SECTION 3a: THE LAND AFFECTED

3.2 If a new statutory right of access to open countryside is introduced, clarity as to the land to be included — and excluded — will be important. There would be a need to establish a practical means of identifying such land.

3.4 We would intend to include all land over 600 metres high as mountain.

3.5 Moor and heath are overlapping categories (and indeed may occur over 600 metres, overlapping with the definition of mountain). Heath is characterised by the presence of dwarf shrubs such as heather, gorse, cross-leaved heath, bilberry and crowberry. It may include scattered trees, scrub, bare ground, bogs and open water. Lowland heath is found below 300 metres; upland heath on higher ground.

3.7 Down is characterised by semi-natural grassland on shallow, lime-rich soils associated with limestone escarpments. Such calcareous grassland often contains an exceptional diversity of plants, typically including upright brome, blue moor-grass and the common rock rose. The approximate distribution of downland is shown in Map 2.

3.8 In total mountain, moor, heath and down account for some 1,240,000 hectares, about 8% of the land area of England and Wales. The proportion is much higher in Wales than in England. There is long-term access to some of this land already, for example, on some commons (see below) or where organisations such as the National Trust or public bodies have opened up their land.

Common land

3.9 We would also propose to extend the right of access to registered common land. Common land is land subject to "rights of common" (to, for example, graze stock or gather fallen wood) and "other open, uncultivated, unoccupied land". One of the country’s most ancient institutions, commons have been prized increasingly over the last century as undeveloped open spaces. About 370,000 hectares (3% of the total area) in England, and over 185,000 hectares (9% of the total area) in Wales are registered under the Commons Registration Act 1965 (see Map 3). Much of this land is covered by the categories mountain, moor and heath shown on Map 1 and there is already access to some of it. We recognise that a small proportion of the land has been registered in error but the exclusion of cultivated and developed land (see below) should mean that there will not be a problem in practice. Similarly, most land inadvertently omitted from the register should be accessible under other open countryside categories.

3.10 Taking land which is accounted for by mountain, moor, heath and downland, together with registered common land, our proposals would extend to between 8% and 12% of the total land area of England and Wales. Some of the land included within that total is already afforded some measure of access for the public, either as of right or informally.

3.14 The Government is prepared to await the outcome of these various measures before deciding whether a right of access should be extended to other types of open country.

Q.3 What types of open country should be included in the proposal to extend a right of access by secondary legislation if necessary? How should they be defined?

Land to be excluded

Developed land

3.16 In general, the Government considers that people should have a right of access only to land which is not developed. This will protect people’s privacy in their homes, gardens, and places where they work, other than on agricultural or forestry land. Land used for some types of recreation would also be excluded.

It may be difficult to draw up a comprehensive list of the developed land which would be excluded. Legislation proposed earlier by the Ramblers’ Association excluded the following, derived from the 1949 Act:

• buildings and their curtilages;
• parks, gardens and pleasure grounds;
• mineral surface workings;
• railways and tramways;
• golf courses, race courses and aerodromes;
• statutory undertakings and telecommunications code systems works; and
• land being developed for such purposes.

Q.4 Is this list of exclusions satisfactory? If not, how should it be varied?

Agricultural land

3.17 Much of the land to which we wish to extend access is used for agriculture — indeed grazing is usually essential to prevent moor, heath and down reverting to scrub and woodland. Subject to the restrictions mentioned in subsequent sections of this paper, we believe that access is compatible with such use. We do not intend, however, that people should be free to roam where they may damage crops or interfere with the more intensive rearing of livestock.

The 1949 Act defined agricultural land so that it did not include land whose only agricultural use was as rough grazing for livestock. Today such an approach would exclude areas, including most downland, where the grazing has been improved so that it is not now regarded as rough.

Q.5 How may the agricultural land which needs to be excluded best be described?

Identifying the land

3.18 It is in everyone’s interest that the land to which there is to be greater access should be capable of being clearly identified. This is not straightforward because:

• detailed mapping exercises are expensive and maps can quickly become out of date, especially in relation to the extent of development or cultivation;
• descriptions of vegetation can be subject to different interpretation;
• Ordnance Survey maps do not identify common land and some maps are updated only infrequently; and
• not everyone carries a map (or the latest version), or can read one.

3.19 On the other hand:

• common land is identified on registers and maps held by local authorities;
• much of the other land to which access is to be given will be readily identifiable on the ground from broad descriptions;
• Ordnance Survey maps show land over 600 metres and some types of land cover, for example, rough grassland/heath/scrub; marsh/reeds/saltings; and rocks/screes/boulders. Some maps also now show particular categories of access land; and most are to be revised every three to five years;
• computer-based Geographic Information Systems might contribute to providing up-to-date details.

3.20 Local authorities (including National Park Authorities), the countryside agencies and voluntary organisations already provide information about access opportunities. The Government plans to build on this existing work to ensure that both walkers and the owners and occupiers of land have appropriate guidance to enable them to identify the land to which a new right of access would apply. This guidance should include maps as well as descriptions of vegetation and likely land uses. While the Government hopes that other organisations will produce information to meet particular needs, it considers that the primary responsibility should rest with the statutory countryside agencies.

3.21 We understand that people will wish to know at an early stage exactly what land would be covered by any legislation. We have therefore asked the Countryside Commission and the Countryside Council for Wales, with technical advice from English Nature, to start work on drafting this guidance now. This important work may influence the way access land is defined in any legislation as well as its future identification.

Q.6 What would be the most helpful ways of describing the types of land?

Q.7 What practical examples of good guidance are there?

Q.8 How important are maps, and on what scale?