The Battle for Broxhead Common

BW47 the remains of treefall obstructs the definitive line of the BW

The Case for Hampshire County Council – PART 73

1. The hearing before the Chief Commons Commissioner, G. D. Squibb QC, moved, after a couple of days, from Winchester to London where it continued on and off for another ten days until 19th June 1974.
   1974 The Interim Decision of the CCC_000020
2. 26th August 1974 an interim decision is published. Let us take a look at some of the pertinent points therein.
   • Page 2, last paragraph confirms the extent of the common land BOTH sides of the B3004 Sleaford – Lindford road.
   • Page 3, first paragraph makes clear that he is addressing the claimed rights of individuals. The general rights that at some time in the past tenants or the manor were entitled to rights of common does not ensure success for the individual claimants of rights of common.
   • Page 4, fourth paragraph, ‘Free Pieces’ probably means they were free of Forest rights.
   • Page 5, 1st paragraph, “How the ownership of part of the common to the east of the road came to be separated from the Brocas ten twelveths of the manor does not appear, but such division of ownership could not have affected the rights of the tenants over the land on both sides of the road.”
   • Page 6 third paragraph, the MOD admit the rights of common.
   • Page 6/7, states the whole of the registered area as common land.
   • Page 9 paragraph 2, confirms ownership of the common had extinguished any claim to rights.
   • Page 10 last paragraph, confirms rights of common for Trottsford Farm.
   • Page 11 third paragraph. States the conveyance of a farm , by the owner of the farm and a common, which does not in terms convey any right of grazing on the common, will carry with it a right to graze the number of animals which the tenant had been entitled to graze under the tenancy agreement.
   • Page 14 first paragraph. Mr Squibb makes a note that he is aware of Mr Whitfield’s cause!!
   • Page 15. Mr Connell and Mrs Cooke are confirmed as rights holders.

BW47 looking back up to the field crossing

Next time: The Verdict and the Costs

The Battle for Broxhead Common

BW47 from the narrow section, down a steep bank to a hair pin bend

The Case for Hampshire County Council – PART 72

1. The Broxhead Commoner’s Association, had it seems been infiltrated by some of Mr Whitfield’s ‘working group’. One of them in a determined search for a sports field for Lindford Cricket Club, approached Mr Whitfield for his help.
2. There seems to be complete ignorance of the laws protecting common land because Mr Whitfield’s suggestion is that the whole of the common will be cleared and the boundaries fenced right up to the road, except for a narrow strip at the bottom of the Hill!
3. After discussion however, Mr Whitfield offered 15 acres of the common land plus a new bridlepath, but only providing ALL claims of rights of common were withdrawn.
4. But Mr Whitfield didn’t just leave it there. His solicitors wrote a generic letter which ended by saying that any claims of common rights found not to be heard, would be pursued for costs!
   1974 January Stones Porter for Whitfield14072019
5. Locals found that particularly intimidating and some withdrew claims of rights of common just in case; for none could match the reputed wealth of Mr Whitfield and risk being dragged into expensive legal proceedings.
6. 15th March 1974. Broxhead Commoner’s Association holds a meeting and sets up a select committee to handle the legal issues.
7. Tuesday 9th April 1974. Contrary to HCC’s expectations of possibly having to wait five years, the Office of the Commons Commissioners announced a meeting to be held in Committee Room 3 at the Guildhall in Winchester for a hearing before Mr G. D. Squibb QC.
   1974 February, Meeting announced with CCC_000019

BW47 from the hair pin bend down we go. Can get very slippery.

Next time: An interim decision from the Chief Commons Commissioner

The Battle for Broxhead Common

BW47 after the field crossing another gate to a very narrow path.

The Case for Hampshire County Council – PART 71

1. 7TH December 1973. John Ellis writes an update to members of the Broxhead Commoners Association.
   Apparently someone has written to one of their members suggesting that the BCA are not being as open as they could be, because very little time had been spent at their last meeting considering Mr Whitfield’s conditions for permitting the use of some of the common land for a football field. Some think they are feasible and worth looking at.
2. To make the position clear John Ellis writes another newsletter to BCA members. He explains Mr Whitfield’s conditions for permitting use of some common land for a football field. In return it is suggesting that:
   • All the commoners to give up their Rights of common.
   • Fence with barbed wire the entire common
   • Extend the existing illegal fences
   • Destroy all the gorse, heather, trees, wild life and flowers to make way for Agricultural Development

   1973 December JE Message to BCA_000017

3. John Ellis says:
   WE CANNOT AGREE TO SUCH CONDITIONS and makes the point that the matter is about the registration of the common land which has nothing to do with a cricket/football pitch.
4. Mr Whitfield has now set up a ‘working party’ to help achieve his plans.
5. Christmas comes and goes and the New Year brings yet more problems.

BW47 After crossing the fields through another gate and a very narrow path

BW47 through the field. With horses either side and a barbed wire fence presents a problem.

Next time: A football field or common land – The Deal – Intimidating the Community.

The Battle for Broxhead Common

BW47 Linsted Lane, Broxhead Common looking back to Headley Wood Farm

The Case for Hampshire County Council – PART 70

1. Following the statement that Mr Whitfield intended to replace the fencing, John Ellis immediately issued an injunction restricting the replacement of the fence, but that only lasted for ten days before a County Court Judge decided that as a Commons Commission had been set up to hear these disputes, he would make an interim judgement to allow Mr Whitfield to temporarily re-erect the fence, pending the commission hearing.
2. The judgement had lasted for five hours and the judge must have known that complaints had been made about the unauthorised fencing with both Headley Parish Council and Hampshire County Council ten years previously, because it appears in the relevant minutes. They show that Hampshire County Council determined to institute proceedings under Sec.194 Law of Property Act 1925 for the removal of the unauthorised fences around the 80 acres.
   1964 Complaint re fencing on Broxhead- Open Spaces Committee HCC
   5.3.64 HPC ask HCC if they have given permission for the fencing
3. This might therefore, have seemed to be the moment when the judge could see justice was done, but instead he decided to wait another how many years for the Decision of a Commons Commissioner!!
4. Broxhead Common is ancient with established rights which is why HCC had provisionally registered it. The decision of the Commons Commissioner should have been a foregone conclusion therefore.
   1968 Headley PC 4.4.68 Agree to register Broxhead
5. Tuesday 17th September 1973, is the date of a meeting arranged by Mr Whitfield, for public and commoners to discuss the future of Broxhead Common east of the Sleaford/Lindford road. (B3004)

BW47 diverted from Linsted Lane to this between pastures.

