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, Walsall Register Unit Nos: CL 39 and CL 113 Commons Registration Authorities: Staffordshire 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, West Midlands, 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) (England) Regulations 2007, SI 2007 No. 2589 www.planningportal.gov.uk/planninginspectorate Application Decision COM626 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 www.planningportal.gov.uk/planninginspectorate 2 Application Decision COM626 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, Lichfield Road, linking Wolverhampton to the south-west with Brownhills 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.