61.Section 40 concerns powers of entry to land. It may be necessary for the bodies charged with functions under Chapters I to III of Part I of the Act to enter land in order to carry out their functions. The section sets out the circumstances and manner in which the countryside bodies, the highway authorities, the Forestry Commissioners and the National Park authorities may enter land. Any person authorised by these bodies for the purposes of entering land which is not access land must give the occupier 24 hours’ notice, unless it is not reasonably practicable to do so, or the entry is in relation to a possible offence under section 14 or 39. He must also produce evidence of his authority at any time. It will be an offence to obstruct access for authorised persons, attracting a fine on conviction of up to level 2 on the standard scale (currently £500). The power of entry does not extend to dwellings.
62.Section 41 requires a body exercising a power of entry under section 40 to compensate any person who has sustained damage in consequence. Any dispute as to entitlement to compensation is to be determined by an arbitrator appointed by the Secretary of State or the National Assembly for Wales, as appropriate.
63.Section 42 enables the Secretary of State or the National Assembly for Wales to make regulations to provide that the fact that land is subject to the right of access is to be disregarded in deciding whether the land is or is not a ‘public place’ for the purposes of a specified enactment. For example, regulations could provide that access land would not be treated as a public place for the purposes of the Firearms Act 1968 merely by virtue of the new statutory right applying to the land, and that the landowner would therefore not need to show “lawful authority or reasonable excuse” to use or carry a firearm on the land.
64.Section 43 explains that the access legislation binds the Crown as it does any other landowner.
65.Section 44 provides that orders and regulations made under this Part of the Act are to be made by statutory instrument and as respects England are to be subject to annulment by either House (except that any order made under section 3 extending the right of access in England to coastal land, or under paragraph 3 of Schedule 2 amending the restrictions in paragraphs 1 and 2 of that Schedule, will require to be approved in draft by a resolution of both Houses).
66.Section 45 comprises definitions of a number of terms used in this Part of the Act.
67.Section 46 and Part I ofSchedule 16 effect repeals consequent on the provisions of Part I. Paragraph (a) of subsection (1) provides for the repeal of section 193(2) of the Law of Property Act 1925. Section 193(2) allows the owners of common land to execute a deed of dedication so that the common will become subject to the right of access for air and exercise provided for in section 193(1). This power will be rendered obsolete in view of the new powers to dedicate access over land contained in section 16. Any commencement order bringing this repeal into force is expected to contain a saving for existing deeds.
68.Paragraph (b) of subsection (1) provides for the repeal of sections 61 to 63 of Part V of the National Parks and Access to the Countryside Act 1949. These sections imposed an obligation on local planning authorities to survey the extent of open country within their areas, and to consider the need for increasing access to such open country by means of access agreements and orders. By virtue of subsection (2), local planning authorities will continue to be able to make access agreements and orders using their powers under Part V of the 1949 Act (as amended by the Countryside Act 1968), other than over land which is open country or registered common land for the purposes of the Act (the powers will continue to apply to open country which comprises woodland, land including or adjacent to rivers or canals, and, pending any order made under section 3, the foreshore).
69.Subsection (3) of section 46 introduces Schedule 4, which includes an amendment of section 193(1) of the Law of Property Act 1925 so that limitations or conditions qualifying the right of access to urban and other commons under the 1925 Act may also be imposed by the Secretary of State (or National Assembly for Wales) for the purpose of nature conservation. Paragraph 4 of Schedule 4 amends section 2(6) of the Countryside Act 1968, so that the duties of the countryside bodies, which include giving advice to local authorities about the use of their byelaw-making powers under the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968, extend equally to the giving of advice to access authorities about the use of their powers in section 17.
Introduction Commentary on sections Sections 40 to 46: General