BW47 diverted from Linsted Lane

Next time: Let battle begin

The Battle for Broxhead Common

Linsted Lane leading to … the gates to Headley Wood Farm

The Case for Hampshire County Council – PART 69

1. Whatever happened to “once a highway always a highway”? It seems Hampshire County Council were not thinking straight when it decided to divert BW47 and FP3 from the ancient Linsted Lane. However, on:
2. 8th June 1968, John Ellis had founded The Broxhead Commoners’ Association. (BCA).
   1968 June Broxhead Commoners Association first meeting_000032
3. September 1973, he wrote a short explanation of his campaign to save the common and have it registered.
   1973 September JE explains his campaign to save Broxhead Common_000015
4. At the same time he wrote to Hampshire County Council to ask when the Commons Commissioner’s might deal with the registration of Broxhead Common.
5. You will see from their reply that Hampshire had not yet submitted the Broxhead case to the Commons Commissioners, even though they had preliminarily registered it. They advised that it may be five years before the many disputes were heard!
   1973, HCC to John Ellis12092021
6. John Ellis then wrote an update for the benefit of his Broxhead Commoners Association in the form of a Newsletter. In this he describes how several frustrated commoners had removed all of the unauthorized fencing on 28th July. This was something that they were legally entitled to do because the fences prevented them from exercising their rights of common. However, Mr Whitfield continued to deny the land he claimed to own, was in fact common land and stated his intention to replace the fencing.
   1973 September JE Message to BCA_000016

Linsted Lane leading to …  the gates to Headley Wood Farm

Next time: The meeting.

The Battle for Broxhead Common

BW47. Linsted Lane used to be the start until 1973

The Case for Hampshire County Council – PART 68

1. 14th July 1970 is the date of the Assent and Conveyance deed which changed the ownership of Headley Wood Farm to A. G. P. Whitfield. This and the previous Assent and Conveyance dated 1962 expose there are no previous deeds or documents to show ownership of Broxhead Common itself.
   However, despite this it would not be long before the new ‘said’ owner revealed his intentions!
2. 1st June 1973 to be exact: an Order is made by Hampshire County Council to divert FP3 and BW47 from the an old highway, Linsted Lane, which runs past Headley Wood Farm across the common to Sleaford. Here it crossed the A325 to Kingsley Common.
   1973 Common Diversion Order for Broxhead Common
3. It was done, it is stated, for securing the efficient use of the land!?
   The lane is an ancient highway and the part of the FP/BW to be diverted from it, would now run across pasture. It was therefore, perfectly obvious that efficient use of the land actually meant obscuring all public rights of way from the farmhouse!
   1962 Map of Broxhead Common
4. The problems with this diversion were the inclusion of five gates over a relatively short section of the path, a very steep bank with a hairpin bend, leading to an ancient viaduct of insufficient statutory width for a bridleway. These alone would have provoked numerous objections. However, Hampshire County Council’s principal rights of way Officer had said that if we did not object and were seen to be reasonable then the landowner may well be reasonable too and agree to upgrade the north end of BW4 (FP54) to bridleway. This would give horseriders a legitimate right of way to access the common from the north, linking to Cradle Lane (RUPP).
5. It was not until all had been signed and sealed that we were informed the new ‘said’ landowner had refused to agree an upgrade of FP54 to bridleway!
6. The Diversion Order is made under the Highways Act 1959 and Countryside Act 1968, so why was the Order Map dated 1940? Interestingly it shows the common before it was fenced? As the unauthorized fencing is not mapped could this make the Order invalid?
   

   Broxhead Common Plan C annexed to Map 89

BW47 entrance from Frensham Lane

Next time: A reply from the Hampshire County Council to John Ellis

The Battle for Broxhead Common

2020 Broxhead the missing 80 acres scorched to a cinder.

The Case for Hampshire County Council – PART 67

1. Hampshire County Council was well prepared therefore, when the Commons Registration Act 1965 was finally launched.
2. Section 4(a) and Section 4(b) state as follows:
   “An application for the registration of any land as common land or as a town or village green may be made by any person, and a registration authority—
   (a)may so register any land notwithstanding that no application for that registration has been made, and
   (b)shall so register any land in any case where it registers any rights over it under this section.”
   Section 5(6) states: “Where such an objection is made, then, unless the objection is withdrawn or the registration cancelled before the end of such period as may be prescribed, the registration authority shall refer the matter to a Commons Commissioner.”
   
   Section 6, Disposal of disputed claims
   (1)The Commons Commissioner to whom any matter has been referred under section 5 of this Act shall inquire into it and shall either confirm the registration, with or without modifications, or refuse to confirm it; and the registration shall, if it is confirmed, become final, and, if the confirmation is refused, become void—
   (b)if such an appeal is brought, when it is finally disposed of.
   (2)On being informed in the prescribed manner that a registration has become final (with or without modifications) or has become void a registration authority shall indicate that fact in the prescribed manner in the register and, if it has become void, cancel the registration.
   (3)Where the registration of any land as common land or as a town or village green is cancelled (whether under this section or under section 5(5) of this Act) the registration authority shall also cancel the registration of any person as the owner thereof.
   
