Open Spaces Society 27 November 2014

Chiltern Commons Project Training Workshop Commons and the Law Nicola Hodgson Case Officer, Open Spaces Society 27 November 2014

Session 1

Specific Commons Legislation and an Overview of the 2006 Commons Act

What I will cover

. What are commons

. Why are they important

. How do you find out what your rights are on commons

What are commons?

. All commons are owned. . Land on which others have rights: . grazing . collecting wood . digging peat . taking bracken and furze . People needed commons for their survival

Why commons matter

Commons are a remarkable survival.

. c600,000 hectares in England and Wales.

. All land types and habitats.

. All shapes and sizes.

Public interest

Commons have immense public interest

. over 88% by area in England are designated for wildlife, landscape, archaeology . 55% are SSSI . 48% by area in national parks . 31% by area in AONBs . nearly 100% open access land . 11% of scheduled ancient monuments are on common land.

Inclosures

. Once much of the land was common.

. Then came the inclosures.

. The peasants were squeezed.

. Commons were much reduced.

The Victorian Era

. 1865 Commons Preservation Society was born. . Fought to save London Commons. . Helped save Hampstead Heath, Epping Forest, Wimbledon Common from destruction.

Legislation 1

Laws recognise public interest

. Metropolitan Commons Act 1866 Prevented enclosure within Metropolitan Police District. . Commons Act 1876 Inhabitants can play games ‘Benefit of neighbourhood’ test for works.

Legislation 2

Commons Act 1899

. Local authorities can manage and improve commons in public interest. . Standard bylaws . Inhabitants have rights of access – extended by CRoW Act 2000 to everyone eg Austenwood Common, Bucks

Legislation 3

National Trust Act 1907

. NT commons to be kept unenclosed and unbuilt on, as open spaces for public recreation

Legislation 4

Law of Property Act 1925 . Right to walk and ride on ‘urban’ commons and those with a deed of access (section 193). . Clarification that works on commons need Secretary of State consent (section 194).

National Trust Act 1971 . Clarifies law relating to works on NT land

Royal Commission

Royal Commission on Common Land 1958 recommended: . registration (CRA 1965) . access (CRoWA 2000) . management (Commons Act 2006).

Registration

The Commons Registration Act 1965 . Allowed only 3 years for registration of land, rights and owners. . Much was omitted. . Some was registered wrongly. . Registers incomplete and hard to follow. . Once concluded, no way of correcting.

Access

. Countryside and Rights of Way Act 2000 gave public right to walk on all registered commons and mapped areas of mountain, moor, heath and down in England and Wales. . Did not apply to land already subject to rights of access (section 15). . Higher rights can be dedicated on any land by landowner in perpetuity (section 16).

Management plus

Commons Act 2006 led to: . commons councils . clarification of law on works . amendment of registers . (clarification for new village greens)

16 How do we find out about our rights?

. Notices on land . Check with commons registration authority (county or unitary authority) . Deed at the Public Records Office . MAGIC website http://www.magic.gov.uk/ . Natural England countryside access website: www.naturalengland.org.uk/ourwork/enjoying/places/op enaccess/default.aspx

MAGIC

. MAGIC website http://www.magic.gov.uk/Choose interactive map. . From ‘select topic’ drop-down box, choose ‘design my own topic’. . Select Countryside and Rights of Way Act section 15 land (England) and press ‘done’ button at top right. . Choose the area you are interested in, agree terms of use and click ‘open map’.

Registration: Commons Act 2006, part 1

The opportunities under the Commons Act for correcting the register, and the registration of lost commons and how to go about it

Why is this important?

