Administrator: Fiona Southern Tel: 017684 84849
Address: Mark’s House, Stewart Hill, Hesket Newmarket,
Wigton, Cumbria CA7 8HX
Email: fiona@cumbriacommoners.org.uk
Website: www.cumbriacommoners.org.uk
Laura Francis
Common Land and Greens (Protection)
Department for Environment, Food and Rural Affairs
Zone 1/14, Temple Quay House
2 the square
Temple Quay
Bristol BS1 6EB 5th April 2007
Dear Ms Francis
Consultation on the Protection of Common Land in England
Thank you for giving the Federation of Cumbria Commoners the opportunity to comment on the consultation document on the protection of common land. The Federation was established in 2003 with funding from Defra in response to increasing concern that the importance and complexity of commons was not well understood by policymakers. It represents over 500 members and is now financed entirely by subscription. The Federation is managed by a committee of volunteer commoners from across the county and has links with commons’ groups in Lancashire, Yorkshire and elsewhere in the UK.
The Federation welcomes Defra’s attempts to simplify and streamline the consent process and believe that it will greatly assist the managers of commons who are seeking to act within the law but who in the past have understandably struggled to be clear on what the law required. We also welcome the proposal to increase information provision to commoners and other users of commons. We would be happy to work with Defra to disseminate such information to our members.
Q1. Do you agree with this assessment of the most important features? Are there any you would add, change or remove?
We are unclear as to how the objective to increase the number of SSSI commons in favourable condition relates to s38of the Act which is concerned with unimpeded access to common land. It would seem that the condition of SSSIs has no legal standing under this section of the Act.
Q2. Do you agree that 21 days is the right length of time?
The period of 21 days seems appropriate provided that the proposals are advertised on site. On large commons it may be appropriate to request applicants to place a number of site notices.
In section 1.5 of the document you refer to the process on National Trust land. We understand that applicants will still need to apply under the National Trust acts but that s38 criteria will apply. It would be helpful if specific guidance could be issued on this as there are large areas of National Trust owned common land in Cumbria.
Q3. Do you think the proposed consent process achieves the right balance between allowing interested parties to make their views known, whilst not unduly prolonging the application?
The Federation believes that the proposed consent regime does allow for views to be expressed without unduly prolonging the process. However, it is essential that Defra or Planning Inspectorate officials recognise that it is much more difficult for a sole grazier or a commoners’ association to embark on a process of stakeholder engagement than it is for an NGO or public body. We hope that failure by a grazier to consult a key stakeholder will not result in an entire application being rejected.
Q5. Can you think of any circumstances where the above works would in fact be caught by s.38 of the Act?
It would certainly be possible for tree planting to impede access depending on the density of planting and the species used. If tree planting is to remain on the list it requires tighter definition with a maximum area or percentage of the common or alternatively stipulate individual trees up to a maximum number.
Q6. Are there other works you are aware of that should also be described as outside s.38?
We suggest that aerial bracken spraying, resurfacing existing tracks and roads and clearing existing ditches should be added to the list.
The Federation welcomes the inclusion of one-off temporary fencing for very short periods of time and accepts that in such a situation the netting or wire would have to removed within the stipulated time scale but we suggest that for reasons of practicality on remote and inaccessible commons, the fence posts could be left in situ and be outside the scope of s.38.
We do not believe it is appropriate to include “placing seats” as in areas such as the Lake District this could result in a plethora of inappropriate structures.
Q7.Do you consider that these are works which should be exempt?
The Federation agrees that the three types of work listed should be exempt from s38. However, we believe some alterations to the proposals are required. It is essential that a management plan has been agreed by the majority of active right holders and ideally the landowner; it should also consider the common in its entirety and not be simply a nature conservation plan. Social, cultural and economic factors should be considered alongside environmental ones. The plan should not need to be associated with an agri-environment scheme provided that it meets these criteria.
With regard to the first proposal we would be very concerned at the prospect of a landowner being able to carry out these works without the agreement of the commoners as loss of 5% of a large upland common (this could easily amount to 150ha) for five years would have a significant economic impact and could severely impinge on graziers ability to manage a common.
Natural England should only be able to carry out works if it is within the scope of a management plan agreed by the landowner and active graziers.
Q8. Should the exemption for fencing for nature conservation purposes be restricted to use for grazing to restore the common?
No it should also be applicable to scrub or bracken management or tree planting
Q9. Do you agree that the time limits we have suggested are appropriate?
Excluding stock from an area to allow reseeding would require an absolute minimum of 1 year in upland areas, ideally longer. It would be helpful to extend this time limit to one year for commons over 750ft above sea level. If a longer period is felt to be necessary then a s.38 consent can be applied for.
