Common Lands of England
Maureen Comber replies to The Rt. Hon. Damian Hinds MP
Says Maureen Comber
Please thank the Minister for his letter dated 26th March addressing my concerns with regard to the above. He is certainly more assiduous than Hampshire County Council!
I note from his reply that there are some vagaries and issues of which the Minister is not aware. It is important that he is properly informed not only by his office but by a constituent in common with other constituents, whose experience on the ground needs to be brought to his attention, because there seems to be something which is not quite right.
Keeping to the format for the sake of consistency:
1. I note he says that he is not aware that the Defra guidance is not being followed with respect to the initial approach to common land management. I can tell you that at Hazely Heath, Yately, Odiham, Oakhanger, Broxhead, in Hampshire, Hawkesbury Sth Gloucester, Hartlebury Worcester, Carnforth etc. Cornwall, Padworth West Berks, Telscombe Tye, East Sussex. Etc etc. the commoners have not been approached in the first instance and have just been part of the general consultation. The owner if there is one and the commoners are the only people with a legal interest in the soil of a common so please note that the Defra guidelines are not being followed and another advice note may be required.
2. I agree that ‘many of our commons have been open habitats, heath, moor and down, for centuries’. Surely it is better to keep them that way because that is what all the legislation through the centuries has tried to do? He says ‘that it is when the management stops that open habitats start to change as scrub and trees establish, therefore appropriate management needs to be re-introduced’. We know that many commons which are vested in the local authorities have been ‘managed’ for decades, but the gorse, scrub and bracken are not checked. It is therefore not a question of re-introducing anything, but of better management rather than little or none at all.
I note that the Minister agrees that there is no scientific evidence and it is only that grazing is “thought to be an effective tool”
Let us be clear, in applying for fencing of our open spaces local authorities are behaving as if they were owners rather than protectors of these public spaces.
Their first duty is to prevent encroachment by fencing or other structures which might prevent the random access by commoners or where there is access, by the public. Even though, as he says they are kept to the boundaries, this entirely alters the character of the site which is no longer wild and free in its appearance. The HLS guidance makes it very clear that keeping the character of the countryside and enhancing it, is fundamental for the application of funding and yet this is obviously being ignored by the Planning Inspectorate. Is he aware of this and if so why is contradiction to the Defra guidance permitted?
I would also note that it appears that all the HLS agreements have been made without an internal agreement with the commoners. Does this constitute fraud?
In addition it seems to be the norm for managers and NE to sign the stewardship agreements before consulting in any form so that consultation is a sham and is ignored by NE, applicants and usually the Inspectorate as they say they are bound by sec. 28G S9 CROW? Is this the right thing to do?
3. He says the Commons Commissioners had no further duties, but how can that possibly be the case when the Commons Act 2006 is five years late in rolling out Part 1 to the whole of England and Wales? The Planning Inspectorate does not appear to have the knowledge or expertise to cover this, judging by their performance so far with regard to the many successful requests for fencing by local authorities. I believe the truth is that the Commons Commissioners would have consistently refused fencing for management concerns, because of the many Acts of Parliament which discourage enclosure.
I would therefore be grateful if he could explain further, why such wholesale enclosure of our common land is taking place against the spirit of all previous legislation? It cannot be just because grazing “is thought to be an effective tool” and much more certainty would be needed to remove the status quo surely?
Am I correct in thinking that neither Lib Dem nor Conservative election manifestos contained the intention of enclosing common land or abolishing the Commons Commissioners, and that neither has therefore received Royal assent?
4. I am sorry but I am still not clear on the question of ownership versus ‘vesting’. My understanding is that vesting gives those with who the common is vested the power to take the necessary steps to protect the common land as an owner might do, but certainly not the power to do anything other than that, such as fencing it themselves. That is the very opposite of what the public might expect or hope for. Certainly a mere management issue should not warrant the need to fence because that is taking away the natural defence for common land which has always been vulnerable to misappropriation, often by those who should know better. Please may I be given a clear definition between those who are said to own the land and those with whom it is vested?
I say those who are ‘said to own the land’ because I have come across cases where the common is ancient and comes under the Tithe Apportionment Acts of the mid-nineteenth century, as common land with no owner and therefore not tithed. While at the same time the Land Registry are accepting conveyances containing the common land which goes back no further than 1962 with apparently no pre-registration of title deeds listed with them? The Land Registry cannot produce them and have no copy of them but are not prepared to investigate when informed. Please may I know why this is? Surely there needs to be an explanation of how and why land is registered to an estate especially in these circumstances?
5. I note that he agrees that many commons have not received the management they need to maintain their open character, but my question was how has this come about given that Natural England and many Wildlife Trusts have no doubt been receiving public funding to carry out this type of work for at least four decades?
I do not understand how grazing can help once the common land has deteriorated to such an extent that the overgrowth consists of woody gorse and brambles. Please explain why that cannot be tackled by cutting or burning which are far more effective than teeth? As a farmer I am also concerned with the welfare of the cattle as he and I both know they need more than a few sticks for maintenance.
6. I shall be very interested to have more clarity on this lamentable situation, where we find our common land, which has managed to remain open and unenclosed even during the nineteenth century when so many were fenced ; now finds itself being enclosed by government bodies presumably on behalf of the Coalition, of which as you know I am a supporter. There are many and to my mind other important things which need to be done to relieve the citizens of this country from the impossible restrictions which are keeping it in the doldrums, such as the edicts coming from the EU that require satisfaction before an actual business venture can begin, for example, Greater Crested Newt surveys which costs thousands of pounds. These creatures are not in danger in the UK but still we have to abide by EU rules? Why? This is a serious inhibition to would be entrepreneurs who may be risking what little cash they can beg or borrow and I am sure inhibits numerous business ventures before they can get off the ground at the planning stage.
It seems to me that if the EU can’t control us by war or economics then they will with misplaced baps, caps and all the rest of it.
Anyway in trying to get clarity for myself I am at the same time trying to show how the apparent theft of common land by the government at a time of austerity could in fact be the last straw for long suffering communities. It is all very well trying to rip up the rule books to change things, but some of the ancient laws are there for a very good reason and it is folly to be seen to meddle with lands to which the public traditionally have access at the same time as telling them to maintain a fit and healthy active lifestyle. That is almost perverse in fact.
It may well be that the Minister has not considered the position from this aspect and does not realise that the Defra guidance is not being followed or that the Planning Inspectorate may be relying on the professional expertise of NE and the Wildlife Trusts to safeguard their own decisions. They simply have not had the time or acquired the expertise to adjudicate when it involves applications to fence common land. This should be a very last resort which clearly in their estimation it is not. In fact they do appear to have lost their independence?
With respect, I would advise the Minister to keep himself better informed and consider the wisdom of enclosing common land, particularly at this time as it may not endear him to the electorate in any sense. Further any sort of restriction to public access should be very carefully considered as it enables ‘air and exercise’ and the healthy active lifestyles which the government is at present promoting. It seems to me that Natural England are leading him along a precipitous route in encouraging applications to fence ‘common land’ simply because the process of enablement is now no more than a form of corporate bullying by Quangos whose actual intent is to take control of the public open spaces by unorthodox means.
Food for thought perhaps?