Spreading our wings Summer 2008
Grab your greens now Spring 2008
See you in court  Autumn 2007
Trespassers' legacy Summer 2007
Coast for the most Spring 2007
One admiral, no ships  Autumn 2006
Unfair trade Summer 2006
End this futility  Spring 2006
A commons champion? Autumn 2005
A long way to go. Summer 2005
Enforcing the law  Spring 2005
Hills to climb. Autumn 2004
Private practice. Autumn 2002

Spreading our wings

An opinion from our general secretary, Kate Ashbrook, from Open Space Summer 2008
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‘I never saw a more Spreading lot of animals in my life,’ declared Eeyore as the animals gathered round to hear his farewell poem for Christopher Robin. Those animals would have been delighted by the plan for designated ‘spreading room’ around the coast of England.

The proposals for new coastal access from the Department for Environment, Food and Rural Affairs (Defra) are ingenious. They combine 60-year-old legislation for long-distance paths with access rights under the Countryside and Rights of Way Act 2000, so as to provide a continuous trail around the coast with adjoining spreading room where people can roam free and enjoy our unparalleled coastal landscapes.

Estimated

We hope that the Marine Bill, containing these provisions, will become law within the next two years. There’s a further ten years estimated for completion of the trail and spreading room, led by Natural England which will fund local authorities to do the groundwork.

We have warmly welcomed all this, although of course we shall have comments on the detail. But the worry is that, even if the legislation is passed, it may never happen because of cuts in funding for Defra and Natural England, and too many pressures on hard-squeezed local authorities.

This is the fate of the Discovering Lost Ways project, which originally aimed to record all the missing routes on the definitive-path map. Seven years on, and over a quarter of the way through the 25 years allotted for the task, Natural England has discovered it can’t be done, due to the enormity and cost of the operation. Consequently, we must now ensure that the 2026 cut-off date for path claims is removed from the legislation so that it can never be invoked.

Countless

But that is not enough. There are countless routes waiting to be unearthed, where we already have rights we don’t even know about, and which are being lost daily under development. There must be a plan for recovering these routes. But the expense is a barrier.

Cost is a worrying factor in the registration of greens too. In the last Open Space I wrote that applicants could be bankrupted by long, complex public inquiries when their claims are challenged. Now, on top of this burden, Defra is proposing to prescribe a fee for submitting an application.

This will probably deter many individuals and small residents’ groups from putting forward applications where they have good evidence. Yet those who can least afford the fee are most in need of the spreading room which village-green registration will secure for them for ever.

Grab your greens now
An opinion from our general secretary, Kate Ashbrook, from Open Space Spring 2008
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Grab your greens before the developers get them. Communities should identify now those areas of land where people have freely enjoyed recreation for 20 years, and get them registered as greens before they are threatened.

While land may be registered even when it has planning permission for development, we know that once big commercial interests are involved, it is much more difficult and expensive for the applicants.

Campaigners for The Cloffocks, open space at Workington in Cumbria where a traditional easter game of ‘Uppies and Downies’ was played, ought to have succeeded in registering the land. But now Tesco has planning permission for a superstore there, it will fight registration all the way.

Competition

Waterfoot Residents’ Association’s application is competing against Lanca-shire County Council’s plans for a school on a local open space at Rossendale. Residents at Amble in Northumberland are up against a new road across The Braid. And many more such races are being run.

Unfortunately, there are countless opportunities for the opposition to spin things out, not least at the public inquiry which is normally held if there are objections to an application.

At Warneford Meadow in Oxford, where a National Health Service trust wants to build on the much-loved green space, the trust’s lawyers are cross-examining the applicant’s witnesses at length (more than four hours for some).
The applicants thought the inquiry would last for only one week last October. It has now gone into another week in January and been adjourned until May. While the NHS trust can afford this, the Friends are dependent on fund-raising, and their costs have soared. It is easy for developers to bankrupt the opposition.

Powerful

It took the Friends of Croxley Green in Hertfordshire four years to get their land registered and saved, with a five-day inquiry four days of which were taken up with questioning the Friends’ witnesses. Again, there were powerful vested and well-heeled interests.

