Application Decision Accompanied site visit held on 1 April 2015 by Heidi Cruickshank BSc MSc MIPROW Appointed by the Secretary of State for Environment, Food and Rural Affairs

Decision date: 12 May 2015

Application Ref: COM 626 Pelsall North Common, Register Unit Nos: CL 39 and CL 113 Commons Registration Authorities: County Council and Walsall Metropolitan Borough Council  The application, dated 30 September 2014, is made under Section 16 of the Commons Act 2006 for consent to deregister and exchange common land.  The application is made by Matthew Scudamore, Solicitor and authorized signatory, on behalf of Walsall Metropolitan Borough Council, The Civic Centre, Darwell Street, Walsall, , WS1 1DG.  The release land comprises 9,725 m2 of land lying to the north-east, south-east and south-west of York’s Bridge on the B4154, Norton Road, which runs north from Pelsall.  The replacement land comprises 2,750 m2 of land in two parcels lying generally south- west of the release land.

DECISION 1. The application to deregister and exchange common land at North Pelsall Common, Register Unit Nos. CL 39 and CL 113 is refused.

PRELIMINARY MATTERS

Notice of application

2. Pelsall Heritage Group (“PHG”) and Mallard Close Residents1 (“MCR”) said that the applicants, Walsall Metropolitan Borough Council (“WMBC”), had failed to properly advertise the application on site. WMBC submitted a letter confirming that notice had been given, which is required before the Planning Inspectorate will process an application. Whilst the photographs of the on- site notices show that not all are directly on the areas affected, I am satisfied, having been to the site, that they were at conspicuous places.

3. It was also alleged that WMBC had not provided a copy of their application to PHG and/or MCR. There is no requirement for such in the regulations2 and I am not able to comment on other arrangements which may have been made between the parties. WMBC confirmed that the documents had been deposited locally, with the address given in the notice, as required by paragraph 8 of the regulations.

4. PHG and MCR objected to the application, submitted further representations and attended the site visit. I consider it unlikely that there were parties who missed the opportunity to comment on the application and am satisfied that the notice ensured that those with an interest were able to do so.

1 Referred to in other correspondence as Moat Farm Residents 2 The Deregistration and Exchange of Common Land and Greens (Procedure) () Regulations 2007, SI 2007 No. 2589

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Identification of the common land

5. Concerns were raised by PHG and MCR that some of the proposed replacement land in Area X was already recorded as common land. As a result, they felt that the plans associated with the application were incorrect. This point was not raised until late in the procedure and so I asked WMBC to comment. Having reviewed the matters as set out by both parties, with the Register of Common Land (“the RCL”) before me, I am satisfied that WMBC are correct to say that this area was not already registered and so the plans did not need to be altered in this respect. PROCEDURAL MATTERS

6. I carried out a site inspection of the release land and replacement land accompanied by representatives from WMBC, the Friends of Pelsall Commons (“the FPC”), the Open Spaces Society ("the OSS"), PHG and MCR.

MAIN ISSUES

7. Section 16(1) of the Commons Act 2006 (“the 2006 Act”) provides that the owner of any land registered as common land may apply for the land (“the release land”) to cease to be so registered. If the area of release land is greater than 200m² a proposal must be made to replace it with other land to be registered as common land (“replacement land”).

8. The Department for Environment, Food and Rural Affairs Common Land Consents Policy Guidance (“the Guidance”) published in July 2009 sets out the benefits which common land should deliver, and the outcomes that it considers must be ensured by the consents process under section 16 of the 2006 Act. The outcome relevant to deregistration is that “…our stock of common land and greens is not diminished – that, on balance, any deregistration of registered land is balanced by the registration of other land of at least equal benefit.”

9. I am required by section 16(6) of the 2006 Act to have regard to the following in determining this application: (a) the interests of persons having rights in relation to, or occupying, the release land; (b) the interests of the neighbourhood; (c) the public interest, which includes the interest in nature conservation, conservation of the landscape, protection of public rights of access and the protection of archaeological remains and features of historic interest; (d) any other matter considered to be relevant.

10. The arguments in objection were that there had been insufficient consideration of alternative options, such that the works on the commons would be unnecessary; and, that the proposed replacement land was already available for public use, contrary to the policies of the Secretary of State.

REASONS

Description of the land

11. Pelsall North Common (“the common”) lies to the north of the conurbation of Pelsall, which is north-west of Walsall. The common generally forms a buffer

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between the developed land to the south and the more rural farmland to the north, with the majority of the common lying to the north of the Wyrley and Essington Canal (“the canal”), although there is a not insignificant area to the south of the canal. The B4154, Norton Road/Lime Lane, runs north from Pelsall, crossing the canal by means of York’s Bridge, a mid-nineteenth century brick bridge. Most of the common lies to the west of Norton Road, although the majority of the land affected by this application is to the east.