   Section 10 Effect of registration
   The registration under this Act of any land as common land or as a town or village green, or of any rights of common over any such land, shall be conclusive evidence of the matters registered, as at the date of registration, except where the registration is provisional only.
3. As you will have read the matter ceased being provisional when in 1977 on appeal by Mr Whitfield, the High Court confirmed the Chief Commons Commissioner’s decision that the whole of Broxhead Common was indeed common land with rights all over it save for five very small areas.
   Broxhead Final LAND Decision 197417072020 (2)

Next time: Rights of Way Diversion Order 1973

The Battle for Broxhead Common

Broxhead Common. No horse riding signs erected 1997

The Case for Hampshire County Council – PART 66

1. Dr. L. Ellis Tavener’s book entitled ‘The Common Lands of Hampshire’ is a survey of the common lands of Hampshire undertaken at the request of Hampshire County Council in 1956. It is interesting to see in the Introduction that his initial thanks go to:
   Mr Alan Lubbock J.P., D.L., Chairman of the Hampshire Council and Vice Chairman of the Royal Commission on Common Land; Mr G. A. Wheatley, M.A. B.C.L., Clerk of the Hampshire County Council and Chairman of the Committee set up by the County Councils Association to prepare recommendations for submission to the Royal Commission; followed by various other departmental officers of the Council as well as the Commons Open Spaces and Footpaths Preservation Society and various colleges and other bodies.
2. In his Analysis of Commons by Administrative Areas he lists Broxhead and Kingsley Commons as being requisitioned by the War Department and Part 3 describes the soils of the commons which ends by saying: “Where the soils are particularly poor or the topography discourages cultivation the land has remained as commons and as will be seen from the maps, this part of the county contains another distinct group of common land. For instance, where the lower greensand crops out from beneath the Gault there are extensive areas of heathlands, which are mostly common, as around Bramshott, over the greater part of Woolmer Forest, Broxhead Common and Kingsley Common.”
3. Much advice about the laws affecting commons is given and of particular note the importance of Section 193 and Section 194 Law of Property Act 1925.

   Sec.193 “Under S193 the public must have right of access for air and exercise.
   Sec.194 “imposes certain restrictions on the construction of any work whereby access to common land is prevented or impeded. It also confers powers on ‘the council of any county or borough or district concerned with regard to the enclosure of commons. Under S.194 the County Council may apply to the County Court for an order for the removal of any
   building or fence or any other work which obstructs access to common land and for the restoration of the land to its former state.”

4. Apparently when the Ministry of Agriculture, Fisheries and Food gave evidence before the Royal Commission on Common Land in March 1956, one of the witnesses was asked to give the background on these sections of law. The statement was lengthy but the most notable was the following; “In fact, the effect of Section 194 seems to have gone wider than intended because it applied, we were advised, to all common land and not only common land to which there is a right of access.”

1962 Pages from Broxhead Common, 80 Acres removed and track by the tree nursery

Next time: The Commons Registration Act 1965.

The Battle for Broxhead Common

Broxhead Common. No horse riding signs erected 1997

The Case for Hampshire County Council – PART 65

1. The unlawful fencing had obstructed access to the twenty-three trails that John Ellis had counted on the Ordnance Survey Map; these were replaced by BW46 running east to west from Frensham Lane along Linsted Lane to the B3004 and the other, BW4 which ran north to south from Lindford B3004 to the junction with BW46 where it became a FP. This left no bridleway to the north side of the common along the road C102, Picketts Hill.
2. Horse riders had been accessing the common from the north by way of the old highway extension of Cradle Lane, off road past the Headley Rifle and Pistol Range and then on to the track by the tree nursery, as well as along FP4 near Trottsford Farm. This can be seen on a 1960’s map of the area.
3. 5th March 1964 minutes of the Headley Parish Council meeting show that they had asked the Association of Parish Council’s legal advisor for advice. It was suggested that they should ask the Hampshire County Council if permission has been given for the fencing and point out that FP4 had been ploughed out and not reinstated.
   1964 Headley PC to HCC re Broxhead_16062022_175829
4. It can be seen from the minutes that many questions were being asked and the Headley Parish Council constantly objected to the plan to take five acres of the common land for playing fields as well as the obstructive fencing in of 80 acres of it.
   1968, HCC to John Ellis12092021
5. 12th March 1968, a letter from the Clerk of Hampshire County Council to Mr McGhee, Clerk of the Headley Parish Council. In this he confirms the County Council will provisionally register Broxhead Common for the CRA 1965 because it is shown in Doctor Tavener’s Common Lands of Hampshire. This was a work commissioned by Hampshire County Council in 1956 as a comprehensive survey of the commons in Hampshire ‘which were known to exist in abundance’ and which they may wish to use as evidence for the 1955 Royal Commission on Common Lands. The terms of reference of the Royal Commission were:
   ‘To recommend what changes if any are desirable in the law relating to common land in order to promote the benefit of those holding manorial and common rights, the enjoyment of the public, or where at present little or no use is made of such land its use for some other desirable purpose.’

1962 Broxhead map showing the track around the tree nursery

Next time: to be continued.