We shall back any member who has a good case for registering land, whether or not that land is threatened. But it is so much easier to get it registered before a developer has cast his acquisitive eye over it, and when there are far less likely to be objections.

Parish and community councils and other local groups should set up a task force to seek out and map those bits of land which local residents cherish.

With good evidence of use and our help, they can get them registered as greens now. That will thwart future developers and secure the space for all time.
 

See you in court?
An opinion from our general secretary, Kate Ashbrook, from Open Space Autumn 2007
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Those who are planning works which prevent or impede access on commons (see page 3 for a definition) will be subject to more rigid testing than before.  From 1 October the law on works on English commons was updated and clarified.

Now, those considering such works are advised that, if they consider the works to be for the management and improvement of the common, they should apply for consent from the Secretary of State for Environment, Food and Rural Affairs (sections 38 - 44 of the Commons Act 2006).  If the works are not beneficial to the common, they should apply for an exchange of land instead (sections 16 and 17).

In both cases, the secretary of state takes account of the wider public interest.  The rules are clearer than ever.

Exempt

The worry is that the act and subsequent guidance spell out that certain activities on commons are exempt from consent. For instance, temporary fencing, limited in time and area, purportedly in the interests of nature conservation or to contain grazing animals, does not need consent.

It’s good that Defra encourages the applicant to consult the OSS about an exempt work, and he must place an official notice on site and inform the secretary of state.  But who will check that the rules are obeyed, that the fencing really is for the purpose stated in the exemption, that it is removed within the required period and that it is no more than a specified percentage of the area of the common-land register unit?  It will be a massive job for our small society to monitor these works and pursue the transgressors.

However, we must try, because we are the organisation uniquely working to protect commons from unlawful encroachments.  And where we find them, we must use our new enforcement powers in the courts.

Disappointing

These too are disappointing of course.  Although we now have the right to take action against unlawful works on any commons, such action is limited to those erected since 28 June 2005 at the earliest—see page 14.  So those countless encroachments we have found on commons (eg in our recent East Midlands survey) are likely to remain.

The new regime requires the applicant to declare other works for which he has consent, so that the secretary of state can determine the cumulative effect.  By elimination this will bring to light some unlawful works which should be removed.

We are set to test the new enforcement provisions in the courts, and are looking to our members to provide examples of recent unlawful works on English commons.
 

Trespassers’legacy
An opinion from our general secretary, Kate Ashbrook, from Open Space Summer 2007
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‘Demonstrations arranged with the object of asserting claims to rights where no reasonable claim can be advanced are entirely disapproved by the Society and by all serious ramblers [who] have nothing to say in favour of trespass, but on the contrary strongly discourage it….

‘If Access to Mountains or to any other tracts of land is to be secured for the public, it will be secured not by violent but by reasonable methods, leading perhaps to legislation in due course; and forcible disregard of legal rights will only hinder success.’

So pontificated our journal in July 1932, shortly after the Kinder Scout mass trespass where six peaceful walkers were arrested (and five of them jailed), and whose eightieth anniversary we celebrated in New Mills in April.

Significant

The leaders of our organisation in 1932 would have had no idea how significant that trespass would be in eventually winning access rights for the public. The Countryside and Rights of Way (CROW) Act 2000, despite its inadequacies in securing access to downland, reversed the presumption of landowners so that they can no longer turn well-behaved walkers off land mapped as open country.

The trespassers (who, despite the insinuations in our journal, did not use violence) served as a beacon in the campaign for the CROW Act. Without them our new rights would have taken even longer to achieve.
English ministers are now speaking positively about coastal access too, and the Welsh Labour manifesto for the May assembly elections pledged: ‘we will also investigate creating a statutory right of coastal access’. This is all promising.

Shrivelling

Meanwhile, though, our rights are shrivelling. Countless spaces, enjoyed by local people for quiet recreation, are threatened with development, which is why the new law for registering greens (page 2) is so timely.
And where local authorities fail to close urban paths by the traditional methods under the Highways Act 1980, they are making gating orders, which enable them to erect locked gates with minimal consultation and public involvement (the route remains a highway, but most likely an unusable one). So public space becomes private.

