PannageMan

The Department for Communities and Local Government has laid a draft order before Parliament to extend the circumstances in which development can pre-empt an application to register a new town or village green in England. The draft Commons (Town and Village Greens) (Trigger and Terminating Events) Order 2013 is subject to the affirmative resolution procedure, so it must be approved by a resolution of each house before it comes into force: those resolutions are likely to be passed over the next couple of months, probably with a short debate in one or both houses.

Section 16 of the Growth and Infrastructure Act 2013 amended the Commons Act 2006, to prevent applications to register greens on land where the development approval process had already been set in train. The most obvious example is where an application is made for planning permission on land: once that application is publicised (e.g. by notice on site) then it acts as a ‘trigger event’ which makes it no longer possible to apply to register that land as a green. The block on registration remains indefinitely (if the development takes place), or until a ‘terminating event’ occurs: again the most obvious is where planning permission is granted, but the development is not begun within the time allowed by the permission.

New Schedule 1A to the 2006 Act sets out a number of statutory mechanisms by which development consent can be granted, and the associated trigger and terminating events. It also confers the same protection from registration where land is designated for development in local plans. However, Schedule 1A was not comprehensive, and new section 15C(5) of the 2006 Act enables the Secretary of State to amend or extend the list. This is what the draft order will do, to specify new trigger and terminating events arising from local development orders and neighbourhood development orders, and from applications for infrastructure works under the Transport and Works Act 1992 (such as railway, tram or guided busway schemes). None of these development consent mechanisms is used particularly frequently (no neighbourhood development order has yet been granted, but some are in the pipeline), but the provisions are logical additions to those included in the 2013 Act. The only surprise is the omission of road schemes under the Highways Act 1980, but this may be because most road schemes are now authorised under other powers which are already addressed in Schedule 1A.

Once approved by Parliament, the Secretary of State may make the order, and it comes into force on the day after it is made (see article 1(1) of the draft order).

Two recent developments in Parliament affecting common land.

First, the Environment, Food and Rural Affairs Committee has published its report into CAP reform, including its specific findings and recommendations relating to common land.

The committee:

• call for an updating of the commons registers, or implementation of Part 1 of the Commons Act 2006, to better relate the registers to entitlements to direct payments;
• endorse the recommendation of the Farming Regulation Task Force that direct payments should be made to the commoners’ association vice individual commoners;
• wish to ensure that tenants grazing on commons by virtue of their tenancy agreement are entitled to a share of the direct payments;
• wish to ensure that rules (such as the minimum activity requirement on naturally kept land) do not require commoners to depart from environmentally sustainable practices;
• want Natural England to intervene that payments for agri-environment agreements on commons are fairly apportioned between the graziers and the landlord.

Secondly, the High Speed Rail (London – West Midlands) Bill contains powers for the acquisition of common land along the route. Clause 28 of the Bill (which contrary to press reports, is a little over 400 pages long — pretty hefty, but hardly the 50,000 pages quoted) contains an override of the status or management of any land which is common land, open space or town or village green. Invariably, any enactment conferring a power of compulsory acquisition of such land requires the provision of exchange land in substitution for what is taken for the development, with a requirement on the Secretary of State to certify the adequacy of the exchange, and a referral to Parliament if the certificate cannot be given. But HS2 is exceptional in that, by passing the Bill, Parliament will have endorsed the specific plans contained in the Bill, including the proposed acquisition of common land, so there is no statutory requirement for certification, or even exchange land. Paragraph 8 of Schedule 14 to the Bill therefore requires that, on any such acquisition, the Secretary of State must notify the commons registration authority to require a consequential amendment to the commons registers.

Defra began a consultation today which proposes to introduce pre-movement testing for cattle heading to or from common land.

The Tuberculosis (England) Order 2007, made under the Animal Health Act 1981, provides for precautions to be required to be taken against the spread of tuberculosis (TB) in cattle. These precautions include, in art. 9, the TB testing of cattle prior to movement to another premises. However, art.9(3)(a) of, and paragraph 2 of the Schedule to, the Order, confer an exemption from pre-movement testing for movement of cattle:

• between the common and the commoner’s holding;
• between the common and another commoner’s holding;
• between commoners’ holdings.

The consultation is one of several initiatives in recent years to tighten up on these controls, although this is the first to emerge in a consultation paper. The consultation notes that, “Since those untested animals may then mix freely with cattle from other herds grazing on the same common, the risk of disease spread on the common and when the cattle return after grazing the common is one that we must address.” The risk is described as ‘difficult to quantify (but not negligible)’.

The consultation says that it recognises the impact that the universal introduction of pre-movement testing (both ways) would have on often economically vulnerable farm businesses, and considers some mitigations:

• an option for a waiver for movements from the common to (but only to) the commoner’s holding subject to a distance limit;
• substitution of post- for pre-movement testing of movements from the common to the commoner’s holding (presumably, if the waiver is either abandoned or not applicable owing to the distance threshold);

Even so, the proposals are unlikely to be met with enthusiasm by those still turning out cattle on to common land. Cattle have already vanished from most upland commons (with notable exceptions in areas such as Dartmoor), yet grazing with cattle can offer significant biodiversity benefits, and is sometimes included in agri-environment prescriptions. Where cattle are turned out on to commons during the summer months, the requirement for biannual testing (annual testing if eligible for the waiver) could further marginalise commoning, leading to a further decline in the extent and diversity of common grazing. It could also add to the costs of the widespread use of cattle in conservation grazing schemes of common land, although the rules are different where grazing is done by a single grazier under agreement with the common owner (rather than in exercise of rights of common).