12. The land to the south-east of York’s Bridge is developed and known as Moat Farm estate, with the properties closest to the land affected by the application being those on Mallard Close. The canal forms the north-eastern boundary to the Moat Farm estate, with the A4124, Road, linking to the south-west with to the north-east, forming the south-eastern boundary.

13. The appearance of the common differs south and north of the canal, with the land to the south, adjoining houses on the northern edge of Pelsall, being managed amenity grassland. To the north of the canal, the common has a wilder, unkempt appearance, with the area to the north-east of York’s Bridge, affected by the application, comprised of larger trees and scrub and areas of wetland, apparently due to overgrown drainage ditches.

Background

14. On 7 February 2014 WMBC granted planning permission3 for the “Construction of a new road bridge over the canal next to Yorks Bridge and re-alignment of Norton Road plus new parking bays for Pelsall North Common & wetland area.” The Walsall Metropolitan Borough Council (York’s Bridge Replacement Scheme) Bridge Scheme 2014 Confirmation Instrument 20144 was made on 4 July 2014.

15. The proposal intends to realign a section of Norton Road to the east, providing a new bridge over the canal to the east of York’s Bridge. York’s Bridge would remain, continuing to provide private vehicular access to the north-west.

The release land

16. The total area of land sought for release is 9,725 m2 in three sections: (a) the area to the south-west of York’s Bridge, which is intended to provide continued access to York’s Bridge and the remaining section of the old Norton Road. Additionally, this will provide car parking spaces on this area of the common, along with some construction working space; (b) land to the south-east, to be part of the realigned carriageway, footings for the proposed bridge, along with some construction working space; (c) land to the north-east, also intended to be part of the realigned carriageway and footings for the new bridge. The main construction works area is situated on the north-eastern section of this area.

17. The Guidance indicates that a matter to be considered in relation to the public interest is the effect that the proposal will have on those wishing to use the common for recreation and access. In the case of any exchange, it should be assumed that the release land will cease to be available for

3 Application Number: 13/1256/FL 4 Statutory Instrument 2014 No. 1799 www.planningportal.gov.uk/planninginspectorate 3 Application Decision COM626

recreation and access, unless a legally binding provision is intended to be made to assure continued use.

18. WMBC have indicated that 2,465 m2 would be subject to permanent deregistration, the remaining 7,260 m2 only being required for the period of the works, as working and construction areas, after which time it would be re-registered as common land, resulting in an overall increase in the area of common of 285 m2. Drawing number MP/YB/S16/02, Jan 2014, shows these areas in yellow for temporary deregistration and red for permanent.

19. This is an important point, as without the re-registration of land the area released would be significantly greater than that offered for replacement, which is 2,750m². As noted, the Guidance sets out that the policy is not to allow the stock of common land and greens to diminish. Taking this into account, I asked WMBC to provide information on legal undertakings entered into to this effect and any other relevant information.

20. WMBC responded that they did not believe that they could enter into any legal undertakings, as they were both the landowner and the registration authority; it would not be possible to enter into an obligation with itself. In those circumstances, I was asked to accept the expressed intention to make an application under section 13(c) of the Commons Registration Act 1965 on completion of the works. It was noted that the Cabinet Report of 14 July 2013 included reference to areas of temporary deregistration. I also note the reference to attempts to identify alternative land as replacement land, which has not been possible by agreement.

21. I accept that it is clearly the intention of WMBC to re-register this land and take account of the support of FPC and the OSS on this basis. However, I am concerned that the apparent lack of ability to enter into a legal obligation does not protect this area of common land sufficiently. It is not possible for me to place a condition on any consent such that the land is protected. Changes in Council policies between deregistration and the completion of the works would leave the land without legal protection.

22. Considering all the matters before me, I am not satisfied that I can place weight on the intention to re-register land after the completion of works, such that some can be considered subject only to ‘temporary deregistration’. In my view, the area of release land is, therefore, 9,725 m2. Although this is only a tiny fraction of the total common, which is approximately 63 hectares, it is a significant figure in comparison to the 200 m2 beyond which the Secretary of State expects replacement land to be offered.

The replacement land

23. The 2,750m² of replacement land is in two sections to the south-east of York’s Bridge. Area X is a narrow strip of land adjoining area (b) referred to above and lying directly to the west of properties on Mallards Close. It will adjoin the carriageway or pavement, as the immediately adjacent land does at present in relation to the existing road.

24. Area Y is situated within the triangle formed by Norton Road and Lichfield Road. A significant portion of the area is a pond, known as Moat Farm Pool, however, section 61(1) of the 2006 Act sets out that “land” includes land covered by water.

