COMMON LAND POLICY STATEMENT 2002
   
  DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND THE NATIONAL ASSEMBLY FOR WALES
   
  RESPONSE FROM THE OPEN SPACES SOCIETY,
AUGUST 2002
   
  Section 1: INTRODUCTION
   
1. The Open Spaces Society, founded in 1865, is Britain’s oldest national conservation body. A registered charity, we campaign to create and conserve common land, village greens, open spaces and rights of public access, in town and country, in England and Wales. We represent all categories of user on all categories of path.
   
2. We are the leading pressure group concerned with the protection, management and public enjoyment of common land and village greens, and we are the official consultees of applications for works on common land made under section 194 of the Law of Property Act 1925, section 23 of the National Trust Act 1971 and similar legislation, received from the Department for Environment, Food and Rural Affairs, and the National Assembly for Wales.
   
3. We were also the lead organisation promoting the registration of land as ‘new’ greens when, on the 1 August 1990, it became possible to apply for registration of land which had not been registered during the initial period laid down in the Commons Registration Act 1965. We were instrumental in obtaining amendments to the Commons Registration Act, now embodied in section 98 of the Countryside and Rights of Way Act 2000.
   
4. We welcome many of the proposals in the policy statement. However, we are concerned that some of the proposals, particularly in respect of section 194 of the Law of Property Act 1925 and the arrangements for town and village greens, will lead to further encroachment and potential loss of these valuable areas. We welcome the statement that careful consideration will need to be given to what controls, safeguards or exception should be applied to any new provisions and we trust that this society will be one of the parties consulted further on the detail.
   
5.  In this document references in square brackets are references to the original consultation paper, Greater Protection and Better Management of Common Land in England and Wales, and the extracts in bold italics are the proposals on the current policy statement.
   
  Section 2: COMMON LAND
   
  Registration issues
   
  Deregistration of common land
   
  The Government intends to make provision for land that can be shown to have been wrongly registered according to the definition of common land in the Commons Registration Act 1965 to be removed from the registers. The scope of this provision will cover not only dwellings and gardens that have been wrongly included, but any land that should not have been registered, including agricultural land and public highways. There will be no time limit on applications for deregistration and eligibility to apply will not be confined to landowners only but is likely to be restricted. (Paragraph 6) [Proposal 1]
   
6. We do not object in principle to applications being allowed for deregistration where there has been an indisputably incorrect registration, for example in respect of houses and gardens where no rights of common were lawfully exercisable at the date of provisional registration and which were without doubt included by mistake. However this should be done within strict limitations and subject to judicial process. It must be for the applicant to prove beyond all reasonable doubt that the land is not now common land and was not common land at the time of registration. We are concerned that the provision has been widened to include agricultural land and also public highways.
   
7. We are concerned that no time limit has been included in the proposals and that the eligibility to apply will not be confined to landowners.
   
  We propose that upon deregistration of such land and therefore the removal of any suggestion of common land status, the land should cease to be treated as access land for the purposes of the Countryside and Rights of Way (CROW) Act 2000 with immediate effect, provided that its registration as common land was the only reason for this. Subject to the same proviso, the land should also cease to be shown as access land on the maps of open country and registered common land, as of the date of the next review. (Paragraph 7)
   
8. We oppose the proposal that upon deregistration the land should cease to be treated as access land for the purposes of the Countryside and Rights of Way Act 2000. It was the clear intention of ministers during the passage of the act that subsequent deregistration of common land should not exclude it from the definition of access land.
   
  We propose to provide that deregistration will generally be allowed only following appropriation, compulsory acquisition or where the land is exchanged for other land. In response to concerns expressed by some respondents, there will be powers to prescribe for exceptions to these general rules. These could include small isolated pockets of common no longer of much use or value to anyone, and preserving some scope for putting land to better public use in future in circumstances where land exchange or compulsory purchase orders (CPO) might not be possible or appropriate.  (Paragraph 8) [Proposal 2]
   
9. We support the proposal that deregistration will only be allowed for appropriation, compulsory purchase orders or exchange land. However we are concerned that the proposal refers to the possibility of exceptions and to pockets of common land which are of ‘no use or value’. We submit that compulsory acquisition or appropriation should be subject to section 19 of the Acquisition of Land Act 1981.
   
