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Golf-courses and commons.
This information sheet explores opposing golf-course development on your common or open space, and what to do if conflicts concerning rights of common and access arise on existing golf courses.
1.1 Golf is a popular sport and sometimes golf courses are proposed on commons and other open spaces. Many commons already host golf courses, to which there often is public access.
2.1 The Open Spaces Society generally opposes new golf courses and extensions of existing facilities on commons and other open spaces, because of the interference with common rights and public access. There is much that you can do at a local level to help.
3.1 The development of a new golf course normally requires planning permission but there are no set requirements. The policy on new golf courses depends on the council under which the area in question falls, and should be set out in the local plan. However, criteria considered by all planning authorities for golf-course development include: impact on landscape, traffic generation, access, and the effect on adjoining properties. You can therefore oppose any developments by objecting to the planning application.
4.1 Any construction associated with golf-course development on common land — such as club houses, fencing, car-parking and earthworks — which interferes with access, requires permission from the Secretary of State for Environment, Food and Rural Affairs (in Wales the Welsh Ministers). A s38 application will give you a further chance to object to the proposals.
5.1 On many golf-course commons there is already a legal right for the public to wander on foot and horseback, under s193 of the Law of Property Act 1925. S193 applies in particular to commons in former urban districts and boroughs (those subsisting before local government reform in 1974), and such commons often are targeted for golf courses because they are close to where potential customers live.
5.2 The owner of the common can apply for an order of limitations whereby access under s193 may be restricted. For example, an order might typically specify a limitation that ‘no person shall…loiter upon the green, tees or bunkers or wilfully obstruct any fairway’. However, access under s193 remains available, provided that any limitation is not breached.
5.3 Access under s193 applies to those both on foot and on horseback. Unless limitations expressly restrict riding on the golf course, riders will have access in the same way as those on foot. However, it is usual that any limitations imposed make provision for those who cause damage to the soil or grazing, and if so, horse riders should be cautious about riding on fairways in wet conditions, and avoid riding on greens or tees at any time (although good practice would be to avoid causing harm to the course regardless of whether there is a relevant limitation).
6.1 The Countryside and Rights of Way (CROW) Act 2000 gives the public the right to walk on all registered common land. However, the act does not supersede the rights of access in s193 of the Law of Property Act 1925 or in other legislation which precedes the CROW act.
6.2 A common, to which the CROW Act right of access applies, should be shown on the maps of open country and registered common land prepared by the former Countryside Agency (now Natural England, and in Wales, the former Countryside Council for Wales, now Natural Resource Wales) under ss4—11 of the CROW Act. Schedule 1 to the CROW Act lists the exceptions to the right of access under CROW, and this includes, in paragraph 8, ‘land used for the purposes of a golf course’. So, the CROW Act does not give the public the right to walk on golf-course commons, even though the land is shown on the maps prepared by the relevant agency.
6.3 It is not clear whether the exception in paragraph 8 of Schedule 1 to the CROW Act applies to the entirety of the golf course (and if so, how the perimeter of the golf course is defined), or whether access is available to, for example, the roughs or other parts not generally used for the purposes of play.
Public rights of way
6.4 Public rights of way frequently cross golf courses, including those on common land, even where there is otherwise no public right of access to the golf course. Proposals to layout a golf course on land crossed by rights of way may be accompanied by an intention to divert rights of way to reduce conflict between users and golfers. Such proposed diversions should be considered on their merits: for example, it seldom will be acceptable to divert a right of way from an historic alignment which is a feature in the landscape—such as a holloway, causeway or green lane.
6.5 In most cases, any public rights of way across a golf course will precede the laying out of the course, and so it may be said that golfers playing across the rights of way must defer to users and ensure their safety. The golf club should ensure that its members and visitors are sufficiently informed about how to play across rights of way, and rules can be strengthened by the display of appropriate notices on the course, and by the provision of bells which either golfers or users can ring on the approach to a potential conflict zone (it seldom will be appropriate to expect horse riders to use a bell). Nevertheless, it will be sensible for recreational users and golfers to engage in the usual give-and-take, with respect for each other’s activities.
