REPORT OF THE ENVIRONMENTAL SCRUTINY PANEL TO CABINET

ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD REPORT OF THE ENVIRONMENTAL SCRUTINY PANEL TO CABINET PROTECTION, MONITORING AND ENFORCEMENT OF COMMON LAND IN THE ROYAL BOROUGH MAY 2003 12

1. Introduction 1.1 Council, at its meeting held on 11th June 2002, requested that the Environmental Scrutiny Panel carry out a thorough investigation of all issues relating to the protection, monitoring and enforcement of areas of Common land within the Borough. The Panel agreed at its meeting in January 2003 that, to assist it in its task, a report be presented providing information on: how common land situated within the Borough is identified; the Council s role in the protection, monitoring and enforcement of Common Land; the rights of Commoners; relevant legislation; how the issues are being addressed by other local authorities the role of the Countryside Agency. 2. Background 2.1 In England and Wales, there is about 367,000 hectares of common land (4% of the total land area). Over half of England's common land is in Cumbria and North Yorkshire (30.7% and 21% respectively). Common land is usually in private ownership, with rights of common over it. The rights that commoners may have are:- The right to graze livestock, with the animals permitted, whether, cattle, sheep, horses etc, specified for each commoner The right to take peat or turf for fuel The right to take wood, gorse, heather, bracken etc The right to take fish from ponds, streams etc The right to take sand, gravel, stone & minerals 2.2 These rights are not enjoyed by the general public but by designated commoners, who are often people living in certain properties, or in a certain area, e.g. a village or parish. Often these rights have died out and a common may have no commoners; or if the commoners exist they no longer exercise their rights. However, the legal standing of a commoner s right is unaffected whether it is exercised or not. 2.3 Although the general public do not have the same rights as commoners, the public have a general right of access to certain commons for air and recreation under The Law of Property Act 1925. The right of public access will be further enhanced by the Countryside and Rights of Way Act 2000 as it will provide for the public to have access by foot to open country and registered common land. However, this right will be restricted in certain circumstances, for example where it is considered necessary to protect the interests of land management or wildlife. 13

3. Findings of the Review 3.1 Identification of Common Land The Commons Land Register 3.1.1 The Commons Registration Act 1965 required local authorities in England and Wales to establish registers of common land and town and village greens within their areas. Commons Registration Authorities are County Councils, Metropolitan Borough Councils and Unitary Authorities. The Royal Borough became the Commons Registration Authority in 1998 when it became a Unitary Authority. This register for the Royal Borough is kept by the Land Charges Section and is open for public inspection. 3.1.2 Each area of common land, including town and village greens, in the Borough is listed in the register. Each entry is divided into three sections showing details of: Land - This includes a description of the land, who registered it and when the registration became finally registered. The entry also refers to plans that show the boundaries of the land. Rights - This includes a description of the rights of common, the name of the commoner(s) who holds those rights and the area of the common those rights are exercisable. Ownership - This includes details of the owners of the common land. 3.1.3 The majority of Common Land within the Borough is privately owned, with a significant amount owned by the National Trust (i.e. land in and around Cookham) and Eton College (i.e. land in and around Eton and Eton Wick). The Council owns some common land (e.g. in Eton Wick) and Parish/Town Councils also own some common land (e.g. White Waltham, Eton and Bray). 3.1.4 In accordance with the Commons Registration Act 1965, all registrations were initially provisional to provide an opportunity for any objections to be lodged against the particulars of any individual case. As the registration of commons had to be made within prescribed timescales, nationally, this has resulted in some mistakes, such as land missed off or land incorrectly registered. 3.1.5 The Royal Borough, as the Commons Registration Authority, is responsible for the determination of any new applications for registration in accordance with the Commons Registration (New Land) Regulations 1969. 3.1.6 There is no provision for the register of common land to be updated to reflect changes in land ownership or in rights of common. There is also no requirement for landowners or commoners to notify registration authorities of any changes. Although some amendments have been made to the register over the years, the register is essentially a snap shot of the position that existed in 1967-70 and therefore entries should not be taken as conclusive proof of ownership or of rights of common. In order to get a complete picture, details also have to be sought from the Land Registry. The Government has recognised this problem and is proposing to bring forward legislation that would make it a mandatory requirement to notify the Commons Registration Authority of any material changes affecting an entry in the register. 14

