37.Section 21 defines exclusions or restrictions of access for the purposes of Chapter II, and gives examples of the forms which restrictions of access might take. Subsection (5) explains that, for the purposes of the Chapter, the “relevant authority” is the countryside body, or, where the land falls within a National Park, the National Park authority. However, subsection (6) enables the Forestry Commissioners to give notice that the Commissioners will act as the relevant authority for any land dedicated under section 16 which appears to the Commissioners to consist wholly or predominantly of woodland. Subsection (7) enables the notice to be revoked where land ceases to be woodland. (Where the Commissioners have given such notice, the Commissioners are the relevant authority from the date specified in the notice.)
38.Section 22 explains how landowners (or, where the land is subject to a farm tenancy, the tenant) will have a discretion to exclude or restrict access on up to 28 days each calendar year. However, no more than four of the 28 days may comprise a Saturday or Sunday, and the discretion may not be exercised at all in respect of Saturdays between 1 June and 11 August in each year, nor on Sundays between 1 June and 30 September, nor any bank holiday. The Secretary of State (or the National Assembly for Wales) will be able, by regulations, to vest the discretionary right to exclude or restrict access in any combination of persons with an interest in the land (such as the tenant and those with sporting rights), but only so that, taken together, their rights do not exceed 28 days in any year. The person exercising the discretion will be required to inform the relevant authority of the exclusion or restriction. Subsection (8) will enable the Secretary of State (or the National Assembly for Wales) to make regulations requiring the exercise of discretion under section 22 to relate to land the boundaries of which are determined in accordance with regulations. The regulations could, for example, seek to ensure that land subject to dis­cretionary restrictions is identifiable in practice — by requiring it to be bounded by, for example, a stream, ditch or fence.
39.Section 23 provides that landowners will also, in certain circumstances, have a discretion to restrict access so as to exclude the taking of dogs. The restriction may apply at any time in respect of land which is managed for the breeding and shooting of grouse; and for a period of no more than six weeks, in respect of any field of 15 hectares in size or less, in connection with lambing. Subsection (5) provides that any exclusion of dogs under this provision does not apply to trained guide or hearing dogs.
40.Sections 24 to 26 and section 28 set out the circumstances in which exclusions or restrictions may be directed by the relevant authority or, in the case of defence or national security, by the Secretary of State. In every case, the authority (or the Secretary of State) may impose only the minimum restriction consistent with the purpose for which it is sought. Exclusions or restrictions for the purposes of land management, the prevention of fire, the prevention of danger to the public, nature conservation, heritage, defence or national security may be for a fixed period or may take place at a time to be determined by a person specified for that purpose in the direction. Where a direction would exclude or restrict access to land indefinitely, or for a period of at least six months, the relevant authority must first consult any local access forum for the area (see the notes on sections 94 and 95 relating to the provision for local access forums in Part V of the Act).
41.An application may be made for a direction in respect of land which is not (at the time of the application) access land, but sections 24(4) and 25(5) provide that the relevant authority may not give such a direction unless they are satisfied that the land is likely to become access land during the period of the proposed direction. Such directions might be given in anticipation of land being shown as access land on the publication of a conclusive map by the countryside body, or in anticipation of the termination of an access agreement over land to which the new statutory right would apply but for the effect of section 15(1)(c).
42.Section 24 allows the relevant authority to exclude or restrict access for the purposes of land management. Any person with an interest in the land may apply. In deciding whether to approve such applications, the authority must take into consideration the use made or intended to be made by the applicant of the discretionary power to exclude or restrict access for up to 28 days each year.
43.Section 25 enables the relevant authority to exclude or restrict access where there is particular risk of fire, or to protect the public from any danger by reason of anything done or intended to be done on the land. Any person with an interest in the land may apply, or the relevant authority may initiate such an exclusion or restriction itself. In deciding whether to approve an application, the authority must take into consideration the use made or intended to be made by the applicant of the discretionary power under section 22.
