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 It was opposed by the Ramblers Association and later repealed.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).

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.

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.

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). 14 Eg The Countryside Stewardship Scheme (operated by DEFRA).

New provisions under the CROW Act 2000

19. The Act provides for a new right of access on foot to areas of open land comprising:

• mountain (land over 600m) • moorland • heath • downland • registered common land There are provisions to consider extending the right to coastal land.

Excepted Land

20. Some types of land, such as cultivated land, are not included in the right of access, and there are also restrictions close to homes and some farm buildings, for example. There are no provisions for such excepted land (often very small in size) to be indicated on maps. It will not therefore always be obvious to members of the public which land is excepted and not available for public use. Schedule 1 to the CROW Act 2000 sets out those categories of land which are excepted from the access provisions of the act. There are thirteen categories of excepted land. They are:

(1) Cultivated land i.e. land on which the soil is being, or has at any time within the previous twelve months been, disturbed by any ploughing or drilling16 undertaken for the purposes of planting or sowing crops or trees. (2) Land covered by buildings17 or the curtilage of such land. (3) Land within 20 metres of a dwelling (4) Land used as a park or a garden. (5) Land used for the getting of minerals18 by surface working (including quarrying). (6) Land used for the purposes of a railway (including a light railway) or tramway.

15 Eg access agreements under s64 of the NPACA 1949 or management (including access) agreements under s30 of the WCLA 1981. 16 Which include agricultural operations similar to ploughing and drilling 17 Which includes any structure or erection and any part of a building so defined but not a fence, wall or means of access. 18 As defined in the Town and Country Planning Act 1990

(7) Land used for the purposes of a golf course, racecourse or aerodrome. (8) Land which does not fall within any of the preceding paragraphs and is covered by works used for the purposes of a statutory undertaking19 or a telecommunications code system, or the curtilage of any such land. (9) Land as respects which development20 which will result in the land becoming land falling within any of paragraphs 2 to 8 is in the course of being carried out21. (10) Land within 20 metres of a building which is used for housing livestock. (11) Land covered by pens in use for the temporary reception or detention of livestock. (12) Land habitually used for the training of racehorses 22. (13) Land the use of which is regulated by byelaws under section 14 of the Military Lands Act 1892 or section 2 of the Military Lands Act 1990.

21. Even in the case of access land which is not ‘excepted’, there are various restrictions, and definitions which place certain limits on the right of access and the rights do not come totally into effect until the mapping exercise is completed, estimated (in 2002) to be late 2004.

22. Most of the responsibility for identifying, mapping and administering the process of managing the new rights falls to the Countryside Agency (in England) and the Countryside Council for Wales (in Wales), assisted in part by the National Park Authorities. However there are several powers for the ‘access authority’ (which outside National Parks is the local highway authority) and these are likely to become an issue for debate amongst the Nationals and Local Access Forums.

National Access Forum

23. The National Countryside Access Forum (the Forum) is a non-statutory body set up by the Countryside Agency at the request of Government. Its primary purpose is to advise the Agency on the development of policy and procedures on access to open countryside and rights of way (implementation of new statutory rights of access as well as management issues). The wide range of interests represented on

19 which means the undertaking of a statutory undertaking (see Chapter 8) or an airport to which Part V of the Airports Act 1986 applies 20 As defined in the Town and Country Planning Act 1990 21 Planning permission for the development must have been granted or the development must be treated as lawful under s192(2) of the Town and Country Planning Act 1990. 22 This category of land is excepted only between dawn and midday and any other time when it is in use for that purpose.

the Forum23 also encourages co-operation between different interest groups (principally between landowner groups and user groups). The Countryside Agency Board will still retains responsibility for policy decisions on access to the countryside and rights of way.

24. The National Access Forum meets about four times a year, in public, in locations around the country.

Local Access Forums

25. The local highways authority or, where the land is in a National Park24 the National Park Authority (the appointing authority) is under a duty to establish a local access forum consisting of members appointed by the appointing authority in accordance with regulations25. These forums advise highway authorities, National Park authorities, the Countryside Agency and others on the improvement of public access to land in the local area. Decision-making bodies are required to have regard to the views of Local Access Forums26 in relation to the draft maps, long- term restrictions, the appointment of wardens27, proposals for byelaws28 and wider access issues contained in rights of way improvement plans.