Live Registers 3.1.7 The Panel noted that a number of local authorities have produced live registers, which are updated annually and contain details the current ownership and rights of common. They detail the actual rights being exercised by commoners as well as those not being exercised, together with other arrangements, such as tenancies, licences or leases. These registers have no legal status and are not a replacement for the register local authorities hold in accordance with the Commons Registration Act 1965. However, as the information is more up-to-date, they provide a very useful management tool and they are also useful in facilitating any investigation into any infringement of commoners rights that may arise and any action necessary. 3.2 Relevant Legislation 3.2.1 Much of the legislation on common land dates back to the 19 th Century. The earliest legislation was aimed at facilitating the enclosure of common land. However, in the late 19 th Century perceptions had changed and the emphasis had been more on the regulation of common land instead of enclosure. 3.2.2 The Law of Property Act 1925 introduced a general right of public access to certain commons for air and recreation. It also introduced a requirement that consent be obtained from the Secretary of State's for works on commons that were subject to rights of common at the commencement of the Act (i.e. 1st January 1926). 3.2.3 Common land is protected under several Acts of Parliament, the principal ones being:- Inclosure Act 1845 (Section 147) - Land that is common land or town or village green can be exchanged for other land so that the land given in exchange is substituted for the former common or green land. The Secretary of State is required to confirm the orders of exchange. Commons Act 1899 - The Act permits District and Unitary Councils to manage and improve commons in the interest of public access and recreation, whilst preserving the rights of commoners. This is done by adopting a model form of scheme laid down under regulations. This is generally used where rights of common are no longer exercised but the common is an important open space. The Council can enact by-laws to regulate activity on a common, which can vary from common to common. Open Spaces Act 1906 - This enables local authorities to purchase open space in the interests of recreation, which must then be keep open for public recreational use. It states that open spaces (common land is included in this definition) must be maintained in a good and decent state, although there is no guidance provided as to the standard of 'good and decent'. Law of Property Act 1925 (Section 193) - The owner of a common or the owner of rights of common can apply to the Secretary of State for an order of limitation, which can impose restrictions or conditions on the exercise of the right of access granted to the public under this section. 15

The Law of Property Act, 1925 (Section 194) - The erection of any building or fence, or the construction of any work that prevents or impedes access to land, which was subject to rights of common on 1 January 1926, is unlawful unless the Secretary of State for the Environment, Food and Rural Affairs has given permission. In deciding whether or not to give permission, the Secretary of State has to take into account the benefits to the neighbourhood and to any private interests in the land. An application to the Secretary of State under Section 194 of the Act would need to be made in addition to any normal planning application to the local planning authority that is considered necessary. If permission is not obtained and works are carried out, an application may be made to the County Court by either the owner of the land, the commoners, or a County or District Council for the removal of the works and the restoration of the land to its original condition. There is a right of appeal against any decision of the Court. The Law of Commons Amendment Act, 1893 (Section 2) - The Secretary of State for the Environment, Food and Rural Affairs has the power to grant permission to remove common rights and enclose common land. In deciding whether or not to give permission, the Secretary of State will consider the proposal in relation to the benefit to the neighbourhood, why it is necessary to use the common land, the number of common rights exercised over the land, and what sufficiency there is for exercise of rights (i.e. is the land currently capable of supporting more grazing rights than there are being exercised). National Trust Acts, 1907 (Section 29) and 1971 (Section 23) - Section 29 of the 1907 Act requires the National Trust to keep all commons or commonable land open and unbuilt on as open spaces for the recreation and enjoyment of the public. There are some exemptions for certain works or improvements to promote the enjoyment of such land. Section 23 requires the Secretary of State's permission to be given for any buildings or other works on National Trust owned commons or commonable land if public access to is likely to be prevented or impeded. Some works of improvement to permit better public enjoyment of such land are exempted. Caravan Sites and Control of Development Act, 1960 (Section 23) - This enables District Councils to ban the siting of caravans for human occupation on common land. It does not apply to urban commons (those to which the public have legal access), commons subject to a scheme of management, or land where a site licence is in force. Acquisition of Land Act 1981 (Section 19) - Under this section, an appropriation or compulsory purchase of certain types of land, including common land or town/village green land, must be subject to special Parliamentary procedure unless a certificate is obtained from the Secretary of State confirming that suitable exchange land is to be given for the land taken, or that the giving of exchange land is unnecessary. Road Traffic Act, 1988 (Section 34) - This makes it unlawful for a person to drive a motor vehicle on any common land (as well as some other types of land) without lawful authority (usually, this would be the permission of the landowner). It is not an offence to drive on land in emergency situations. Nor is it an offence under the Act to drive within fifteen yards of the road to park the vehicle on land. However, in the 16