. To add extra land for public access

. The land gains additional protection

. Local knowledge invaluable

Nine Pioneer Areas

. Blackburn with Darwen borough . Cornwall county . Cumbria . Devon county . Herefordshire district . Hertfordshire county . Lancashire county . Kent county . North Yorkshire

Applications

Applications under Part 1 of the Commons Act 2006 Making an application

. Decide what type of application you want to make . Contact your registration authority to obtain the relevant application form . Complete the application, including evidence, maps . Submit application form to your commons registration authority

Type of application

. Part 1 enables applications to amend the registers of common land and town and village greens . To record new events section 6 – 15 . To record historic events . To rectify the register - Non registration and mistaken registration

23 Application under schedule 2 (4)

All the forms available on the CRA websites in the nine pioneer areas are a standard format, ten parts Four are of particular importance Part 5: Reason for applying to correct the register Part 6: Description of the land Part 8: List of supporting documentation Part 9: Other information relating to the application information

Schedule 2 (4)

Commons Act 2006: Schedule 2(4)

See information sheet in folder

Criteria

1. Provisional registration, objection and cancellation 2. Manorial status 3. Current status as ‘waste land of a manor’ 4. List of supporting documents

26 Cornwall – Carmine Common

. First decision made under Schedule 2 (para 4) . Land has been added to the common land register

New Provisions

. From 15 December 2014 Section 19(2)(a) and paras 6-9 of Schedule 2 of the 2006 Act will take effect throughout England to allow respectively for the correction of mistakes made by the authority and the removal of wrongly registered land.

New Provisions

. Defra have issued a factsheet https://www.gov.uk/government/uploads/system/uploads /attachment_data/file/218781/correct-register- factsheet.pdf and this is also covered in the society’s information sheet: http://www.oss.org.uk/wp-content/uploads/2014/09/C19- Commons-Act-2006-Part-1-Registration.pdf

Guidance

. OSS information sheets: http://www.oss.org.uk/what-we-do/publications/free- publications-and-information-sheets/

http://www.oss.org.uk/wp-content/uploads/2014/07/A8-New- Opportunity-to-rescue-lost-commons.pdf

. Planning Inspectorate http://www.planningportal.gov.uk/planning/countryside/commo nland/decisions

Guidance

. Defra: https://www.gov.uk/common-land-management-protection- and-registering-to-use

https://www.gov.uk/government/uploads/system/uploads/attac hment_data/file/245692/pb13660-applicants-pilot-guidance.pdf

Guidance

. Defra: https://www.gov.uk/common-land-management-protection- and-registering-to-use

Commons re-registration website: www.commonsreregistration.org.uk.

IN CONCLUSION

. Through the ages commons have been places of shared use. . They still exist for all to enjoy.

Session 2

Works that can/cannot be carried out on common land

Commons Act 2006, Part 3

Commons Act 2006, Part 3 Works on common land and exemptions:

. Sections 38 and 39 of the Commons Act 2006

. Consent required from the Secretary of State for Environment, Food and Rural Affairs

2 Works on common land What I shall cover

. Rules for works on common land . Procedure to follow . Use of exemptions . Exchange land . Taking action against unlawful works

3 Rules for works on common land

Section 38 of the Commons Act 2006 . replaces Section 194 of the Law of Property Act 1925 . applies to all registered commons, those regulated under the Commons Act 1876, Metropolitan Commons Act 1866, and Commons Act 1899, and New Forest. . Also applies to all village greens which are regulated under the Commons Act 1899.

4 Rules for works on common land

. Restricted works need Secretary of State consent . Works which prevent or impede access to or over land, to include: . fencing, building and other structures, ditches and embankments . Works for resurfacing e.g. concrete, tarmac

5 National Trust Commons

. Governed by Section 23 of the National Trust Act 1971

. Section 38 consent is required

Procedure to follow

. For all but minor works, applicant should consult before submitting application

Procedure to follow

. Submit application to Planning Inspectorate . Forms and guidance notes on PINS website . http://www.planningportal.gov.uk/planning/countryside/ . OSS is a statutory consultee

Procedure to follow

. Objections submitted to PINS . PINS will consult applicant and communicate with objectors . PINS will determine application by written representations, a hearing or a public inquiry

Procedure to follow

In deciding whether to give consent, PINS will have regard to: . Interests of those with rights on the land . Interests of the neighbourhood . The public interest (includes nature and landscape conservation, public access rights, archaeological and historic interest)

Procedure to follow

. PINS can amend the application . PINS will take account of previous consents on land and Defra policy guidance . Consent may be given for retrospective applications