This clashes with the golden words of David Miliband, Secretary of State for Environment, Food and Rural Affairs, at the Kinder celebrations: ‘Land, even private land, is a public good and we should assert our right to enjoy it. It should be accessible to all.’

While our predecessors 80 years ago might not have agreed, these words would have been music to the trespassers. In their memory, we shall hold Mr Miliband to them.
 

Coast for the most
An opinion from our general secretary, Kate Ashbrook, from Open Space Spring 2007
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‘We have called attention more than once to the danger which confronts the people of this island, of losing their freedom of access for recreation to a large proportion of their own coastline…’ proclaimed our journal in July 1936.

More than 70 years on that danger still exists: much of our unique coastline is degraded. It should be restored for wildlife and for people.

On 21 February Natural England decides its advice to the Department for Environment, Food and Rural Affairs
(Defra), which is to launch a consultation paper on access to the English coast.

Vision

Defra’s ‘vision’ is of ‘a coastal environment where rights to walk along the length of the English coast lie within a wildlife and landscape corridor that offers enjoyment, understanding of the natural environment and a high-quality experience; and is managed sustainably in the context of a changing coastline.’ Good stuff: but for the moment an aspiration only.

Meanwhile, the Welsh Assembly Government announced last summer that it will create a coastal path, with a postscript that it will subsequently consider wider access to the coast. While a path is far from ideal, it’s not clear that hard-pressed local authorities will direct the funds, or summon the will, to deliver even this.

The options for coastal access, in England and Wales, are: voluntary, under agri-environment schemes (temporary and often secret); an order under section 3 of the Countryside and Rights of Way Act 2000 to extend the act to coastal land (subject to mapping with all the cost, uncertainty and disappointment of that process); public path creation agreements or orders (at risk from coastal erosion, and expensive, as landowners are unlikely to make agreements)—or something else.

Something else

With the Ramblers’ Association and other user groups, we favour the something else.

Natural England and the Countryside Council for Wales should be given a statutory duty to define a broad coastal swathe within which there will be a presumption in favour of access rights for all types of user, restoration of coastal habitats, wildlife enhancement schemes, and protection of geological and archaeological features. The coast should be given special protection through an update of the 1992 planning policy guidance on coastal planning.

The access rights would not take effect until an access regime, similar to the liberal Scottish Access Code, had been agreed, to spell out how and where the access would operate.

An island people must get the most possible good from its coast
 

One admiral, no ships
An opinion from our general secretary, Kate Ashbrook, from Open Space Autumn 2006
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In August 2006 it was agreed that work on common land should be a ‘major project (flagship initiative)’ for the new Natural England (NE).

So said Graham Bathe, NE’s major project manager for common land, at the annual Cheltenham seminar on commons and greens. His news was greeted with enthusiasm.

It is encouraging, until one discovers that the common land project at NE consists only of Graham Bathe. He is to run a flagship initiative, but without a fleet. He will have to rely on his colleagues in NE, all heavily engaged in their own projects, and organisations like the OSS to help him—which, of course, we are only too pleased to do.

Central

Common land is central to all the interests of NE, which came into being on 1 October and combines English Nature with the land, access and recreation parts of the Countryside Agency, and the bulk of the Rural Development Service.

NE’s purposes include promoting nature conservation, conserving and enhancing the landscape, facilitating understanding and enjoyment of the natural environment, promoting access and recreation, and contributing to social and economic well-being through management. These are turgid words, but they contain the right sentiments, and a million acres of commons have an essential part in every one of those objectives. They need to be nurtured and cared for, promoted and enjoyed.

We have written to NE’s chairman, Martin Doughty, strongly supporting the appointment of a major project manager for common land and its designation as a flagship initiative—but pressing for staff and resources to be devoted to this work, which can deliver so much for NE’s strategy and for the public. Indeed, ministers have already publicly recognised NE as a ‘champion for common land’ in debates leading to the Natural Environment and Rural Communities Act 2006.

Champion

But if it is to be such a champion, NE must resist the temptation to promote the enclosure of commons. Too often nature conservationists want to fence commons and introduce grazing, allegedly for the benefit of the habitat, but often at the expense of the landscape and our enjoyment of it.

