The CROW Act 2000 a presentation by RICHARD WALD at 39 Essex Street on 15th June 2004 The CROW Act 20001 A HISTORY Early Attempts at achieving freedom to roam 1. In 1884 James Bryce MP introduced the first bill for freedom to roam. The bill was introduced every year until 1914 and failed each time. Following the Depression and increased unemployment, new and greater interest was shown by the public in open areas for recreation. Nowhere was this felt more strongly than in the Peak District. On 24th April 1932 six leaders of the newfound access movement, who bitterly resented restrictions placed upon would-be ramblers by gamekeepers (who were protecting their grouse and the property rights of their masters), staged a now famous ‘mass trespass’ of around 600 ramblers across Kinder Scout. The leaders were jailed but the event caused a national outcry and brought the campaign for freedom to roam further into the public eye. 2. Common land is land over which one or more persons have ‘a right of common2’, over the land in addition to the landowner, or is waste of the manor not subject to rights of common3. The old system of common land offered a certain amount of freedom to roam. 3. Section 193 of the Law of Property Act 1925 gave the public a right of access for air and exercise4 over metropolitan and urban commons (see section on commons generally below). 4. In 1936 Arthur Creech-Jones introduced a Private Member’s Bill which became the Access to Mountains Act 1939 comprising walkers’ rights and making trespass a criminal offence in certain circumstances. It was opposed by the Ramblers Association and later repealed. 5. In 1947 the Hobhouse Committee recommended legislation for public access to open countryside. This led to the National Parks and Access to the Countryside Act 1949 under which open country was defined as mountain, moor, heath, down, cliff and foreshore5. Local Authorities were required to survey open countryside, assess the level of access provided and to secure further access by means of 1 This paper is drawn largely from a Chapter on the CROW Act 2000 in Hancox and Wald’s Highways Law & Practice (Butterworths, 2002). 2 Eg to fish, collect wood or peat, graze cattle, walk about 3 Commons Registration Act 1965 s22 ; see also Hampshire County Council v Milburn [1990] 2 WLR 1240 4 which includes horse riding R v Secretary of State for the Environment ex p Billson [1998] 2 All ER 587 5 It is estimated that the NPACA 1949 made 50,000 hectares available for access, leaving 5 million hectares unavailable AND 600,000 available on an informal basis (see the DETR explanatory notes to the CROW Act 2000, paragraph 7). 2 agreements, orders or by purchasing the land. In practice, the legislation has had little effect except in the Peak District National Park, where there is now freedom to roam over 55% of the park. The 1986 Royal Commission on Common Land6 recommended that common land (rural as well as urban) should be open to the public as of right, subject to the restrictions contained in Schedule 2 to the NPACA 19497. 6. In 1968 the Countryside Act sought to widen the scope of the 1949 Act by widening the definition of open country to include woodland and riverside. No new access agreements for such land have since been made under this Act. In 1986 The Common Land Reform Report8 recommended a right of access to (rural) common land on foot for the purpose of quiet enjoyment. 7. Responding to representations made by the Moorland Association, the Conservative Government decided not to enact the proposals of The Royal Commission on Common Land and the Common Land Reform Report. In 1997 however, the Labour government announced its intention to introduce legislation allowing the public freedom to roam on mountain, moor, heath and down and to this end produced its Consultation Paper on Access on 24 February 1998. 8. In 1999 the government proposed this new right of access, known colloquially as the ‘right to roam’. The framework was developed in the light of responses to the public consultation paper, Access to the Open Countryside in England and Wales, published in February 19989 and the results of a study of the economic, environmental and social benefits and costs of different approaches for improving access to open countryside. 9. The Act received Royal Assent on 30 November 2000 and covers four main areas of interest: (i) Access to Open Country; (ii) Public Rights of Way; (iii) Nature Conservation; and (iv) Areas of Outstanding Natural Beauty. 