2000 Chapter 37

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These notes refer to the Countryside and Rights of Way Act 2000
which received Royal Assent on 30 November 2000 (c.37)

Countryside And Rights Of Way Act 2000

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Countryside and Rights of Way Act which received Royal Assent on 30 November. They have been prepared by the Department of the Environment, Transport and the Regions (DETR) with the Office of the Secretary of State for Wales, in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

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

3.     The Act contains measures to improve public access to the open countryside and registered common land while recognising the legitimate interests of those who own and manage the land concerned; it amends the law relating to rights of way; it amends the law relating to nature conservation by strengthening protection for Sites of Special Scientific Interest including tougher penalties and by providing extra powers for the prosecution of wildlife crime; it provides a basis for the conservation of biological diversity; and it provides for better management of Areas of Outstanding Natural Beauty.

4.     This Act has five Parts covering:

• Access to the countryside

• Public rights of way and road traffic

• Nature conservation and wildlife enforcement

• Areas of Outstanding Natural Beauty

• Miscellaneous and supplementary

PART I: ACCESS TO THE COUNTRYSIDE

Summary

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

6.     There will be restrictions on the new right — for example, the Act includes provisions for landowners to exclude or restrict access for any reason for up to 28 days a year, and to exclude dogs on grouse moors and in small fields during lambing time, without seeking permission. Landowners will also be able to seek further exclusions or restrictions on access for reasons of land management, fire prevention and to avoid danger to the public. The Countryside Agency (in Wales, the Countryside Council for Wales — together referred to as the countryside bodies) and in national parks, the National Park authorities, will be able to give directions for these purposes and, in addition, will be able to direct the exclusion or restriction of access on grounds of nature and heritage conservation. The Act also includes provisions for further restrictions on dogs on access land.

Background

7. There is a long history of people desiring to have greater access to open countryside. Since the turn of the last century some reforms have been made, for example the Law of Property Act 1925 gave people the right of access for air and exercise to metropolitan and urban district commons, including large areas in the Lake District and South Wales. In 1949, the National Parks and Access to the Countryside Act provided for the creation of public access to open country by agreement or order: some 50,000 hectares of access are thought to have been secured under this Act. Despite such measures, it is estimated that there are still around 500,000 hectares of open countryside in England and Wales where access is not permitted and a further 600,000 hectares where public access occurs on an informal or de facto basis ¹.

1 Source: Appraisal of Options on Access to the Open Countryside of England and Wales, published by DETR March 1999 (Full Report): Price £45 ISBN 1 85112 158 5. Available from DETR Publication Sale Centre, Goldthorpe Industrial Estate, Goldthorpe, Rotherham, S63 9DL. Tel. 01709 891318, Fax. 01709 881673. A summary document is available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

8.     In February 1998 the Government issued a consultation paper, Access to the Open Countryside in England and Wales ², which invited views on how best to secure more and better access to open countryside. The paper sought views on both statutory and voluntary approaches to achieving greater access, and estimated that the total extent of mountain, moor, heath, down and registered common land was some 1.2 to 1.8 million hectares or around 10% of the land area of England and Wales. The consultation paper set out key criteria against which the approaches would be judged — extent, quality and permanence of access, together with cost, clarity and certainty, and monitoring and enforcement.

2 Published by the Department of the Environment, Transport and the Regions and the Welsh Office, February 1998. Available free of charge from: DETR Free Literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

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

10.     In the light of the results of consultation and of a study of the costs and benefits of different approaches for securing greater public access, the Government decided to legislate to create a new statutory right of area access as part of a wider package to improve public access to the countryside. Ministers announced the decision to Parliament on 8 March 1999 ³. The Government also published its conclusions in The Government's Framework for Action: Access to the Countryside in England & Wales ⁴ outlining a package of measures for improving public access to the countryside. It also issued an Analysis of Responses on Access to the Open Countryside of England and Wales ⁵ and, separately, an Appraisal of Options on Access to the Open Countryside of England and Wales ⁶.

