe it is important that
certain areas of concern are addressed speedily, particularly
those relating to the resources available to implement the Act.
It would be a matter of great regret if carefully developed legislation
were to lose credibility because of the failure of the relevant
bodies to implement it sensibly and with sufficient resources
to ensure its success. We consider that the issues set out below
lie at the heart of the effective implementation of the Act.
Delays to the mapping process
3. The Ramblers' Association told us that most publication dates
for future draft and provisional maps have been delayed by approximately
two months following problems in the first two regions, South
East and Lower North West.[11]
The first provisional map in the South East region was withdrawn
because decisions taken on submissions to the draft map consultation
had not been reflected. The consultation on the draft map stage
in the Lower North West was particularly problematic. The Countryside
Agency told us that this was due to the incorrect interpretation
of the available data in the Macclesfield area which led to nearly
three times as many submissions compared with the same stage in
the South East.[12]
4. The Government acknowledged that there were problems with the
early maps and admitted to us that it had underestimated the size
of the mapping operation.[13]
The Countryside Agency said that the first two regions were chosen
because they were "challenging" and the experience has
enabled them to develop the methodology for the subsequent areas.[14]
In particular, the Countryside Agency told us that it now has
up-to-date aerial photography for the whole country and this will
be used to supplement existing datasets when developing maps.[15]
It has also increased the amount of field work and site visits
to supplement the available data. The Minister told us that the
Department "remains on course to meet the Public Service
Agreement target" to complete the mapping process by the
end of 2005.[16]
5. The Ramblers' Association remains concerned about the application
of the mapping methodology. It told us that there are cases where
it considers the methodology to have been inconsistently applied.
Examples include land parcels that have not been mapped but appear
identical to adjacent or surrounding land parcels that have been.
6. Existing datasets are, in some cases, clearly unreliable as
the sole source for the purpose of mapping open-access land. It
appears that in carrying out its equivalent duties in Wales, the
Countryside Council for Wales insisted on more site visits and
did not rely as heavily on existing data. It is clear that site
visits and aerial photography would improve the quality of draft
and provisional maps and reduce the need for a lengthy and complicated
appeals process. We note the Government's acknowledgement that
it underestimated the size of the mapping project. We welcome
its commitment to improve practice in mapping the other regions,
and the new procedures adopted by the Countryside Agency. We trust
that these will prove an adequate response to the earlier problems,
and that the original target for completion of the exercise will
be met.
Restrictions
7. The arrangements for restricting access to land designated
as open-access are integral to the successful implementation of
the Act and the credibility with which it is viewed by both land
managers and those who wish to access the land. Until the Department
finalises these arrangements there will be a period of uncertainty
for both parties and especially land managers in the first two
regions where the Government proposes to introduce the new rights
of access by the summer of 2004. We urge the Department to
finalise its proposals relating to restrictions as soon as possible.
We also recommend that the Countryside Agency monitor carefully
the success of these arrangements in the first two regions and
make adjustments based on this experience before the new rights
are introduced in the rest of the country.
Local Access Forums
8. Local Access Forums have an important role to play in the successful
implementation of the Act. We believe it is essential therefore
that recruitment to the forums is carried out in a fair and transparent
way, and that the forums gain the necessary support of all the
parties with an interest in the Act. The forums are set up by
the local highway authority or National Park authority, the "appointing
authority", and statutory guidance issued by Defra sets out
the role of access forums and the working arrangements to be followed.[17]
The Ramblers' Association told us that, in some areas, the relevant
authority's representatives on the forum have also been involved
in the recruitment of other forum members representing different
interests. We are concerned that such practices may give the appearance
that the forums are weighted in favour of the particular highway
authority or National Park authority. We recommend that the
Department amend the statutory guidance on local access forums
to include procedures covering the interviewing and selection
of forum members.
5
HC Deb, 28 November 2002, c 48WS Back
6
HC Deb, 14 January 2002, c 113W Back
7
Countryside Agency, Proposals for guidance from the Countryside
Agency on local access management, exclusions and restrictions,
2001, para. 4.3 Back
8
Note of Matters Arising from the 32nd Meeting of
the Countryside Agency, 12 December 2002 Back
9
Local Access Forums (England) Regulations 2002 (S.I., 2002, No.
1836) Back
10
Appendix 3, para 5 Back
11
Ev 2 Back
12
Q 37 Back
13
Q 36 Back
14
Q 34 Back
15
Q 48 Back
16
Q 33 Back
17
Defra, Statutory guidance to local access forums, 14 November
2002 Back
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