Managing Public Access on Common Land
Context
Almost all common land in England is subject to general public access on foot and a considerable area also provides unrestricted access to horse riders. Wider access rights for a variety of recreational activities have also been granted on certain commons by specific Acts of Parliament or agreements with landowners.
In addition, de facto (non legal) access for activities such as climbing, swimming and wild camping has been allowed on many commons for a considerable length of time.
Can access be restricted?
Most of the legal access to common land (created under the Law of Property Act and other legislation predating the CRoW Act) cannot be restricted. However, bylaws, where they are established, may offer scope for some limited restrictions.
Tip: It will be necessary to examine individual bylaws to determine whether they can be of use in a particular situation. Local experience and specialist legal advice will probably be needed at an early stage.
The Ancient Monuments Act provides powers to restrict access in certain circumstances relating to the conservation of the sites.
Public rights of way
The Highways Act provides for the extinguishment or diversion of restricted byways, bridleways and footpaths. To extinguish a route the applicant must demonstrate that the way is not needed for public use. Satisfying this requirement is difficult and generally local authorities are reluctant to make the necessary orders. For more information about this, click below.
Open access under CRoW
It is possible to exclude open access land (but not s.15 land) from the CRoW access provisions under discretionary and directive powers. For more information on this Act, read the page on CRoW.
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 that cross open access land.
To read about restricting access under CRoW, click below.
Dogs
CRoW land Dogs are allowed on CRoW access land. They must be kept on a short lead when they are near livestock (including horses) and during the lambing season - 1 March to 31 July. An owner or tenant, but not a commoner, may exclude people with dogs from enclosed land of less than 15 hectares (which could include commons) for up to six weeks every calendar year if the land is used for lambing. Click below for more information.
Occupiers’ liability on open access land
The CRoW Act significantly reduced the duty of care owed by occupiers to users of CRoW access land, recognising that CROW access rights should not place an undue burden on the occupier and also the importance of not damaging the character of the countryside. For further information refer to the Open Access and Public Liability section of the Land Manager’s Guidance Pack available on the Natural England website.
Large-scale events
For information about large-scale events, click below.
Travellers
It is an offence to take a motor vehicle on to common land unless it is to park within 15 yards of a road. Where a large number of vehicles are parked on common land and it appears to be the intention of the occupiers of the vehicles to reside there then there may be scope to invoke the Public Order Act 1986. For more information, click below.
Where to turn and what to do if there are problems
Sometimes a landowner, tenant or grazier may experience recurring problems when members of the public do not respect the limitations of their access rights. Similarly members of the public occasionally face difficulties trying to access land which they are legally entitled to do. Click below for information on where to get help.
Further Information
Open Access Contact Centre Natural England - Block 3 Government Buildings Burghill Road Westbury on Bristol BS10 6NJ Tel: 0845 1003298 Email: openaccess@naturalengland.com
Angela Sydenham, Public Rights of Way and Access to Land (Jordans, 2007). n Paul Clayden, Our Common Land: the law and history of common land and village greens (Henley-on-Thames: Open Spaces Society, 2003).
G. D. Gadsden, The Law of Commons (London: Sweet & Maxwell, 1988).
Land Managers’ Guidance Pack to CROW implementation is available on the Natural England website. In particular see Statutory Restrictions on Access Land.