  Fresh registrations of common land
   
  We propose to make it possible to register (a) land that was removed from provisional registration without justification or as a result of legal views concerning continued ownership by the lord of the manor which was later overturned, and (b) land which it can be proved was not registered as a result of a clear error. Both cases will require that appropriate criteria are met to the effect that the land still has the character of a common in today’s context. (Paragraph 10) [Paragraph 1.12]
   
10. We welcome the proposal to deal with the difficulties which have arisen following the Court of Appeal decision in re Box Hill Common (1979) 2WLR 177 and the subsequent House of Lords case Hampshire County Council v Milburn and others (1991) AC 325. We welcome the proposal to make it possible to register (a) land that was removed from provisional registration without justification or as a result of legal views concerning continued ownership by the lord of the manor which were later overturned, and (b) land which it can be proved was not registered as a result of a clear error.
   
  Unclaimed common land
   
We propose to enable the vesting of unclaimed common land in a suitable body who will be empowered to deliver effective management.  (Paragraph 12) [Proposal 3]
11. We should have preferred the provisions in section 9 of the Commons Registration Act 1965 to be strengthened to enable the local authority to undertake positive management without actually becoming the owner. However if common land is to be vested in a ‘suitable body’ which is empowered to deliver effective management we suggest provision for appropriate charitable bodies to hold the land.
We propose that the vesting of ownership in a local authority or other body will be revocable, in the event of an owner subsequently providing evidence of title within the specified period. (Paragraph 15)
We propose that the period of limitation for making claims should therefore be 12 years. (Paragraph 16) [part Proposal 5 and Paragraph 1.11]
12. We support the proposal to inquire into claims of ownership of common land subject to the 12-year time limit.
Commons registers and their maintenance
We have concluded that the registered information should be retained at the county-based level. We shall, however, look to devise ways to more closely link the information needs of the registration authorities and the Land Registry. We therefore propose instead of transfer to the Land Registry, to impose a mandatory requirement to notify the commons registration authorities of all material changes affecting an entry in the commons registers or creating the need for a new entry. (Paragraph 23) [Proposal 6]
13. We are pleased that the registration information for common land is being retained at a county level and will therefore be accessible to the public. We welcome the provision that there will be a mandatory requirement to notify registration authorities of changes affecting entries in the register and that land exchanges, where no updating has occurred, will be rectified.
We propose to make provision for clear and acknowledged clerical errors to be corrected by the registration authorities [Paragraph 1.21]
14. We trust that the proposal to allow corrections of clerical errors will be subject to robust safeguards.
We propose to make provision for the resolution of these few remaining case of unfinalised registrations, by allowing a further period for the lodging of objections. These registrations will then be referred to the Commons Commissioners for a final decision. (Paragraph 26) [Paragraph 1.20]
15. We support the proposal to allow provisional registrations to be referred to the Commons Commissioners for a final decision.
Access to commons registration authority files
We conclude that, in general, the public should have access to information on registration applications. We propose that this will not apply to information such as privileged documents and internal legal advice. (Paragraph 27) [Proposal 7]
16. We support the proposal to allow the public to have access to information in respect of registration applications.
Vehicular Access over Common Land
17. We are concerned that the regulations for section 68 of the Countryside and Rights of Way Act 2000 still do not refer to the need to obtain section 194 consent for works, particularly including any making up of these ‘statutory easements’.
Section 3: WORKS AND FENCING ON COMMON LAND
Section 194 of the Law of Property Act 1925
Extending coverage of section 194 of the Law of Property Act 1925
We plan to extend the protection of section 194 of the Law of Property Act 1925 to all registered common land but with the exception of metropolitan commons which remain subject to their own legislation. (Paragraph 32) [Proposal 14]
18. We welcome the proposal to extend the protection of section 194 to all registered common land except metropolitan commons subject to their own legislation. However we believe this should apply to all commons regardless of locality or ownership, ie the National Trust and commons held under local legislation.
We conclude that most of these exemptions should be retained but that consent should be required for works connected with the taking or working of minerals. (Paragraph 33) [Paragraph 3.4]
19. We are opposed to the retention of exceptions because there is rarely a need for this and many of the works which are allowed under this exemption are damaging to the visual quality and recreational enjoyment of commons. There could be a provision for cases of genuine urgency, in the public interest, to be processed more quickly (as suggested in paragraph 39). However we are pleased that consent will be required for works connected with taking or working of minerals.
Revision of section 194 decision criteria
The criteria should more explicitly take account of:

