Anti-social Behaviour, Crime and Policing Bill
Written evidence submitted by the Ramblers (ASB 17)
· The Ramblers works to protect the places where people walk, and to encourage walking, not only for recreation, but for the health, social and environmental benefits which arise from it.
· An unintended consequence of Gating Orders has been the closure of routes in regular use, on foot, by the public to reach local amenities.
· Public Spaces Protection Orders, as set out in the Anti-social Behaviour, Crime and Policing Bill, which are intended to replace Gating Orders, have the potential to further diminish such access.
· The Ramblers does not oppose the rationalisation of anti-social behaviour measures but believes that the Bill should be amended, and regulations drafted, to provide key checks and balances so as to secure a proportionate and effective approach towards tackling anti-social behaviour whilst protecting vital community assets.
1. The Ramblers’ Association (the Ramblers) is Britain’s walking charity. We work to help everyone realise the pleasures and benefits of walking, and to enhance and protect the places where people walk. We are committed to encouraging and supporting walking as a health-promoting physical activity. We have around 112,000 members, about 18,000 volunteers, and a network of around 500 local Groups across England, Scotland and Wales. Through these Groups we offer over 38,000 led walks which attract half a million participants each year, covering all types of terrain and levels of ability.
2. Although perhaps best known for our work to protect and enhance rights of way and other access for walkers in the countryside, we are also active in towns and cities, and work extensively to promote walking and to encourage and support people to walk more. Ramblers’ volunteer-driven led walks programme offers over 500 walks a week, including an increasing number of shorter and easier walks and walks suitable for families with children. We also deliver projects that specifically target insufficiently active people, those from socially excluded communities and those that suffer from health inequalities. These include our flagship ‘Get Walking Keep Walking’ project which encouraged everyday independent walking in selected inner city locations, and which has been highly successful in reaching challenging target audiences, including those in deprived communities and black and minority ethnic groups, and our hosting of the national centre of Walking for Health, in partnership with Macmillan Cancer Support. This supports many hundreds of walking for health schemes across the country.
3. The benefits to physical and mental health and wellbeing of regular moderate physical activity are well attested, and for most people, including those suffering deprivation and social exclusion and therefore with priority needs, walking is the easiest way to meet physical activity recommendations. Walking is free and requires no special equipment, training or gym or club memberships. It is available to almost everyone; safe and low-impact, with low risk of injuries and accidents; easy to start slowly and build up gradually; and one of the easiest activities to fit into everyday life.
4 Walking is a low-carbon, non-polluting means of transport which provides both a viable alternative mode for the short trips that make up a significant proportion of urban transport journeys, and a vital link in journeys involving public transport. It is sociable and inclusive, improving our sense of community and helping tackle crime and the fear of crime through the ‘eyes on the street’ effect. And it is beneficial to local economies, attracting custom to local businesses and providing access to work to those for whom other modes of transport may be unaffordable.
The Anti-social Behaviour, Crime and Policing Bill
5. Our interest and concerns lie with Part 4, Chapter 2 of the Bill, namely the provisions which deal with Public Spaces Protection Orders (PSPOs). We fully understand the Government’s desire to consolidate and simplify the toolkit of measures used to tackle ant-social behaviour, and we acknowledge that in some circumstances this may necessitate restrictions on public access. However, our experience with Gating Orders indicates that measures of this kind can have serious unintended consequences in terms of preventing access to routes which people use to go about their everyday business. The provisions which provide local authorities with the power to make Gating Orders are set out in sections 129A–129G of the Highways Act 1980 (as amended by the Clean Neighbourhoods and Environment Act 2005). Information on the operation of Gating Orders is provided at Annex 2, whilst Annex 3 provides a number of case studies. Gating Orders will be repealed by the present Bill and we believe that PSPOs offer even less protection for routes in everyday use than the existing measures.