26. The regulations may include provision for the establishment of joint local access forums and require that members of an access forum should be representatives of persons of a specified description or of a specified body29. Such regulations must have regard to the desirability of maintaining a balance between users and owners or occupiers30. Persons appointed to local access forums should include:

(i) representatives of the owners and managers of land where new or existing access rights exist; (ii) representatives of users of local rights of way31 or access land; and (iii) representatives of other relevant local interests32.

23 The following organizations are represented on the National Access Forum: British Mountaineering Council, Country Land and Business Association, Council for the Protection of Rural England, Cyclists Touring Club, Local Government Association, Moorland Association, National Farmers' Union, National Trust, Ramblers Association, Royal Society for the Protection of Birds, Trade Unions, Association of National Park Authorities, British Horse Society 24 The Broads, as defined in the Norfolk and Suffolk Broads Act 1988, are treated as National Park. CROW Act 2000, s95(6), (7) 25 CROW Act 2000 s94 (1), (3) 26 ibid s94(5) 27 ibid s18(2) 28 ibid s17(3)(b) 29 ibid s95(1)(b) 30 ibid s95(4) 31 for definition see CROW Act 2000 ss95(3), 60(5) 32 ibid s95(2)

27. In the discharge of their functions a local access forum must have regard to

(1) the needs of land management; (2) the desirability of conserving the natural beauty of the area for which tit is established, including the flora, fauna and geological and physiological features of the area; and (3) guidance given from time to time by the Secretary of State or Welsh Assembly33.

28. If the Secretary of State or Welsh Assembly consider that a local access is not necessary in a particular area it may, following consultation with the appointing authority for the area and the Countryside Agency/Countryside Council for Wales34, direct that the duty to establish one should not apply in that area35.

29. In London, local access forums need not be established, unless the relevant London Borough Council considers it necessary to create one and so resolves36.

Mapping

30. With the exception of registered common land and land over 600 metres37 there will be no new public access until the open country in question is recorded on the official maps38.

31. Sections 4-11 of the CROW Act 2000 relate to the preparation, publication and review of draft maps. Before the open access becomes generally available, the Countryside Agency (in England)39 and the Countryside Council for Wales (in Wales)40 have to carry out an extensive mapping exercise to clearly identify all the qualifying land, and clarifying the type of access land. Maps must include all land which is wholly or predominately mountain, moor, heath or down but may exclude areas less than 5 hectares in size if the relevant countryside body considers that its mapping would serve no useful purpose41. The relevant countryside body also has a discretion to take a physical feature as the boundary

33 ibid s94(6) 34 ibid s94(9) 35 ibid s94(8) 36 ibid s94(7)

38 Inner London is also excluded from the mapping requirement as its access areas are too small to usefully appear on these maps. 39 CROW Act 2000 s4(1) 40 ibid s4(2) 41 CROW Act 2000 s4(5)(a). No such discretion exists in the mapping of registered common land i.e. land registered under the Commons Registration Act 1965.

of an area of open country for convenience even if this results in some other land being included or in some open land being excluded42.

32. There are five stages to the process:

(i) Draft Maps – Procedurally these are similar to the definitive maps relating to public rights of way43. The maps, prepared by the appropriate countryside body will show registered common land and open country44. Once they are produced a three months period is allowed in which to receive third party views. This is the best opportunity for landowners, walkers and other users to have their views considered.

(ii) Provisional Maps – Having considered any representations made to the draft map the appropriate body will then confirm the draft map with or without modifications and issue a provisional map. If the map has been confirmed with modifications then the provisional map will incorporate these45. Once these provisional maps are produced there will be a right of appeal for landowners if (and only if) they consider an area of land shown on the map is not mountain, moor, heath or down and should not therefore be shown.

(iii) Conclusive Maps – These are the maps which will define where new rights of access arise.

(iv) Commencement – The Secretary of State will decide when the new right of access should begin.

(v) Review – Maps will be reviewed after ten years and no less than every ten years after that (subject to any changes by regulations).