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Assessment

The interests of those occupying or having rights in relation to the release land

25. WMBC indicated that it owned those parts of CL 39 and CL 113 affected by the proposal. As the applicants for the proposal, I am satisfied that their interests are not adversely affected. The proposal would allow WMBC to meet their statutory duty in relation to York’s Bridge and Norton Road, in their role as the highway authority.

26. There are no rights of common registered in respect of either CL 39 or CL 113. The Church Commissioners are noted in the Register as claiming to be “…entitled to the rights and interests of the Lord of the Manor of the Deanery of Wolverhampton in that capacity other than the ownership of the land…[and] the owners in fee simple of mines and mineral substances…within and under the land…”. The National Coal Board claim ownership of any coal in or under the land and all rights incident thereto by virtue of the Coal Acts 1938 and 1943 and the Coal Industry Nationalisation Act 1946. WMBC confirmed in the application that they had sent a copy of the notice to those with a legal interest, or other rights over the land. The Church Commissioners had no objection to the works and I am satisfied that the proposal would not adversely affect these registered rights.

27. A private right of way in connection with Huddocks Moor Farm is registered over the track running to the north-west of York’s Bridge. The proposed works intend that York’s Bridge and this section of Norton Road will remain in place, with access provided by the works on area (a). I am satisfied that these rights will not be adversely affected by the proposed works.

28. A private right of way is registered over part of the north-eastern section of area (b), running alongside the western boundary of 16 Mallard Close. The right is reserved to the Canal and River Trust (“the CRT”), having been registered in the RCL following the transfer of ownership of this land from the CRT to WMBC in July 2014. Whilst the CRT has not objected to the works, these rights will be affected by the proposed works during the construction, although access to the canal remains in other areas through the common land. Overall, I am satisfied that those occupying or having rights in relation to the release land will not be adversely affected by the proposal.

The interests of the neighbourhood

29. The 2006 Act does not define the term ‘neighbourhood’, however, the Explanatory Memorandum to the Deregistration and Exchange of Common Land and Greens (Procedure) (England) Regulations 2007 refers to this as the ‘local inhabitants’. The Guidance asks “Does the proposed replacement land or outcome intended by the proposed works add something that will positively benefit the neighbourhood?”

30. I consider that the loss of the release land to the south of the canal, areas (a) and (b), will mean changes to the way in which local people will be able to use the common, particularly in relation to access to the canal towpath on the eastern side of the bridge. Without the provision of access here, which I understand was intended to be restored by re-registration, the effect is to make the larger area of the common less accessible to the public from the

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Moat Farm estate area. I consider that this would not be in the interests of the neighbourhood.

31. The Guidance also sets out that some proposed works on common land do not benefit the common but nevertheless confer some wider benefit on the local community. York’s Bridge has been noted to have been proposed for improvement works for almost 40 years and I am satisfied that the changes to the road system have been through the appropriate planning procedures on the basis that the new bridge will provide benefit to the neighbourhood and wider community in this respect.

32. Whilst there is opposition from those who are most personally affected by the proposal, particularly those living in Mallard Close, I consider that weight can be placed upon the outcome of the proposal in safeguarding York’s Bridge and providing the required changes to the road network, as set out by WMBC. I consider that the intention to provide parking spaces would be beneficial to public access to the common. There is clear support for the scheme as a whole from the FPC, the OSS and the Local Access Forum.

33. Taking all these points into account, I consider that the scheme is in the interests of the neighbourhood, if the commons matters are generally placed to one side. However, as the application will result in the loss of 6,975 m2 of common land, I do not consider that this is in the overall interests of the neighbourhood.

The public interest

Nature Conservation

34. The common to the north of the canal is a Local Nature Reserve and a Site of Importance to Nature Conservation, whilst the canal itself, which adjoins the release land, is a Site of Local Importance to Nature Conservation (“SLINC”). Approximately 300 metres to the west of York’s Bridge, running through the common generally parallel to Norton Road in this area, is the Extension Arm Canal which is designated as a Site of Special Scientific Interest and Special Area of Conservation.

35. I note that the planning decision notice sets out conditions in relation to the drainage scheme and method of working “To ensure there is no contamination of the SAC and Wyrley and Essington Canal Site of Local Importance for Nature Conservation.” Further conditions are in place “To ensure an ecologically diverse and visually attractive landscape which fully compensates both in quantity and quality for the natural features lost… [that]…natural habitats which are to be retained within or adjacent to the development are not harmed…the conservation of reptile… any bat and water vole…[and]…great crested-newt populations present on the site…[and]…to protect local bird populations.”