6. Gating Orders are only applicable to linear routes and infringement of such an order is not an offence-the way in question is physically gated and so becomes impossible to use. However, because PSPOs will replace other anti-social behaviour measures such as designated public place orders and dog control orders, they will have wider application and will be available for use on all public places, including town and village greens, registered commons and open country as defined in the Countryside and Rights of Way Act 2000, and it will be an offence to infringe a PSPO. Thus it would be possible for an order to be made which prohibited the public from entering such an area, rendering trespass a criminal offence, which we consider to be a serious and far-reaching matter.
7. However, we are firmly of the view that the Bill can be amended so that vital checks and balances are introduced to protect the public interest, whilst retaining an effective package of measures to limit and reduce anti-social behaviour. An outline of our proposed amendments is set out below. These amendments are also supported by the British Mountaineering Council (BMC), Living Streets and the Open Spaces Society (OSS) (see Annex 1).
Clause 56 Duration of orders
8. The Bill provides that a PSPO can only have effect for a period of 3 years unless extended as provided for under clause 56. This is too long a period for the closure of any route of which everyday use is being made. A number of classes of highway are completely exempt from the application of PSPOs (we discuss this further below). Public rights of way are not so exempt. These are the class of way over which we have particular concerns, and we believe that the time limitation should be different in the case of public rights of way. An analogy can be drawn with Temporary Traffic Regulation Orders. Traffic authorities have the power to make temporary traffic regulation orders to restrict or prohibit the use of any road (defined in the Road Traffic Regulation Act 1984 as including public rights of way) because of works being carried out on or near the road, for public safety, and to enable cleaning and litter clearance. Such orders may last for 18 months in the first instance after which approval for an extension must be sought from the Secretary of State. However, for public rights of way, an order can last for only six months before approval for an extension must be sought. We argued successfully when the Road Traffic (Temporary Restrictions) Bill sought to bring in the 18 month limit for all highways that rights of way were a special case. The extra distance involved in taking an alternative route will make very little difference to a person travelling in a car, but can make a huge difference to a person on foot. In the circumstances of a footpath closed by a Gating Order or Public Spaces Protection Order (see the examples in Annex 3), it might mean that a journey is not taken at all, or that a car is used instead should one be available. (In the communities in which many of these orders are made cars are less likely to be an option: 25% of British households do not have access to a car.) Gating Orders can be made for an indefinite period (with a Home Office recommendation that they be reviewed after 12 months), so the present Bill provides the opportunity for the rights of way to be recognised as a special case with PSPOs over them being applicable for a far shorter period in the first instance. We would recommend that period be for six months in the first instance, as for Temporary Traffic Regulation orders.
Clause 60 Orders restricting public rights of way over highway
Clause 60 (1)
9. The Bill rightly recognises that restriction of public rights over highways is of such consequence that an authority wishing to impose an order to that effect must take into account certain matters relating to the status of the way as a highway, namely-
(a) the likely effect of making the order on the occupiers of premises adjoining or adjacent to the highway;
(b) the likely effect of making the order on other persons in the locality;
(c) in a case where the highway constitutes a through route, the availability of a reasonably convenient through route
(The same form of words as appears in the Highways Act in respect of Gating orders.)
Again, we would recommend that the opportunity be taken to strengthen the protection given to highways by importing a further matter for consideration, namely "any other measures that have been or could be taken for alleviating the activities which have had or are likely to have a detrimental effect on the quality of life of those in the locality".
It is essential that the gating of a through-route is a matter of last resort. The suggested form of words is taken from s.118B(8)(a) of the Highways Act which is concerned with the stopping up of rights of way for purposes of crime prevention and for reasons of school security.
Clause 60 (2)
10. The notification procedures prior to making an order which will restrict public rights over a highway are insufficient, and should provide for the Secretary of State to publish regulations to make these more rigorous. A suitable amendment would be the inclusion of a clause or clauses which provided that the Secretary of State (and Welsh Ministers) must by regulation make provision as to further procedures to be complied with by a council in relation to the making of a PSPO which would restrict access to a highway and that those regulations must include provision as to-
(a) the publication of a proposed order;
(b) public availability of copies of the proposed order;
(c) notification of persons (other than those referred to in clause 60(2)(a)) likely to be affected by a proposed order.