case of common land, by-laws preventing driving or parking may apply. Parking or driving of a vehicle on the land without the landowner's permission would also constitute trespass. Environmental Protection Act 1990 (Section 87) - This makes it an offence to deposit litter on common land. Local authorities have a duty to keep commons under their direct control clear of litter, so far as practicable. Countryside and Rights of Way Act, 2000 (Section 68) - This permits the grant of statutory easements for vehicular access over land (including common land and village greens) where it is currently an offence to drive a vehicle, subject to certain qualifying criteria being met. Regulations include provisions for the grant of easements, compensation to be paid by the property owner to the landowner, dispute resolution procedures, etc. 3.2.4 Commons may be purchased by local authorities under the Local Government Act 1972, the National Parks and Access to the Countryside Act 1949, the Countryside Act 1968 and Wildlife and Countryside Act 1981 or individual County Council Acts (e.g. Surrey County Council purchased Chobham Common in 1968). 3.3. The Role of the Local Authority 3.3.1 Subject to any responsibilities they may have and acting so far as legislation will allow, local authorities can do as little or much as they want. This can range from just providing advice and assistance as and when requested or being more proactive and taking the initiative to initiate appropriate action that is considered necessary for the long-term benefit of the common. Acting as protector of public interest in Common Land 3.3.2 The Council can assist individuals in maintaining rights of common, the extinction of which would, in the opinion of the council, be prejudicial to the inhabitants of the area, and to institute or defend legal proceedings for that purpose. Action that can be taken involves:- 1. Application to Court If the land is subject to Section 193 of The Law of Property Act 1925, action pursuant to S194 (2) of that Act gives the right to the Local Authority to apply to the County Court for the removal of the works and the restoration of the land to the condition in which it was obtained before the work was erected, if the consent of the Secretary of State is not given. This power is discretionary. 2. Protection of Public Amenity If the amenity of part of its area (including common land) is affected by the condition of land in its area the Council can serve on an owner/occupier of the land a notice requiring steps to be taken for remedying the condition of the land under Section 215 Town & Country Planning Act 1990 in order to tidy up the land. A criminal offence is committed if the recipient of the Notice fails to comply with it, and the Council can commence proceedings in the Magistrates Court. 17

3. Enforcement Notice The Council can serve an Enforcement Notice seeking the removal of the unauthorised development or ceasing the unauthorised use of the land upon anyone who has an interest in the land (i.e. owner or occupier). Failure to comply with such a Notice is a criminal offence and the Council can take direct action to remove buildings, fences, caravans, etc. or prosecute the recipient of the Notice in the Magistrates Court (Section 179(2) Town & Country Planning Act 1990. 4. Discontinuance Order The Council can issue a Discontinuance Order pursuant to Section 102 of the Town & Country Planning Act 1990 requiring the discontinuance of any use of the land, the imposition of conditions or the continuance of any use or the removal or alteration of any buildings or works. This is a power to intervene against the existing use of the land and it is exercisable against both lawful and unlawful uses of land. However, it must be expedient in the interests of the proper planning of the area including the interests of the amenity to discontinue a use or remove a building. If this power is exercised, the Council has to have regard to the payment of compensation (Section 115 Town & Country Planning Act 1990) which is payable in respect of the depreciation of the value of an interest in land or by being disturbed in the enjoyment of the land. Expenses incurred in complying with an Order are also recoverable from the Council. No compensation is payable in respect of an unlawful use (so long as there is no immunity from enforcement action in respect of it). 5. Injunction If there is an ongoing breach of planning control, injunction proceedings can be brought pursuant to Section 187B Town & Country Planning Act 1990 to cease the use and/or building. This course of action is only relevant if there is urgency in dealing with the matter. Compensation may be payable by the Council if it is not successful in defending its chosen course of action. 6. Stationing of caravans The Council has the power to prohibit the stationing of caravans on common land except if the land comes within Section 193 of the Law of Property Act 1925 or if a caravan site Licence has been issued or if there is a Scheme under the Commons Act 1899. 7. Scheme of Management Councils may make a Scheme under the Commons Act 1899 for the improvement and management of a common within its area. The management of the common will then be vested in the Council and it may acquire property on the common for the purpose of the scheme. There are compensation provisions related to the making of such schemes. 3.3.3 Common land is subject to planning control in the usual way. 18