33. Pilot studies were initially carried out in two areas of the country (southeast (area 1) and northwest England (area 2)). Appeal periods (see below) in respect of these closed on 07 01 03 and 18 02 03 respectively, by which time 186 appeals had been lodged against the mapping of land in area 1 and about 400 appeals had been lodged against mapping of land in area 2.

42 Ibid s4(5)(b) 43 see Chapter 4 44 CROW Act 2000 s5(a), (b) 45 ibid s5(c), (d), (e)

Appeals

34. Any person with an interest in any land may appeal to the Secretary of State (if the land is in England) or to the Welsh Assembly (if the land is in Wales) against the inclusion of land as registered common land or open country on the provisional map46. A person has an interest in any land if he/she has a right exercisable by virtue of ownership, license or agreement and includes rights of commoners and sporting rights47. An appeal against the inclusion of common land in the provisional map can be appealed only on the basis that it is not registered common land48. An appeal against inclusion of any land as open country may be brought only on the ground that it does not consist wholly or predominately of mountain, moor, heath or down or that the appropriate countryside body should not have treated it as open country49.

35. On appeal the Secretary of State or Welsh Assembly may approve the whole or part of the map with or without modifications or else they may require the appropriate body to prepare an entirely new map50, which would become the subject of further consultation at the draft stage.

36. Appeals are conducted by means of a private or public hearing or public inquiry if either party so requests or if the Secretary of State or Welsh assembly sees fit51, or else by means of written representations

37. The Secretary of State or Welsh Assembly may require a witness to attend such a hearing, award costs where appropriate and appoint suitable persons to preside upon it52.

38. Once any appeals have been determined or time limits for appeals have expired the map is issued in conclusive form by the relevant countryside authority53. Such maps are to be accepted as evidence in court54.

39. Subject to any alterations made by regulations55, the countryside bodies are under an obligation to review maps published in conclusive form within 10 years and make any necessary changes.

46 Section 6(1) of the CROW Act 2000 47 section 45 of the CROW Act 2000 48 section 6(2) of the CROW Act 2000 49 section 6(3) of the CROW Act 2000 50 ibid s6(4) 51 ibid s7(1) 52 see CROW Act 2000, s 7(2), (3), s8 and Sch 3. 53 Ibid s9(2) 54 ibid s9(6) 55 ibid s10

C RIGHTS GRANTED BY THE 2000 CROW ACT

User Rights

40. Contrary to its adopted shorthand, the CROW Act does not give people the right to roam wherever they want to. Nor does the new right come into effect all at once. It will allow access to certain land throughout England and Wales, once these areas have been defined and opened for access.

41. Under the CROW Act 2000 any member of the public is entitled to enter onto and remain on access lands for open-air recreation provided he or she does not damage or break any fence, wall, hedge, stile or gate and that he or she observes the general restrictions and any specific restrictions relating to that area of land56 (see below).

42. Most activities on foot, such as walking, sightseeing, bird watching, picnicking, climbing and running will be permitted in access land. Wheelchairs and pushchairs are also permitted. The new rights do not include organised games or commercial activities, cycling or (horse-) riding – though where they are currently allowed there is no change. In the interests of protecting wildlife and farm animals, new rules will limit when, where and how (e.g. length and type of lead) a dog can be taken. It is not permitted to take animals other than dogs onto access land (for further details of what can and cannot be done on access lands see section on restrictions below).

43. A major implication for public rights of way is that highway authorities are now required to produce a Rights of Way Improvement Plan for their area , taking into account the needs of the public in terms of recreation, exercise, and enjoyment of the countryside, and considering the particular needs of less able people. This needs to include a statement on how the improvements are to be secured. The plan has to be written within 5 years and reviewed at intervals of 10 years and a prescribed consultation process has to be followed.

Restrictions on Access

44. There are a number of reasons why access may be restricted from some areas, and these include nature conservation concerns, heritage preservation, avoidance of fire, national defence or danger to the public. The restrictions, other than those which relate to dogs, may be altered by regulations57. In particular the right of access does not exist where entry is prohibited by any other public legislation, the

56 CROW Act 2000 s2(1) 57 ibid s44(3). This requires the approval of the House of Commons and the House of Lords

land is ‘excepted land’ (as defined at paragraph 24 above) or the right of access has been excluded or restricted under Chapter II of the CROW Act 2000.

