Restricting Access: CRoW
It is possible to exclude open access land (but not s.15 land) from the CRoW access provisions under discretionary and directive powers.
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.
Twenty eight day exclusions or restrictions (discretionary powers)
Owners and tenants may exclude or restrict access to open access land for up to 28 days in any calendar year. These days may be consecutive and can be whole or part days. They cannot be:
Bank holidays, Christmas Day or Good Friday
Saturdays between 1 June and 11 August
Sundays between 1 June and 30 September
More than 4 weekend days in any calendar year
The Open Access Contact Centre in Bristol must be given at least 5 working days notice of closure unless:
The area affected is either 5 hectares or less and the restriction is for 5 days or less, or
The restriction will be in place for no more than 4 hours.
In these cases only 2 hours notice is required.
They will pass the notice on to the relevant authority, namely Natural England or the local National Park Authority where the land lies within a national park. However, the onus is on the person notifying the restriction to ensure that there are notices on site informing the public that a restriction is in place.
Tip: If you think that you may need to apply for a direction to exclude or restrict access in the future it is advisable to register your details with the Open Access Centre in advance. Application forms can be obtained from their website or by post.
Land management (direction)
An application to exclude or restrict access for purposes of land management may be made by a person with an interest in the land. This can be for a specified period every calendar year or for a fixed period. Land management can include farming or sporting activities such as bracken spraying or heather burning. A commoner can only apply for a direction to restrict access if it is necessary in order to exercise grazing (or other) rights but cannot apply for a direction to improve these rights.
Thus it would not be possible for graziers to apply for a direction to exclude the public in order to carry out bracken spraying but theoretically it could be done to allow the common to be gathered, if open access makes this difficult.
Tip: Many areas of common land with open access are indicated on signs in local villages or at access points – placing restriction notices alongside any of these is a good way of bringing the restriction to the attention of visitors.
Avoidance of fire or danger to the public (direction)
A person with an interest in the land may apply for a direction to exclude or restrict public access,where there is a risk of fire due to weather conditions or where it is necessary to protect the public from danger due to something of this nature that has occurred or is going to occur. This may be for a specified period or for a set period every year. Again a commoner can only apply if it is necessary for the exercise of rights.
The National Park Authorities or Natural England may make a direction for the purposes of excluding the public, without having received an application, if they feel that it is necessary to do so for purposes of public safety or for the mitigation of fire risk.
Directions for other purposes
The National Park Authorities or Natural England may exclude or restrict access for the purpose of conserving flora, fauna, geology or heritage, an option not available to landowner or commoner. For example, it may be felt that the public should not have access to an area of common land which is a known nesting site for black grouse. The Secretary of State for Defence or the Home Secretary may make directions to restrict access for defence or national security reasons.
How to apply for a direction
The application for the direction must be submitted to the Open Access Centre in Bristol for consideration by Natural England or the appropriate National ParkAuthority. Prior to making the application you need to have registered your details with the contact centre. The application must specify the nature of your interest in the land; if you are a common right holder submit a certified copy of the entry relating to the rights of common in the commons’ register.
The application should detail the location and extent of the land, the period of the exclusion or restriction to be provided by the direction, its purpose and why it is considered necessary. If the applicant is a landowner it is also necessary to indicate what use has been made of the discretionary 28 day exclusion or restriction option on the land in question.
The Open Access Centre must be given at least four months notice for any direction which would be in place for over six months, and six weeks notice for a shorter period. They will pass the notice on to Natural England or National Park Authority for a decision, and consult the relevant Local Access Forum where the direction would be for longer than six months.
Tip: If you intend to apply for a direction to close land for more than six months then it will be in your interest to inform the Local Access Forum as early as possible. They are a voluntary body and meet infrequently so the more notice they have the better. The relevant authority may vary the details of the direction and may refuse it. In such cases the applicant has the right to appeal to the Secretary of State in Defra within six weeks of the issue of the decision.