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

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

5 Published by DETR February 1999 (Full Report): Price £10 ISBN 1 85112 159 5. Available from DETR Publication Sale Centre, Goldthorpe Industrial Estate, Goldthorpe, Rotherham, S63 9DL. Tel. 01709 891318, Fax. 01709 881673. A summary document is available free of charge from: DETR Free literature, PO Box 236, Wetherby LS23 7NB. Tel. 0870 1226236, Fax. 0870 1226237. Published on the internet at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

6 See footnote 1. for full reference.

11. When the Government's Framework document was published in March 1999, the Government asked the countryside bodies and the Forestry Commission to report later in 1999 on access to other types of open countryside, such as woods, coastal land and riverside ⁷. The Countryside Agency recommended in October 1999 that the statutory right of access should be extended to coastal land such as beaches and cliffs. This recommendation is reflected in the inclusion in the Act of a power to extend the statutory right to coastal land by order.

7 These recommendations can be viewed on the internet, via the DETR website at: http://www.wildlife-countryside.detr.gov.uk/cl/index.htm

Commentary on sections

Sections 1 to 3 and Schedules 1 and 2: General

12.     Section 1 sets out the categories of access land to which the public are to acquire a right of access. Land which is wholly or predominantly mountain, moor, heath or down is defined as "open country". Open country will qualify as access land if it has been shown on a map of open country issued by the countryside bodies. The countryside bodies will be responsible for deciding the extent of any mountain, moor, heath and down. However, land is not to be regarded as mountain, moor, heath or down if it is improved or semi-improved grassland. Land over 600 metres above sea level and registered common land immediately qualifies as access land without any requirement for mapping by the countryside bodies, but the bodies will in due course also include these categories of land on their maps. Access land will also include land which under section 16 is irrevocably dedicated by the owner to public access.

13.     Subsection (1) of section 1 provides that "excepted land" (defined in subsection (2) and Schedule 1) is not treated as access land, even where it appears on maps of open country and registered common land. Land of the descriptions set out in Part I of Schedule 1 — such as land on which there are buildings, golf courses or parks, and land within 20 metres of a dwelling — is to be regarded as excepted land, to which there is no right of access whilst it remains of that description. Paragraph 15 of Schedule 1 requires that, in order to qualify as excepted land, any necessary planning permissions must have been granted or any development must have been otherwise treated as lawful for the purposes of planning legislation. Paragraph 1 provides that land will qualify as excepted where the soil has been disturbed within the past year by ploughing, drilling or similar agricultural or forestry operations for the purposes of planting or sowing crops or trees. Land over which there are byelaws in force made by the Secretary of State for Defence for the purposes of military training or national defence will also count as "excepted land": the new statutory right will not apply, but any existing access provided for in the byelaws (where applicable) will continue.

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

15.     Subsection (3) defines registered common land as land which has been registered as such under the Commons Registration Act 1965, and whose registration has become final under that Act. The 1965 Act provided for the registration of all rights of common, as well as land subject to rights of common (and caused any rights of common which were not registered in due time to be incapable of being exercised). A right of common is "a right, which one or more persons may have, to take or use some portion of that which another man's soil naturally produces" ⁸. Subsections (3)(b) and (4) provide that, where land has been removed from the register of common land in pursuance of an application for that purpose made after the date of Royal Assent, it will continue to be treated for the purposes of Part I (but not otherwise) as registered common land. However, this special provision does not apply to land which is removed from the register under various statutory powers of acquisition or exchange.

8 Halsbury's Laws of England (4th ed.), vol 6, page 197.

16.     Section 2 gives people a right of entry onto access land (defined in section 1) for the purposes of open-air recreation, provided that they enter without breaking any wall, fence or gate, and that they do not contravene any of the restrictions set out in Schedule 2 or imposed under Chapter II. By virtue of subsection (3), the right does not apply where entry is prohibited in or under any other public legislation. Schedule 2 restricts activities and behaviour which may be undertaken in pursuance of the right of access. In particular, paragraph 1(a)-(c) excludes the use of any vehicle (including bicycles) or craft (on water), and horse-riding. Paragraph 1(d) provides that the commission of any criminal offence (which includes transgression of a byelaw) on access land will amount to a breach of the restrictions. Schedule 2 also includes specific restrictions for the control of dogs, including a requirement for dogs to be kept on short leads during the designated period, and in the vicinity of livestock. By virtue of section 2(4), people who break any of these restrictions will lose their right of access to land in the same ownership as that on which the breach occurred, for a period of 72 hours, and may be treated as trespassers by the owner of the land. Breach of a restriction will not in itself constitute a criminal offence, although some of the activities set out in Schedule 2 may constitute criminal offences under other legislation.