44.Section 26 sets out provisions for excluding or restricting access to land in the interests of wildlife and habitat conservation, or to protect sites of historic or archaeological importance. The relevant authority will be responsible for directing such exclusions or restrictions of access, but in England, they must have regard to any advice given by English Nature or the Historic Buildings and Monuments Commission (English Heritage), as appropriate. In Wales, a National Park authority and the Forestry Commissioners must have regard to any advice given by the Countryside Council for Wales (for proposals with respect to wildlife and nature conservation) or the National Assembly for Wales (Cadw — for proposals with respect to the preservation of sites of heritage or archaeological importance). The Countryside Council for Wales must have regard to any advice given by the Assembly (Cadw) on exclusions or restrictions for the preservation of sites of historic or archaeological importance. The body to whose advice the relevant authority must have regard are known as “the relevant advisory body”.
45.Section 27 provides for directions which exclude or restrict access on grounds of nature conservation, heritage, land management, fire or danger, to be revoked or modified by the relevant authority, after consulting (where reasonably practicable) the person who initially applied for the exclusion or restriction or his successor in title (or, in the case of nature conservation or heritage closures, consulting with the relevant advisory body). It also requires long-term or annual exclusions or restrictions which last for more than five years to be reviewed at least every five years.
46.Section 28 provides for the Secretary of State to exclude or restrict access for the purposes of defence or national security. Where such exclusions or restrictions last for more than five years, the Secretary of State must review them at least every five years. The Secretary of State must also prepare a report on any review of a direction given for the purposes of defence undertaken in a year, and lay a copy of his report before Parliament. The Secretary of State may revoke or modify a direction given under this section.
47.Section 29 outlines the provisions for a reference by a relevant advisory body in relation to exclusions or restrictions proposed under section 26. Where the advisory body has given advice and the relevant authority has decided not to direct the exclusion or restriction (or otherwise not to act in accordance with the advice), the advisory body may make a reference to the appropriate Minister (or to the National Assembly for Wales), who may require the authority to make such exclusions or restrictions as he (or it) thinks fit. The appropriate Minister will be the Secretary of State, except in relation to referrals arising from a decision of the Forestry Commissioners (in England), where the appropriate Minister will be the Minister of Agriculture, Fisheries and Food. This provision does not apply to proposals with respect to the preservation of sites of historic or archaeological importance in Wales, because Cadw are themselves an executive agency of the National Assembly for Wales.
48.Section 30 makes provision for an applicant for a direction under section 24 or 25 (exclusions or restrictions in interests of land management, fire or danger), to appeal to the appropriate Minister (or the National Assembly for Wales) where the relevant authority decides not to act in accordance with the application. The appropriate Minister is defined as in section 29. On hearing the appeal, the appropriate Minister (or the National Assembly for Wales) may require the authority to make such exclusion or restriction as he (or it) thinks fit. Subsection (5) provides for sections 7 and 8 (and Schedule 3) to apply to the procedure on appeal as they apply to the procedure on appeals against provisional maps.
49.It may be necessary to exclude or restrict access to land in an emergency. Section 31 provides that the Secretary of State (or the National Assembly for Wales) may make regulations to enable the relevant authority to exclude or restrict access in such circumstances for up to three months. Subsection (2) allows the regulations to apply any of the other provisions in Chapter II, with modifications, to a direction given under this section — for example, to allow for consultation (possibly after the direction has been made) with advisory bodies where the restriction or exclusion is made in the interests of the urgent protection of wildlife.
50.Section 32 enables the Secretary of State to make regulations providing for the procedures relating to the exclusion or restriction of access under Chapter II, including the requirements for the giving of notice, the undertaking of consultation, the giving of directions, and the procedure on an appeal. These regulations may also restrict applications for directions under section 24 or 25 from commoners: regulations might, for example, require applications to represent a majority of the commoners interested in the land, or to show that the applicants have the power to implement any direction given (by excluding or restricting public access to the common).
51.The Countryside Agency, and the Countryside Council for Wales, are generally responsible for administering the provisions for exclusions and restrictions under Chapter II outside the National Parks. Section 33 provides powers for those two bodies to issue guidance to National Park authorities on their role in administering these provisions within National Parks, and to the Forestry Commissioners where the Commissioners are the relevant authority for woodlands dedicated under section 16. The countryside bodies’ guidance will need approval from the Secretary of State or the National Assembly for Wales, and must be published.
Introduction Commentary on sections Sections 21 to 33: Exclusion or restriction of access