The National Trust recently announced the launch of a new activity licensing pilot scheme understandably led to widespread concern amongst the outdoor instructor community who use Trust land with their students. The BMC held a teleconference with the Trust to find out more about the scheme, discuss how this may negatively impact providers and present an initial case supporting free educational use of Trust land.
Background
Firstly, it’s worth giving some background information on the Trust’s motivations. The pilot scheme will be running over the next six months at 21 properties (a full list is at the bottom of this article) across England to license commercial activity on their land. The reasoning behind the Trust initiating this scheme is for them to achieve five strategic objectives:
Minimise damage through greater control of activities happening on Trust land;
Reduce conflicts between user groups;
Ensure provision is run at a high standard;
Develop better relationships with providers and increase understanding of the Trust with their students;
Income generation with money raised going directly back to repair and maintenance of land.
This pilot scheme applies to all types of commercial activity on their land – from large events such as triathlons, marathons and open water swims, though to the opposite end of the spectrum and individual freelance providers. The Trust’s current view of what constitutes ‘commercial’ is simply any activity taking place entirely or partly on their land where money changes hands. Within the climbing, walking and mountaineering sphere, this would apply to any hill or mountain leaders, mountain instructors and guides who are using National Trust land with their students and receiving payment.
The initial format for the pilot scheme is that providers will need to apply for a licence through the local Property Manager and provide details of their activities as well as demonstrating they hold appropriate insurance and qualifications. (It should be noted that in line with HSE guidance, the BMC and Mountain Training recognise that leaders can demonstrate their competence in a number of ways and so will not necessarily hold a national qualification.) The suggested fee from the Trust currently is 3% of the total charge made to students, or there is potential to give back in other ways such as volunteering on work days.
A key point to note is that this is currently a pilot scheme and the Trust was keen to stress that there is scope for it to change significantly if elements of the pilot version are found not to work. The Trust is planning regular reviews throughout the pilot and a larger review in the autumn, accumulating feedback from local providers in the 21 pilot areas as well as from partner organisations. The Trust’s aim is to use their experiences from this pilot scheme to develop a nationwide licensing system which they hope to launch in early 2017 across England and Wales. Once the nationwide scheme is in place, it will be up to local Property Managers to implement it and each property will have the option to opt out of the licensing scheme, or implement it as needed depending on their individual property needs.
Potential Problems
The BMC has already highlighted a number of potential issues with the pilot scheme to the Trust and suggested ways to improve it. Here are a few quick summaries of the general issues we have raised and our thinking behind them…
What about Rights of Way?
No one can charge for use of public rights of way – they are a legal right to pass and repass along a defined route regardless of whether the intended use is commercial or not. Were a provider to use rights of way only, there would be no requirement to apply for access through the licensing scheme.
What is ‘commercial’?
The Trust is currently considering any activity on their land where money is exchanged for a service to be commercial. The activities happening on Trust land that the BMC and its members are concerned with will frequently be within Open Access land boundaries where there is a legal right of access on foot for recreational users. Commercial users – anyone who “engages in any activity which is organised or undertaken (whether by him or another) for any commercial purpose” do not have a right of access to Open Access land.
However, DEFRA has provided additional guidance on the meaning of ‘commercial’ on access land and state in an information note on general restrictions that: “Activities organised for promoting or teaching an adventurous outdoor activity are also unlikely to be undertaken or organised for a commercial purpose.”
The BMC strongly supports a view that the vast majority of provider work falls within this definition with a primary purpose of educating students, building skills to encourage further participation in outdoor activities and teaching an appreciation of the landscape and environment. Based on this interpretation of the law, providers using access land owned by the National Trust for the primary purpose of educating students should have a free right of access.
Displacement into other areas
The objective of reducing conflict between groups may be required at a very small number of honeypot sites which see heavy use by multiple groups, but in general doesn’t apply to climbing and walking groups under instruction. The qualification routes within Mountain Training value etiquette and responsible behaviour highly and in the vast majority of areas this is not a problem with groups working around each other or changing venue as required.
What is more likely is that a licensing scheme that is an administrative and financial burden to providers will lead to displacement of groups elsewhere into potentially less suitable locations where there is no licensing scheme. This could have unwanted repercussions such as these areas being more ecologically sensitive with the potential for damage by increased use.
Setting a precedent?
There is a risk that large national landowning body such as the National Trust introducing a licensing system may trickle down to other landowners. This could lead to a situation which is difficult to manage for providers, especially on days where routes may cross land owned by multiple landowners. Not only would the administration be difficult, but significant proportions of a provider’s income could be required in payment – all this from often small businesses or LEA Outdoor Centres who are already struggling to balance the books.
Flexibility issues
A key requirement for outdoor providers is to remain able to react to unexpected changes to weather and conditions and change venue at the last minute if necessary. This is an integral part of the activities climbers and walkers participate in and making last minute changes more difficult will only result in a reduction in safety for providers and students.
Positive opportunities
There are certainly elements of the scheme that are concerning, but it is important to remember that this is only a pilot scheme at this stage and there is plenty of opportunity to influence the final version in a positive way.
The Trust undoubtedly has some important issues which need addressing, not least of which is controlling damage and in particular the maintenance of upland footpaths on their land – important work which is expensive and time consuming. Income generation to fund this work is necessary but we at the BMC think there are better ways to achieve this than a licensing scheme which will be difficult for both the Trust and providers to administrate and could provide barriers to participation in the outdoors.
One initial suggestion the BMC has made to the Trust, is that a badge scheme could be a much better way to achieve their objectives instead of formal licensing. A well run badge scheme could achieve those aims, for example by requiring holders to:
Educate students about the value of the environment and landscape;
Promote key messages about the National Trust;
Retaining the flexibility required for providers to work safely and effectively;
Give something back to the landscape they use, be that via a small percentage of earnings / time / another locally appropriate means.
Once established, this could give providers a useful way of demonstrating to their clients that they are responsible operators and importantly it would be optional and free of the negative connotations of paying for access, whilst still achieving the objectives set out by the Trust. This is only one idea but the initial response from the Trust was one of interest.
How can you get involved?
If you are a provider who uses one of the 21 properties included within the pilot scheme, it is important that you feed back about your experiences of the scheme. You can do this locally by contacting the Trust team at the property involved. This feedback will be most useful and have a bigger impact if you can give clear examples of how the scheme has impacted you, whether that is positively or negatively.
If you are a provider who uses Trust properties, but outside of the 21 pilot areas the licensing scheme doesn’t apply to you at this stage, but we encourage you to provide feedback to the Trust. The BMC will be regularly providing feedback into the pilot scheme and how it can be improved, hopefully with plenty of real world examples from providers in the pilot areas.
The Trust certainly seems to be open to suggestions at this stage and it is important that we don’t miss the opportunity to feedback on the pilot scheme and positively influence the final version. It can’t be stressed enough how important it will be to have solid case studies to back up the suggestions we make in our feedback, so if you are a climbing or walking provider in one of the 21 areas, in addition to feeding back to the local property team, please let the BMC know any feedback you may have on the pilot scheme by emailing: ntlicensing@thebmc.co.uk .
The 21 Pilot Properties are:
Carding Mill Valley
Ashridge
Alderley Edge portfolio
Wimpole
Killerton
New Forest
Clumber Park
Buckland Abbey
Lake District
Gloucestershire portfolio
Purbeck
Arlington
Osterley
Longshaw
Gibside
Speke
Penrose
Attingham
Birling Gap and Slindon
Formby
Tyntesfield/Leigh Woods
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