Acting as Owner of Common Land 3.3.4 The Council can make by-laws to regulate the use of any common land vested in the Authority. The Council can also take action for trespass against any unauthorised occupiers. If Ownership is unknown 3.3.5 If ownership of common land is unknown, the local authority may take steps against unlawful interference as an owner in possession of the land could take under section 9 of the Commons Registration Act 1965. There is no duty on the local authority to take protective action. This section does not enable a local authority to spend money on clearance or improvement but such expenditure could be covered by Section 137 of the Local Government Act 1972. Enforcement Action 3.3.6 Action can be taken by the following if unauthorised development/use takes place on common land that is subject to section 193 of the Law of Property Act 1925:- Local authority on behalf of the Commoners if it is in the public interest. Anyone who has rights over the common land i.e. grazing rights, easements or customary rights Land owner (Lord of the Manor or other owner of the soil) Commoners The Local authority representing the public Interest in the Land. Local Access Forum 3.3.7 The Council has recently established a Local Access Forum, under the Countryside and Rights of Way Act 2000 (CROW Act). The membership of the Forum comprises representatives from countryside user interests, landowner interests and two Borough Councillors. Local Access Forums are statutory consultees on any by-laws to be made in respect of access land or registered common land. 3.4. The Role of the Countryside Agency 3.4.1 The Countryside and Rights of Way Act 2000 will create a new statutory right of access to open country and registered common land, subject to restrictions to recognise the needs of landowners and managers. The new right does not extend to cycling, horse riding or driving a vehicle (with some exceptions); land managers are allowed to close land for up to 28 days each year, and the right of access does not include gardens or parks or cultivated land. The Government intends to introduce Regulations to bring the new right into force before 2005. 3.4.2 The Countryside Agency has a duty to prepare maps of all open country and registered common land in England. The Agency has divided England into eight areas and Berkshire is within Area 3 Central Southern England. A copy of the draft map can be found on the Countryside Agency s website at www.countryside.gov.uk. The maps, when they are issued, will be widely available for inspection, including at local libraries, local council offices and on the internet. 19

3.5 Commons Committees and Associations 3.5.1 Where rights are active on commons, co-operation between commoners and landowners is essential for the effective management of the common. As a result, many commons have a commoners committee or association, which are open to any registered right holder of the particular common. The committee or association (there are no differences between the two), provides a framework within which the governance and management of the common may be discussed and implemented. They meet principally to discuss agricultural matters affecting the management of the commons, but may also discuss encroachment and public access issues. 3.5.2 The Council is represented on two such Committees. These being the Maidenhead and Cookham Commons Local Committee, which meets about four times a year and relates to common land in the Maidenhead and Cookham area principally owned by the National Trust, and the Chobham Common Consultative Group, which meets twice a year. Although the Chobham Common is in Surrey, a small section of the Common is within the Royal Borough. 3.5.3 There is also the Eton Commons Management Committee, which meets once a year and relates to common land in and around Eton and Eton Wick principally owned by Eton College. Although the Council owns some common land in that area it is not represented on the Committee, which is administered by Eton College. However, discussions have been held with the College and the Council will be invited to nominate a representative when the appointments to outside bodies are reviewed in June. 3.5.4 There is no requirement for a common to have a committee or association, but where there is no committee or association co-operative management is often difficult to achieve. Despite the benefits of having one, there are still a large number of commons nationally without one. However, it appears that the main and largest areas of common land within the Borough where commoner s rights are actively exercised have a Committee in place, thereby ensuring that there is a mechanism in place for discussion to take place on issues affecting common land in those areas. 3.6 Main Problems Associated with Common Land 3.6.1 The principle problems relating to common land are:- overgrazing lack of grazing; particular where commoners no longer exercise their rights; unauthorised development/activity on the land. damage arising from the level of activity by the general public using the common for air and exercise ; Overgrazing 3.6.2 It may be the case that when common rights were first registered, the number of animals permissible may have been greater than the common could sustain. Most commoners do not exercise their rights and therefore overgrazing is not a problem. Where rights are extensively exercised, there is generally a Committee or Association in existence which can deal with any overgrazing issues if they arise. 20