The Battle for Broxhead Common

New fencing either side of BW54
The old road to Lindford now fenced off

The Case for Hampshire County Council – PART 64

1. Before we move on to 2017 it may be prudent to briefly look back at this unfortunate situation and why the apparent theft of 80 acres of common land had become an issue.
2. It had started with the unauthorized fencing of 80 acres of Broxhead Common in 1963.
3. 17th June 1964, Mr Michael Roydon Porter, the Estate Manager for Headley Wood Farm sent a letter to Headley Parish Council in which he outlines his intention to fence and cultivate even more of the common land. He also shows two paths which the public should continue to ride and walk. One of these is the track around the Tree Nursery which is land rented to the Forestry Commission.
   1964 Porter re paths14112020_0001
4. 8th December 1964 complaints were made to Hampshire County Council’s Open Spaces Committee.
   1964 Complaint re fencing on Broxhead- Open Spaces Committee HCC
5. 28th February 1965 evidence from local horse riders and walkers and in particular the former owner of Headley Wood Farm, Patricia Barnard (McAndrew), was produced to Headley Parish Council.
   Broxhead Correspondence 1980-90_0023
   1965 evidence of use, Broxhead05022021
6. Mr John Ellis as Chairman of Headley Parish Council and who later founded the Broxhead Commoners Association in 1968, also wrote to the clerk of the County Council stating that 23 tracks on Broxhead Common were used by people on horseback and pedestrians.

Next time: to be continued.

The Battle for Broxhead Common

New fencing either side of BW54
The old road to Lindford now fenced off

The Case for Hampshire County Council – PART 63

1. As you will have seen in Part 48 of this series, I had brought the matter of the missing 80 acres of Broxhead Common to the Attorney General, Dominic Grieve in 2013. My correspondence had been passed to DEFRA who already should have known about it, but it was clear from Lord de Mauley’s reply, that no help would be forthcoming.
   Attorney General & Lord Mauley response re Broxhead
2. So, for the next three years I sought the opinions of various Counsels, and Solicitors, all experts in the laws of common land.
3. It was from those opinions that I was able to put the missing pieces of this strange case together as you will have been able to read.
4. It was also obvious that as this was a very expensive exercise there was no way that I, or I think any other ordinary person could afford to initiate court proceedings. Besides surely it was not for any individual to hold the Registrations Department of Hampshire County Council to account.
5. G. D. Gadsden, the authority on ‘The Law of Commons’ clearly states: ‘Under strictly limited circumstances an authority may be ordered by the court to rectify the register. Section 14 of the C.R.A 1965 provides that- “The High Court may order a register maintained under this Act to be amended if- (a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person induced by fraud to withdraw an objection, or,
   (b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act, and, in either case, the court deems it just to rectify the register.”
6. As there was no help forthcoming from Government I would have to wait until Section 19 (2)(a) CA2006 was rolled out in Hampshire. This would enable a mistake made by the registration authority to be corrected.

New fencing either side of BW54
The old road to Lindford now fenced off

Next time: July 2017

The Battle for Broxhead Common

The Gate, Broxhead Common junction BW46 & BW4.jpg Before the hedge was planted in 2016

The Case for Hampshire County Council – PART 62

1. I had by now realised that there was no help to be found in the more expected places. I had exhausted enquiries through my MP and the many government bodies set up to protect our interests. Nevertheless I realised that every T had to be crossed and every i dotted if I was to pursue justice for the commoners of Broxhead and the neighbourhood. I felt impelled to discover just what had gone wrong in the legalities of this peculiar case.
2. It was time to seek more professional help.
3. I had been lucky in one sense in that my nephew had grown up to become a barrister. It was he who had told me that the Consent Order from the Court of Appeal was not what it was being made out to seem. It was also he, in perhaps what was one of his very first High Court cases, who had won the Judicial Review against Hampshire County Council described in Part 23 of this series.
4. The unlucky part was the long wait for this to happen and the fact that he eventually chose to make ‘Intellectual Property’ his expertise rather than Common Land Law!
5. However, along the way I have had help from colleagues with the same interest, which is to save as much as possible of our common land heritage for future generations to enjoy for access, wildlife and environmental interests.
6. Perhaps most importantly, I have a very supportive husband who has enabled me to take advice and help from a handful of lawyers, all experts in the law of common land.
7. It was one of those who pointed out that the copy of Page 3 of the Consent Order from the Court of Appeal, was missing rather than misnumbered as I had at first thought. See PART 37.
   So, time and money were the crucial ingredients for the following 2 – 3 years.

Headley Park vandalise the common land.

Headley Park hoping to enlarge their car park!!

Next time: November 2017

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 61

1. The reply from IR which accompanies her final report of my complaint, makes it clear that any alterations to the Land Registry can only be made by the Judiciary. There would need to be a formal application and objection before the Land Registry could refer the matter to tribunal.
2. In reply to my response to her draft report she says that normally the Land Registry retains a copy of notices in its files, but none could be found sent to Hampshire County Council! No evidence could be found that Land Registry had followed its usual procedure of notifying the Commons Registration Authority so that it’s records could be updated!
3. Except we have seen that the notes of ALR1 record that this had in fact been done.
4. IR can find no written guidance that common land protected by Sections 193/4 LPA 1925 was a matter for them to record, but only to inform the relevant commons registration authority if it appears land might be common land.
5. She goes on to say that Land Registry has no duty to serve notice on anyone else; so if the registration authority was not aware then no one else would have been either and most importantly that includes the commoners.
6. The Land Registration Act 2002, apparently changed the requirement for disclosable overriding interests. However the Act states:
   Scope of title registration
   1. This Act makes provision about the registration of title to—
   2. (a) unregistered legal estates which are interests of any of the following kinds—
   3. (i) an estate in land,
   4. (ii) a rent charge,
   5. (iii) a franchise,
   6. (iv) a profit a prendre in gross, and
   7. (v)any other interest or charge which subsists for the benefit of, or is a charge on, an interest the title to which is registered; and
   8. (b)interests capable of subsisting at law which are created by a disposition of an interest the title to which is registered.
   All of which, it seems to me would have applied to the registration of the
   Headley Wood Estate.
   2014 Land Registry Letter dated 23 September 2014 – Elizabeth Derrington

NEXT TIME: So what to do next?

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 60

1. 8th September 2014. I received a letter from the Senior Investigating Officer telling me that ICR had finished her investigation, a copy of which he enclosed for comment.
2. 20th September is the date of my response which is attached below.
   2014 Land Registry, my response to draft report

NEXT TIME: The conclusion to my complaint to the Land Registry.