10. It would then be possible for the Regulations to explicitly provide for the notification of a comprehensive list of parties with an interest in highways, as is the case with Gating Orders. Those parties include other councils through whose area the highway in question passes, the emergency services, relevant NHS trusts, providers of gas, electricity, water or communications services, Local Access Forums  , and persons who have asked to be notified of any PSPOs which are applied to highways. This list should be extended to include the main public rights of way user groups who are prescribed to receive notice of the closure and diversion of public rights of way under the Highways Act 1980  , and the Town and Country Planning Act 1990  .
11. As with Gating Orders, the Regulations should provide for the holding of a public inquiry, where an objection has been received from the police, another emergency service, an NHS trust, or another council through whose land the way passes, but we strongly recommend that this list be extended to cover the receipt of objections from users of the way where that way constitutes a through route. Experience with Gating Orders has shown that it is possible for one or two local councillors to push through Gating Orders in the face of fierce opposition from the local community (see Annex 3). Independent arbitration would ensure that the evidence of anti-social behaviour is properly balanced against the needs of the local community. It is the lack of such independent scrutiny which has been our primary concern with Gating Orders since their introduction.
Clause 61 Categories of highway over which public rights of way may not be restricted
12. We have so far argued that public rights of way should be recognised by this legislation as requiring special treatment if they are to be closed to try to limit activities which are having a detrimental effect on the quality of life of local residents. A simpler way of protecting many (although not all) of the routes about which the Ramblers is concerned would be to amend clause 61 so that a PSPO cannot restrict the public right of way over a highway that is a way shown on a definitive map and statement  as a footpath, bridleway, restricted byway or byway open to all traffic. This could done either on the face of the Bill, or by way of the regulations mentioned in Clause 61(1) (e) and (f). The Bill clearly recognises that certain types of highway should not be stopped-up because of their strategic value: our view is that definitive rights of way may also be of vital importance to those who use them.
Clause 62 Challenging the validity of orders
13. Our experience with Gating Orders has shown that they are most commonly imposed in areas of high social deprivation, where those who are seriously affected by the loss of a route to local amenities would not be able to consider applying to the High Court to question the validity of a PSPO. In these situations, local people look to organisations such as the Ramblers to defend their interests and, where appropriate, to challenge any injustice through the courts. As the Bill is drafted we would not be able to undertake such a challenge for them. Such challenges are not undertaken lightly and we ask that the Bill be amended to delete the word "interested" and its definition from Clause 62.
Clause 67 Interpretation of Chapter 2
14. We are concerned to note that the interpretation of "local authority" in this chapter means-
"(a) In relation to England, a district council, a county council for an area for which there is no district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly."
Our concern arises because this interpretation appears to mean that in places where there is both a county council and a district council (which is still the situation over a quite a large part of England), then the power to make PSPOs would be restricted to the district council. This is a problem because, where there are two tiers of local government, it is the county council which is the highway authority and which is responsible for such things as rights of way improvement plans, Local Access Forums, for highway maintenance, and many other duties including the duty to assert and protect the public’s right to use highways. As the Bill is drafted it seems that where this is both a county and a district council, the power to make PSPOs would rest with the district council and it wouldn’t even have to consult the highway authority about the plans to close a highway. We would strongly recommend that this be re-considered.
15. Also in Clause 67 "public place"-
"(a) means any place to which the public or any section of the public has access, on payment or otherwise, as of right of by virtue of express or implied permission, … "
It is our view that the definition of "public place" is too broad, and should be restricted so that a PSPO cannot be used to restrict public access to land to such open space which the public at large so enjoys.