10. Some of the provisions of the Act came into force on 30th January 2001, others on 1st April 2001 and others are yet to be effective. Overall it is a complicated piece 6 Report of the Royal Commission on Common Land 1955-1958 (Cmnd 462) 7 The general restrictions in Schedule 2 of the CROW Act 2000 are an expanded version of the NPACA 1949 Schedule 2 restrictions. (see below) 8 Common Land: The Report of the Common Land Forum, CCP215 (1986) 9 This consultation paper estimated the extent of mountain, moor, heath, down and registered common land to be between 1.2 and 1.8 million hectares or about 10% of the land area in England and Wales. 3 of legislation, made more so by the large amount of it which is to be enacted by regulations as yet unwritten. Purpose of the CROW Act 2000 11. The purpose of this Act is to create a new statutory right of access on foot to certain types of open land, to modernize the public rights of way system, to strengthen nature conservation legislation, and to facilitate better management of Areas of Outstanding Natural Beauty (“AONBs”). There are provisions for local authorities to establish byelaws and give greater powers of enforcement to a variety of relevant bodies. It seeks to balance the new rights with responsibilities on all parties and there will be codes of practice produced to explain these to landowners and users. B ACCESS TO THE COUNTRYSIDE Pre-existing position 12. Whilst there is often de facto access in uncultivated areas, there is no general right to roam in England and Wales, except along public highways. Where access is allowed , this has tended to be • pursuant to an Act of Parliament, or • by the granting of rights by landowners or • by specific agreements between land-owners and land-users. 13. Local inhabitants of an area may also acquire a right to use village greens for ‘lawful sport and pastimes’ where there has been a history of such use. Common Land 14. It is worth emphasizing that (without the CROW Act applying) the existence or registration10 of rural common land does not necessarily imply either public ownership or any public rights. On the contrary most common land is privately owned and the rights of commoners to use it are limited to specific groups of people and to specific activities (e.g. to graze cattle, collect wood or peat etc.). Section 193 of the Law of Property Act 1925 conferred on the public a right of access for air and exercise (including horse-riding11) over metropolitan and urban commons. Section 193(2) provides that landowners can declare by deed that the 10 Under the Commons Registration Act 1965 11R v SSETR, ex p Billson [1998] 2 All ER 587. 4 provisions shall apply to any of their land which is subject to rights of common. This subsection is to be repealed by the CROW Act 2000 since wider powers of dedication conferred by s16 of the CROW Act 2000 render these LPA 1925 provisions redundant. Town and Village Greens 15. The Commons Registration Act introduced a system of registering of any area of land: (i) which has been allotted under any Act for the exercise/recreation of local inhabitants; (ii) upon which local inhabitants have a customary right to enjoy sports and pastimes; (iii) upon which local inhabitants have enjoyed such sports and pastimes as of right for at least 20 years12 16. Following the judgment in the case of R v Oxfordshire CC, ex p Sunningwell PC [1999] 3 WLR 160, it is now much easier to register new village/town greens under the third of these categories. First, the case expanded the notion of ‘sports and pastimes’ to include such informal activities as berry picking, kite-flying and tobogganing. Second, it established that ‘as of right’ simply means without force, secrecy or permission (no subjective belief or intention on the part of the user is required). Finally the case held that predominant, rather than exclusive use by local inhabitants is enough to found a right to register. 17. Section 98 of The CROW Act 2000 (which amended the Commons Registration Act 1965, s22) has adapted the test to be applied in relation to the third of these categories in that it is now sufficient that ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality’ have used it for at least 20 years for lawful sports and pastimes. Consequently registration authorities no longer need to enquire whether use is made of land by people outside the locality. Access by agreement 18. Various schemes exist under which landowner can permit public access to their land in exchange for payment. These are run by government departments13, statutory agencies14 and local authorities15. 12 Commons Registration Act 1965 13 eg the Countryside Access Scheme for set-aside land, The Access Tier in Environmentally Sensitive Areas (operated by DEFRA).