Countryside and Rights of Way Act
The Countryside and Rights of Way Act 2002 explained by Nigel Atkinson FRICS
The desire to open up access to the countryside has been around since the middle
of the 19th century. The Countryside and Rights of Way Act 2002 has finally
delivered the right to roam over registered common land and mapped open country,
subject to a variety of exceptions, exclusions, and restrictions. The
Countryside Agency in England and the Countryside Council for Wales have
prepared "conclusive" maps showing the "access" land
Some definitions are needed. “Open Country” means mountain, moor, heath and
down, but does not include improved or semi-improved grassland. “Mountain” means
land over 600m above sea level. “Excepted Land” is not subject to the right to
roam. This may cause problems where it falls within open country, since it is
not shown on the conclusive maps. The main categories of excepted land are as
follows:
Mapping is now complete. Firstly the Countryside Agency or the Countryside
Council for Wales prepared a “Draft Map”. Interested bodies could then make
representations. A “Provisional Map” was then prepared incorporating any
modifications which arose from the consultation process. Interested persons
could appeal against inclusion of land at that stage but only on the basis that
1) the access land was not wholly or predominantly mountain, moor, heath, or
down, or 2) that the physical boundaries used also included some land which was
not open country, or 3) in the case of common land that it was not registered.
The appeal could be by a variety of means. Once all appeals had been resolved or
withdrawn, a “Conclusive Map” was prepared which included any results from the
appeals. Only at that point did the Right to Roam come into force. The
Conclusive Map is similar in many ways to the Definitive Map used for public
rights of way. It is reviewed at 10 year intervals.
The public’s right of access may be restricted or excluded. Restrictions may
include use only of specified routes or ways and access points onto the land;
and restrictions on dogs. The public may also be excluded for up to 28 days a
year. These can be divided up as required by the owner, but must not include
Bank Holidays, any Saturday between 1st June and 11th August, or any Sunday
between 1st June and 30th September. Owners of grouse moors may exclude dogs for
up to 5 years, and farmers owning land used for lambing may exclude dogs for up
to 6 weeks in any year. Anyone with an interest in land may apply to exclude or
restrict access for longer periods for land management reasons, or temporarily
to prevent fires after exceptional weather. Sometimes restrictions or exclusions
can be granted to protect flora, fauna, geological or topographical features,
Ancient Monuments and areas of special interest. In all cases an application has
to be made to the relevant authority, and decisions can be appealed against.
Finally the Secretary of State has powers to exclude or restrict for reasons of
defence or state security.
Finally, a highway authority (or in a National Park the National Park Authority)
has powers to seek agreement with landowners to create or safeguard physical
means of access onto access land, such as openings in walls, fences etc, gates,
stiles, stairs or steps, and bridges or stepping stones. Failing an agreement,
they can carry out the work themselves. The authority can also prevent the
destruction or stopping-up of existing accesses.
In summary, by about 2005 all of England and Wales had Conclusive Maps, and the
public now has a right of access to all “open country” and registered common
land. There seems to be a public perception that the Right to Roam extends to
the whole countryside. This is wrong: the Act actually opens up quite limited
areas, much of which was accessible previously. The main problem for the public
is to know which areas are excluded, since these areas are not marked on the
maps, and where exclusions and restrictions apply. The problem for those
involved in the ownership management of land is to make the public aware of
precisely what they can and cannot do, and where they can do it.
Nigel Atkinson is a Chartered Land Surveyor who runs his own practice, Morton
Atkinson Associates, specialising in boundary disputes, rights of way problems,
and other legal issues connected with the land (website
www.mortonatkinson.com). He is a corresponding member of the RICS
Boundaries and Party Walls Working Group, and a Founder Member of the Expert
Witness Institute. More details of the CroW Act can be obtained by contacting
him via
boundarydispute@btinternet.com , or by going to the Countryside
Agency website at
www.countryside.gov.uk and
www.naturalengland.org.uk/leisure/access where the various maps can
be viewed