The Battle for Broxhead Common

Lindford Sports Fields on Broxhead Common plus one more of the recently erected gates across BW4

The Case for Hampshire County Council – PART 59

19. It appears that either MRP did not properly understand the implications of the Consent Order from the Court of Appeal, or there was a deliberate conspiracy with Hampshire County Council to misappropriate and remove 80 acres of Broxhead Common, without the obligatory consent from the Secretary of State!
20. Paragraph 8.7, MRP describes the rest of the common land in the assent and conveyance from Patricia Barnard on 26th November 1962 to Mr Myers and then to Mr Whitfield on 14th July 1970. He says, “such land is part of a larger field called Robins Moor as shown on the said plan marked MRP/VII, Robins Moor being fenced off and used as pasture. At one time it was largely scrubby woodland, but it was converted into pasture by Mr Whitfield in the early 1970’s, the land being drained and seeded. The pathway shown on the plan was bulldozed out by Mr Whitfield and now forms part of Robins Moor.” Just like the other 80 acres it seems!
    HCC did make application for change of use for 5½ acres to accommodate Lindford Sports Club, consequently they still owe for the replacement area of that common land.
    2002 Plan with MRP Statutory Declaration Adobe Scan 17 Dec 2021
21. Paragraph 8.9, states, “after having made the searches of the estate records and enquiries, I confirm that neither Mr Whitfield nor I hold any deeds or documents to the land in question and I know of no restrictive covenants, leases, liens or instruments creating charges or other adverse rights which affect the land or any part of it except for such of which particulars have been provided.”
    Dated 6th December 2001Except that both Hampshire County Council and Mr Whitfield must have known that this was in fact all common land because there had been no change to the Chief Commons Commissioner’s 1974 decision. This decision had subsequently been confirmed by the High Court 1977 and Court of Appeal 1978.
    Broxhead Final LAND Decision 197417072020 (2)
    2002 Statutory Declaration of Michael Roydon Porter for Broxhead28012016

Lindford Sports Fields on Broxhead Common plus one more of the recently erected gates across BW4

Lindford Sports Fields on Broxhead Common plus one more of the recently erected gates across BW4

Lindford Sports Fields on Broxhead Common plus one more of the recently erected gates across BW4

Next time: My reply to the Draft Report of the Independent Complaints Reviewer. (IR) for the Land Registry.

The Battle for Broxhead Common

Broxhead Common. The gate which was locked 1988

The Case for Hampshire County Council – PART 58

Continuing with the Statutory Declaration of Michael Roydon Porter:

15. Paragraph 8.3. Mr Porter says, “Part of the land edged blue comprises the Common as demised in the Lease to Hampshire County Council…. The remainder comprises enclosed fields known as Lower Forty Acres, Top Forty Acres, Seventeen Acres and Twenty-Five Acres.” Together the latter constitute the lost 80 acres of Broxhead Common!
    2002 Plan with MRP Statutory Declaration Adobe Scan 17 Dec 2021
16. Paragraph 8.4 describes how the ‘said fields’ were owned by Mr Whitfield. “The fields are all properly fenced, Lower Forty Acre Field and the Top Forty Acre Field being fenced together, and they are all currently used as pasture. They are mainly grazed by sheep. At some time in the past some of the land has been used for arable purposes.”
    Unlikely given the soil type, but it also describes a small area of woodland on the eastern boundary of Lower 40 Acre field. It was on the edge of this that a path ran, by which horse riders would gain access to the two other bridleways; until that is in 1988, it was gated and locked to obstruct the public access. (See Part 14). This path remains overgrown and inaccessible to this day.
    

    2016 Gate to path between unauthorised fence and FC

17. Paragraph 8.5 says these “areas have been occupied by Mr Myers from at least 26th November 1962 to 14th July 1970 without let or hindrance and thereafter by Mr Whitfield.”
    However, that is not true because complaints were made to HCC. on 8th December 1964 (Part 1) but have never been dealt with effectively.
    What it does not say is that it was Mr Porter himself who fenced and cultivated this area of common land without application to the Secretary of State.
18. Paragraph 8.6, MRP states “I have dealt with the ownership of the Common above but I should add that the two fields at the southern boundary of the plan marked 6100 and 6700 respectively have been leased by Mr Whitfield to Hampshire County Council for the use by them as sports grounds…. The land was leased pursuant to the Order of the Court of Appeal.”

Next time, to be continued.

The Battle for Broxhead Common

Broxhead Common

The Case for Hampshire County Council – PART 57

The Statutory Declaration of MRP continued:

9. Paragraph 6.1 Here again we see that compulsory purchase of a piece of the common land between Hampshire County Council and the ‘said landowner’ is being used as evidence of ownership!
10. Paragraph 7.1. Mr Porter is now shown a plan in which he is informed that such land does not fall in any of the title deeds.
11. Paragraph 7.2. He confirms that such land has been farmed as part of the property since the mid 1960’s. The fields are known as Broxhead Field and Hatch approximately 7.22 hectares. “Neither Mr Whitfield to the best of my knowledge nor I, have any deeds or documents relating to the ownership of such land.”
    2002 Plan with MRP Statutory Declaration Adobe Scan 17 Dec 2021
12. Paragraph 7.3 Mr Porter goes on to say: “It is my assumption that the land was merely omitted accidentally from the original Conveyance of Broxhead Field to Mr Myers, purely as a result of an error in the preparation of the plan”. Now that is some assumption and if we take another look of the 1787 Map drawn up by the Land Commissioners of Geo. 111 for their survey, this land is clearly shown as common land. It appears also to be the subject of a Public Inquiry held in August 1974 into Commons Registration 1965. More of which later.
    1787 Part of Commissioners Map
13. Paragraph 8.1 Mr Porter then scrutinised the 1962 Statutory Declaration of Patricia Margaret Elphinstone Barnard who was formerly the widow of G. A. McAndrew the owner of Headley Wood Farm. The conveyance of the same date states that she believes the common to be part of her estate, although there are no deeds or documents to support it!
14. Paragraph 8. 2 The above is confirmed by MRP

Broxhead Common

To be continued.