Defra’s new consent provisions for works, currently being developed, will stress the importance of full consultation at an early stage. We look to NE for model practice, encouraging others, such as the wildlife trusts, to do likewise.

Meanwhile, the public has been given a new power, from 1 October, to take action in the county court against unlawful works on English commons. We are ready to act.
 

Unfair trade
An opinion from our general secretary, Kate Ashbrook, from Open Space Summer 2006
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Rights-of-way improvement plans (ROWIPs) and Discovering Lost Ways—both were meant to get us a better deal on paths. But there is every chance that both will be a huge disappointment.

They were intended as a quid pro quo for provisions in the Countryside and Rights of Way Act 2000 which will close the definitive map to path claims on 1 January 2026—an unfair deal.

Too many ROWIPs contain proposals about prioritising paths, so that only the more popular ones will get attention. But even worse, there is the promise of trade-offs.

Prevent

We were unable to prevent the statutory ROWIP guidance in England and Wales from including the nasty proposal that, in securing improve-ments, local authorities should ‘be prepared to consider changes to the network that landowners might seek as corollaries to agreements…’.

Bedfordshire’s draft plan quotes the guidance word for word. Somerset’s draft says it will ‘consider rationalisation of surrounding rights of way where appropriate, when diversions result in an addition of length/ improvement to the network’. Implementation of these policies will lead to the revival of those terrible rationalisation schemes which we fought in the past.

Meanwhile, Discovering Lost Ways in England also has its problems. This discovery ought to be unambiguously aimed at getting onto the definitive map all those routes justified by research as highways—routes which, if people knew about them, could be used now.

But a Countryside Agency board paper insidiously suggests dropping some such ways because they fail to meet some notion of public utility—a great chance for all the main enemies of access.

Estate-wide

To avoid objection and costly inquiry, it is also proposed that, when a route is discovered, there will be early discussions with the landowner, thus enabling him to promote a simultaneous diversion (which could of course spread to estate-wide rationalisation of paths).

This is starting from the wrong premise. With one in three paths in England, and one in two in Wales, still difficult to use, and with lamentably incomplete definitive maps, we have little idea of what the true path-network looks like.

First we should have all our routes opened up and all the lost ways shown on the definitive map. Only when that exercise is complete, and we know what paths we have, should we consider moving them to suit various interests. It is wrong to shift and swap when we don’t know the totality of what there is.
 

End this futility
An opinion from our general secretary, Kate Ashbrook, from Open Space Spring 2006
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When the government’s Commons Bill was published last June, we celebrated in the belief that the public would at last have the power to take action against unlawful works on commons. Seven months later we learn that this power will apply only to those works which postdate the bill’s publication.

With the new right to walk on all commons, people will increasingly discover where the commons are. They are also discovering that they cannot walk on many of them, because they are fenced (Netmead Common in Dorset, page 12), or being used as a building site (Thurston chalk pit in Suffolk, page 11), or for countless other reasons.

Nothing

The Commons Bill does nothing to resolve these long-standing problems—local authorities will continue to be reluctant to exercise their powers of enforcement, which is why we wanted a power for the public, and a duty on authorities, to act. We also argued for local authorities to be able to assume ownership of unclaimed common land, but so far without success.

Fifty years ago the Royal Commission on Common Land was touring England and Wales, inspecting commons and taking evidence. Its report, published in 1958, remains pertinent today.

The commission made a useful recommendation, lost in the mists of time. Under the heading ‘neglected commons’ it advocated that commons registration authorities should be able to promote schemes to manage unclaimed commons. Moreover, it said: ‘to guard against the subsequent degeneration of common land it should be the duty of each commons registration authority to examine the state of common land in its area at the end of the period for registration [the early 1970s as it turned out] and thereafter at intervals of not more than ten years…’ and it could then promote a commons management scheme.

Examined

If that recommendation had been implemented and the authorities required to check their commons regularly, surely even Leicestershire County Council would have removed the unlawful car-park from the Pinfold at Blaby, and Buckinghamshire County Council might have freed Poor’s Acre at Great Brickhill from fencing. We have the right to walk on all commons, but that right is futile if we cannot get onto the land or if it is lost under development.