17.     Paragraph 3 of Schedule 2 enables the Secretary of State (or the National Assembly for Wales) to amend by regulations the list of restrictions in paragraphs 1 and 2 (but not the restrictions relating to the control of dogs). By virtue of paragraph 7, any of the restrictions in Schedule 2 may be lifted or relaxed by the relevant authority with the consent of the owner, so that the public may exercise wider rights than those normally permitted. This provision might be used to allow people, for example, to exercise the right of access on horseback, or without keeping dogs on leads during March to July.

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

Sections 4 to 11 and Schedule 3: Maps

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

20.     Section 4 imposes a duty on the countryside bodies to prepare maps of open country and registered common land (which must be separately identified). It also gives the countryside bodies a discretion not to map small areas of open country, and to map the boundary of open country to an appropriate physical feature. This discretion does not apply in the mapping of registered common land.

21.     Section 5 sets out a procedure for public consultation on draft maps. The countryside bodies are required to take any comments during the consultation into account when revising the maps, which they must then issue as provisional maps.

22.     Section 6 provides a right of appeal to the Secretary of State (or the National Assembly for Wales) against the showing of any land on provisional maps as open country or registered common land. The right may be exercised by anyone with an interest in the land, which includes the owner, a tenant, a commoner, or generally anyone with any rights over the land (see the definition of interest in section 45). An appeal against the showing of land as open country may be brought on the grounds that the land is not wholly or predominantly open countryside, and (where relevant) that the boundary of the land should not have been mapped to a nearby physical feature. However, an appeal against the showing of land as registered common land may be brought only on the ground that the land is not registered as common land under the Commons Registration Act 1965 (see the definition of registered common land in section 1). On determining an appeal, the Secretary of State (or the National Assembly for Wales) may confirm the map with or without modifications, or he (or it) may direct the relevant countryside body to prepare a new map (which may be of the land subject to the appeal, or all or part of the map on which the land is included). If a new map is prepared, further consultation will then take place on the new map in draft form.

23.     Sections 7 and 8 and Schedule 3 set out a procedure for the hearing of appeals, and appellate functions in respect of which the Secretary of State (or the National Assembly for Wales) may delegate his (or its) powers.

24.     Under subsection (1) of section 7, an appellant (or the relevant countryside body) may elect for a hearing of the appeal (rather than for the appeal to be determined by correspondence), and the Secretary of State (or the National Assembly for Wales) may decide to deal with any case by means of a hearing or a local inquiry, whether or not one has been requested. Subsection (2) of section 7 provides (by reference to subsections (2) to (5) of section 250 of the Local Government Act 1972) that, where a hearing or inquiry is held, witnesses may be required to attend and give evidence, and costs may be awarded. Costs arising from any planned hearing or inquiry which does not take place may also be awarded under subsection (3), where the hearing or inquiry has been requested by either of the parties.

25.     Section 9 provides for a provisional map to be confirmed as a conclusive map once all appeals (in relation to the land shown on the map) have been determined, or, if there were no appeals (or any appeals were withdrawn), after the period for lodging appeals has passed. The Secretary of State (or the National Assembly for Wales) may at any time direct the countryside body to issue in conclusive form any part of a provisional map in respect of which there are no appeals outstanding. A conclusive map will incorporate any modifications made by the Secretary of State (or the National Assembly for Wales) on appeal. Subsection (6) ensures that a document which has been certified by the appropriate countryside body as a copy of a conclusive map may be used in evidence in court without further proof of provenance.

26.     Section 10 requires the countryside bodies to review a statutory map within ten years and not less frequently than every ten years thereafter (or any other periods specified by the Secretary of State or the National Assembly for Wales by regulation). On review, the bodies must consider both whether land shown on the map as open country or registered common land remains of that description, and whether other land should now be shown as open country or registered common land.

27.     Section 11 makes provision for the Secretary of State and the National Assembly for Wales to make regulations supplementing the provisions of sections 4 to 10 on mapping. These regulations will (among other things) provide for the procedure to be followed on a review.

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

28.     Section 12 provides that the right of access does not increase the liability of a person interested in the land in respect of the state of the land or things done on it. It also provides that persons interested in the land will not be liable for the breach of any covenant restricting the use of the land, and that the statutory right takes precedence over the covenant. Under subsections (3) and (4), use of any path or area of land in exercise of the right of access cannot support a claim for the existence of a right of way or of a town or village green.

