Bob Milton writes to Richard Benyon MP,
Parliamentary Under-Secretary for Natural Environment and Fisheries, Defra
"I am concerned at the lack of any reference to existing public access by right and the need for Natural England to apply its own criteria to itself when applying land management techniques or schemes such as fencing and grazing"
Writes Bob Milton
I have today read with interest the Defra habitat Review and am concerned at the lack of any reference to existing public access by right and the need for Natural England to apply its own criteria to itself when applying land management techniques or schemes such as fencing and grazing with the attendant equestrian mousetraps call self closing gates on land held for public recreation and where s193 Law of Property Act applies as it does on the majority of the Thames Basin Heaths and Wealden SPAs. There has been a complete lack of appropriate assessment in respect of displacement caused by the introduction of extensive grazing on the open and unenclosed commons. A good example would be the forth coming public inquiry for fencing and self closing gates. No account of this project to change the management regime of the SPA lowland heath was or is considered as part of the core strategy mitigation for Surrey Heath BC as the competent authority.
Development in Surrey Heath is dependant on the provision of NE approved SANGS land which is in this area part of the s193 common adjacent to the part which is SSSI of the same common. This land was agreed as mitigation for allowing development using the very new and spurious invention by NE and the SEP inspector of discounted capacity of the existing public rights to use the non SSSI part of the common for recreation.
I believe that such a management change is and should be subject to the same considerations as any other plan or project likely to significantly affect the public’s right of use for recreation not only of SSSI but also increase the use of the SANGS mitigation land in a way not envisaged or considered by NE in approving the SANGS mitigation land.
I should also be incumbent on NE to consider the first step in the T&H 2008 flow diagram Annex E of the Implementation review ‘Is the proposal directly connected with or necessary to the site management for nature conservation’ The answer to the first is of course but to the second is no. It is only, in this case, a preference and is not supported by vigorous scientific evidence [Waddenzee and Case no C-6-04v Uk] so that the effect of displacement of users has to be considered in the wider context of all the other plans and projects and could there be a suitable alternative to the proposal.
As was made clear in Fisher v EN the Habitats Directive has no bearing on existing public access rights yet that is the effect likely to be experienced. Experience of a number of sites where extensive grazing and the attendant self closing gates have been imposed on public access commons and where access is on bridleways crossing the land is that displacement of anything up to 50% can occur. This has led to at least one human fatality and an number of examples of horrific damages caused by the gates.
There is also the unintended consequence to dog walkers that once the cattle are out on the common then dogs must be kept on leads –that is unless you are in danger from the cattle when the advice is to let your dog off and save yourself. One of the considerations of the SANGS mitigation criteria is to enable the off the lead experience so as to protect the list A ground nesting birds by making sure the alternative areas agreed for mitigation mimic the open and unenclosed experience. So there will be a tendency to use those mitigation areas but we are told that the laws pertaining to dogs will not be enforced on both the SSSI or on such SANGS as Farnham Park where there already exist bylaws requiring dogs on leads due to cattle grazing
Craig Lee, International Protected Sites Team, Defra replied to Bob Milton
Dear Mr Milton
Thank you for your email. May I apologise for the delay in responding.
I am unable to comment on the specific case(s) that you have mentioned, as this is a matter for competent authority(ies) involved. However, the European Commission’s guidance states that in order for a project to be exempt from further consideration where an operation is considered to be necessary to or directly connected with the management of the site, all parts of the project should be directly connected to the management measures. Also, benefits which may result to one or several of the site’s interest features must not have a corresponding adverse effect on another feature or another European site. Therefore, it follows that in deciding whether to carry out an Appropriate Assessment, a competent authority should consider whether there are possible impacts on other Natura 2000 network sites and not just the site directly affected by the proposal.
I hope that you find this response helpful.
Bob Milton has now replied to Craig Lee, International Protected Sites Team, Defra
Writes Bob Milton
Thank you for the synopsis which is correct in my eyes but does not deal with the allegation as that requires you and your Minister to accept that in the cases I have quoted the Minister is the competent authority. It is the Minister that has delegated powers to the Planning Inspectorate [when adjudicating on Core Strategy and Common land works] and Natural England [when making Environmental Stewardship agreements].
The adverse effect caused by displacement on the same or adjacent SSSI or the land used to mitigate the effect development on those SSSIs – eg SANGS requires all the competent authorities to carry out an appropriate assessment. If Natural England in carrying out its duties is guilty of misinterpretation or avoidance in its duty then it is the Minister as the competent authority that has to review the actions of those whose actions are questioned.
The constant refusal of the Department or its agencies [PINS and NE] to accept the public objections and interest or the adverse effect of displacement is to my mind maladministration and in breach of EU case law and guidance
This only adds to the perception that the public’s interest is being discounted.
You will see from my attached paper on HLS that that it is my opinion that NE is itself guilty of maladministration in making stewardship agreements without following its own published rules and that it is funding statutory duty from EU CAP monies. It is NE’s own decision process that allows it not to make or require an appropriate assessment where it agrees a management regime. Whilst legal for the specific site it is making a specific management agreement for it does not take into account the adverse affect caused by displacement onto the same or adjacent SSSI or if it affects any other agreement which relies on access management such as the adjacent but not SSSI part of Chobham common [s193] which has been designated a SANG [TBH SPA] on the basis of discounted capacity.
The attached paper brings into question a whole raft of issues, legal and moral, related to the introduction of extensive conservation grazing on common land and other public access land which is held for public benefit and recreation. These issues are all interlinked and require a holistic approach to settling the problems at the earliest opportunity.
To that end may I ask what the Minister is going to do as the competent authority and funding Minister to address these issues?