ACCESS ON COMMONS

Introduction

The purpose of this guide is to cover the access to the Countryside as defined by legislation.

There has been much discussion about access to the countryside in various legislative documents, such as the following. The Wildlife and Countryside Act, 1981, The Countryside and Rights of Way Act (CROW) 2000 and two other, as yet little known acts which are currently making their way through the parliamentary process. They are the Natural Environment and Rural Communities Bill and the Commons Bill. The latter of these two Bills will have a direct effect on the agricultural management of common land, which will affect farmers.

The Natural Environment and Rural Communities Bill, will make provision for bodies concerned with the natural environment and rural communities, it is mainly concerned with:-

1 wildlife

2 Sites of Special Scientific interest

3 National Parks including the broads

It will amend laws relating to rights of way; provide for flexible administrative arrangements in connection with functions relating to the environment and rural affairs and certain other functions and for connected purposes. In other words it is a very wide ranging piece of legislation affecting rural communities.

There is public access for air and exercise to Metropolitan and “urban” commons under section 193 of The Law of Property Act, 1925 but this does not apply to most rural commons. Where this statutory right does not automatically apply, the owner of the common is able to grant the same rights of access by deed if the land was subject to rights of common at the commencement of the Act (1925).

Some commons are also subject to rights of access under orders and schemes of regulation made under the Commons Acts of 1876 and 1899 respectively. Currently, roughly 20% of common land is subject to public rights of access under the Commons Acts, although there is informal access to many other commons.

As a result of the CROW Act 2000 part 1 the public have a right of access ON FOOT for quiet enjoyment on registered common land and mapped open country, unless it is excepted land, which includes :-

1 cultivated land,

2 land covered by buildings

3 land within 20 metres of a dwelling

4 land used as a park or garden

5 land used for the getting of minerals by surface working including quarrying

6 land for the purpose of a railway, or tramway

7 a golf course

8 racecourse

9 aerodrome

10 land covered by works used for the purposes of a statutory undertaking (utilities) or telecommunications system

11. land within 20 metres of a livestock building unless it is a means of access to access land

12 land covered by pens in use for the temporary reception or or detention of livestock

13 land habitually used for the training of race horses is excepted between dawn and midday and at any other time when it is in use for that purpose

14 land regulated by bylaws under s14 of the Military Lands Act 1892 or s2 of the Military Lands Act 1900

In order to qualify as excepted land, any necessary planning consents must have been obtained. Land over which bye-laws made by the Secretary of State for Defence are in force will also count as excepted land.

A further category of excepted land is land covered by pens in use for the temporary reception or detention of livestock

2 Types of public rights of way

Below is a summary of the different types of public rights of way and how they can be used:-

All public rights of way are legally recorded on, Definitive maps, which record public rights of way in four categories;--

1 footpaths

2 bridleways.

3 restricted by ways

4 byways open to all traffic

The maps are supported by Definitive statements, this is a legal record so that everyone, walkers, riders, farmers and landowners alike, know which paths are public rights of way.

Copies of Definitive maps and Statements are held by the Local Access Authority

Footpath, may only be used for walking

Bridleway; may be used for riding or leading a horse which includes a donkey or mule, as well as for walking. Bicycling is permitted providing cyclists give way to horse riders and pedestrians. Driving a vehicle is not permitted, even if it is horse drawn. Sometimes the public have a right to drive animals, such as cattle or sheep, along a bridleway. Where they do, this should be recorded on the definitive statement

Restricted bridleway, may be used for all the same activities as a bridleway as well as the driving of non-motorised vehicles such as a horse drawn carriage.

A byway open to all traffic (often referred to simply as a byway) is a highway that is used by the public mainly for walking, riding horses or cycling, but over which there is a right to use any kind of wheeled vehicle, whether horse drawn or mechanically propelled.

Restricted byway When the Countryside and Rights of Way Act is fully operational roads which are shown on maps as “roads used as public paths” (RUPPS) mostly will be classified as restricted byways and can be used by the public on foot or horse back and by users of non-motorised vehicles (such as bicycles and horse drawn carriages).

Green lane, this term has no legal meaning. Any public right of way along a green lane will fall into one of the other categories.

Another term which may be encountered is “Unclassified Country Roads” (UCRs). Public roads include many minor (“unclassified”) roads (which may or may not be surfaced with tarmac or stone). Public roads primarily carry vehicles, but may also be used by walkers, cyclists and horse riders, if the status of the road allows. It cannot always be assumed that unclassified country roads carry vehicular rights for use by mechanically propelled vehicles

Although powered invalid carriages, mobility vehicles and wheelchairs are mechanically propelled vehicles they are excluded from the application of certain road traffic legislation and so their use on any public right of way would not be a criminal offence. Manual self- propelled wheelchairs are not classified as vehicles for purposes of rights of way usage

3 Open Access Land

Under common law, members of the public do not have any right to wander at will or walk across common land.