The Battle for Broxhead Common

Broxhead the missing 80 acres scorched to a cinder

The Case for Hampshire County Council – PART 56

The Statutory Declaration of Michael Roydon Porter for the Land Registry dated 6th December 2001 continued:
Paragraph 5.11, the Consent Order, and a Lease dated 5th March 1980 from Mr Whitfield to Hampshire County Council are shown to Michael Porter. There seems to be a difference between the date of the lease in paragraph 5.9, to that stated above of nearly two years.!?

6. The Register of Common Land entry for the removal of the 80 acres is dated 1st August 1979. It states that: “the land registration at entry no. 3 above, which was disputed, became final on 24th day of May 1978, in pursuance of Section (6) of the Commons Registration Act 1965, with the following modifications, namely with the exclusion of the land hatched red on the plan marked C1 attached to Sheet 89 of the register map.”
   C1 is a plan drawn by HCC itself. It is not in accordance with the Final decision of the Chief Commons Commissioner.
7. “The above entry has been made in accordance with the Final Disposal Notice signed by the Chief Commons Commissioner and dated 18th day of December 1978.” Except that in law no modifications could have been made after the final registration on 24th May 1978! So, was the delay between when the lease was said to have been started and when it actually did in March 1980, in order to accommodate the statement that the Chief Commons Commissioner told them to extract the 80 acres; even though it is something that he would not and could not do?
   1979 Broxhead Registration LAND22082020
   CCC’s notes alterations to the register
8. Paragraph 5.13 “Neither I nor Mr Whitfield hold any deeds or documents relating to the Common including the Blue Land, and there are no restrictive covenants, liens or instruments creating charges or any other adverse rights or leases which affect the land or any part of it except for such of which particulars are referred to above.” The Chief Commons Commissioners Land decision either has not been read or not understood. There are 20 verified commoners with rights over the whole common.
   Broxhead Final LAND Decision 197417072020 (2)

Broxhead-Common

Next week: The Statutory declaration of MRP to be continued.

The Battle for Broxhead Common

BW46 when it was last cleared in 2010

The Case for Hampshire County Council – PART 55

continuing the Statutory Declaration by MRP

1. Paragraph 5.8 states:
   “The appeal decision, inter alia, contained an order that…”
   30 years later we found out that the Court of Appeal had ordered nothing because the case had been dismissed: “Whilst the appeal decision does not specifically refer to the attached plan other than in connection with the area edged in red [Tollgate House]…”
   The Court of Appeal had no concerns about ownership or otherwise, the case about commoners’ rights had been dismissed on the terms the Parties had themselves cooked up and agreed. The Parties being: Hampshire County Council, Rosemary Cooke, Mr Connell and Mr Whitfield. The Commoners of Broxhead had relied on HCC to represent their interests. Connell and Cooke having resigned from the Broxhead Commoners Association after the High Court Case on 24th March 1977, represented only themselves at this juncture!
2. Paragraph 5.9 states” “Furthermore, as a result of the Order of the Court of Appeal the Common was so leased to Hampshire County Council for a term of 20 years from the 24th May 1978. Attached to that lease is a plan which clearly includes the Common including the Blue Land.”
   So, the deal with Hampshire County Council erroneously made in 1978/80 is being relied on to support the applicants claim for ownership!
   Cherry picking the Schedule to the Court Order for the dismissal of the case is unpardonable. The whole agreement must be fulfilled and that would have included the application to the Secretary of State for the fencing around the 80 acres; especially if there had been an intention for it to remain, as its continued presence after 43 years confirms.
3. Paragraph 5.10 states: “I should therefore submit that save as mentioned below there is no doubt whatsoever that the Common (including the Blue Land) is in the ownership of Mr Whitfield.”
   It can now be seen that this statement is based on the false perception that the Schedule to dismissal of the case from the Court of Appeal could be literally taken as an Order rather than an agreement by the parties which they must adhere to. By not seeking statutory consent for the fencing as indicated in the Schedule, the Parties must be in contempt of court!

the heather on Broxhead Common.

BW46 when it was last cleared in 2010

Next time: to be continued, the Statutory Declaration of Michael Roydon Porter 2001.

The Battle for Broxhead Common

Broxhead Common

The Case for Hampshire County Council – PART 54

continuing the Statutory Declaration by MRP

1. Paragraph 5.6, “Had he not been the owner he would not have been able to be a party to the action.”
   Let’s be clear. It was Mr Whitfield himself who brought the action against the Chief Commons Commissioner’s decision. He lost.
   The Hampshire County Council had in fact been acting in partnership with the commoners to preserve the whole of Broxhead Common; until that is, quite unexpectedly, they appeared to have a change of heart at the hearing of the Court of Appeal where they made themselves a respondent to the action!?
2. Paragraph 5.7 shows that either Mr Porter little understood the situation or that he was deliberately misleading the Land Registry. This is because he says:
   a) “The investigation carried out at the time included the study of documents several hundred years old going back to the reign of Queen Elizabeth 1. Such documents supplied evidence to the effect that the Common (including the Blue Land) has always been within the ownership of those who owned the Property as part of an ancient manor and supplied evidence as to the nature of various rights of common.” The case was an appeal against the Chief Commons Commissioner’s decision in the Rights section of the register of common land. Ownership was not the issue. In any case the Finance Act 1910 records Headley Wood Farm as copyhold with rights of common.
   1910 Headley Wood Farm Finance Act12112021
   b) “The original decision of the Chief Commons Commissioner dated 22nd November 1974 held that various parties had rights of common over the land.” Yes exactly, there are about 20 commoners recorded for Broxhead Common and almost certainly many more unrecorded. “Mr. Whitfield appealed and as a result of that appeal it was held that one party, a Mr Connell, was the only party having a right of common on the land.” That is false. The case had been dismissed.
   `This is obviously the basis for the many mistakes that followed.

the unused Road to Lindford 2008

Broxhead Common

Next time: to be continued.