3.6.3 As far as the Royal Borough is concerned, in the two largest areas where grazing rights of commoners are exercised, namely Cookham/Maidenhead and Eton, commoners rights have been amended since they were first registered in 1967. In most cases the number of animals each commoner is allowed to graze has been reduced or the breed of animal altered. 3.6.4 Although overgrazing is perhaps the most frequent problem when commoners rights are extensively exercised, the same principle applies to the other rights. For example the taking of too much peat, gravel, fish etc will also have a detrimental affect on the common. Under-grazing 3.6.5 If commoners do not exercise their rights, this may result in the common land becoming unattractive and inaccessible, particularly if it is not managed effectively by the owner(s). To overcome this problem the owner(s) of the land may permit people to graze animals on the land to ensure that it is adequately maintained. The owner may also work with other bodies, including local authorities, to establish a management regime for the common, which may include grazing regimes. Unauthorised Development 3.6.6 As referred to above, the powers exist for action to be taken against any person responsible for any unauthorised development; whether it be buildings, structures or fences, activity; such as dumping of rubbish etc, or the enclosure of common land into the owner s property. 3.6.7 The erection of fencing to enclose common land is, in some areas, a major issue. Commoners may be reluctant to exercise their rights if fences are not erected to protect the livestock, particularly where the common adjoins a busy road. There may be a lot of local opposition to the erection of fences as they are perceived to be impeding access to the land. The inclusion of sufficient access points in the fences may still not overcome local opposition. To much activity on the common 3.6.8 Some commons are used extensively by many people for recreational purposes. The introduction of measure may be needed by the owner or agents responsible for the management of the common in order to protect the environment. These could include measures to protect flora and fauna or animals or the introduction features to control the activity, such as the construction of car parks, nature trails and formalised picnic areas Main Problems Locally 3.6.9 The Rights of Way team receives a small number of rights of way issues that relate to common land. These are dealt in the same way as any other public right of way and not any differently because the right of way is across common land. Similarly, the highways section have had very few common land related issues to deal with. 3.6.10 The only significant issue the Council has become involved in relates to development or activity that prevents or impedes access to common land. However, they have also been 21

very few in number. In the mid 1990 s, the Council successfully prevented the unauthorised use of common land in the Knowl Hill area through the issue of an enforcement notice. The only other involvement relates to development that has occurred and activity that has been carried out for a number of years on an area of common land in Eton Wick. The Secretary of State has refused consent for that development and activity under Section 194 of the Law of Property Act 1925. Due to the complexity of the case and its low priority in relation to other legal and planning enforcement work, the lack of resources has meant that the matter has not been progressed. 3.7 Enforcement, Monitoring and Protection of Common Land by the Royal Borough and other Local Authorities Royal Borough 3.7.1 The Royal Borough s involvement is generally reactive, responding to any requests/complaints received as and when they arise. There is no one central point of contact to which people can direct their issues. People or issues are generally dealt with by the appropriate officer within a particular department depending on the issue raised e.g. Rights of Way Team, legal, planning enforcement. 3.7.2 If there is a problem that needs addressing, in the first instance, attempts are usually made to resolve the matter voluntarily through negotiation. Legal action is only taken as a last resort. Legal action by the Royal Borough is extremely rare but action has been taken in the past and the powers do exist should it be considered necessary. 3.7.3 The only area of common land that is actively maintained by the Borough is a piece of land in Knowl Hill. This is effectively no more that a piece of highway verge and of little use for anything else. Other Local Authorities 3.7.4 The Royal Borough s approach is not uncommon, there appears to be many other Council s that are essentially reactive, only acting when they receive specific complaints or requests for help or assistance. 3.7.5 However, a number of authorities are more proactive. This is due to a number of reasons, for example:- they may have large areas of common land within their boundaries; and/or there have been historical problems with encroachment onto common land and the authorities have had to take a more interventionist approach, and/or the authorities themselves own areas of common land or act as agents for the landowner and there is a need to have in place formal arrangements to manage, protect and/or control activities on those commons. 3.7.6 Some authorities have specific Schemes of Management, supplemented with by-laws, that relate to specific commons and control the use and activities, with the Council taking appropriate action against particular breaches in order to protect the common or rights. 22

