- Given that in many cases there will be no animals grazing for over six months of the year how can it be that the public and equestrians in particular have to put up with the dangerous self closing gates for no lawful purpose. Tying back should be the minimum requirement when there is no grazing. This should also be incorporated in any British Standard.

- Does everything have to end up in the Supreme Court like Hazeley Heath?

- NE must make it abundantly clear to all land managers taking NE advice as to conservation grazing that NE does not accept any liability for any accident which comes about through their funding, advice and enforcement

Says Bob Milton

A couple of points missed from my last email.
I referred to the letter from RB MP which I now attach. I presume that you were involved in the letter but if not there are some issues pertaining to the quotes. The changes made by NE in the stewardship advice quoted as to the need for reasonable lengths it is a requirement of the CAP pillar II funding and the Habitat Directive that all those with a legal interest are required to enter into a legal agreement that the proposed plan can be carried out. It is insufficient to rely on the applicant’s word as was seen in the Padworth case and even more of a twisted set of arguments that a CRA 1965 s9 vesting was taken by the planning inspector in the Hartlebury case as being freehold when it is no such thing. Likewise the use of a grazing licence by the MoD /DE as proof by the H&IOWWT that it meets the criteria of legal interest and so management control is again a misnomer and malfeasance in my opinion. These and other cases have led me to believe that there is wholesale fraud being supported by the RPA and NE against the EU CAP

It is case law that there has to be open and free access from any point of a highway that adjoins or crosses a common unless subject to lawful consent to obstruct ie s38 fencing and s147 gates so RB was arguing the wrong case.

The whole issue of s147 gates on rights of way and cattle grids on vehicular highways [including BOATS] as part of extensive conservation grazing needs to be considered as part of the common land review you have explained is being carried out [See ROWLR 4 interference.1obstructions p17-21, 31-38]. Given that in many cases there will be no animals grazing for over six months of the year how can it be that the public and equestrians in particular have to put up with the dangerous self closing gates for no lawful purpose. Tying back should be the minimum requirement when there is no grazing. This should also be incorporated in any British Standard.

As an adjunct to the s147 HA1980 licensing regime I now have a number of admissions that stewardship money has been paid to Highway Authorities or land managers for gates and cattle grids on public highways. As you will no doubt remember any payment made where there is existing public access is not allowed under pillar II regulations. This is pointed out in NE’s own stewardship guidance. There is also reluctance by Local Authorities and the Wildlife Trusts, who have land management contracts, to pay for expensive hydraulic gates as NE do not seem to make sufficient allowance in the payment schedule and gate specification. Even where they are put in as on Snelsmore common West Berks they are set at the dangerous speed of closure of 2.5/3 seconds which they refuse to adjust. These gates were paid for by the local BHS committee and not by stewardship.

You will remember that I have stated more than once that having due regard is not another way of saying that the various tests are to be prioritised ie weighed against each other, but that they should, in my opinion, stand alone so that to fail on one as with the original 1968 Chobham s194 decision the application as a whole must fail. On this point all I have had is rhetoric from PI officers with no substance to support their interpretation. I do believe that just by repeating the same thing does not make it correct. Does everything have to end up in the Supreme Court like Hazeley Heath?

The Minister’s comments regarding consent not substantially interfering with the public’s right to access is clearly not been taken as a requirement by the planning inspectorate as we saw in the recent consent for fencing on a s193 common [Hednesford] where the public’s access rights were restricted by the consent to only pedestrian kissing gates.

That case also threw up the issue of temporary in relation to fencing and again the inspectorate’s interpretation of temporary is twenty years when all the case law I and others have been able to uncover is no more that six months in general terms or given the nature of the growth of grass one year in the NT Acts for restoration purposes.

One thing that really discredits DEFRA and the PI is that there is no need to provide a plan for exempt works or publish it on the website so that what is happening on the ground can be verified by the public as lawful in terms of the Act and the regulations. This leads to distrust by the public and abuse by applicants. The same applies to the lack of notification of an application for fencing so that the public can be assured that the whole process is transparent as with planning applications.

Finally NE must make it abundantly clear to all land managers taking NE advice as to conservation grazing that NE does not accept any liability for any accident which comes about through their funding, advice and enforcement. We have had yet another case of a grazier’s young stock being used for extensive conservation grazing on a public access common [s193] causing a horse to bolt by being “playful”. You will remember I sent you a report of the advice given by the Health and Safety Executive to the NT on Petersham Meadows [s193] that the cattle should be separated from the public completely. By not taking and acting on such advice does leave NE open to a charge of vicarious malfeasance in the event of an accident as the grazing is being forced on applicants by NE’s own policy and stewardship funding. I do understand that the primary liability lies with the land owner and the grazier [Animals Act 1971] ie ‘mischievous propensity’ even though there is a derogation for common land and unfenced highways. That being the case it could still be claimed that NE were complicit.

I look forward to some real open consultation where NE listens and acts with fortitude.