45. General restrictions on public access are set out at Schedule 2 to the CROW Act 200058. Essentially the restrictions seek to exclude activities inconsistent with the quiet enjoyment of access land. Examples include the use of land by persons with animals other than dogs, by persons with vehicles other than an invalid carriage59 (e.g. wheel-chairs, including motorized ones) by persons engaging in organized games or camping. Schedule 2 prevents access by any person who (without a private right or a private permission from the owner):

(a) drives or rides any vehicle other than an invalid carriage as defined by section 20(2) of the Chronically Sick and Disabled Persons Act 1970, (b) uses a vessel or sailboard on any non-tidal water, (c) has with him any animal other than a dog, (d) commits any criminal offence, (e) lights or tends a fire or does any act which is likely to cause a fire, (f) intentionally or recklessly takes, kills, injures or disturbs any animal, bird or fish, (g) intentionally or recklessly takes, damages or destroys any eggs or nests, (h) feeds any livestock, (i) bathes in any non-tidal water, (j) engages in any operations of or connected with hunting, shooting, fishing, trapping, snaring, taking or destroying of animals, birds or fish or has with him any engine, instrument or apparatus used for hunting, shooting, fishing, trapping, snaring, taking or destroying animals, birds or fish, (k) uses or has with him any metal detector, (l) intentionally removes, damages or destroys any plant, shrub, tree or root or any part of a plant, shrub, tree or root, (m) obstructs the flow of any drain or watercourse, or opens, shuts or otherwise interferes with any sluice-gate or other apparatus, (n) without reasonable excuse, interferes with any fence, barrier or other device designed to prevent accidents to people or to enclose livestock, (o) neglects to shut any gate or to fasten it where any means of doing so is provided, except where it is reasonable to assume that a gate is intended to be left open, (p) affixes or writes any advertisement, bill, placard or notice,

58 These derive from and expand upon the restrictions contained in Schedule 2 of the NPACA 1949 59 as defined by s20(2) of the Chronically Sick and Disabled Persons Act 1970

(q) in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does anything which is intended by him to have the effect-

(i) of intimidating those persons so as to deter them or any of them from engaging in that activity, (ii) obstructing that activity, or (iii) of disrupting that activity,

(r) without reasonable excuse, does anything which (whether or not intended by him to have the effect mentioned in paragraph (q)) disturbs, annoys or obstructs any persons engaged in a lawful activity on the land, (s) engages in any organised games, or in camping, hang-gliding or para- gliding, or (t) engages in any activity which is organised or undertaken (whether by him or another) for any commercial purpose.

User Obligations

46. The public’s right of access to open country carries with it certain obligations which must be met. These include not breaking or damaging walls, fences, hedges, stiles or gates and complying with the restrictions set out in Schedule 2 of the of the CROW Act 2000 (see above).

47. A member of the public who fails to meet any of these obligations becomes a trespasser and can be excluded by the owner of the relevant land for a period of 72 hours after leaving it. Whilst no criminal liability is specifically imposed by the CROW Act 2000, other more general criminal sanctions may be engaged in the event of e.g. criminal damage or public disorder on a piece of access land.

Owner/Occupier Rights

48. In certain circumstances (see below) an owner or occupier may exclude or limit a would-be user from exercising his rights under section 2(1) of the CROW Act 2000. For example an owner may require that access is exercisable only along certain routes or by persons without dogs60. In order to exercise the power to

60 ibid s21(3)

exclude the public, a landowner must give notice to the relevant authority in accordance with regulations made under the Act61.

49. Would-be users may be excluded by owners/occupiers from access lands for periods of up to 28 days in any year (with certain limitations on which days: e.g. access cannot be excluded or restricted on Christmas Day, Good Friday or any bank holiday etc.)62.

50. Longer periods of exclusion may be imposed under certain circumstances (see below).

Grounds for Exclusion

Exclusion of Dogs

51. The owner of a grouse moor, for example, may exclude access to people with dogs63 for a period of up to five years for the purpose of land management64 and lamb farmers may exclude people with dogs for up to six weeks a year from land not exceeding 15 hectares in size65.