3.7.7 For example, South Bucks District Council manages Littleworth Common on behalf of the landowner and Stoke Common, which they own, by way of Schemes of Management. The Council has introduced a specialist herd of cows/bulls on Stoke Common to maintain the vegetation of the area and employ a manager to help preserve the area as a natural habitat. West Berkshire Council owns a number of Commons, including the widely publicised Greenham Common, and is actively involved in the restoration, conservation and management of commons within its area. 3.7.8 Some authorities have live registers and/or have relevant information, including maps etc, available electronically, which can be accessed by appropriate officers throughout the authority. Although a lot more are either introducing or planning to introduce such facilities, there appears to be a significant number that do not. Resources 3.7.9 There appears to be no standard approach with regard to officers/departments responsible for common land. The register of common land is normally held in the legal section (Land Charges) and any requests to view the register or searches made of the register are undertaken by the Land Charges team as part of their normal duties. 3.7.10 However, the amount of resources an authority allocates to common land issues appears to depend upon the amount of common land that they own, manage or have responsibility for or/and the number of general enquiries that they receive a year. It is generally the case that the Property/Estates sections within authorities tend to be the principal contact points for common land matters, mainly in light of the general land management responsibilities that they have. For example, this is the situation in South Bucks and South Gloucester because they own or manage a relatively large amount of common land and, in some cases, issue licences etc to use the land. 3.7.11 In some authorities the main point of contact is in either the planning or leisure department. For example, in West Berkshire it is the Countryside and Environment team as part of their overall responsibilities for the protection, management and enhancement of areas of countryside, commons, parks, open spaces and public rights of way. In a number of other authorities responsibility seems to be with the teams that deal with rights of way, in the light of the new responsibilities Council s have under the Countryside and Rights of Way Act. In a very few number, the main point of contact is in the legal section, for example in Surrey where they have a team of 3 who deal with common land issues as part of their other responsibilities for the County s deeds and legal filing system. In addition, a small number of authorities have an officer or a couple of officers dedicated to common land matters, such as Powys County Council. However, this is essentially in view of the significant amount of common land within that authority s area. 3.8 The Government s Common Land Policy Statement 3.8.1 In February 2000 the then Department for the Environment, Transport and the Regions, jointly with the National Assembly for Wales, launched a consultation document Greater Protection and Better Management of Common Land in England and Wales. The document contained 20 proposals, and invited views on a number of other issues related to the registration, protection and agricultural management of common land and also town and village greens. The Rural White Paper for England, published in November 2000, 23

outlined the Government s commitment to legislate on common land as soon as parliamentary time allowed. The Government hopes to do this in the 2004/05 Parliamentary Session. 3.8.2 In July 2002, The Government published the Common Land Policy Statement, which set out a comprehensive package of proposals aimed at improving the protection and management of common land and town and village greens. The Policy Statement also outlined objectives for improving the agricultural management of common land and a working party of stakeholders has been established to make recommendations on how those objectives can best be met. This working party has met on a number of occasions. 3.8.3 Proposals contained in the Policy Statement include making provision for the correction of errors and better maintenance of the registers of common land. They also include improving the registration process for town and village greens; in particular, clarifying the controls over such land, and strengthening the protection for all registered land, both commons and village greens. The development of flexible management frameworks that can be tailored to suit local needs and the individual circumstances of the land are also proposed. 3.8.4 A summary of the proposals is attached at Appendix 1. 4. Conclusions and Recommendations 4.1 From the evidence provided, the Panel found that there is a wealth of legislation spanning centuries that relate to common land, although this appears to be fragmented, piecemeal and, in some cases, out of date (what was relevant in the mid 19 th Century may not be the case now). However, the Panel noted that the Government is aiming to introduce legislation to address the issue. 4.2 The Panel noted that local authorities have a number of roles with regard to common land. They have duty, where appropriate, as the registration authority to maintain the common land register. They have specific duties and responsibilities as the owner of common land or as the relevant authority for common land where the ownership is not registered. Local authorities also have discretionary powers they can call upon as and when required to protect and maintain common land. 4.3 In reviewing how the Royal Borough approaches the issue of protecting, monitoring and enforcing common land in the Borough, the Panel considered:- what benefits would be gained by the Council becoming more proactive, as opposed to maintain the current position of remaining reactive, dealing with any specific problems as and when they occur? what level of resources they considers should be reasonably expended, taking into account the problems that are being experienced locally, the specific duties and responsibilities the Council has and the priority that should be afforded to the matter, particularly bearing in mind the limited resources available? 4.4 Based from the evidence provided, the Panel was of the opinion that there did not appear to be a general problem with regard to the infringement of commoners rights or 24

