Access All Areas?
The implications of the Countryside and Rights of Way Act 2000 for the quarrying industry
The Countryside and Rights of Way Act (CROW) is commonly known for giving the public the ‘right to roam’ over newly identified access land in England and Wales. This new right relates to certain areas of ‘open country’ (mountain, moor, heath and downland), existing registered common land and any land voluntarily dedicated by the owner for public access. The Countryside Agency and Countryside Council for Wales (CCW) have, in the past three years, undertaken a comprehensive mapping exercise to identify open country and registered common land, which will now become accessible to the public. In Scotland, access rights have also been extended under Part 1 of the Land Reform (Scotland) Act 2003, administered through Scottish Natural Heritage. This article deals primarily with how the new access arrangements will affect quarry operators in England, although some of the principles can be applied in Scotland too.
Public access is progressively being introduced across England and Wales as the mapping of open country and registered common land is completed in each region. The last of the new access rights will come into force in the east of England in November 2005. The new Scottish rights came into force in February 2005.
Greater public access to open country around areas of active quarrying and disused sites should not place the public and quarry employees at any greater risk, provided that quarry operators are aware of how the CROW Act may affect them and take action to assess and address any risks. Operators have duties under the Quarries Regulations 1999 to manage risk to members of the public that arise from quarry operations, and to discourage trespass.
What is access land?
The new public access rights apply only to ‘access land’, which is not the same as the mapped open country and registered common land. ‘Access land’ does not include certain types of land use, which are ‘excepted’ in Schedule 1 of CROW, with no new public right of access over such excepted land.
‘Land used for the getting of minerals by surface working (including quarries)’ is excepted under Schedule 1, Part 1, paragraph 5. There is no definition or cross reference in the CROW Act of what is meant by this, and so far no relevant case law. In this absence, applying the definition of ‘quarry’ in Regulation 3 of the Quarries Regulations 1999 is reasonable. Therefore, any land that is part of an active quarry operation is excepted, and no new access right is given. Note that the land must be being ‘used’, ie any area of open country where planning permission has been granted but which is not yet being worked would not be excepted land, and the access right will apply. There is no change to existing access rights or traditions — for example public rights of way.
CROW and its supporting Regulations provide a new system of statutory restrictions and closures that can be used to manage the new access right where necessary for public safety or land management. However, applying for such statutory restrictions and closures is not necessary on excepted land, since there are no new access rights granted. Quarry operators should not, therefore, find themselves in a position of having to apply for such restrictions for land on which there are active quarry operations.
Public information
It will take time for the public to get used to the scope of their new rights. The new walkers’ maps being published by the Ordnance Survey and on the Countryside Agency web site (www.countrysideaccess.gov.uk) do not distinguish excepted land from access land, because excepted land is often temporary. Instead the maps simply record open country, registered common land, and land with existing rights of access such as urban commons. The precise extent of the new access land will not therefore be clear to the public from the maps.
The walkers’ maps advise walkers to check local information before leaving home and to obey any signs they find. The new Country Code also carries this message. It will still be necessary, however, for quarry operators to provide local information, fencing, signs etc.
Physical barriers around excepted land
A quarry operator may use fencing, signs and other means to delineate the boundary of excepted land. The same issues will apply here as with delineating existing rights of way, and laws of trespass apply on excepted land.
Regulation 16 of the Quarries Regulations 1999 places a duty on the operator ‘to ensure that, where appropriate, a barrier suitable for the purpose of discouraging trespass is placed around the boundary of the quarry and is properly maintained.’ This is enforced by the HSE.
Quarry operators will need to make themselves aware of any newly opened access land adjacent to or near the quarry boundary, and consider whether their existing boundary barriers are adequate, or whether they need to be extended or changed in the light of the potential for an increased interface with the public. Signs and barriers are most likely to be effective if alternative routes for walkers can be pointed out, avoiding the areas of risk.
The local highway authority is the ‘access authority’ over access land and may be able to provide practical advice on the best approach to local signing and fencing, and should be the first port of call. Other organizations, such as the Country Landowners’ Association and trade associations, may also be able to give advice.