Land Management

52. Land management is another ground upon which a person with an interest in access land is able to exclude would-be users66. The relevant authority, having regard to the need for the exclusion and the resulting interference with user rights, may issue a direction restricting access to access land (or land likely to become access land67) for a specified period under the 28-day rule68.

Risk of Fire/Harm to Public

53. If weather conditions or activities on adjoining land create the preconditions of fire risk or danger to members of the public then a person with an interest in access land can apply to the relevant authority to make a direction to exclude or restrict public access69 for a specified period. The relevant authority may also

61 CROW Act 2000 s22 62 ibid s22(2), (3), (4),(5) and (8) 63 other than guide dogs see s23(5) 64 ibid s23(1), (4)(a) 65 ibid s23(2), (3), (4)(b) 66 ibid s24(1) 67 ibid s24(4) 68 ibid s24(2) and (3) 69 ibid s25(1)

make such a direction of its own volition, provided always that such a direction is made for proper reasons70. Again, such a direction may extend also to land likely to become access land71.

Nature Conservation/ Heritage Preservation

54. The relevant authority may make a direction limiting or excluding access to access lands for conservation or heritage reasons72. For this purpose the relevant authority must take advice from English Nature or English Heritage (or, in Wales, the Countryside Council for Wales in matters of wildlife and conservation or the Welsh Assembly for proposals relating to sites of heritage or archaeological importance). Whilst private landowners cannot apply directly to the relevant authority for such a direction they may share their concerns with the authority which may give rise to such a direction.

National Security

55. The Secretary of State may restrict or exclude access for a specified or indefinite73 period for reasons of defence or national security74. The Secretary of State must review indefinite exclusions/restrictions at least every five years75 and thereupon prepare a report of all reviews of defence directions taken that year and supply a copy of this report to each of the Houses of Parliament76.

56. All intended exclusions or restrictions must be notified to and discussed with the relevant authority77 in accordance with regulations made under the CROW Act 2000as well as any local access forum which exists in the relevant area78. The relevant authority may revoke or vary directions in the light of changing circumstances by further directions79 after consulting with the original applicant (or successors in title) where reasonably practicable80.

70 ibid s25(5), (3) 71 ibid s25(5) 72 This includes the preservation of monuments scheduled under the Ancient Monuments and Archeological Areas Act 1979 or other structure/site of particular interest (ibid s26(1) and (3)). 73 Ibid s28(2) 74 Ibid s28(1) 75 ibid s28(4) 76 ibid s28(6) 77 ibid s 22(1) 78 ibid s27(1) 79 ibid s27(2) 80 ibid s27(5) and (6)

Owner/Occupier Obligations

Occupiers’ Liability

57. Of particular concern to landowners in the period preceding the passing of the CROW Act 2000 was the extent to which they might be liable in damages for any harm suffered by members of the public on their land. The government’s stated intention in this regard was that the new Act would impose no such additional legal liability on landowners. Section 12 of the CROW Act 2000, together with an amendment to the Occupier’s Liability Act 195781 and to the Occupiers’ Liability Act 1984 82gives effect to this intention. It states:

“The operation of section 2(1)83 in relation to any access land does not increase the liability, under any enactment not contained in this Act or under any rule of law, of any person interested in the access land or any adjoining land in respect of the state of the land or of things done or omitted to be done on the land”

Entry onto Access Lands

58. Not all land categorized as “access land” is in fact accessible to would-be users. So that members of the public can reach it, some of it must have access routes created through non-access lands or through some other impediments to access. Under section 26 of the Highways Act a local authority may create by order a new footpath or bridleway if it is expedient to do so (balancing the increased convenience or enjoyment to the public against the effect on the rights of those with interests in the land, taking into account compensation provisions).

Access Footpaths etc:

59. There is another factor which might at some sites affect the implementation and/or usefulness of the right to roam. In relation to the Definitive Map of Public Rights of Way, there is a cut-off date of 1 January 2026 for:

• the recording on the definitive map of footpath and bridleways created before 1949 which are not yet shown on the Definitive Map, and • the extinguishment of certain rights of way which have not been claimed before the deadline.