Q10. Do you agree that registering exempt works with Defra will assist in controlling minor works on commons to avoid a number of minor works when added together exceeding the threshold for exemption?
We believe it to be essential to keep a register of exempt works in order to avoid abuse of the system by uncooperative commoners or landowners. It will also assist law abiding commoners to not inadvertently overstep the threshold for exemption where they are unaware of other works on a large area of common. This list should be available for public inspection.
Q11. Do you agree that these works are appropriate for exemption?
Experience has shown that the erection of stones or bollards to prevent parking on commons is a very controversial issue and we recommend that this is not included as an exempt item.
We are concerned by the second suggestion (temporary fencing for safety reasons) particularly if this can be carried out by a landowner without the agreement of commoners. The requirement should be changed to 5% or 1 ha, whichever is the smaller, for a maximum of 6 months in any two year period.
Q13. Are there any other key areas that you consider should be covered? What specific issues should be included within this framework?
We suggest that the framework should emphasise the potential cost of taking enforcement action and ensure that individuals going down this route are aware of the implications.
The framework should recommend mediation as an alternative to enforcement. The framework should make reference to the fact that many commons have associations or councils and that these are a useful point of reference for individuals or groups considering enforcement action.
Q16. Given this statutory framework, we would welcome your views on the nature, shape and purpose that any future schemes should have. In what way should a future model scheme vary from the present model?
We believe that Defra need to clarify the term “one third in value of the interests in the common affected by the scheme”. Could you confirm that exercised rights will be given a higher value than unexercised rights due to the ability to sell these rights along with hefted and acclimatized stock?
Future schemes should reflect s38 and s43 of the Commons Act for reasons of consistency, there should be works which are outside the scope of the scheme and exempt works; where possible these works should be the same as those listed by Defra under the forthcoming regulation.
Q17. We propose to follow a similar approach in future, but would welcome views on any way in which the process could be improved.
We think it is essential that a fuller and more transparent procedure is introduced for the instigation of regulations on common land. The procedures should largely reflect those people are required to follow when carrying out works on the common; there should be informal consultation with all stakeholders, objections and comments should be available for public inspection, an independent inspector should be appointed where there have been objections, and if necessary a site visit or hearing should be arranged.
Q18. Do you think three months is an appropriate length of time for an objection period?
A period of 3 months for the objection period is appropriate provided that the process is open and that there has been consultation prior to publishing the draft scheme.
Q19. Is there any merit in having a number of different model schemes? There may be some merit in having three outline models for:
· Village greens
· Lowland commons typified by high levels of recreation across a broad range of activities and often under grazed or suffering from scrub encroachment
· Upland commons typically large and grazed and as such an important economic resource to those with registered rights; often exhibiting high levels of recreation but more easily absorbed due to scale.
Q20. We would welcome views on any particular matters to which you think the Secretary of State should have regard
If the common being released from registration is grazed then the Secretary of State must have regard to the graziers affected by the proposal. The quality of the replacement land needs to be considered; is it as good as the deregistered land or is it covered in scrub or waterlogged. Is it as easily worked and accessed as the lost land. The proximity of the replacement land to the right holder’s appurtenant land should also be considered.
Q24. Do you agree that a site visit will be necessary for every application?
A site visit would be required in all circumstances.
Q29 & 30. We would welcome your views on whether the Secretary of State’s current involvement in the approval of stint rates adds any value to the process.
We recognize that Secretary of State involvement in these processes is unnecessarily bureaucratic. We believe that some other regulatory body should be in place that parties can turn to for mediation or arbitration when there is a dispute.
Q31. We would appreciate your views on charging.
There is no doubt that imposing charges on applications will discourage people from engaging with the consent process and lead to more illegal works on commons. Coupled with the lack of an enforcement body to tackle these works the introduction of charging could result in a failure” to safeguard common land for current and future generations to use and enjoy”. For this reason it is essential that any charging structure is not punitive and is sufficiently flexible to reflect those works which will secure a public good. The Federation supports a two tier system, one for works of an economic nature and a discounted rate for works which help to secure a public good. It is essential that Defra considers public good in its widest sense and does not, as suggested in the consultation document, simply allow a discounted application fee for works securing nature conservation benefit. Some works may secure safer or improved public access, others landscape improvements and others may ensure that a culturally significant activity may continue.
The Federation believes that a single no risk fee should apply to works securing a public good but that the option to charge a further fee for “economic” works that require a public inquiry or site visit should be reserved.
Thank you again for giving us the opportunity to comment. Please do not hesitate to contact me if you require clarification on any of the above points.
Yours sincerely
Fiona Southern
Fiona Southern
Administrator