29.     Section 13 amends the Occupiers' Liability Act 1957 so as to reduce the liability of occupiers of land owed to those exercising the right of access to the same level which would be owed to trespassers, but further provides (by amending the Occupiers' Liability Act 1984) that, at any time when the right is exercisable, occupiers of access land will owe no liability to those exercising the right of access, nor to trespassers, in respect of risks arising from: natural features of the landscape; any river, stream, ditch or pond; and the passage of any person across a wall, fence or gate (except by proper use of a gate or stile). "Natural features" are defined so as to include any plant, shrub or tree. Liability is not excluded in any of these circumstances if the risk arises from anything done intentionally or recklessly by the occupier. Subsection (3) provides that the courts, in determining whether any liability is owed to non-visitors on access land, must have regard to certain additional considerations.

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

Sections 15 and 16: Access under other enactments and by dedication

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

32.     Section 16 allows the owner of land to dedicate the land for the purposes of this Part of the Act, so that it is treated as access land for the purposes of the general right of access under section 2(1). Such dedications are irrevocable, although land which has been dedicated under this section may nevertheless become excepted land. The owner of a lease with an unexpired term of at least 90 years may (by virtue of subsections (1) and (4)) dedicate the land for the duration of the lease. The person dedicating the land may provide that any of the restrictions set out in Schedule 2 should be relaxed or removed, so that, for example, people may exercise the right of access on horseback. The dedication may be subsequently amended in order to exclude or relax further restrictions, but not so as to reimpose any restrictions. Land may be dedicated under this section even if it would otherwise be access land (because it is open country or registered common land). This will allow the person dedicating the land to lift any of the restrictions set out in Schedule 2, and dedication will ensure that the land remains access land even if it ceases to be open country or registered common land (unless it becomes excepted land). Subsections (2) and (6) allow the Secretary of State (or the National Assembly for Wales) to make regulations, including regulations prescribing the form of dedication, requiring its notification to the appropriate countryside body and the access authority, and making provision for the dedication of land where interests are held in the land other than by the owner of the fee simple.

Sections 17 to 20: Miscellaneous

33.     Section 17 provides a new power to make byelaws. Where necessary, access authorities (defined in section 1 as the local highway authority, or in national parks, the National Park authority) will be able to make byelaws to preserve order, to prevent damage on access land in their area, and so as to avoid undue interference with the enjoyment of the land by others. Byelaws will not affect the exercise of rights of way crossing the land to which they apply. Whereas a failure to comply with the restrictions set out in Schedule 2 will not in itself constitute a criminal offence, transgression of a byelaw may be made an offence punishable by a maximum fine of level 2 on the standard scale (currently £500). Byelaws will need to be confirmed by the Secretary of State (or the National Assembly for Wales). Byelaws may be made in anticipation of land becoming access land, but may not be confirmed until such time as the land is access land. Once confirmed, they may be enforced by any other county, district or parish council in whose area lies the land affected by the byelaws.

34.     Section 18 enables access authorities to appoint wardens in respect of access land, so as to give advice both to access users and land owners, to secure compliance with byelaws, with the restrictions set out in Schedule 2 and with any restriction or exclusion imposed under Chapter II. Wardens will have a right of access to access land, but must produce evidence of their appointment if required. Wardens will generally have no powers to undertake any activities on the land which would cause damage to the owner.

35.     Section 19 permits access authorities (after consulting with the owner or occupier of land affected) to erect notices indicating the boundaries of access land and excepted land, notifying the public of the general restrictions set out in Schedule 2 and any exclusions or restrictions in force under Chapter II, and providing information about any other matters relating to the land or access to it. Authorities may also contribute toward the cost of such signs provided by anyone else (such as the owner or user groups): they are not obliged to do so.

36.     Section 20 imposes a duty on the countryside bodies to issue a code of conduct for the guidance of users of the right of access and persons interested in access land (such as farmers, landowners and commoners). It also requires the countryside bodies to take such steps as they consider expedient to ensure that the public are informed of the extent of and means of access to access land, and that both the public and persons interested in access land are informed of their rights and obligations under the statutory right of access. It also allows the countryside bodies to use the code as a means of fulfilling their existing duties under section 86 (1) of the National Parks and Access to the Countryside Act 1949 to prepare a country code relating to National Parks, Areas of Outstanding Natural Beauty and long distance routes. The section enables the countryside bodies to contribute towards expenses incurred by third parties in providing information about the new right.