the interest of the public;
the rights of the owners and commoners;
the need for effective management of the common;
the conservation of wildlife and its habitats and of natural and historic features; and
impacts on rights of public access

(Paragraph 34) [Proposal 16]

20. We support a code of practice, particularly in respect of commoners’ rights and the impact on rights of public access. However we submit that consideration of conservation of wildlife, historic features and effective management should be subject to provisos that no alternative means of achieving these aims are available.
Applying conditions to section 194 consents
We will also introduce a power to impose conditions or restrictions on a consent for fencing or works, so as to increase flexibility in the decision-making process. In respect of fencing or works of a non-permanent nature, and for use where appropriate, we will include a power to specify a time limit after which the consent will lapse. (Paragraph 36)
21.  We support the imposition of conditions or restrictions on consents including a time limit after which the consent will lapse and a new application will be necessary.
Transfer of section 194 consent procedure
We conclude that the advantages of transfer to local authorities and National Park Authorities are outweighed by the need to maintain public confidence and clearly demonstrate impartiality in the decision-making process; and the desirability of separating this function from other proposals that will enhance the role of local authorities in respect of commons. (Paragraph 38)  [Proposal 15]
22.  We support the proposal that the Secretary of State and the Welsh Assembly should retain their section 194 function. However we are concerned that there will be consideration of whether the work could be undertaken by another central body. We trust that this society will be consulted on any proposals. It is vital that whichever body carries out the task is democratically accountable.
Fast-track system for section 194 consent
In the course of revising the decision criteria, we will consider the case for an urgent procedure in certain circumstances. [Paragraph 3.6]
23. The urgent procedure might be appropriate for some genuinely urgent (in the public interest) applications, for example, for those schemes currently exempted under section 194(4). There must be strict criteria for allowing any fast-track applications.
Imposing a fee for section 194 consent applications
In the course of reviewing the decision criteria and considering the different interests to be reflected, we will give further consideration to the question of whether a fee is appropriate. (Paragraph 41) [Proposal 17]
24. We support the introduction of a fee and await the decision in this respect.
Improving enforcement of section 194
We conclude that the enforcement notice procedure should be available instead of the current process whereby local authorities must bring an action in the county court. (Paragraph 42) [Proposal 18]
25. We support the proposal in respect of a proposed enforcement notice procedure. However this goes nothing like far enough (see paragraph 26 below).
We have, however, decided against enabling the general public to instigate enforcement action on the grounds that it could lead to confusion and that the discretion of the democratically elected councils to enforce should be maintained in addition to the ability of the owner or other legally interested parties to take action. (Paragraph 43) [Paragraph 3.11]
26. We are deeply concerned that it is not proposed to place a duty on local authorities, or give the public a power, to instigate enforcement action. This was recommended by the Common Land Forum and appeared to be backed by the government in the consultation paper. There are numerous examples of unlawful works on commons where local authorities, having no duty, are unwilling to act and the public can do nothing. It is naïve to think that giving democratically elected councils a power to enforce will make much difference to a widespread serious problem.
Section 4: TOWN AND VILLAGE GREENS
Registration issues
We plan to use the regulation-making powers in section 98 of the CROW Act to provide that potential applicants should have a prescribed period from the date on which their use of the land was challenged in which to lodge a registration application. (Paragraph 48) [Proposal 8]
27. We are very concerned that the original proposal for a five-year deadline, which we did not support, is now being reduced to a two-year period. The DETR consultation paper Improving Rights of Way (proposal 4) included a similar provision which, fortunately, was not included in the Countryside and Rights of Way Act. We believe that the two-year proposal is prejudicial to the rights of lay people who may not appreciate their rights and, out of ignorance, fail to act quickly enough. We consider this proposal is pandering to development pressures.
28. Furthermore, it is not necessary if landowners can now give notice of their intention not to allow land to become permanently dedicated as a green.
29. We are also concerned about the proposal relating to specific steps to provide measures for reducing uncertainty for landlords. There is nothing to help the public protect vulnerable pieces of land where rights of recreation have accrued in accordance with the existing statutory provisions and we believe their rights are being prejudiced.