encroachment onto common land within the Borough. The Royal Borough did not own or have specific responsibilities for any significant amounts of common land and the Panel received details that indicated that the number of enquiries or complaints received each year was not of the same level or scale as some other local authorities. Although a number of authorities had a particular person/team that had overall responsibility for common land matters and had resources dedicated to the management and preservation of commons within their areas, the Panel did not consider that this arrangement would be appropriate for the Royal Borough. It was noted that the level of resources allocated by local authorities to common land issues appeared to be proportionate to their particular needs, responsibilities or local expectations. The Panel was therefore of the opinion that the continuation of the general reactive approach to any issues that may arise be maintained. This approach was considered to be no different to that taken by many other authorities that were in the same situation. 4.5 The Panel noted that it was likely that there would be an increase in public awareness of common land following the publication and availability of maps that were being produced by the Countryside Agency that showed areas of common land and open space within the Royal Borough. Although problems that may have remained dormant for a number of years may come to light as a result of this increase in publicity and awareness, the Panel was of the opinion that there was no indication to suggest that there would be an increase in specific common land complaints. The main areas of common land within the Borough where commoners rights were active, and therefore where complaints were more likely to be raised if they were impeded, appeared to be managed effectively and had not raised any significant areas of concern in recent years. It was considered that the Rights of Way Team could deal with any general access issues that may arise in the normal way. 4.6 The Panel recognised that there were benefits to be gained from the production and maintenance of live register. However, they were more appropriate in areas where there were a large number of commons with active commoners exercising their rights. This was not the case locally. As there would be significant resources needed to fund the initial project to create a live register and ongoing costs associated with its subsequent maintenance, the Panel considered that there were be no clear benefits to be gained from the establishment of a live register. 4.7 The Panel were mindful that the Government has indicated that it proposes to introduce legislation that would place additional responsibilities on local authorities, such as keeping the current Commons Register up-to-date and introducing additional powers and responsibilities relating to controlling unauthorised development that impedes access to common land. However, as it was not clear what the extent of the regulations would be, the Panel was unable to form an opinion on how they would affect the way the Royal Borough had to deal with common land issues. The Panel therefore considered that it would appear to be more appropriate to defer a decision on any major changes to the current approach taken by the Royal Borough until the publication of the draft regulations, which were planned for introduction in the 2004/05 Parliamentary Session.. RECOMMENDATION 1: That the current approach taken by the Royal Borough with regard to the protection, monitoring and enforcement of common land be readdressed following the publication of any draft regulations that are being proposed by the Government. 25

4.8 However, although the Council does have discretionary powers to take action should they be considered necessary, the Panel found that there did not appear to be any clear policy or guidance in place to assist Officers or indeed Members in the determination of any issues relating to common land. The Panel was therefore of the opinion a formal policy, which formalised the current approach that was being taken by the Council, should be adopted pending the receipt of the draft regulations. RECOMMENDATION 2: That a policy be adopted to formalise the Council s current approach to common land issues. The Policy to reflect that the Council will only actively get involved in matters relating to Section 194 of the Law of Property Act 1925. This would involve the Council approaching the landowner/and or relevant person about a complaint received relevant to Section 194 of the 1925 Act. If consent is required, the Officers will explain the position and request that consent be obtained, giving a period of time to comply. If consent is not granted or the person does not apply for consent within the specified time, the Council would then consider what action it proposes to take. Matters that do not involve the erection of any building or fence, or the construction of any work that prevents or impedes access to common land will be left to the commoners and land owner(s) to resolve themselves. 4.9 In addition, the Panel were of the opinion that, pending the introduction of the new legislation, general information on common land be provided for Borough residents, to include details of where people should go for further assistance or help. It was considered that this could be done through the production of a leaflet and/or the inclusion of relevant information on the Council s website, with links to the maps on the Countryside Agency s website. RECOMMENDATION 3: That a leaflet be produced to provide general information on common land and details of where people should go for further assistance or help. The information to be made available also on the Council s website. 5. Members Involved In The Review Members that contributed to this Review, were:- Members of the Panel - Councillors Jamieson (Chairman) Grey (Vice-Chairman), Beer, Bushill, Mrs Howes, D Parker, Mrs Quick and Webb. Non Members: Councillors Olney and Wiles 26