36. It is also the case that WMBC intend that the re-registered areas, along with replacement land area X, would be included in an existing Higher Level Stewardship Scheme. Although the details of this particular scheme, reference AG00520335, are not before me, such schemes seek to improve environmental stewardship of the land.

37. I note the concerns of PHG and MCR that the line of poplar trees alongside Norton Road may be lost. Whilst those to the south appear to be within the common and/or the proposed highway alignment it is not clear whether

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those to the north are on the common or the highway verge. Their spacing and alignment suggests a connection with the road, rather than the common and it is unclear whether all will be removed. WMBC say that the matter has been dealt with under the planning process.

38. Areas (a) and (b) to the south of the canal are generally managed single sward amenity grassland with little conservation value. Area (c) has a hedge bank on the eastern boundary and is generally comprised of small broadleaf trees with bramble and bracken understory. An area near the southern access track is wet and marshy, arising from blocked drainage in this area.

39. Whilst I am satisfied that the nature conservation value of the common and surrounding land will be safeguarded through the planning processes, the large area of release land will result in loss of natural habitat in this area.

Conservation of the Landscape

40. I consider that the common forms a valuable area of green-space which, along with the canal, delineates the boundary of the developed land. The common is divided north-south by the canal, with the southern section of a different character to the north. I do not consider that the proposed changes to areas (a) and (b) will be out of keeping with the existing area. I note that PHG feel that the proposed bridge would be out of keeping with the character of the village, however, I consider this a matter for the planning processes.

41. The east-west division of the common by Norton Road is already a feature of this area and the realignment will not, in my view, alter the overall effect of the road when viewed from the common land. Whilst the proposed bridge will introduce a new feature in the landscape, which will be visible from the common, it will be to the east of the existing bridge and the Fingerpost Public House , which will therefore remain as the most visible features in this area from the majority of the common land. I consider that the landscape of the common will not be unduly affected by the proposal.

Protection of the public rights of access to any area of land and the right to air and exercise

42. Area X is potentially open to public access, with no boundary between it and the release land to the north, or what is currently open land adjacent to the road to the west. However, it is affected by an undergrowth of brambles alongside the fencing, sufficient in my view to prevent general public access over this land during the growing season.

43. Area Y, Moat Farm Pool, is a SLINC. Whilst a significant area of the land is the pool itself, the surrounding area is managed amenity land, clearly available for public access, with made and unmade paths running through it. There is support for the registration as common land, including from PHG and MCR. However, I agree with PHG and MCR that the provision of this as replacement land is not in line with the Planning Inspectorate Notes on completing an application …to deregister and exchange common land…which set out that “We would not expect to see the stock of public access land diminished by an offer of replacement land that was already subject to some form of public access, whether that access was available by right or informally.” An exception might arise if the land were under threat of development and WMBC say that previously there has been consideration to draining the pool for junction improvements. They say that registration as

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common land could protect it further, although I note that the SLINC designation means that it is already to be protected from damaging development by local and national planning policy.

44. Area (c) is not conducive to public access, due to the vegetation type. However, given the overall loss of area arising, and the fact that area Y is already open for public access, I am not satisfied that the application protects the public rights of access and the right to air and exercise, provided on the common under section 193 of the Law of Property Act 1925.

The protection of archaeological remains and features of historic interest

45. No reference has been made to archaeological remains in this area. York’s Bridge itself is a feature of historic interest, which will be retained under the proposal. I note the views of PHG and MCR that the proximity of the proposed bridge means that it could cause damage to York’s Bridge, however, I consider that this is a matter that should have been considered at the planning stage. The proposed bridge will remove existing traffic from York’s Bridge, with the exception of those retaining private access rights and I consider that this will protect the structural integrity of the bridge. As a result, I am satisfied that there is no overall negative impact with regard to historic features arising from the proposal.

Any other matters

46. Concerns relating to the planning procedures and permission; the Committee processes; the highway designation of Norton Road and potential issues arising from the proposed bridge alterations; and appeals under different legislation, are not matters relevant to the decision before me. I have not taken them into account.

Conclusions

47. Having regard to these and all other matters raised in the written representations, and to the criteria in section 16(6) of the 2006 Act, I conclude that granting the application would not be against the interests of those having rights in relation to the release land or the public interest with regard to nature or landscape conservation or the protection of archaeological remains or features of historic interest.

48. However, given that I am not satisfied that I can place sufficient reliance on the intention to re-register land following the development, I consider there to be a negative effect on the neighbourhood and the public interest in relation to access as there will be a detrimental loss to the overall area of common land. I conclude, therefore, that the application should be not granted and no Order of Exchange should be made. Heidi Cruickshank Inspector

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