Fencing of quarries

To: Directors of Environmental Health/ Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils

For the attention of: Environmental Services / Trading Standards / Fire Authorities / Other

This circular gives advice to local authority enforcement officers

Introduction

• This revised circular outlines the demarcation of enforcement responsibilities concerning the fencing of quarries, and highlights the implications in England and Wales of the Countryside and Rights of Way Act 2000 (the "right to roam").

Background

• The Mines and Quarries Act 1954 (MQA) s.151 is concerned with the fencing of all quarries, whether in the course of being worked or not.
• Section 151(2)(c) deems a quarry to be a statutory nuisance under the Environmental Protection Act 1990 (EPA) if:
  • it is not provided with an efficient and properly maintained barrier so designed and constructed as to prevent any person from accidentally falling into the quarry; and
  • by reason of its accessibility from a highway or place of public resort constitutes a danger to members of the public.
• MQA S.151 is not a relevant statutory provision under the Health and Safety at Work etc. Act 1974 (HSWA), and enforcement officers warranted under HSWA have no powers to enforce this Section. It is enforced by those with enforcement powers given under EPA
  .
  NOTE: MQA s.151 is the only section of that Act which is not a relevant statutory provision (see HSWA Schedule 1). It originally referred to the Public Health Act 1936 but was amended by EPA Schedule 15 so that those references to parts of the 1936 Act (which have been repealed) are replaced by references to the 1990 Act.
• The Quarries Regulations 1999 (QR99) came into force on 1 January 2000, repealing all parts of the MQA that relate to quarries apart from Section 151. QR99 apply to all quarries used for the extraction or preparation for sale of minerals, and are enforced by the HSE.

The Countryside and Rights of Way Act 2000 (CROW)

• This act introduces the "right to roam" over designated access land. The mapping exercise carried out by the Countryside Agency and Countryside Council for Wales has mapped "open country" and registered common land. Open country is mountain, moor, heath and down. Registered common land is simply land registered as such under the Commons Registration Act 1965. Either category may include active or abandoned quarries.
• The new access rights apply only to "access land", which is a subset of open country and registered common land. Access land does not include "excepted land" as defined in CROW Schedule 1, so there is no new public right of access over 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 Reg. 3 of the Quarries Regulations 1999 is reasonable. Therefore, any land which is part of an active quarry operation is excepted, and no new access right is given.
• There is however a potential problem with the public’s likely understanding of their new rights. The new walkers' maps being published by the OS and on the Countryside Agency website do not distinguish excepted land from access land, but simply record open country, registered common land and land with existing rights of access such as urban commons. The precise extent of the new rights will not therefore be clear to the public from the maps, and there will be the potential for trespass into excepted areas unless these are clearly demarcated on the ground.

Fencing at active quarries

• QR99 Reg. 16 places a duty on the quarry 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. Whilst MQA Section 151 will still apply to active quarries, the effect will be that HSE will enforce Reg.16 at active quarries.
• A quarry operator may use fencing, signs and other means to delineate the boundary of CROW excepted land. The same issues will apply here as with delineating existing rights of way, and laws of trespass apply on excepted land. The local Highways Authority is "Access Authority" over access land and may be able to provide practical advice on the best approach. Other organisations such as the Country Landowners’ Association and Quarry Products Association are also likely to be able to advise.
• Access land may include areas where there is existing planning permission for mineral extraction but which are not yet being worked. The new access right is likely to apply until the land is worked. As the quarry is extended into the planning permission, the land where work is taking place will become excepted and the access right will no longer apply.

Fencing at disused quarries

• Local authorities will enforce MQA Section 151 at abandoned quarry sites.
• As part of the legislative process for CROW, the Department for the Environment, Food and Rural Affairs (Defra) were given a power to regulate to make access land NOT a place of public resort (see paragraph 3 above), but decided not to use it. This means that abandoned mineral sites on access land that were not already places of public resort under Section 151 will become so on commencement of the CROW rights.
• Defra have produced guidance both for local authorities with enforcement powers under the Environmental Protection Act, and for land managers who may be affected.