30. We welcomed the statement in the consultation paper [proposal 9] that evidence of a clear pattern of public use of an area of land should suffice to qualify land for potential registration as a green, without requirement to show (as now) that it emanates predominantly from one specified locality.
31. Even since section 98 of the Countryside and Rights of Way Act 2000 was introduced, the locality issue is leading to loss of vulnerable land where people are not able to satisfy the requirement of locality or neighbourhood within a locality.
We propose introducing a formal mechanism by which landowners could clearly indicate that, although use of the land may continue for the time being, the nature of the use has ceased to meet the criteria for registration as a town or village green. (Paragraph 50) [Proposal 9]
32. We note that landowners would be given similar provision to section 31 of the Highways Act 1980 concerning rights of way, so that a landowner could give notice that it is not his/her intention that the land should become a permanent town or village green. This at least would make the position clear, but the intention must be made public, as it would constitute a challenge to the public’s use of the land and may initiate a claim for a green.
Rights to indulge in lawful sports and pastimes
We plan to confirm that on registration of land as a town or village green (whether as a consequence of 20 years user by local inhabitants or voluntarily by the landowner), there will be a right to indulge in lawful sports and pastimes on the land. We shall also look to ensure that the general public has a right of access to all greens once they have been established. (Paragraph 51)  [part Proposal 10]
33. We welcome the proposal that greens should be subject to permanent recreational rights. However this is qualified by ‘generally’ and we are concerned that there may be exceptions.
Other improvements to registration arrangements for greens.
We propose to enable registration authorities to register part or parts of the application land and reject others in cases where they are not satisfied on the evidence that the whole of the application area has been used in a qualifying manner or sufficiently so to justify registration. (Paragraph 52)
34. We welcome the statement that part of the land (subject to a village green application) can be registered where the whole of the land is not satisfied on the evidence.
We propose to introduce a provision to enable registration authorities to reject town and village green registration applications which, on initial examination of the evidence, fall significantly short of establishing a reasonable prima facie case for registration. (Paragraph 53)
35. We believe the proposals to allow registration authorities to have power to interpret evidence is potentially dangerous. The evidence should be determined by an independent person, either an inspector at an inquiry or by written evidence. There have already been difficulties where registration authorities have refused to consider applications and the applicant has been forced to refer the matter to the courts by means of judicial review. This will make it more difficult for lay people, especially if a right of appeal is to be decided by the Secretary of State or the National Assembly for Wales. There is also a question as to whether or not reasons will be given for the rejection, which we consider to be essential.
36. The registration authority can already request further evidence or information when considering initially whether there is a prima facie case, and we consider unwelcome and unnecessary the suggestion that an applicant will only be able to submit an improved application up to expiry of a period to be prescribed in regulations.
We propose to make provision for vested land [under section 8 of the Commons Registration Act 1965] to be restored to its former owner in the light of satisfactory proof of previous title produced within a specified period from the date of legislation. We shall also provide similar arrangements to those in section 8 of the 1965 Act for enquiring into the ownership of new greens, ie those registered since 1970, in respect of which the owner is unknown and there is no clear responsibility for maintenance or management of the land. (Paragraph 54) [Proposal 12]
37. We have no objection to an inquiry into claims of ownership subject to a strict time limit of 12 years.
The Government plans to proceed along similar lines to that for wrongly registered common land. (Paragraph 55) [part Proposal 10]
38. We support the permanent registration of village greens where land is not in local authority ownership and has been registered in error or exchanged or dealt with by means of compulsory purchase order.
Even though we think that there are fewer incidences of wrongly registered local authority land, we propose that it should be put on an equal footing in this respect. (Paragraph 56)
39. We are concerned that local authorities will be allowed to deregister and we believe that there should be a restriction also in place in respect of land held by conservators or charitable trust where the purpose of the land is clearly intended to be for public recreation.
We also propose to apply to greens the same requirement on the opening of files to the public as is proposed for commons in paragraph 27 above. (Paragraph 57)