The Battle for Broxhead Common

A wire fence blocks off use along the old road to Lindford

The Case for Hampshire County Council – PART 53

1. Access Volunteers for the British Horse Society are very well trained to research and apply to add bridleways to the Definitive Map. One point which comes to mind is that employees or tenants of a landowner could not be used as witnesses. The reasons were that as employees or tenants they were beholden to their employer and could therefore feel intimidated into taking a supportive role or even otherwise as the case may be. However, here we were in 2002 and this seems to have changed!?
2. The Statutory Declaration made by Michael Roydon Porter, the Estate Manager for Headley Wood, for the purpose of supporting his boss as the owner of Broxhead Common land, does not appear to stand up to the scrutiny necessary to pass the legal estate.
3. Starting with Paragraph 5.1 of the document we can see that the ‘Blue Land’ refers to Broxhead Common land and is part of the land which Mr Whitfield has applied to register “but that such land does not fall in any of the deeds which have been lodged by him in connection with his application to register the Property.”
4. Paragraph 5.2 of this document states “Broxhead Common has been in the ownership of Headley Estates for centuries as is evidenced by the Estate records which I have studied from time to time.”
5. Paragraph 5.3 reiterates by saying “The Blue Land and the rest of that part of Broxhead Common which Mr Whitfield is seeking to register at HM. Land Registry (“the Common”) has always formed part of the Property, as is evidenced by the estate records.”
6. However, this is not supported by the maps with the sale Schedules for Headley Wood Farm in 1869, 1927, or the National Farm Survey 1942/3 or 1910 Finance Act Map.

National Farm Survey 1947

1948 Headley Park official title plan

1910 Finance Act Map showing Headley Park and part of Broxhead Common

Next time: to be continued.

The Battle for Broxhead Common

A wire fence blocks off use along the old road to Lindford

The Case for Hampshire County Council – PART 52

1. So, there it was in black and white “The roads and footpaths in this title are subject to public rights of way.”
   2014 Land Registry Broxhead part of ICR report 201407072017
2. Nine Public Inquiries. Each occasioned by Hampshire County Council’s refusal to address the problem of access by horse riders for their loss of at least 23 trails on Broxhead Common lands because of the unauthorised fencing of 80 acres of it. The last three of these Inquiries were provoked by the shamefully made objection to their own Order for a bridleway between BW54 to Cradle Lane, along an old highway over the common land: and now it is revealed by Land Registry title documents that all the roads and footpaths in the title are subject to PUBLIC RIGHTS OF WAY.
3. You could not make it up. It is hard to believe that Hampshire County Council did not receive any communication from the Land Registry on first registration in 2001, when they have been renting 100 acres of it since 1980, and have removed 80 acres from the Register of Common Land without any statutory consent!!
4. To recap: C. W. McAndrew bought Headley Park in 1906. Headley Wood was added in 1928. Headley Park was sold in 1948, while Headley Wood was inherited by his son G. A McAndrew in 1954. Sold by his widow Patricia Barnard in 1962 to Sefton Siegfried Myers who sold it to Mr A. G. P. Whitfield in 1970.
5. Probably because McAndrews had lived adjacent to the common for sixty years, first at Headley Park and then Headley Wood Farm, they came to believe that they owned the common land as well. However as can be seen from the sale catalogues and deeds to both these properties and in the Statutory Declaration of MRP the Headley Wood Estate Manager since 1962, there were no documents to support that belief.

1926 Headley Wood sale particulars

National Farm Survey 1947

1948 Headley Park official title plan

1910 Finance Act Map showing Headley Park and part of Broxhead Common

Next time: The 2001 Statutory Declaration by MRP

The Battle for Broxhead Common

A wire fence blocks off use along the old road to Lindford

The Case for Hampshire County Council – PART 51 b continued

1. 4th June 2001. ALR1 replied to the Solicitor at AJG on whether they had heard from Hampshire County Council. He says:
   “The Registry has heard nothing back from the County Council about Boxhall[sic] Common, but we would not expect to. As I understand it, the procedure is a one-way notification by the Registry to the Council of the fact of the registration of the title to the land under the Land Registration Acts.”
2. ‘Following further correspondence AJG provided a Statutory Declaration made by Mr MRP on 6th December 2001 who had been the Estate Manager since 1962. The Declaration deals with a number of the issues that had been raised in ALR1’s letters, but I shall only refer to those points which appear to relate to the ownership of two small parts of Broxhead Common. MRP said in his declaration.
   • He referred to one of the Land Registry plans (attached to the Declaration) which showed two areas of land tinted blue, both of which lay to the East of the A325 and Southeast of the New Inn
   • He had been told and believed that both pieces of land were included in the application for first registration but that they did not fall within any of the title deeds which had been lodged.
   • Apart from the land which formed part of Tollgate House, this land (the Blue Land) comprised part of Broxhead Common, which had been in the “ownership of the Headley Estate for centuries as is evidenced by the estate records”,
   • The position had been looked into in the 1970’s and had been the subject of court action because an application had been made under the Commons Registration Act 1965 to seek a declaration whether certain people had common rights over the Common (including the Blue Land).
3. IR then notes that she had not found any evidence in the files that Land Registry did in fact send any notification to Hampshire County Council!!

