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Public Spaces Protection Orders And The New Forest

New Forest District Council has sent two draft Public Spaces Protection Orders (PSPO) , which we broadly support, for public consultation.  The first to ban the lighting of fires and use of BBQs (principally on the Crown Lands), and the second to ban the feeding and petting of ponies, horses, mules, and donkeys in the open areas of the New Forest.  The consultation runs for nearly 8 weeks from  Monday 6th December 2022 to Friday 27th January 2023.

In this second in the series on PSPO’s we explain what they can (and can’t) do for the New Forest.

What are PSPO’s and what can they do for the Forest?

Public Spaces Protection Orders prohibit anti-social behaviours or require certain restrictions on activities within a given public space.  This allows councils to individually target public nuisances in their area.  Typically targets include alcohol consumption, use of “legal” highs, lighting fires or BBQs.  More unusual orders involve intentional feeding of gulls, busking, flying drones, dangerous cycling/skateboarding, and releasing balloons.  The most common type of PSPO across all councils are for dog control; primarily dog fouling, but also conditional lead requirements and exclusion zones (usually sports ground and children’s play areas).

This may sound like councils are given free reign to attack any bugbear of the local populace, however the council must produce evidence that the target behaviour is detrimental to those in the locality, is persistent, is unreasonable, and justifies restrictions imposed under the order.  Guidance suggests that councils look for other ways to address each issue, in some instances existing laws or voluntary codes of conduct or other initiatives may achieve sufficient compliance with rules.  PSPOs should be used responsibly and proportionately in response to issues that cause anti-social behaviour and where necessary to protect the public.

As a minimum, each PSPO must set out:

  • what the detrimental activities are
  • what is being prohibited and/or required, including any exemptions
  • the area covered
  • the consequences for breach
  • the period for which it has effect.

Consequences are usually the imposition of fixed penalty notices (varying between £50-150, frequently £100).  A PSPO can last for up to three years, after which it must be reviewed. If the review supports an extension and other requirements are satisfied, it may be extended for up to a further three years. There is no limit on the number of times an Order may be reviewed and renewed.  PSPOs may be subject to legal challenge, poorly worded or shoddily evidenced orders have been successfully challenged.[i]

To give an example of how a PSPO may work in practice:  a 2015 PSPO from North East Derbyshire District Council reportedly banned golf equipment from an area of a park.  As noted, each PSPO only operates within a defined public space within a council area.  The area was “the open park areas at and surrounding the Hut and BMX track” in Mickley.   Evidently the public nuisance was caused by golfers practicing in an area unsafe for users of the adjacent BMX track.  The PSPO was not extended beyond its first three year term, so ostensibly the temporary ban effectively reduced, eliminated, or changed the target behaviour.

While more perennial behaviours may not be so easily altered, the built in three year maximum forces a review before any extension.  A 2015 PSPO which rightfully targeted hooliganism in Salford Quays: jumping from bridges, throwing wheelie bins or animals into the water, interfering with lifesaving equipment, also included a widely derided ban on “foul and abusive language”.   Free speech advocates challenged this, and this clause was dropped from subsequent versions, without recourse to a judicial review.

PSPOs and The Forest

PSPOs were established within the Anti-Social Behaviour Crime and Policing Act 2014.  Although the powers have existed for eight years, the two NFDC orders going forward to consultation are the first that this District Council have proposed.  It is apparent that they have wisely waited to benefit from the experiences of implementations elsewhere in the country, and to gather supporting evidence for their proposals.

Over the past few years the Park Authority, Forestry England, Verderers, Recreation Management Strategy and other key Forest groups have discussed with NFDC the possibility that PSPOs might address a range of issues on the Crown Lands including:

  • Parking on verges
  • Wild camping
  • Wild fires and BBQs
  • Out of control dogs
  • Feeding and petting of animals
  • Cycling off the permitted network

However, some of these don’t easily fit PSPO criteria.  Parking on verges is primarily an environmental issue for its material damage to the SSSI.   Establishing that it is necessary to protect the public is limited to instances where verge parking blocks gateways for emergency vehicles.  Both wild camping and off network cycling have a similarly tenuous case under PSPO criteria, and are already addressed under existing byelaws.