40. We welcome the proposal that files will be open to the public.
We have concluded that local decision-making is more appropriate [for applications to register land as a town or village green] as these are essentially local issues and that the existing arrangements should therefore continue. (Paragraph 58)
41.  We welcome the decision to leave the process of administering village green applications to local authorities rather than a central body. These are local issues and any such change would prejudice the applicants.
Voluntary registrations
We plan to enable landowners to voluntarily register land as a town or village green. On registration, the land will acquire the status of green and thereby benefit from the legislative protection. (Paragraph 59) [Proposal 13]
42. We welcome the provision to enable landowners voluntarily to register land as a village green. On registration the land will acquire that status of green and benefit from legislative protection.
Consistent protection for all greens
We propose to end this ambiguity [over whether section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 applies to new greens established after 1970] so as to ensure the consistent protection of sections 12 and 29 for all greens. (Paragraph 60)
43. We believe this was dealt with by Lord Hoffmann in the House of Lords Sunningwell judgment, Sunningwell Parish Council (R v Oxfordshire County Council and another ex parte Sunningwell Parish Council (1999) 3 All ER 385) and it is clear that this legislation does indeed protect new greens.
Paragraph 42 above describes our intention to provide new powers for local planning authorities to issue enforcement notices in respect of breaches of section 194 of the Law of Property Act 1925. We will also provide a similar mechanism for the enforcement of the legislative provisions covering land registered as a town or village green (Paragraph 61)
44.  We welcome proposals for powers for local planning authorities to issue enforcement notices in respect of breaches of section 194 although, as stated above (paragraph 26), we do not consider this proposal goes far enough.
Modern facilities
We propose to relax the existing legislative restrictions under sections 12 and 29 to create limited scope for establishing facilities that would add comfort or convenient to public enjoyment of a green. These are not currently permissible under the legislation because they are not directly related to its enjoyment for air and exercise. However, there will be safeguards against inappropriate cluttering of greens with excessive provision of such facilities. (Paragraph 63) [Paragraph 2.10]
45. We oppose the relaxation of existing legislative restrictions under section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876, to create limited scope for establishing facilities that would add comfort or convenience to public enjoyment of a green.
46. These facilities would not currently be permissible under the legislation because they are not related to the green’s enjoyment for air and exercise. Even though the proposal states that there will be safeguards against inappropriate cluttering of greens, excessive provision of such facilities would lead to a more watered down and ineffective statutory protection of greens.
We therefore plan to extend section 194 on the erection of works and fences to cover all greens but this extension will not be a blanket or catch-all extension. It will be qualified as follows. (Paragraph 65) [Paragraph 2.11]
47. We welcome the proposal to extend section 194 of the Law of Property Act 1925 to cover all greens. However, we are concerned at the reference to exceptions.
48. We welcome the proposal that, where rights of common are registered over greens, section 194 consent will be required for any fencing or works that fall within its remit. It will no longer be necessary to determine whether the rights existed in 1926.
49. We oppose the proposal that section 194 consent will not be required for works that are for the better enjoyment of the green for the purposes of recreation, provided there are no existing commoners. We question how the criteria ‘for better enjoyment’ will be determined. There is no doubt that this will lead to encroachment and damage to village greens and loss of their use and enjoyment by the public for informal recreation.
50. We welcome the proposal that section 194 consent will be required under the new provision where ‘desirable public facilities’, that are not directly related to the enjoyment of the green, are proposed.
51. The government must emphasise that even if section 194 consent is granted, works must still be permissible under sections 12 and section 29, other statutory authority or the new facilities provision, otherwise they are illegal. Consent of the owner of the green will also be required.
Vehicular issues
Parking on greens
We have concluded that, on balance, we should seek to legislate to provide a power for landowners, leaseholders and any management body that has responsibility for the custody and care of town or village green land to grant consent for temporary parking on the green without contravening the legislative provisions that generally protect greens from vehicular intrusion. They would have a discretion to charge a fee. The power would be subject to appropriate controls, for example to protect the interest of any commoners in the exercise of their rights and to minimise any adverse effects on the green. (Paragraph 67) [Proposal 11]