81 s13 which brings a user of land under the CROW 2000 Act outside the definition of ‘visitor’ for the purposes of the Occupiers’ Liability Act 1957. 82 Ibid s13(2) 83 this is the section which confers rights on members of the public to enter onto access lands

60. This cut-off date may be extended by regulations. The effect of this is that any paths which should be shown on the definitive map of rights of way by virtue solely of historical evidence and have not been claimed by 1 January 2026 will not be claimable1. Extensive research will therefore have to be undertaken in the meantime to ensure that highway rights are not inadvertently lost.

61. Under the CROW Act 200084 the Countryside Agency (or Countryside Council for Wales) may, having regard to any pre-existing relevant rights of way improvement plan, apply to the Secretary of State (or Welsh Assembly) for a public path creation order to enable the public to obtain entry to any access land to facilitate such access.

62. Under the CROW Act 2000 the highways (or access) authority is empowered to seek agreement with landowners to create or safeguard physical means of access, and in the absence of agreement the highways authority may carry out the work itself.

63. The access authority may enter into an agreement with a landowner to carry out works which appear to the authority to be necessary for giving the public reasonable entry to access land85. The scope of these works is set out at section 35 of the CROW Act 2000. They include the opening up, improvement and maintenance or repair of any means of access and the construction of new ones.

64. These works may either be carried out by the owner/occupier with the possible financial assistance of the access authority or by the access authority itself.

65. The access authority may also impose by agreement with the landowner restrictions on the removal or alteration of current means of entry, with possible payment of compensation for the restriction so imposed86.

66. Such works must be carried out within a reasonable time or by any time specified in the agreement. Upon any failure to so comply the access authority upon giving not less than 21 days notice, make take all necessary steps to complete the works itself, and may recover the costs of such works. Similarly, in the event that the an owner or occupier breached an agreed restriction, the access authority may issue a notice requiring him or her, within a period of not less than 21 days, to remedy the failure by carrying out the required works. The notice must contain particulars of a right of appeal to the Secretary of State or Welsh Assembly.

84 s58 85 s35(1) 86 s35(2)(b)(ii)

Failure to reach agreement

67. Where it is not possible to reach an agreement with a land owner/occupier the access authority may serve on him or her (and any other owner/occupier of the land) a notice stating its intention, after 21 days, of doing the works itself87 and in the event that the owner/occupier still does not do the works, the access authority may do the works itself88. The notice must contain particulars of a right of appeal to the Secretary of State or Welsh Assembly89.

Appeals

68. An owner/occupier may appeal against a notice to the Secretary of State/Welsh Assembly90 in the case of either failure to observe a restriction or where the access authority intends to carry out works itself on the grounds that:

(i) the works are not necessary to remedy a breach of agreement/to give the public reasonable access; (ii) the works have already been carried out/access should be provided elsewhere; or (iii) the specified time for completion of works is too short/the works have already been carried out91.

69. In the event of an appeal the Secretary of State/Welsh Assembly may cancel the notice or confirm it with or without modifications92. The appeal process is the same as that for provisional maps93 (see above). Where the access authority does works it should not commence until any appeal is determined or withdrawn94.

Obstructions

73. The CROW Act 2000 contains provisions for an access authority to apply to a magistrates’ court for an order that a person who has received two or more access notices in the preceding three years should take specified steps to remove obstructions to the means of entry onto access landand not obstruct in future or else face a fine up to level 3 on the standard scale95. If necessary the access authority may remove

87 s37(1) 88 s37(5) 89 s37(2), s38 90 s38(1) 91 s38(2) and (3) 92 s38(4) 93 s38(5) 94 s38(7) 95 s39(1)

obstructions itself and recover the costs (by means, if necessary of a court order) of so doing from the obstructor96.

Management and Control of Access

70. In addition to the management roles of the National and Local Access Forums the CROW Act 2000 contains specific provisions to assist in the management of access land.

71. An access authority has the power:

(i) to make bylaws for the preservation of order, the prevention of damage and for securing that persons exercising the right of access avoid unduly interfering with the enjoyment by others of the land97; (ii) to appoint wardens to secure compliance with the byelaws, to advise and assist the public and those with an interest in the land and to perform such other duties in relation to the access land as the authority may determine98; (iii) to erect notices showing access land and excepted land boundaries and any relevant exclusions or restrictions on access; (iv) to pay for or contribute to the cost of such notices99.