Verge Restoration Before / After

The two issues, wildfires and BBQs, and the feeding and petting of livestock, NFDC have now moved forward fit the criteria.   Wildfires are an obvious danger to the public, the subsequent devastation may also be viewed as detrimental to public enjoyment.  Feeding and/or petting of Forest livestock for all of its ill effects on the animals and their owners, also causes behaviours in the animals that make them a danger to the public.   When inappropriately fed, semi-feral animals or those protecting their young may become aggressive, and some animals will loiter more frequently and dangerously near roads.  These problems are well evidenced as may be seen in the documents available in the consultation.

When we suggested that the Council should also move forward with a dog control PSPO, they demurred “It was felt there was not enough evidence at the current time to take this matter forward.  However, it could be considered in the future.”  Ironically one of the evidence documents, cited to support the feeding ponies PSPO, detailing incidents in 2018, showed “Dogs worrying livestock” made up 33% of incidents reported to the Verderers.  So while that issue is off the table for now, the upside is that all Forest stakeholders, including dog owners, have an opportunity to help craft an order consistent with the already agreed upon code of conduct.

Education and Enforcement

PSPOs confer a duty on the authority to provide adequate signage to indicate where they are in effect.  Signage in the Forest has always been a tug of war between positive education and minimizing urban clutter in our idyllic landscape.  No doubt this will be another tricky series of discussions.  One of the reasons we’d hoped to add a Dog Control PSPO to this round of consultation was to save the effort and expense of reinventing that inevitable wheel.

Enforcement will be through fixed penalty notices issued by authorised personnel, representatives of the council or another nominated authority.  From the minutes of the NFDC Cabinet meeting:

It was reported that there had been discussion with the National Park Authority, Verderers and Forestry England and it had been accepted in principle that they would play a lead role in the enforcement of the PSPO activities, should they be introduced.

So it is likely, but still to be determined, that this will fall to the Rangers of both the National Park and Forestry England, potentially other staff.  There will be training and resource issues for any of the organizations that come forward.

At the November 2nd Cabinet meeting, in response to a query whether the PSPO should include the touching and petting of ponies, supposing the feeding was the strongest factor for behavioural change, Council Leader Edward Heron, after defending the inclusion of all these actions, characterized a balanced view for enforcement:

The idea is not to be lurking in the bushes with your book of tickets to leap out. The answer is, the ability is there if you are in one of the car parks, if you are talking about one of the Forestry England Rangers or one of the National Park Rangers talking to people. And there is someone walking into a herd of ponies and petting and stroking them.  And they tell them not to, and explain why.  And then asked them more firmly not to, and explain why, and the fact that they are perhaps taking their children in and risking them doing this. Yes. At some point, should they consider it appropriate and proportionate to do so, I want them to have the option to issue this penalty. Again. I really hope.  I don’t think anyone wants this to be a place where we’re out issuing penalties. Everyone wants this to be a place where everyone can enjoy the Forest, whether they live here, work here, visit here in a way that’s responsible, in a way that preserves it, in a way that keeps them all safe.

Public Spaces Protection Orders are not going to be an all singing, all dancing solution to the ills of the Forest.   However, they will be a tool, which used sensibly may raise the profile of the issues they address, give bite to those education messages and promise consequences for those who feel all too entitled to ignore them.

In This Series —

Previously:
NFDC Cabinet Advances Prohibitions on Forest Pony Feeding and Barbecues to Consultation

Subsequently:

Dog Public Spaces Protection Order: A Statement to NFDC Council Cabinet

Protect Heathlands by Restricting Sky Lanterns and Fireworks Along With Barbecues — A Presentment to the Verderers about the Wildfires PSPO

Coming:

PSPOs for the Dog Control in the Forest: Our Recommendations For a Draft Dog Control PSPO, how they stack up against existing guidance, and What the Kennel Club Says About PSPOs

ENDNOTES

[i] Richmond Dog control order was partially quashed:
https://www.thekennelclub.org.uk/media-centre/2018/april/victory-for-dog-owners-in-uks-first-successful-pspo-legal-challenge/
https://www.telegraph.co.uk/news/2018/04/13/dogs-can-urinate-lampposts-court-rules/

https://www.lag.org.uk/article/205493/challenging-public-spaces-protection-orders

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