REVIEW OF PUBLIC ACCESS TO THE COUNTRYSIDE IN WALES CLA CYMRU PROPOSALS

REVIEW OF PUBLIC ACCESS TO THE COUNTRYSIDE IN WALES CLA CYMRU PROPOSALS

Review of public access to the countryside in Wales Proposals from CLA Cymru CLA Cymru believes a once in a generation opportunity has been presented to review rights of way legislation in Wales to benefit all uses of such rights of way over private and publicly owned land. This brief paper seeks to identify the ways in which the changes can be made to improve the current system for both landowners and users. It also identifies the negative aspects of such a review if unfettered access was granted to both land and water. The opportunities for improving the public rights of way system: 1. Certainty The general public want certainty and in the main want to be safe in the knowledge of where they can and can t go. This reduces unnecessary conflict. They want well signposted, well managed rights of way which are easy to follow and which will lead to improvements in managing the network. The coastal path is an example of this. Resource should be focused on improving the present system, to make it more relevant to current needs and more efficient. Rights of Way Improvement Plans (ROWiP) are essential to guarantee the long term viability of the network. 2. Flexibility Welsh Government should issue specific guidance to highway authorities setting out a presumption in favour of diverting paths away from farmyards, commercial areas, gardens and where security and safety are of concern. The scope of the right to apply should be extended to any landowner, so that applications may be made for any land management issue. Any power given to highway authorities to agree diversions should be applied to existing paths as well as previously unrecorded ones. The current rules regarding structures which intersect Rights of Way are too narrow and should be broadened to include any reasonable purpose and then authorised by the respective Local Authority. When considering extinguishment, the Authority should have a legal obligation to take Landowners interests into account when deciding the outcome. 3. Bureaucracy Reduce time consuming bureaucracy where small changes need to be made to existing rights of way, or where there are discrepancies between the definitive map and the walked route. This could be resolved by creating a new category of modification an amendment notification for de minimis changes. For example, where there is a difference between a walked route and the definitive plan, and the owner is content with the walked route, authorities should be encouraged to change the definitive plan to that of the 'walked route' using a simplified procedure which allows authorities to notify user groups of changes and take account of comments, but does not, as now, require the matter to be sent to the Planning Inspectorate for determination.

The new amendment notification procedure should also apply to cattle grid bypass gates and other types of de minimis change. The consent of the owner is essential before any action is taken. Welsh Government should issue guidance to encourage a pragmatic approach to be taken to small, technical de minimis changes. Time Limits - a simplified process is required to process rights of way claims; the current system is costly, time-consuming and unwieldy. Local Authorities should be able to determine public path orders themselves rather than there being automatic referral to the Planning Inspectorate, although the applicant would still have a right of appeal. Welsh Government should issue a Commencement Order so that in 2026 a final date is given to bring forward Lost Ways. This will ensure, in time, that Local Authorities do not waste time and valuable resources in having to undertake all the associated work and research which goes into applications of this type. 4. Reducing Conflict Contrary to assertions by certain groups, the current legal position is clear regarding canoeing on rivers where there are no Rights of Navigation. This point has been upheld by the Sustainability Committee: the best way forward is that of Voluntary Access Agreements (VAA's). This approach will work, given time, and will lead to minimal conflict if both sides take a responsible attitude. It is regrettable that a national governing body for canoeists has gone out of its way not to cooperate and has threatened affiliated canoe groups if they were to enter into such arrangements. Clearly, it would be unreasonable and unfair if the national canoe organisations, who have not sought to assist and help foster VAA s as recommended by the Sustainability Committee, were then to get the full support of the Welsh Government. The threat is now to impose draconian legislation which will lead to significant conflict between user groups. The Animals Act will need to be amended if free access rights are to be granted over land. Currently an owner can be held liable for damage caused by his animals, even if he is not at fault (strict liability). Owners are currently able to take steps to ensure that potentially dangerous farm animals, or situations which may prove dangerous, are located away from areas of access. A proposal for unfettered access would make livestock farming in Wales impossible unless there were significant changes to the various liability laws. Section 3 of the Health and Safety at Work etc Act places an obligation on farmers and landowners to ensure their working practices do not endanger members of the public. Again, if a different type of access is envisaged, significant changes will have to be made in this area. Under the Occupiers Liability Act, liability would need to be reduced where access is allowed, similar to open access land. The ramifications of unfettered access throughout rural Wales: 1. This review does not deliver certainty, in fact it will do the opposite, as there will be areas of water and land which are closed due to safety, eg MOD land, land closed under wildlife legislation, SAC s, SSSI s, etc. By giving the general public the impression nowhere is out of bounds, the natural assumption is that they can walk anywhere, so great resource will be needed to sign areas which are out of bounds and to notify the general public accordingly. There will be great uncertainty as to where one can and cannot go, ultimately ending up in conflict - this is not what this review sets out, ultimately, to do.

2. Where is the demand for change? The figures so far produced do not show there is a massive appetite for change by the general public. The good work done over the Wales Coastal Path has been great for Wales. It is a linear route and is well signposted. Under the current proposals of opening up access unilaterally, this good work will soon evaporate, as severe divisions and conflict will start to arise. 3. In order effectively to police the proposals of open access on both land and water, significant new resources will be required. In these times of economic difficulty does the Welsh Government have such resources at its disposal? Surely the money would be better spent in simplifying the current legislation to make the management of the existing network simpler and more user-friendly and something Wales can be really proud of? 4. There are no unresolved issues relating to navigation on waterways. It has been proven that there are no effective rights where none have existed by way of statutory or other legal rights of navigation. Angling Interests are keen to embrace VAA's. Canoeist interests should be made to cooperate as they have no legal rights where none are currently in place. A VAA will simply give all users a clear set of rules to work by which will suit local conditions on local water assets, the benefit of a VAA being that it can cover all local conditions including environmental constraints. 5. Responsible Recreation: what is it; what is its definition? How can you enforce responsible access? What is reasonable to one person may not be to another, so how do you decide who or what is acting responsively? The clear experience from our members is that whilst many use the countryside in a responsible manner there are always a number who choose to cause havoc. 6. People would not regard using the land and water assets of Wales as a privilege, the countryside and its assets would be abused with additional litter and, ultimately, conflict arising. 7. Because the rivers and land would be open to all, commercial interests using the countryside with exclusive arrangements with landowners would in fact face an uncertain future as their unique areas of land which they charge clients for exclusive use of and access to, would in fact be open to all. Another unintended consequence of this proposed legislation?

CONTACTS: CLA Wales staff Mr Ben Underwood Director, CLA Wales Mr Charles de Winton Rural Surveyor, CLA Wales Address Country Land & Business Association Ltd Unit 8, Broadaxe Business Park, Presteigne, Powys, LD8 2LA. Tel: 01547 317085. Fax: 01544 260023. Mobiles Ben Underwood: 07702 926055 Charles de Winton: 07973 775661 Emails ben.underwood@cla.org.uk charles.dewinton@cla.org.uk