52. We are against the proposal to legislate to give owners/management bodies power to grant consent for temporary parking on greens and to give a discretion to charge a fee.
53. This will infringe on the recreational rights or, where they exist, commoners’ rights. It is entirely unnecessary and could be very damaging to the green in the long term.
Vehicular accessways across greens
The section 68 provisions do not necessarily resolve the issue that driving over the land might still be an offence under the 1857 and 1876 Acts (see paragraph 60 above). We intend to resolve this problem in future legislation so that section 68 easements are protected. (Paragraph 69)
However, we also propose to reinforce observance of the existing legislation to the effect that no further vehicular accessways across land that remains registered as town or village green should be created. Subject to the consent of the Secretary of State or National Assembly for Wales, we propose to enable exceptions where the creation of the accessway would be in the interests of the green’s community of users, eg to serve a public facility such as a village hall. (Paragraph 70)
In relation to accessways that are already in use but do not qualify for an easement under section 68 we propose that no easement granted by the landowner shall be lawful without the consent of the Secretary of State or National Assembly for Wales. We propose that there should be scope to take into account the availability of any private land to be given as a contribution to the green in compensation for the interruption of its enjoyment. (Paragraph 71)
We propose that, subject to public consultation, the consent of the Secretary of State or National Assembly for Wales should be required for any improvements to existing accessways and that such consent might be subject to conditions, eg to specify the surfacing material to be used. (Paragraph 72)  [Paragraph 2.13]
54. We are pleased that there is acknowledgement of the need to address the conflict of section 68 of the Countryside and Rights of Way Act 2000 provision in respect of existing protective legislation, ie section 12 and section 29.
55. We are very concerned that legislation is proposed to ensure that section 68 easements will gain higher priority protection, which again will result in more damage to the green and a reduction of the existing statutory protection.
56. We have been consulted by many parish councils who are concerned that they are losing control of their village greens due to the number of people eligible to apply for section 68 consent. There is no doubt that village greens and their use for recreation will be irrevocably damaged.
57. Trying to limit this provision is unworkable and it will be abused. It is only for private benefit and will infringe on the permanent rights of recreation given elsewhere.
58. We believe it would not be necessary to reinforce observance of existing legislation if section 68 was deemed not to apply to village greens.
59. Paragraphs 68-72 contradict each other to an extraordinary degree. Paragraph 68 rightly states the wish to avoid proliferation of vehicular access across greens as this would be inconsistent with the purposes for which the green was established. But paragraph 69 states the intention to legislate so that section 68 will be given higher priority than existing legislation of section 12 and section 29 and the proposal to create permanent recreational rights.
60. Paragraph 70 states the need to reinforce observance of existing legislation to the effect that no further vehicular accessways across village greens should be created. This is then qualified by proposing exceptions, and allowing consent to be granted by the Secretary of State or the National Assembly for Wales. However within the same paragraph it is stated that land exchange for the purpose of new private accessways will not be allowed on the grounds that it would bisect greens (this is what section 68 will do anyway). It is then stated that creation of the new vehicular accessways to private dwellings will not be acceptable.
61. Paragraph 71: We are pleased that no easement by a landowner will be lawful unless the Secretary of State’s or Assembly’s consent is granted, that the proposal includes reference to certain criteria, ie that it will only be considered where there are no other means of access.
62. All of these issues could have been included in the section 68 regulations but regrettably were not.
63. There is a further contradiction to paragraph 70 in the statement that there must be taken into account the availability of private land to be given as a contribution to a green in compensation for interruption of its enjoyment.
64. Paragraph 72: This concerns improving accessways and acknowledges the damage which will be done to the greens. This could and should have been addressed in the section 68 regulations. Proposals to allow public consultation and consent of the Secretary of State/National Assembly for Wales should be required for any improvements to existing accessways and such consent will also be required to be subject to conditions.
