The 1949 Act excludes organised games from the definition of open-air recreation and lists a number of restrictions to be observed by those exercising the right of access including: driving; fire-lighting; swimming where prohibited; hunting, shooting, fishing etc; damaging land, vegetation, water courses; advertising; leaving litter; and disturbing, annoying or obstructing other people.

Q.20 Does the list of restrictions in the 1949 Act need up-dating? If so, how?

3.31 People exercising a new right of access would, in general, no longer be regarded as trespassers. A minority of people might, however, exceed their statutory rights and ignore legislative restrictions. We intend that such people should — as now — be regarded as trespassers, so that landowners would have the right to eject them from their land. It would be possible to prevent immediate re-entry on the land concerned by providing that people undertaking proscribed activities should lose the right of access in relation to that land for the rest of the day. Landowners would also be able to take the same legal action as now against these trespassers, seeking damages and/or that they be restrained from repeating the proscribed act. The Home Office will also be reviewing the operation of the Criminal Justice and Public Order Act 1994.

3.32 The Government is confident that most people who seek access to open countryside will respect their surroundings. Some may, however, be uncertain how to behave in the living, working landscape in which they find themselves. Walkers will have to take care not to disturb wildlife or to disrupt livestock and game. They will have to avoid damaging walls, hedges and other property. They should not leave litter (a criminal offence in any public open-air place under the Environmental Protection Act 1990). In addition to the statutory list of restrictions, more informal guidance would therefore be useful. The Countryside Commission and the Countryside Council for Wales have already produced the Country Code, as part of their statutory duties under the 1949 Act. The Code could form the basis for such guidance.

3.33 Some activities may be inappropriate in particular places, under particular circumstances. Local authorities have powers to make byelaws to control or manage activities on land to which the public has access under the 1949 Act and the statutory wildlife agencies may make byelaws in relation to National Nature Reserves.

Q.22 Are further byelaw powers needed?

Disabled people

3.34 Disabled people should have opportunities to enjoy the countryside. The Disability Discrimination Act 1995 requires those providing goods, facilities and services not to discriminate against disabled people. In due course, the Act will require reasonable steps to be taken to overcome barriers to access. The Fieldfare Trust have undertaken useful research to establish standards for countryside access for disabled people and the recently-published BT Countryside for All Good Practice Guide sets out the results of their work. The Guide accepts that the same facilities cannot be provided in open country as elsewhere but contains useful advice on what may be done.

Dog owners

3.35 Many people enjoy walking in open countryside with their dogs but this can cause problems. Dog faeces can contaminate grazing and cause health risks, particularly to children. Poorly-controlled dogs may worry or injure stock or disturb ground-nesting birds. They may also intimidate other members of the public.

3.36 Dogs are already taken on to much open countryside. In some places this causes problems, though many dog owners act responsibly to prevent their dogs causing any nuisance. There are provisions relating to the control of dogs in the Dogs (Protection of Livestock) Act 1953 (as amended by the Wildlife and Countryside Act 1981) and the Animals Act 1971. The Dogs (Fouling of Land) Act 1996 also applies in some places but not to land which is predominantly moor, heath, marshland or rural common land. Further, local authorities and the statutory wildlife agencies may use their byelaw-making powers to prevent and control access by dogs. In many instances both walkers and the owners and occupiers of land would benefit from clearer guidance on the control of dogs.

Q.23 What scope should there be for exercising dogs in open countryside?

Q.24 Where and when should dogs be banned completely and where and when should they be kept under close control, for example on a lead?

Q.25 If controls are to be applied selectively, should this be by local authority/statutory agency byelaw or by the owner or occupier of the land?

Q.26 Should local authorities be required to consult land owners and occupiers before they exercise their byelaw-making powers?

Q.27 Should local authorities be under a duty to consider requests from landowners and occupiers to introduce byelaws to control dogs on their land?

Q.28 What sanctions against breach of controls should there be and who should enforce them?

Q.29 Should the provisions of the Dogs (Fouling of Land) Act 1996 be extended so that local authorities could designate any open countryside as land where owners must clear up after their dogs? What provisions should be made in respect of working dogs?

The owners and occupiers of land

3.37 The extension of access is not intended to have a substantial effect in practice on the use by owners and occupiers of their land. Under a statutory approach they would lose the right to sue for trespass those who came on to their land in accordance with the legislation but, in general, they would remain free to develop and use their land subject to the constraints of planning and other legislation.

3.38 Owners and occupiers of land should not deliberately obstruct or threaten those seeking to exercise a right of access. Obstruction would include putting up signs to prohibit access.

Q.30 Do any particular means of obstruction or threats need to be specified?

Q.31 Do any threats or any legitimate management activities require particular controls, for example, occupiers’ dogs, bulls, geese, operations such as heather-burning, pest control?

3.39 In general walkers must make sure that they take proper care in open country: they must bear the primary responsibility for their own safety. We do not intend that a new right of access would change the liability of occupiers of land towards them. If legislation were to be introduced, occupiers of land would continue to be subject to the same liability as is currently owed to trespassers under the Occupiers’ Liability Act 1984. In broad terms, an occupier is under a duty to take such care as is reasonable in the circumstances to see that a trespasser does not suffer any injury because of any known danger on the land. The Country Landowners Association has convened detailed discussions on liability and we await the outcome with interest.

Local authorities

In many places, access will require little management. Elsewhere, pressures may be more intensive. Local authority activity will need to vary accordingly.

Q.32 Should local authorities have wider powers to provide means of access such as stiles and gates?

Q.33 Should there be a specific power to appoint wardens/rangers in relation to access land? If so, should the wardens/rangers be given any specific powers, for example, to impose fixed penalties for litter, noise or dog offences? Should such powers be restricted to local authority staff?

Statutory agencies

The agencies already have extensive experience of this type of work and wide ranging powers.

Q.34 Do the agencies need any fresh powers, for example, to make byelaws?