A simple amendment would prevent the use of PSPOs on such land. For example, insert into Clause 67-
(c) does not include registered common land, access land as defined in section 1 of the Countryside and Rights of Way Act 2000, town or village greens or local green space.
An alternative to amending the definition of "public place" in clause 67 would be to amend clause 55 so that a PSPO cannot be used as a blunt tool to simply prevent overall access to such land. This could be done, for example, by introducing a new sub-clause after 55(5)-
(6) A prohibition may not prevent access by all persons to registered common land, access land as defined in section 1 of the Countryside and Rights of Way Act 2000, town or village greens or local green space.
16. The Ramblers urges the Public Bill Committee to amend this Bill so that routes in everyday use by people on foot are not closed without proper scrutiny, and without due regard to the health and environmental implications of closing off vital community assets.
These amendments are also supported by-
"We are the national charity that stands up for pedestrians. With our supporters we work to create safe, attractive and enjoyable streets, where people want to walk. We work with communities, professionals and politicians to make sure every community can enjoy vibrant streets and public spaces.
We started life in 1929 as the Pedestrians Association and have been the national voice for pedestrians throughout our history. In the early years, our campaigning led to the introduction of the driving test, pedestrian crossings and 30 mph speed limits. Since then our ambition has grown. Today we influence decision makers nationally and locally, run successful projects to encourage people to walk and provide specialist consultancy services to help reduce congestion and carbon emissions, improve public health, and make sure every community can enjoy the benefits of walking."
The Open Spaces Society (OSS)
The Open Spaces Society is Britain's oldest national conservation body, founded in 1865. We campaign for the protection of common land, town and village greens and other open spaces, and for public paths and public access in town and country, throughout England and Wales. Our earliest campaigns in the mid-Victorian era were concerned with saving open spaces in urban areas from exploitation and development, for enjoyment by the local population for informal recreation. Hampstead Heath, Wimbledon Common and Epping Forest were among our early successes.
The British Mountaineering Council (BMC)
The BMC, established in 1944, is the representative body that exists to protect the freedoms, and promote the interests, of climbers, hill walkers and mountaineers.
A note about Gating Orders
(i) The Clean Neighbourhoods and Environment 2006 Act amended the Highways Act 1980 so that local highway authorities are empowered to make Gating Orders which have the effect of restricting access to any highway other than a special, trunk, classified, principal or strategic road. The powers permit access to be restricted, by means of gates across the highway, on grounds of crime reduction and to deal with problems of anti-social behaviour (defined as meaning behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as himself). Practical guidance on using this procedure has been issued by the Home Office  . Regulations (SI 2006 No. 537 The Highways Act 1980 (Gating Orders) (England) Regulations 2006) prescribe the procedure that authorities must adopt in proposing and making orders.
(ii) Before making an order, an authority must be satisfied that:
(a) premises adjoining or adjacent to the highway are affected by crime or anti-social behaviour;
(b) the existence of the highway is facilitating the persistent commission of criminal offences or anti-social behaviour; and
(c) it is expedient to make the order for the purposes of reducing crime or anti-social behaviour, having taken into account all the circumstances, including:
(i) the likely effect of making the order on the occupiers of premises adjoining or adjacent to the highway;
(ii) the likely effect of making the order on other persons in the locality; and
(iii) in a case where the highway constitutes a through route, the availability of a reasonably convenient alternative route.
(iii) Many of the major urban authorities have seized upon these new powers with enthusiasm and large numbers of orders are being made. The reason for this is not hard to understand. Authorities were given the power to close or divert public paths for crime prevention reasons under the Countryside and Rights of Way Act 2000 but such orders can be made only in areas which have been specifically designated by the Secretary of State, and the order-making procedure in that instance is the standard for path orders which involves notification of the prescribed organisations, and the right to have objections and representations heard before an independent Inspector. In contrast, the Gating Order Regulations only require representations to be considered by the council, and although a council may hold an inquiry into a gating order following an objection from a member of the public, this is a discretionary power, not a requirement. Only representations from the emergency services, a local NHS trust or another council (but not a parish or community council) will cause an inquiry to be held and then only before an Inspector appointed by the council (so not a Planning Inspector).