72. Furthermore, in order that the access provision of the CROW Act 2000 can be implemented properly, the Act gives powers of entry onto land (but not dwellings100) for specific purposes to persons authorised by the appropriate countryside body, local highway authority and National Park authority. The CROW Act requires such a person to supply evidence of his or her authority before or during his entry onto the land if so requested101 and to ensure that the land in question, if unattended by its owner or occupier is left as secure as when he or she entered onto it102.

73. An authorised person who enters onto such land must, if practicable, give its owner or occupier at least 24 hours notice103. He or she may enter onto such land in a vehicle, if necessary (i.e. if there is risk of being obstructed), be accompanied

96 s39(2) 97 ibid s17 98 ibid s18 99 ibid s19 100 ibid s40(9) 101 CROW Act 2000, s40(7) 102 ibid s40(6) 103 there is no requirement to give such notice if the purpose of entering onto land is to determine whether any unlawful notices, to deter or prevent public use of access lands, have been posted. CROW Acr 2000 s40(8)

by a police officer, take any necessary materials or equipment and remove samples of land104.

74. It is an offence to obstruct an authorized person from entering onto land, punishable on a summary conviction with a fine not exceeding Level 2 on the standard scale105.

D APPRAISAL OF THE SYSTEM

75. It is early days for the CROW Act 2000. The government has stated that it intends to have access lands available by 2005. The Countryside Agency are to produce codes of conduct and other information for users and for landowners, and are also working towards the development of a national access database which will give information about the many different types of access available.

76. Until such time, and in particular until relevant regulations, circulars and other guidance have been issued it will be difficult to properly appraise the new system.

77. Concerns have already been expressed about compensation provisions. There are no provisions for compensation to landowners whose land becomes subject to the right of access, but under certain circumstances, compensation may be payable for other reasons. If it is necessary to create new public rights of way to reach areas of open access, or if damage is sustained to any person in the exercise of powers conferred by the Act, there may be an entitlement to some compensation.

78. The limited nature of compensation payable has exacerbated discontent from landowners about their perceived loss of privacy and control of their own land. In addition to the ever present tension between the interests of the public and those of private landowners there is some concern about the legislation as drafted. Some consider the CROW Act 2000 to be complex, incomplete and in parts barely workable.

79. An alternative solution to the challenge of opening up countryside for public use might have been to abolish the law of trespass and set out exceptions (rather than the existing reverse presumption). This is the system which operated in Scandinavia, where is works well and is now being introduced in Scotland. If the Scottish experiment works too, England and Wales may follow.

80. Seventy years after the right to roam campaign was launched, the first of a series of draft maps of access lands are now being published. Poignantly, the Peak

104 ibid s40(5) 105 ibid s40(10)

District, where the most celebrated confrontation between ramblers and landowners took place, is the first area to be delineated, along with the southeast containing two-thirds of the South Downs.

81. An estimated 4m previously forbidden acres of mountain, moor, heath and down could soon be opened up to the public. Undoubtedly certain landowners will resist this. Those affected will be able to dispute the new maps through the system of challenges which is included with the CROW Act 2000. There is already talk of possible challenges under the Human Rights Act on the grounds of loss of value to property.

82. Notwithstanding private- public interest tensions and the likelihood of legal challenges to the stage by stage activation of the provisions of the CROW Act 2000 it now seems inevitable that large areas of the countryside will soon become available for public recreational use.

83. The Countryside and Rights of Way Act received Royal Assent at 8pm on Thursday 30 November after a century-long campaign. Whilst some of the new rights are already engaged, the majority will only come into effect once the land has been mapped by the Countryside Agency and Countryside Council for Wales, and all the regulations and procedures for closures and restrictions are in force.

84. On current estimates mapping of all access land across England and Wales should be complete by autumn 2004 and people should be able to walk on this land by spring 2005.

85. The new arrangements, introduced through force of statute, roughly follow those which landowners had the opportunity to enter into voluntarily under the NPACA 1949 Act which set up national parks and provided legal underpinning for 140,000 miles of footpaths.

86. Half a century ago landowners declined to extend the public’s right to roam across wilderness areas. Parliament is now compelling them to do so.

Richard Wald 15th June 2004 39 Essex Street London WC2R 3AT Telephone: 020 7832 1111 [email protected]