65. This should apply to commons as well and should have been put in the section 68 regulations. We believe this is incompatible with recreational rights, might encourage adjoining development and is purely for private benefit.
Section 5: AGRICULTURAL USE AND MANAGEMENT
General considerations
Grazing management
We plan to set up a stakeholder working group to help develop the proposals in more detail, with a view to consulting on final proposals before introducing legislation. (Paragraph 77)
66. In general we welcome the proposal to set up a working group for the difficult issue of management of common land, and we trust that the Open Spaces Society will be invited to send a representative.
67. Paragraph 78: We are concerned that proposals for revising section 194 consent criteria may mean that fencing will be allowed in an indiscriminate manner, particularly where animals are introduced to graze commons, purportedly to bring conservation benefits.
Management of commons
Who would take the initiative
We believe that the initiative for setting up a statutory body should come from those involved – ie those with rights to graze animals on the common. Graziers would be able to follow a process to set up such a body for their area. This might be administered by local authorities or the relevant National Park Authority in England, and perhaps the National Assembly for Wales (Paragraph 83)
68. We are concerned that the rights of small graziers, for whom commoning may be vital for their way of life, are protected and believe a statutory body may prejudice their rights.
Scope of the regulatory powers
69. Paragraph 86: We believe that fixing upper limits on grazing would be difficult and that revision of grazing rights is highly complicated and time consuming. However we would encourage use of a live register.
We are minded to enable commons associations, in certain circumstances, to temporarily fence parts of a common for the purpose of managing grazing animals without having to go through the full section 194 consent procedure. (Paragraph 87)
70. We are appalled at the proposal to enable commoners’ associations, in certain circumstances, temporarily to fence parts of the common for managing grazing animals without having to go through the full section 194 consent procedure. We think there are hugely damaging implications, particularly for the landscape of, and access to, commons and their enjoyment by the public.
Role of other advisory and management bodies
71. Paragraphs 90 - 93: The proposed role of other advisory and management bodies appears unduly bureaucratic. There is also a question of how such a body would be involved where commons are already managed under, for instance, schemes under the 1899 Commons Act.
Grazing rights and related issues
Prohibiting severance of grazing rights
We propose to legislate to prohibit the severance of rights and the grant of new grazing rights in gross over a common. Existing rights in gross will remain unaffected by this. (Paragraph 99) [Paragraph 4.30 – 4.33]
72. We are pleased, especially following the recent House of Lords case (Bettison v Langton (2001) 1 All ER (D) 223), that there is a proposal to legislate to prohibit the severance of rights and the grant of new grazing rights in gross over a common.
Lapse of grazing rights
We are also minded to make a simple provision for holders of unwanted rights to surrender them for extinguishment and deletion from the registers. (Paragraph 105)
73. We are concerned at the proposal to allow holders of unwanted rights to surrender them for extinguishment and deletion from the registers. There should be provision for some other body to hold these rights and there is a danger that the land could eventually be deregistered as a result.
Management of supplementary feeding
The government’s view is that existing cross compliance rules together with provisions allowing the control of supplementary feeding by grazing associations, or by voluntary agreement where these do not exist, should be sufficient. The government is already looking at ways of improving the efficiency of existing measures. (Paragraph 108)
74. We are disappointed that it is not proposed to make supplementary feeding on common land illegal as it can do severe damage to the terrain and thus the landscape, wildlife habitat and recreational enjoyment of the common.
Control of ploughing and other agricultural changes
The regulations require that before uncultivated land or a semi-natural area is brought into intensive agricultural use, an environmental impact assessment must be undertaken if that operation would be likely to have significant environmental effects. (Paragraph 109) [Paragraph 4.37]
75.  We are disappointed that no new controls are proposed for ploughing or other major agricultural changes in order to protect public amenity, access, conservation and landscape values of common land, and we question whether the Environmental Impact Assessment Directive will be sufficient to protect commons.
76. We submit that it should be illegal to plough or disturb the surface of a common, or to lime or fertilise it or carry out any other agricultural activities which alter its character. Not only do these activities do severe damage to the landscape and wildlife habitat but they also lead to the land becoming excepted land under schedule 1 of the CROW Act, and thus the public loses its right to walk there.

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