If public access means anything, we need these modest safeguards to protect commons from encroachment and neglect.

The bill will shortly enter the House of Commons. We shall lobby there for those modest safeguards.
 

A commons champion?
An opinion from our general secretary, Kate Ashbrook, which originally appeared in Open Space Autumn 2005
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‘Hands up who thinks Natural England should champion common land?’ asked Graham Bathe, access and common land projects officer at English Nature.

The vote was overwhelmingly in favour, but that reflected the composition of the participants in the recent common-land conference where the question was asked. It appeared the votes against were largely from those representing landowners and commoners, presumably because they think they can look after commons them-selves. Experience teaches otherwise.

Natural England, which comes into being a year from now, is the successor to English Nature, the land, access and recreation parts of the Countryside Agency, and the bulk of the Rural Development Service. Common land will fall squarely in its remit, and is one of the issues in which all these bodies have an interest.

Matter

Commons matter for nature conservation: designated sites of special scientific interest cover 55 per cent of England’s common land. Commons also matter for access and recreation, since we now have the right to walk on all registered commons under the Countryside and Rights of Way Act 2000, and on many there are rights to ride too. Commons are vital also for their historic and cultural value. Yet many are abused.

But will Natural England do the champion’s job? Nature conservationists, wanting to restore heath and downland (a worthy aim which we thoroughly support, not least because it should then carry a right of access), argue that this can only be achieved by reintroduction of grazing and therefore fencing - which we do not want. English Nature and the wildlife trusts have been advocates and applicants for fencing, much of which we have opposed. Will not Natural England take the same view?

Agreement

We trust not. We now have a new agreement, with the bodies which will form Natural England and with the National Trust, on the approach to managing commons. This involves wide consultation from the start and a full investigation of all the solutions. It has yet to be tested, but seems promising. Natural England must take a robust line against fencing commons.

The new Commons Bill will - at last - give the public the right to take action against unlawful works on commons. Perhaps that power should also be given to Natural England.

We need a commons champion, which will constantly remind, advise and lobby government, landowners, commoners and the public about the need to nurture, protect and enjoy our commons, vital for wildlife - and so much else.
 

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Enforcing the law
An opinion from our general secretary, Kate Ashbrook which originally appeared in Open Space Spring 2005
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The introduction of the right to roam on common land will at last mean that we shall know what is common and what isn’t. And the public is in for a shock.

As the explorations of our intrepid treasurer show (page 9), many commons have been swamped by encroachments. He visited 62 commons in the East Midlands and found that more than a third had illegal encroachments, some to the extent that the common was non-existent.

And a member has told us that Poor’s Acre common, at Great Brickhill in Bucks, one of very few access areas for miles, is surrounded by a high fence with locked gate and covered in scrap metal and dumped cars, so that it would apparently not be safe to allow the public in when access takes effect here in October this year.

Powerless

This is all too typical, and the result of the lousy law on commons.  Although it is unlawful to encroach on commons, no one has a duty to take enforcement action, and the public is powerless. So nothing is done. We applied for funding from the Department for Environment, Food and Rural Affairs to record all the encroachments on England’s commons —a massive task—but Defra refused.  So now we must hope that the access authorities (county and unitary councils) will have surveyed their commons, in preparation for the right to roam. If they have, they may know the extent of encroachments there, and have the data to press ministers for a change in the law.

Defra does not intend to introduce such measures in its proposed Commons Bill, but to deal with the issue through regulatory reform. It is unclear what is envisaged but, however it is done, this problem must be tackled.

Difficult

Enforcement too is needed on public rights of way and here it should be easier, since the authorities have a duty to act. Even so, one in three paths in England, and one in two in Wales, is difficult to use.

We hope that the new cross-compliance measures in the single payment scheme, which require farmers receiving even basic grants to keep their paths in order, will have some bite. But so far it doesn’t look promising.

We called the various official helplines to ask how the rights-of-way provisions will be enforced, but got no help.

There is still time. The payments are not made for another year. Defra must ensure that, by then, there is a clear process, whereby any farmer who abuses a path is denied his money. It is the only language they will understand.