(iv). Despite the making of a number of highly controversial Gating Orders, which have drawn numerous letters of objection from the local community, to the best of our knowledge an inquiry has yet to be held. If the provision for an inquiry were operating in the manner envisaged by government-who presumably enacted it to ensure that all views would be properly taken into account in the event of a contentious order-it would seem reasonable to expect at least one to have been held. We know that some authorities are pushing through controversial gating orders and we are concerned that the views of those people who regularly use a soon-to-be-gated route are not always given adequate weight.
(v) We have attempted to monitor the number of gating orders which have been made since the provision was introduced. We did this by writing to every highway authority in England and asking them to send us notice of any proposal to make a Gating Order. (The Regulations enable any person to make such a request.) It is probably the case that not every gating order has been sent to us but in the period between 2007 and 2013 we estimate that at least 1758 orders have been made, affecting more than 4,000 separate ways.) The cost of this is unknown but we believe that a single gating order can cost up to £5,000.
(vi) It is certainly the case that many of the routes which have been made the subject of gating orders will not have served a utilitarian purpose. Our concern is with the routes which are used by the public to go about their everyday business-to get to shops, schools, Doctors’ surgeries and so on. These are routes which provide traffic-free routes and which people use as short-cuts. A number of case studies are set out below. These show very clearly that routes are being gated by councils in the face of local opposition, and without recourse to a public inquiry at which the interests of legitimate path users could be balanced against any likely reduction in anti-social behaviour. There is a clear civil liberties issue here, with the general public losing their right to use a highway because of the criminal and anti-social behaviour of the few.
Examples of gating orders, made in the face of fierce local opposition, on routes in everyday use
Liverpool City Council
Liverpool City Council gated a 500-year old path in Croxteth. The gating of the Altcross Road footpath leading to Dam Wood and Croxteth Country Park took place in the face of a passionate campaign and 700-name strong petition. The likely beneficiaries of the closure amounted to no more than 9-households. Path users now face a 40 minutes detour along main roads to get to the park. There is no record of persistent crime or anti-social behaviour associated with the path and the legislation requires that these should be shown to exist before an order can be made. Ramblers sought to assist local campaigners in their fight to retain the path to no avail and a resident contacted us to say "The gates have gone up this morning, it broke my heart. The council have shown no sympathy towards the community and its children, and I have lost all faith in the powers that be … they have taken away a part of our history."
Dudley Metropolitan Borough Council
A commodious, well-surfaced long established urban path, providing access to open country was proposed for gating. It ran past only four-houses. The highway authority rejected the idea of permanent closure using the Countryside and Rights of Way Act provisions since that would have involved designating the area as a high crime area. Instead they opted for a Gating Order. The reported crimes in the locality were not related to the path. The views of the Local Access Forum were ignored. The only alternative route was along neighbouring roads alongside vehicular traffic. A second example in the same authority’s jurisdiction involved a path of great antiquity. There had been problems with crime and ASB but the situation had improved: the key issue was that the authority was not bothering to maintain the path: there were obstructions, vegetation was over-growing the route and streets lights were not operational. The neglect was a major factor in the problems being experienced. Gating the path was a way of avoiding bringing it into a useable condition. Again the alternative was along footways amid noisy traffic, and again the views of the Local Access Forum were not taken into account.
Coventry City Council
This Gating Order was made on a path running between allotments and a cemetery, providing an off-road link between schools and a playing field. There were only three residential properties along a 400m length of path. Evidence of crime and anti-social behaviour was limited (ten reported incidents in a 12 months period, one of which was treble counted and one double counted). The views of those who used the path were that the Council moved too hastily to gating the path, without considering other measures which might have satisfied complainants e.g. closing the path during the hours of darkness.