APPENDIX 1 DEPARTMENT FOR ENVIRONMENT, FOOD & RURAL AFFAIRS COMMON LAND POLICY STATEMENT 2002 SUMMARY OF PROPOSALS Common Land: Registration Issues Registration and De-registration Land that was wrongly registered under the Commons Registration Act 1965 will be deregistrable. Subject to the above and any specified exceptions, properly registered land will remain so unless it is compulsorily acquired or exchanged for other acceptable land. Subject to safeguards, provision to be made for land that was provisionally registered but removed without justification, and land that was missed by process error to be registered anew. Ownership issues: All unclaimed common land to be vested in an appropriate body with a range of powers to help ensure effective management. Provision to be made for unknown owners to come forward within a reasonable time period to re-claim such vested land. The period for reclaiming title should be the normal limitation period i.e. 12 years. In the absence of conclusive evidence of title at the Land Registry, the Commons Commissioners will be able to inquire into cases where disputed ownership is detrimental to effective management. For the purposes of commons legislation, where neither party produces satisfactory evidence, the Commissioners will find in favour of the claimant currently registered in the commons registers. Bodies vested with unclaimed land will be placed under duties and responsibilities that reflect the diversity of commons and the different interests in them. Improving the registers Instead of the current discretionary provisions for effecting amendments to the commons registers, mandatory requirements will be introduced so that registration authorities are notified of all material events affecting register entries or creating the need for new entries. Subject to appropriate safeguards, provision will be made for clerical errors in the registers to be corrected and provision will be made for resolving registrations left in suspension through administrative error. Subject to a suitable fee, access should be provided to registration authority files concerning register entries. The fee for official searches of the registers will be increased to better reflect current administration costs. It should not be refundable in certain circumstances and we shall look to develop a simpler mechanism for implementing appropriate regular increases. 27

Miscellaneous: Implementation of the provisions of section 68 of the Countryside and Rights of Way Act 2000 will, in certain circumstances, provide statutory easements for vehicular access across common land. Section 22 of the Commons Act 1899 requiring consent for inclosure of land under specific Acts will be repealed. Section 19 of the Acquisition of Land Act 1981 is the relevant current provision. Works and Fencing on Common Land: The protection of section 194 of the Law of Property Act 1925 will be extended to cover all registered common land with the exception of commons subject to specific metropolitan commons legislation. The prescribed exemptions from the consent requirement will be retained apart from works connected with the taking and working of minerals which, in future, will require consent. We will revise the specified decision criteria for section 194 applications to more explicitly reflect current interests and policy considerations. Powers will be introduced to enable the imposition of conditions or restrictions on a section 194 consent and the fixing of a time limit for works described in the application as temporary. The section 194 consent process will be retained centrally with the Secretary of State and the National Assembly for Wales. We will consider, however, whether another central body might be better placed to undertake this function in due course. We will consider the need and scope for an urgent section 194 procedure in certain circumstances. In the course of reviewing the consent decision criteria, we will give further consideration to whether or not to introduce a fee for section 194 consent applications. The balance of private/public interest benefits might be a relevant factor. Enforcement: Local planning authorities will be empowered to issue enforcement notices in respect of works and fencing that are unlawful under section 194; and if necessary, to pursue enforcement via the magistrates courts. Owners and those with legal interests in the land will remain eligible to pursue action via the county court. Although there is no proposal to enable the general public to instigate enforcement action, the Government have asked for views as to whether such provisions should be made. Agricultural Use and Management: Management by commons associations We will develop statutory provisions to enable commons management associations to operate more effectively. The initiative should come from the commoners and other graziers and the acquisition of statutory powers will involve an approval process. Applicant management associations will be expected to meet specified criteria. A range of measures for managing grazing practices and the exercise of rights of common for pasture might be made available to statutory commons management associations. Subject to further consideration, statutory management associations might be empowered to erect temporary fencing without requiring section 194 consent. 28

Grazing rights and related issues: We do not propose to pursue the idea of broad fixed grazing intensity limits but will ask the working group to consider whether use on a common by common basis has merit as a last resort option if necessary. We do not propose to undertake a wholesale review of registered rights but will enable individual commoners or associations to refer cases of wrongly registered rights to the Commons Commissioners for investigation. We will prohibit the severance of rights from the holdings to which they attach and the grant of new rights in gross but will consider making an exception for public or other approved bodies to acquire rights in order to reduce grazing pressures. Management associations will have power to control the activation by lease or loan of rights that might otherwise have been severed. With a view to improving the accuracy of the registers, the working group will be asked to put forward practical suggestions for updating the registers in respect of rights that may have been abandoned, forgotten or can no longer be used. We are also minded to make provision for owners of unwanted rights of common to voluntarily surrender them for extinguishment. Other issues: In the light of existing cross-compliance measures and proposals for statutorily empowered management associations, we do not propose any other specific measures for management of supplementary feeding practices. New Environmental Impact Assessment regulations will provide a safeguard against significant agricultural changes on uncultivated or semi-natural land. We do not therefore propose any additional measures for commons out of this review. The requirement for Secretary of State/National Assembly for Wales approval for resolutions on the turning out of entire animals on commons will be removed where a statutory management association is regulating such practices, and transferred to the registration authorities where there is no statutory association. NB: The Government have also put forward a number of proposals relating to town and village greens that are similar to those referred to above. 29