Says Adrienne Yentis
A friend of mine recently was riding on the heath
and she came across a group of cattle strung out across the bridlepath with no way through – the only way off was to turn round. Fortunately her horse
remained calm throughout. But you can imagine how a nervous horse might react ........... read more
Martin Down National Nature Reserve,
Hampshire: Management Consultation
Maureen Comber writes to Robert Lloyd, Natural England
- The consultation is surplus to requirements with regard to any application under s.38 because common lands may not be fenced
- Enclosure may not come about through consultation alone as this would undermine the law.
- Before any application for fencing our common lands, very carefull consideration should be given to the full force of the law.
Says Maureen Comber
I think you may be missing the points I am making by saying that you are uncertain if an application for s.38 will be needed. Simply the consultation is surplus to requirements with regard to any application under s.38 because common lands may not be fenced. Not only would it harm the character of the countryside but it would be detrimental to and impede public access, the conservation of the site, etc. The nature of common land is that it is unenclosed and open space. Enclosure may not come about through consultation alone as this would undermine the law.
My point about Commons Council's is that although you are correct to say they are not mandatory under the CA 2006, without a corporate body such as a commons council there will be no way of setting up legally binding agreements to enable all parties to work together.
Thank you for the attachments but these are not Title Deeds and I maintain that the land is but 'vested' with the organisations mentioned, for its protection from encroachment such as fencing. This would mean a conflict of interest should s.38 be a consideration, between the need to protect from encroachment on the one hand and the encroachment by fencing required by the application on the other.
Care should also be taken as to the interpretation of 'Urban', since what might be considered Urban now was not the case in 1925. For example all the commons in the Lake District are considered Urban! This may be because as happened in Hampshire, where all commons came under the administration of Southampton in 1925 and therefore are undoubtedly Urban. Should any doubt remain, and the preamble to sec. 193/194 Law of Property Act 1925 can be confusing, sec. 194, which is obviously drafted in support of s.193 makes it clear that any common with commoners rights before 1926 comes under these sections.
Martin Down is therefore subject to both s.193 and s.194 LPA 1925 just like all commons with rights before 1926.
The existence of 'commoners rights' may not prohibit the designation of the land as SSSI but that is not such a strong designation as an Local Nature Reserve. Whereas SSSI can sit happily alongside public access, a Local Nature Reserve prioritizes nature conservation and is therefore not compatible with any land open to public access, as I have tried to explain below.
I would with the best of intentions raise a word of caution. Providing false information or failing to disclose correct documentation can be interpreted as fraud and may incur Judicial Review, therefore before any application for fencing our common lands, very carefull consideration should be given to the full force of the law.
Comments Steve Yandall
Strange how a distinction between "power and,not a duty" springs out and yet the distinction between vested and owned appears overlooked? Well done Maureen.Considered,polite and pointed,
Comments Tony Barnett
Your presence on this common land is not and cannot be supported in any legal manner The public of localities always had access to common lands in their area, section 193 is the after thought/establishment of rights of access to make access lawful, also to prevent unauthorized persons from interfering with those rights, but, 193, is also used in 1876(metropolitan) and 1899(urban and Borough), both acts being acts of regulation for use, whereas 193 in the Hand of a Lord of the Manor, owners in freehold pre 1189, their use of 193 is also a regulative act, where access points are determined, types of access governing modes of access also determined/regulated.
Any animal,cycles or other wheeled transport can be prohibited, footpaths, as is provided under 193, must be used in accordance with the owners regulations powers, failing to comply can result in prosecutions for trespass and removed/banned under courts directions from entering the common land and fined.
Martin downs common Land is covered by 193 for open from all points of view, dog walkers and equestrians, it is free from regulation, enclosure of all types.
Your presence on this common land is not and cannot be supported in any legal manner, SSSI may be located, but it is still open common land not subject to any formal prosecutions for criminal damage etc, but subject to normal access/commoners rights etc, as you are not subject to fOI, DEFRA, PINS, Professional standards and the local authority are.
My intention is to urge applications to the local authority under FOI, or make an application myself, as you seem willing to quote legislation, incorrectly, may I guide you to the 2006 commons act, mainly section 41, and sections 47(1) and 47(2), Mrs Comber has already cautioned you of the 2006 fraud act.
Says Linda Wright
We moved to a Shropshire location a year ago having surveyed the local OS map and noted the significant number of bridleways around the property. Sadly the map appears a total fiction. Scarce any of the bridleways are usable ........... read more