Stockport Metropolitan Borough Council
In 2007, Stockport MBC made a gating order to close an alleyway between Kingsland Road and a large social housing estate. The route was the most convenient means of travel between the housing estate and local amenities such as a school, medical centre, bus stop and shops. Approximately 400 households relied on the path to access goods and services and were severely inconvenienced by its closure. The alternative is a mile longer and runs alongside a busy road carrying HGVs. The loss of the path curtailed the freedom of movement of the most vulnerable people on the estate, namely the elderly and those with mobility problems. The alleged problem of ASB were on Kingsland Road rather than the estate itself. Eventually, the terms of the order were changed so that it was only gated at night, and although it made life easier for the residents of the estate, no-one was really happy and the estimated cost of opening and closing the gate, 365 days of the year was £5,500.
Bristol City Council: path in the Fishponds Area
This was a Gating Order imposed on FP 163. By the Council’s own account an exceptionally high level of journeys were made on foot using this popular route- 2,700 per month over a three month period. Many of these journeys were made by mothers accompanying young children who were using a safe route, away from traffic. The alternative route involved an extra 385 metres on roadside pavements. This is a significant extra distance and enough to cause inconvenience to the extent of tempting some pedestrians to use motorised transport instead. The police had had made no effort to demonstrate that the type of nuisance crime mostly experienced here would not simply be displaced by a few metres or take place on the highway rather than the back alleys. The estimated cost to the Council was given as £2000, but this took no account of the ongoing costs of the administrative burden including annual review and the cost of maintenance.
Tameside Metropolitan Borough Council, FP 27 Dukinfield
FP 27 Dunkinfield is a well-used path, providing a very useful short-cut between Kenyon Avenue and Cheetham Hill, which has been made the subject of a gating order by Tameside MBC An earlier attempt to close the path using the provisions of the Town and Country Planning Act which was submitted to the Secretary of State for determination, was dismissed by a Planning Inspector who observed that "excluding children going to and from school, the path is probably used, at a conservative estimate, by around 250 people each day between 9 am and 5 pm. This figure is probably more than double if these children are included." The police statistics used to justify the order referred only to "a large problem of crime and disorder in this area", not specifically to premises adjoining or adjacent to the path, and no reports of anti-social behaviour or criminal damage that could be directly linked with the footpath. The gating of the path is having a detrimental effect on many other persons in the locality because it provides a shorter link to many important services, in particular All Saints College, the local health centre and playing fields. Pedestrian counts reveal the large number of people using the route, the majority of whom are school children. The path provided a through route and the alternative is not reasonably convenient: it is 495 m long, and uses footways adjacent to roads which are subject to heavy traffic, compared to the route proposed for gating which only measures 60 m. No consideration at all was given to the needs of the elderly or infirm wishing to use the path to access the medical centre.
Wigan Metropolitan Borough Council
A path between Old Road and Tenbury Drive, Ashton-in-Makerfield, which provided a safe, direct route for parents taking small children to and from school was gated. Three or four dozen parents were using the path each day. This wide alleyway had been in constant use as a footpath for more than 60 years. Users had never been prevented or challenged during this period. Wigan MBC said the reason for gating was to prevent anti-social behaviour. Users denied that there were such problems. The alternative route was along a busy main road.
 Local Access Forums are statutory advisory bodies, set up under s.94 of the Countryside and Rights of Way Act 2000, whose function it is to advise the local highway authority as to the improvement of public access to land in that area for the purposes of open-air recreation and the enjoyment of the area, and as to such other matters as may be prescribed.
 Public Path Orders Regulations 1993 SI 1993 No 11
 Town and Country Planning (Public Path Orders) Regulations 1993 SI 1993 No 10
 The definitive map and statement is the legal record of public rights of way held by each surveying authority (synonymous with highway authority) in England and Wales; the depiction of a highway on a definitive map is conclusive evidence of its status, without prejudice to any higher rights which may exist. The rights of way information shown on Ordnance Survey maps is derived from definitive maps.