Commons are not “commonly owned” and rights of common extend only to local communities (not even local residents) allowing them certain rights over the land. Beyond this, the owner of a common has the normal rights of an owner of land, including rights to evict trespassers from the land. However, he may not exclude the public by fencing the land as this will interfere with exercise by the commoners of their rights. As with any other land, it may be that public or private rights of way exist over the property

Access on most commons is now covered by the CROW Act of 2000, which has recently created new rights of access to mapped open country and common land.

This legislation introduced a new right of access on foot for open air recreation to mapped open country namely,

1 mountain

2 moor

3 heath and downland

4 registered common land

Improved and semi improved grassland is excluded from the

definition. There is a provision for the definition to be extended to include coastal land and for land owners to dedicate any land for public access.

The public will be allowed on access land (which has been defined and opened) where they may, walk, run, climb and picnic. They may not ride a horse, or a bicycle drive a vehicle, camp, shoot or hunt, or take part in any organised games,(hang-glide or para-glide) or commercial activity. They can take a dog but no other animal (See dogs below)

They are required to:-

1 shut and fasten gates

2 not interfere with fences, walls and other boundaries,

(although they can climb them)

3 not intentionally or otherwise do something which disturbs

annoys, or obstructs another persons lawful use of the

access land

4 not take any specimens of flora or fauna or eggs.

Sites of Special Scientific Interest (SSSIs) do not have any special status under the legislation, so those falling within the access area will be open exactly the same way as other area. However, Natural England can recommend to Access Authorities that additional restrictions are put in place if wildlife requirements warrant it.

4 Legal rights responsibilities and restrictions.

a) People using public rights of way may:-

1 stop to admire the view

2 take a photograph

3 rest or sketch

They may carry articles connected with their immediate recreation such as:-

1 camera

2 binoculars

3 back pack

4 bag to carry articles being transported

5 wheeling a push chair or pram (sometimes not practical because of the terrain)

Restrictions apply to such items as firearms, imitation firearms, air weapons loaded or unloaded together with ammunition for use with that firearm, or a blade or anything which is sharply pointed (other than a small folding pocket knife) in a public place which includes access land and any highway, WITHOUT LAWFUL AUTHORITY

b) Trespass If a public right of way is used for any purpose unconnected with passing along a route, or if anything is done which is not reasonable part of a journey such as deliberately disturbing people or animals, there is a risk that that can be regarded as trespass. Deliberately disturbing lawful activities of others (such as grouse shooting) may also be an offence under the Criminal Justice and Public Order Act 1994 section 68

The basic principle is the right to ’pass and re-pass’ along rights of way “on those lawful occasions” in so doing they do not commit trespass against the owner of the land over which they pass. In addition to such, journeying members of the public may also do things which may be regarded as “reasonably” incidental

Those wandering off the route of the right of way for an improper purpose become trespassers. Trespass generally is a civil wrong not a criminal offence. Any court proceedings will be to compensate the landowner not to punish the trespasser.

A trespasser may be removed from the land by the owner, using reasonable force. However, there is a duty of care here, by the person carrying out the removal of the trespasser as he may face both civil wrong and a criminal offence if he is over zealous.

If a landowner evicts a trespasser and the trespass continues then he may apply to the Court for an injunction against the trespasser. The court is empowered to make an order to compensate for damages.

There are special provisions regarding “squatters” settling on agricultural land, but the assistance of the police must be sought. They have the statutory powers necessary to deal with these matters

c) Dogs, There is no duty on the Highway Authority or the Landowner to make special provision for dogs. Dogs must be under close control at all times. They should not be allowed to stray from the path and should be kept on a lead at all times where there is livestock and in particular sheep.

Under the Dogs (Protection of Livestock) Act 1953 S1(1) a criminal offence is committed by the owner or person in charge of any dog which, on agricultural land “worries” livestock. “Worries livestock” is defined in broad terms as attacking or chasing, sheep, cattle, goats, swine horses or poultry. There is extra provision regarding sheep by virtue of the Wildlife and Countryside Act, 1981 that worrying includes “being at large” (that is no say not on a lead or otherwise under close control) in a field or enclosure where there are sheep. The reference to “field or enclosure” would seem, however, to exclude the operation of this provision for open upland (never been put to the test). Exclusions are guide dogs, police dogs, a pack of hounds and trained sheepdogs and working gun dogs. A farmer may shoot the dog chasing or worrying his livestock without recompense to the owner.

Dogs must be kept on a lead during the bird nesting season (1^st March to 31^st July)

A lead must not be longer than 2 metres (6 feet 6 inches).

d) Cycles. It is an offence to drive or ride a cycle dangerously or carelessly, or without consideration for other users on a public highway (or other route which the public may lawfully use) It is also an offence to take part in a race or speed trial that has not been properly authorised, including one between bicyclists on a bridleway

e) Cycle tracks. Highway Authorities have the power to create routes specifically for cyclists or to modify the status of existing routes so that they become available for use for cyclists, and, in some cases, exclusively for cyclists.

f) Permissive paths. Landowners may be willing to let the public use other paths and tracks over their land that are not public rights of way. These are called “permissive paths”. There is no statutory right to use such paths (and they are not subject to any other aspects of public rights of way law) but, they may be used by the public with the permission of the landowner.