Quarry extension into planning permission area
Access land may include areas where there is existing planning permission for mineral extraction but which are not yet being worked. As the quarry is extended, the land where work is taking place will become excepted, and the access right will no longer apply. Again, the best guide to when this change of status takes place is the definition under Regulation 3 of the Quarries Regulations 1999. The access authority may be able to provide practical advice on how to manage these situations as they arise.
Abandoned quarries
Abandoned quarries that have been mapped as open country or registered common land are not excepted land and the new access rights will apply. Likewise, if an active quarry site that has been mapped within open country becomes abandoned, it ceases to be excepted land and the new access right will apply there.
The Countryside Agency and CCW must review their maps within 10 years of publication. Land being progressively restored after mineral extraction may be mapped as open country at review, if the land character has changed sufficiently for it to qualify.
Abandoned quarries often attract walkers and are popular destinations for climbers. The risks found there are similar to natural features encountered in the countryside and for the most part will be familiar to visitors. Quarry owners should bear this in mind when assessing risk and remember that visitors should be expected to take a degree of responsibility for their own safety. However, there may be instances where risks are not obvious to visitors and signs may be advisable to warn of hidden dangers. Physical barriers should be considered if signs are inadequate to manage the risk. Access authorities often have considerable experience of striking a balance between public enjoyment and safety, and may be able to advise on the best approach.
Anyone with a legal interest in access land may apply to their relevant authority for a statutory restriction to limit the access rights where necessary for public safety, land management or fire prevention. This includes those responsible for public safety over land with abandoned quarry workings. Restrictions should only be considered as a last resort, because the relevant authority may only give one where informal techniques are inadequate (or unavailable) to manage any risk. Information about the application process in England, and other ways to manage public access, is available on the Countryside Agency’s web site: www.openaccess.gov.uk
In Wales, contact the Countryside Council for Wales in the first instance at: www.ccw.gov.uk
Places of public resort
Any quarry site that is legally publicly accessible is a ‘place of public resort’ and subject to the provisions of the Mines and Quarries Act 1954, Section 151. This is enforced by local authorities, under the Environmental Protection Act 1990. The provisions say that if the quarry constitutes a danger to the public and ‘is not provided with an efficient and properly maintained barrier so designed and constructed as to prevent a person from accidentally falling into the quarry’ the enforcing authority may deem it to be a statutory nuisance.
Many abandoned quarries are already places of public resort — for example if there are rights of way on the site. But an abandoned quarry on access land that was not already accessible will become a place of public resort as soon as the new access rights commence. In either case, the enforcing authority can declare an unfenced quarry a statutory nuisance and is then empowered to serve an abatement notice on the owner requiring specified works to be completed within an agreed timescale to make the quarry safe. However, this would be an unusual step.
DEFRA have produced guidance both for local authorities with enforcement powers under the Environmental Protection Act, and for land managers who may be affected. Their guidance advises enforcement authorities to discuss risk management with the quarry owner and the access authority first, and to use their enforcement powers only if other solutions cannot be found or prove inadequate to manage a risk. The guidance can be found at: www.defra.gov.uk/wildlifecountryside/cl/accessopen/accessopen08.htm
Conclusion
The ‘open country’ mapped under the requirements of CROW will include many areas of countryside surrounding active and abandoned quarries. The public are unlikely to be aware of the distinction between open country and registered common land, as shown on the walkers’ maps or web sites, and actual access land, which does not include active quarry workings. As a result of CROW, quarry operators need to reconsider the risks arising from intended or accidental public access, and how they fulfil their duty under Regulation 16 of the Quarries Regulations 1999.
Owners of disused quarries should also review how CROW could be applied to such sites and any additional measures they may need to take to protect public safety.
The authors, Helen Turner and Andrew Chester, are HM Inspector of Health and Safety, HSE, and Restrictions Policy Adviser – Open Access Team, Countryside Agency, respectively.