7.1 There may be management schemes and byelaws or specific acts of parliament affecting a common which would make golf-course development difficult, or indeed which expressly facilitates use of the land for a golf course. For example, the National Trust Acts and most management schemes under Part I of the Commons Act 1899 specify that access to the public must be ensured. But a scheme under the 1899 act may make express provision that the existing use of part of the common for golf shall be continued. In that event, it is likely that there will be public access to the golf course, but byelaws may forbid certain activities (such as prohibiting the playing of golf by non-members, or loitering on fairways or greens). In any case, it is suggested that those taking to the golf course for recreation, and those playing golf, will wish to engage in the usual give-and-take, with respect for each other’s activities.
8.1 The golf club cannot do anything that would interfere with the exercising of commoners’ rights without their agreement, so this may provide further grounds for stopping a new development. Interference could include mowing fairways or enclosing greens. However, depending on the circumstances, the improvement of common grazing in order to present attractive facilities to golfers potentially may have a beneficial impact on the quality of the grazing too.
8.2 Commoners may be in a stronger position to act than members of the public taking action on the grounds of impeded access. It is important that whoever takes action does so swiftly. A court may refuse to uphold commoners’ rights where a person has stood by and watched work being done without signalling an intention to bring an action until after it is completed.
8.3 However, it seems that where works have been carried out with the consent of the Secretary of State or the Welsh Ministers under s38 of the Commons Act 2006, those works override any possible objection from the commoners. It is important therefore, that where consent is sought under s38, any commoners who apprehend a damaging effect on their rights of common make clear their objection. It is suggested that, as s38 contains no provision for the compensation of commoners where their rights are diminished, neither the Secretary of State nor the Welsh Ministers can authorise any works which have a significant adverse impact on rights of common.
9.1 There are numerous examples of existing courses on commons including: Nuffield Common in Oxfordshire, Eton Common in Windsor and Maidenhead, Brackenbar Moor in Cumbria, Caerphilly Common in Caerphilly, Walton Heath Common in Surrey, Bradnor Hill Common in Herefordshire, and Minchinhampton Common near Stroud in Gloucestershire.
9.2 On some of these commons, walkers, commoners, and golfers have co-existed for many years without major problems. However, there maybe conflicts. Problems may include:
a) ‘tidying’ and clearing shrubs to make it easier to find balls. This damages wildlife and makes walkers more vulnerable to flying balls;
b) spraying fairways with herbicides so damaging their wildlife value, or with pesticides that are toxic to grazing animals;
c) heavy and intensive use of fairways for golf, making it dangerous for the public to walk or ride there;
d) use of temporary fencing to exclude commoners’ animals from vulnerable areas;
e) ill-informed golfers, who assume that they have right of way, or are dismissive of recreational users’ safety, and indeed,
f) ill-informed recreational users, who are careless as to whether their recreation interferes with golfers’ play (and in the case of horse riders exercising a right of access, who are careless as to whether their horses harm the turf).
Action group
10.1 Set up an action group to research the background constraints on your common. Golf-courses are often found on commons with access rights or management schemes.
10.2 For example, Nuffield Common is managed under an 1899 Act management scheme. Under the scheme, the South Oxfordshire District Council has a duty to preserve the natural aspect of the common and keep it free of encroachments. Where rights of access or common rights exist, golfers, or their club, may well be responsible for injury or damage caused by a golf ball. Such constraints will strengthen your case in the event of an access or management problem.
Management plan and liaison group
10.3 Press for a management plan and a liaison group of all those interested in the common. Then potential conflicts can be discussed and agreement reached for future management.
Common rights
10.4 Where the exercise of common rights is being interfered with, commoners can also bring action against the golf club — see above.
Header image: Walton Heath, Surrey. Photo credit: Hugh Craddock
The Open Spaces Society is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this paper.
© Open Spaces Society, November 2024