Exemptions

Grazing: temporary fencing up to 6 months, up to 10ha or 10% of commons Restoration: temporary fencing up to 3 years Nature conservation: temporary fencing up to 5 years Prevent vehicular access: row of obstacles

Exemptions

. Applicant must send notice to PINS who display it on their website but no requirement to display map . Onus on applicant to obey law . If applicant exceeds the exemption provisions, in time or extent, the works are unlawful

Exemptions

. Exemptions useful to test effect of grazing, e.g. Turville Heath Common, Bucks, Chorleywood Common for growth of vegetation

Session 3

Process for exchange of common land

1 Works on common land Exchange land

. Section 16 Commons Act 2006

. Deregistration and exchange land

. Applies to common land and village greens

2 Works on common land Exchange land: Criteria

. Area of land more than 200sqm, the application must include exchange land

. Area of land less than 200 sqm, the application may include exchange land

. The replacement land must not already be registered as common land or village green

3 Works on common land Exchange land: Process

Application is made to PINS who must have regard to

. The interests of those with rights or occupying the release land . The interests of the neighbourhood . The public interest . Any other matter considered to be relevant

4 Works on common land Exchange land

Successfully resisted application to deregister and exchange common land at Crowborough Common, East Sussex The land is owned by Crowborough Golf Club and in 2006 and 2007 OSS initially raised concerns that the public had the right to use the land for air and exercise under section 193 of the Law of Property Act 1925. This led to signs being erected to inform the public that it could use the land.

Works on common land Exchange land

The golf club made an application in 2008 (under section 16 of the Common Act 2006) to deregister part of the land and provide exchange land. We objected to the application and OSS support boosted local opposition in objecting to the application to deregister nearly four acres of the common to make way for building development.

6 Works on common land Exchange land

The application would have meant a loss of amenity for local people as the proposed exchange land was inaccessible, further from the town and would lead to fragmentation of the common. We encouraged local people to object and the opposition became so strong that the first day of the inquiry had to be adjourned as there was not enough room for all the local people who wanted to attend.

Works on common land Exchange land

The inspector concluded that ‘in terms of amenity and views, the replacement land would not be as valuable to the neighbourhood as the release land.’

8 Works on common land Exchange land

The land has been saved for community use and has resulted in the formation of a strong local group for the benefit of the community as a whole. The local group, ‘Save our Common’ now has a website www.crowboroughcommon.org.uk.

It has made a proposal to the landowner that a ‘Friends of Crowborough Common’ be set up to promote the conservation, maintenance, protection and peaceful enjoyment of the common

Campaign success

Before our campaign Barriers gone

Session 4

Taking action against unlawful works on commons and greens

Car parking

. Dragon’s teeth . Exemption under section 43 of the Commons Act 2006 to prevent vehicular access . Information on website, newsletter, new owner’s packs . Byelaws . Grasscrete

Encroachments

. Beating the bounds . Signs . Scheme of management

Working together

. Survey use of land . Guiding principles/policy . Management plan; action plan . Local volunteers/friends’ groups

Alternatives

. Exchange land . Enforcement under section 41 of the Commons Act 2006 . Use of powers under section 45 of the Commons Act 2006 (unclaimed land) . Laying an information in Magistrates’ Court (s29 Commons Act 1876, s12 Inclosure Act 1857)

Guidance

. Department for the Environment, Food and Rural Affairs Management and Protection of Town and Village Greens - http://archive.defra.gov.uk/rural/documents/protected/com mon-land/tvgprotect-faq.pdf

. Natural England fact sheets on common land – http://publications.naturalengland.org.uk/publication/36015 ?category=40026

Guidance

. OSS publications Our Common Land Information sheet: Works on Common Land http://www.oss.org.uk/what-we-do/publications/free- publications-and-information-sheets/

Taking action

. Section 41 Commons Act 2006 . In force since 1 October 2007 . Where restricted works are carried out without consent from Secretary of State under section 38 Commons Act 2006, any person can make an application to the county court

Taking action

The court can order

. Removal of the works and restoration of the land or . Where consent has been given, but the works have not been carried out in accordance with its terms, can specify how the works are to be carried out