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Hills to climb
An opinion from our general secretary, Kate Ashbrook, which originally appeared in Open Space Autumn 2004
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On Sunday 19 September 2004 I walked up Parkhouse Hill in the Peak District, where there was no path or track—and I did so by right.

For this day was a milestone in the long march to a free countryside, when our new access rights took effect in the south east and much of the north west of England. At last we can wander by right, off paths, on the mapped land and feel the joy of that freedom.

The fight was won by thousands of passionate and dedicated volunteers led by the ever-resourceful David Beskine of the Ramblers (and our former vice-chairman), who dynamically took up the century-old campaign.

The Countryside and Rights of Way (CROW) Act is a milestone because it marks a small shift in property rights. Owners of mountain, moor, heath, down and registered commons which have been mapped as access land must now let people walk there.

Significant

The CROW Act is probably the most significant piece of legislation affecting landed property since the National Parks and Access to the Countryside Act 1949 gave us definitive maps of rights of way. Thus substantial stretches of moorland are now open, in the Peak District and Bowland.

But the act is 50 years too late for much land. If the 1949 act had fulfilled expectations and given us the right to roam on open country, we should now be wandering over far more land. A sight of the access map for the South Downs is depressing: 50 years ago it would have shown swathes of chalk grassland, now the access is confined almost solely to strings of chipolata-shaped bits of the escarpment.

On Dartmoor, the slopes of that great whaleback Hameldown which were once a sea of purple heather are now ploughed almost to the top. And the owner is even challenging access to such open country as remains.

Restore

So our new rights will, disappointingly, be restricted in many places to pockets of chalk grassland or heather. But we could restore these landscapes, using the vast sums of agricultural money, instead of funding the production of food we don’t need.

Here is a task for the new ‘integrated agency’ (as yet unnamed) which is to be formed from the land, access and recreation sections of the Countryside Agency, English Nature and the environmental work of the Rural Development Service. This restoration project would unite all functions of that new agency: landscape, habitat and recreation.

Of course the campaign for access doesn’t end here. What about coasts, woods and riverbanks? And we look enviously at Scotland where access is defined by exception. There are still hills to climb.

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Private practice
An opinion from our general secretary, Kate Ashbrook, which originally appeared in Open Space Autumn 2002
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A government announcement on common land: surely good news?

Well no, not really. As we explain on page 3, the statement (which has been for more than two years in gestation since the consultation paper which led to it) contains more bad than good. If legislation is on the horizon, this could be worrying for commons.

Rightly we are to be on the working party, established by the Department for Environment, Food and Rural Affairs and the National Assembly for Wales, so we hope to have some influence on the outcome.

Perverse
   
However, it is perverse that, just as the implementation of the Countryside and Rights of Way (CROW) Act 2000 is opening up the countryside to public access, land is as quickly being privatised – and the government’s policy statement on commons fails to address this.

Take the numerous encroachments on common land which the policy statement does nothing to discourage: unlawful fencing, roads, car-parks, tipping and other works. Local authorities have a power to prosecute but are loath to do so because of lack of resources, and government has refused to place a duty on them to protect commons from such abuse.

Meanwhile, the government has implemented section 68 of the CROW Act which gives property owners, in defined circumstances, a right of vehicular access across common land. This overrides the important legislation which has protected commons for the last 75 years or more.

Alleys
   
Privatisation not only infects commons. Salford Council’s Alleygater’s guide tells householders how to go about closing public alleys and erecting locked gates across them. Salford, which has a duty to assert and protect the public’s rights to use highways, is doing exactly the opposite. And Tameside Council is worse – it closes alleys by clandestine methods without even a policy.

And now there is a power to make it easier to close or move paths on grounds of crime prevention. Of course we know that paths and the people on them are a protection against crime.

Our aim is to ensure that as few places as possible are designated as ‘crime areas’. Residents will hardly welcome a designation that must reduce house values and stigmatise the inhabitants. Once implemented, this provision could lead to further privatisation of urban paths.

We are indebted to our local correspondents and activists who, often lone voices, are rescuing paths from diversion and closure – four successes in this Open Space alone. Our small society leads the way in saving public amenity from privatisation.

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