The option for a waiver on movements could help. The limit on the distance over which the waiver can be exercised is presumably intended to exclude commoners who rent out their rights to third parties from distant farms, or who agist cattle on the common: in theory, such practices may well be unlawful anyway, since rights of common may not be let for a term of more than two years under art. 2 of the Commons (Severance of Rights) (England) Order 2006, and agistment on commons is a pretty grey area at common law.

In the most extreme scenario, a commoner who daily turns out cattle through the farm gate onto the common, and brings them back in each evening (admittedly now a rarity) would simply have to stop.

It may be that these proposals are particularly targeted at the relatively few lowland commons which provide good quality semi-intensive grazing and where large numbers of cattle are still turned out by multiple commoners: in such cases, the commoners’ holdings may be remote from the common itself, the rights may be held in gross (so that the location of the commoner’s holding is irrelevant), or the rights may be formally or informally let out to third parties. If so, it’s not hard to perceive the potential risk. A question for the consultation is whether the risk merits the same measures on extensive or upland commons where few commoners turn out cattle: indeed, it seems these controls would apply even where there is only one commoner keeping cattle on the common. It may, however, be hard to devise a way to apply controls to some commons but not others, without an administratively demanding exercise to review each common on a case by case basis.

No doubt commoners’ representatives, as well as commoners themselves, will make their views known during the consultation, which closes on 10 January 2014.

Finally, seven years after the Commons Act 2006 received Royal Assent, nearly four years after Part 2 was brought into force, and three and a half years after a model constitution was first published, England’s first ever commons council is about to be established.

An order has been made by Defra Minister for natural environment and science Rupert de Mauley to establish a commons council for Brendon common on Exmoor, Devon. The Brendon Commons Council Establishment Order 2013 will come into force on 1st January next year, with the council established from 1st April. The Council will have statutory powers to manage the exercise of rights of common, and to manage the vegetation on the common, and to make rules (in effect, byelaws) for these purposes. Brendon will be the first ever common for which a statutory management body of commoners and landowners has been created with powers to regulate their own affairs, without the need for primary legislation.

Defra consulted on a draft establishment order earlier in the autumn (see an earlier entry in this blog), and by the close of the consultation period, was satisfied (as the 2006 Act requires) that there was ‘substantial support’ from the local interests for the council. The Minister will now need to appoint a local returning officer to draw up lists of commoners eligible to vote in elections to the council, so as to allow elections to be held before 1st April. The draft lists must be open to public scrutiny, before the returning officer invites nominations for candidates for election, and for the landowner to appoint its own representative. The election will take place in the run-up to the first meeting of the council, and the results will be announced at that meeting. It’s unlikely that Peter Snow will be broadcasting live from Exford village hall, but for commoners on Brendon Common, and in England generally, it will be a significant step towards the goal of self-determination through rules-based management envisaged by the 2006 Act and advocated by Nobel-prize winning economist Elinor Ostrom. PannageMan wishes the Brendon Commons Council well.

The Friends of Putney Common have failed in a High Court challenge to the grant of access rights across Putney Common. The Friends, who previously succeeded in having planning permission quashed for redevelopment of the Putney hospital site, brought an action (it’s not clear what sort of action: not, it seems, a judicial review) against the Conservators of Wimbledon and Putney Commons, and Wandsworth Borough Council as an interested party. The action claimed that the Conservators were acting outside their powers in granting an easement to the council to lay out an access way across the common to reach the hospital site. The new access would largely use an existing access (though one of uncertain provenance), and would also allow the release of other existing access ways, which would be restored to nature.

The Conservators are established under the Wimbledon and Putney Commons Act of 1871. They are one of England’s earliest statutory commons management bodies. The Conservators are partly elected and funded by local council tax payers, and partly appointed by three Secretaries of State. Their functions continue to be regulated under the 1871 Act. Oddly, none of the commons is registered as common land.

In determining the challenge, the court was bound by precedent from the Court of Appeal, Housden v Conservators of Wimbledon and Putney Commons, dating from 2008: the Conservators had “power to grant an easement over the commons for the benefit of adjoining land provided the easement does not interfere with the ability of members of the public to continue to enjoy the part of the common over which the easement is granted and provided, too, that the easement granted is consistent with the duties of the Defendant as specified in the Act and the overall objectives of the Act.”

The Friends argued that, notwithstanding that precedent, the Conservators’ powers under the 1871 Act to “To make and maintain such roads and ways as may be in their judgment necessary or proper” were confined to roads for the benefit or improvement of the common. But the court decided that the Conservators had some discretion in how they carried out their functions. “The Defendant is entitled to make a judgment about the exercise of its powers which takes account of the likely impact of a proposal upon the commons as a whole if that is appropriate as well as considering the impact upon the particular part of the commons in which the proposal is located.”

The claim was dismissed. It is understood an appeal is contemplated.

As alluded to above, this is the third court appearance for the Conservators in the last decade (the Housden case was taken through an adjudicator, the High Court and the Court of Appeal). That reflects the colossal value attached to land in the vicinity of the commons and therefore the premium placed on an easement over the common which unlocks access to such land.