Often there will be notices at each end of the route outlining this and any other conditions which the owner sees fit to apply.

g) Maintenance. The main responsibility for public rights of way lies with the Highway Authority for a particular area. Highway Authorities have a wide range of “statutory duties” to protect and maintain the public rights of way. In addition they have certain “discretionary powers” covering actions they can take if they wish to do so.

With few exceptions, it is the landowner or occupiers responsibility to maintain gates and stiles in a safe condition. If they do this they can receive up to 25% of the cost from the Highway Authority. Many Highway Authorities now provide repair kits for the job.

5 Problem solving

If there are recurring problems with members of the public failing to comply with the requirements of CROW the best initial course of action may be to raise these with the National Park or County Council ranger or member of staff. They may be able to help manage the problem more effectively by way of erecting new signs or access points or putting additional information on the access web site. It may be sensible to create “desire lines” for the public, which fit in with individual farming practices. This could be done by placing gates and stiles in appropriate places or signing and creating a visible route for the public to follow. The latter may involve cutting back vegetation or placing stepping-stones. Try to make signs positive as they are more likely to be effective. For example you might use wording such as:

“Is your dog safe with sheep? Don’t take risks”

Help us to reduce disturbance to lambs and nesting birds – Please keep your dog on a lead less than 2 metres long.

If you are experiencing problems with a particular user group or with local people think about organising a meeting at which you can explain your problems and listen to your concerns. Again the National Park Authorities or County Council may be able to help with this.

If problems persist and a member of the public fails to comply with the restrictions imposed by CROW legally he or she will become a trespasser and can be denied access to that land or any land in the same ownership for the next 3 days. There is no criminal liability for failure to comply with the obligations of the CROW Act.

6 Excluding the provisions of CROW

It is possible to exclude land from the access provisions of CROW on a short or long term basis. This can be done in two ways; either by the use of discretionary powers or by way of a direction. The former are only available to the owners of common land, whereas owners or commoners can use the latter.

a) Discretionary powers

These do not require the consent of the National Park Authority or Countryside Agency although they must be notified in advance.

Members of the public may be excluded from access land for up to 28 days in any calendar year. These days may be consecutive and can be whole or part days. They cannot be:

1. Bank holidays, Christmas Day or Good Friday

2. Saturdays between 1^st June and 11^th August

3. Sundays between 1^st June and 30^th September

4. More than 4 week end days in any calendar year.

The Open Access Contact Centre must be given at least 5 working days notice of closure unless the area affected is either 5 hectares or less and the restriction is for 5 days or less, or the restriction will be in place for no more than 4 hours in which case only 2 hours notice is required. The Centre will pass the notice on to the Countryside Agency or National Park Authority. However, the onus is on the person notifying the restriction to ensure that there are notices on site informing the public that a restriction is in place.

b) Direction

An application to exclude or restrict access for purposes of land management or public safety, including the fire risk, may be made by the common owner or commoner. This can be for a specified period every calendar year. Land management can include farming activities or sporting events.

A commoner can only apply for a direction if it is necessary in order to exercise grazing (or other) rights but cannot apply for a direction to exclude the public in order to carry out bracken spraying. A good working relationship between commoners and common owner will help to get round this potential problem area.

How to apply. The Open Access Centre must be given at least 4 months notice for any direction which would be in place for over 6 months, and 6 weeks notice for a shorter period. They will pass the notice on to the Countryside Agency or National Park Authority for a decision. If the period is over 6 months the Local Access Forum will also be consulted.

It is advisable for anyone who may need to apply for a direction to exclude or restrict access in the future to register details with the Open Access Centre. Applications forms can be found on their web site or obtained by post. Completed forms should be sent to the Open Access Centre in Belfast who will pass those relating to land within the National Parks to the relevant authority.

The Authority/Agency may vary the details of the direction and may refuse it. In such cases the applicant has the right of appeal to the Secretary of State within 6 weeks of the issue of the decision.

Other powers

In addition the National Parks or Countryside Agency may make a direction for the purpose of excluding the public, without having received an application, if they feel that it is necessary to do so for the purposes of public safety or for the avoidance of fire risk. In addition they may exclude or restrict access for the purpose of conserving flora, fauna, geology or heritage, an option not available to landowner or commoner. Example, it may be felt that the public should not have access to an area of common land which is a known nesting site for Black Grouse

Note: discretionary and directive closures apply only to access rights granted under CROW. The public will still have the right to use public rights of way across land.

7. Useful Contacts and leaflets

Countryside Open Access Centre

P.O.Box 725

Belfast BT1 3YL

Helpline 0845 1003298

Open Access advice

www.countrysideaccess.gov.uk

www.openaccess.gov.uk

Leaflets The Countryside Code

Yorkshire Dales National Park Authority

Access and Recreation Manager

Yoredale