Taking action

Application to other Acts

. National Trust land: where consent is required under section 23 National Trust Act 1971 . Greater London: where works require consent under article 12 of the Greater London Parks and Open Spaces Order 1967

Taking action

Defra/PINS view Work constructed in ignorance of the controls may be rectified by making a retrospective application. There is no guarantee that a retrospective application will be successful and, if it is not, applicants may well need to dismantle unlawful works or face a court action. Consider alternative resolution procedures: . Mediation through an independent party . Pre-action procedures as recommended by the Ministry of Justice. Failure to seek a resolution can result in costs being awarded against you, even if you bring a successful action. . www.justice.gov.uk/about/alternativedisputeresolution.htm . Summary in OSS information sheet

Taking action: Process

. Can be long and expensive . Essential to have strong evidence . Witnesses, documents, maps, photographs . You may be personally liable for the costs of the action; any award of costs is at the discretion of the courts . Read court guidance notes: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?cou rt_forms_id=338

Taking action: Process(2)

. Complete a Part 7 claim form (N1), available on line or from your local county court . OSS information sheet at Appendix A has an example . Take form to court with fee, with a copy for each defendant . OSS information sheet: Taking Action http://www.oss.org.uk/what-we-do/publications/free- publications-and-information-sheets/

Taking action

Village Green

. No encroachment works for the better enjoyment of the green. . No injury or damage to the green . S29 Commons Act 1876, S12 Inclosure Act 1857 . Laying an information in the magistrate court http://www.oss.org.uk/wp-content/uploads/2009/02/C12- Laying-an-Information-how-to-prosecute-someone-in-a- magistrates-court-May-20131.pdf

Taking action

Who can take action? Owners Works undertaken without the owner’s consent are likely to be trespass, whether section 38 consent has been obtained or not They may have carried out the work themselves Local authorities Government’s view is additional guidance and clarity of s38/s41 ensures local authorities are fully aware of their responsibilities and powers Helps to inform them of their options At the very least, an authority should write explaining the legislation

Taking action

Who can take action? Local Councillors Lobby and explain remedies available to their authority Commons Association/Commons Councils Common law – abatement Section 30 Commons Act 1876 Local Access Forums Defra’s guidance 2007 – forums are asked to consider advising local authorities about use of enforcement powers The forum’s objective should be to help safeguard and promote freedom of access over common land

Session 5

Easements

1 Granting of easements: common land

The owner of common land may grant easements

. Subject to the rights of commoners and of the public . Grant private rights of way . Private rights to lay pipes

2 Express or implied grants by local authorities

. Local authorities have power to grant rights in land they hold provided the grants are not inconsistent with the purpose for which they hold the land . Must not dispose of land for a consideration less than the best that can reasonably be obtained (s123 of the Local Government Act 1972) . This includes the grant of an easement . Open Spaces Act 1906 – arguable an easement adversely affecting public recreation would not be consistent with the statutory powers

3 Easements by prescription

The House of Lords case Bakewell Management Ltd v Brandwood (2004) altered the previous law relating to the acquisition of easements by prescription or lost modern grant (to give legal origin to long enjoyment of unchallenged rights)

http://www.publications.parliament.uk/pa/ld200304/ldju dgmt/jd040401/bake-1.htm

4 Easements by prescription

If an easement can be lawfully granted by the landowner, the easement can be acquired either by prescription or lost modern grant Section 34 of the Road Traffic Act 1988 Section 193(4) of the Law of Property Act 1925

5 Easements by prescription

The courts have resolved that a right to drive a vehicle over common land can be

. Granted expressly by easement . Established by prescription or long user

6 Village greens: Easements

. An owner may grant an easement if it does not interfere with the inhabitants’ right of recreation . Prior to Bakewell position was that grant of a right of way would be ineffective if breach of section 29 Commons Act 1876 or section 12 Inclosure Act 1857

7 Court case

Massey and Drew v Boulden and Boulden (2002)

. Grant of vehicular rights over a green was not a breach of section 12 . ‘No sufficient reason to regard the existence and use of the track as injuring the green or interrupting its use or enjoyment by others’