Part of the old road to Lindford a great loss of amenity

The old road behind the logs

2018 Replacing the logs on the track to Lindford

Next time: Land Registry continued.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 51 a continued

1. 6th December 2001, ALR1 continues:
   “The roads and footpaths in this title are subject to public rights of way.” ‘The alternative would have been for us to serve notice on the local highway authority in respect of long lengths of road, with consequent further delay.’
2. To me that was jaw dropping information, but he goes on:
3. ‘Part of the land had been conveyed for the seller’s estate, right and interest and evidence had been lodged in the form of a 1962 Statutory Declaration. He asked for an up-to-date declaration to be provided. Part of the land for which they had applied (identified on one of the plans to the letter) fell within the fenced extent but did not fall within any of the title deeds (except the 1970 Conveyance) and no Statutory Declaration of any age had been lodged – if the solicitors wished the necessary wording could be included in the up-to-date declaration he had already asked for.’
4. “As Broxhead Common, or at least part of it, forms part of your application, notice has been served on the County Council as registration authority under the Commons Registration Act 1965 in accordance with the established procedure. Once I have the Declaration/s requested above, and provided they are satisfactory, the mapping of your application can be completed fairly promptly, whereupon your application will be referred for executive examination, which may give rise to further requisitions.”
5. It seems the solicitor at AJG became ill and the matter was taken over by a colleague. There was a long delay in providing a full response to ALR1’s letter and correspondence passed between AJG and Land Registry while the new solicitor familiarised herself with the case. In one of her letters dated 31st May 2001, she asked whether, “with regard to Broxhead Common, please advise us as to whether you have received any communication from the Local Authority”?

Next time: We hear more from ALR1.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 51

1. 28th February 2014. A year on and I had become unhappy with the way my questions to the Land Registry had been dealt with. It seemed impossible to get a clear picture of the process that had allowed Broxhead Common to be registered as ‘owned’ by Mr Whitfield. The list of documents they had sent to me did not, in my humble opinion, contain any that would support their finding,. So, I made a complaint to the Independent Complaints Reviewer.
   1962 OS Map of Broxhead Common09092021
2. A Senior Investigating Officer was appointed to look at my case, but their office re-location prevented me from hearing anything further until:
3. 3rd June 2014, when I received a summary of my complaint. Apparently the first application for voluntary first registration of the Headley Wood Estate was not made until 15th August 2000 by AJG solicitors. They said the matter was complicated and, in order to assist had enclosed a print of the Ordnance Survey Map showing the estate’s boundaries marked in blue. The application was made by Anthony Gary Peter Whitfield.
4. Also included in the file are 12 handwritten pages from a Land Registry lawyer who is referred to as ALR1.
5. 6th December 2000, ALR1 wrote to the solicitors. His letter said:
   • He identified certain parts of the land for which they had applied and said that they would be excluded from the registration as no title had been shown;
   • Where land had been conveyed “for the seller’s estate, right and interest only, The Registry does not accept that a conveyance so worded is effective to pass the legal estate unless there is evidence that the seller really did have a legal estate in the land” but
   • “where the applicant owns land on both sides of the rivers and roads, the whole width of the river bed and soil of the road will be included in the registration, but as regards road, a verbal entry along the following lines will be made.”

Next time: A shocking revelation. Unbelievable.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 50

1. February 2013. I was curious as to how, why, and when the common land had become a legal part of the Headley Wood Estate. So, I began enquiries with the HM Land Registry.
2. June 2013. I knew that Headley Wood Farm had recorded Rights of Common which would therefore not support ownership of the common land. Also, in 1955 Hampshire County Council had appointed L. Ellis Tavener M.A. (Cambridge), PhD (London), Senior Lecturer in Geography, University of Southampton, to undertake a Survey of The Common Lands of Hampshire, for the Royal Commission on Common Lands. This culminated in his book entitled ‘The Common Lands of Hampshire, published in 1957. He had concluded that the MOD who rent or requisitioned an extensive acreage of the common lands of Woolmer Forest, were the Lords of the Manor of Broxhead. This may have accounted for the interest shown by the MOD in Part 7 of this series.
3. I was, also unhappy with Land Registry’s rejection of the evidence from the Tithe Act 1847, as being too long ago to be useful, albeit it is an Act of Parliament, or that 15 years is regarded as a good root of title to claim ownership of common land. Formerly one had to show the link to manorial records which in the case of Broxhead Common go back to Alfred the Great, some 300+ years before the Statute of Merton, since renamed as the Commons Act 1236.
4. 3rd February 2014. However, my letter to the Land Registry reveals that I was finding some interesting details. For example, the terms of the lease of Broxhead Common to HCC appear to indicate that the ‘said landowner’ passed responsibility for costs of any application made under Sec. 194 of LPA 1925 to HCC. Whether or not that is the case, it should have been a reminder that consent for the fencing around the 80 acres was still required.
   2014 Feb Letter to John Pownall
5. In any case, the Schedule from the Court of Appeal, stated that HCC “would support any application by the ‘said landowner’ or his successors in title.” The lease was therefore at odds with the Order; in more ways than one as it turns out.

Next time: My enquiries with the Land Registry continue.

The Battle for Broxhead Common

1962 os map of the common before fencing.

The Case for Hampshire County Council – PART 49

1. Commons Commissioners were appointed by the Lord Chancellor, one of which would be Chief Commons Commissioner.
   The first appointment as Chief Commons Commissioner took effect in 1972 and since then there has been between one and four Commissioners sitting at any one time. They were drawn from barristers or solicitors of not less than seven years standing.
   The abolition of the jurisdiction took place in November 2010. The responsibility was passed to the Planning Inspectorate with DEFRA and Natural England securing an important role in the governance of common land.
   1962 OS Map of Broxhead Common09092021
2. 13th October 2013 is the date of my response to Natural England. It is of necessity quite long.
   2013 October REPLY TO NATURAL ENGLAND
3. 23rd December 2013, I email my MP’s equally long-suffering secretary as to why I thought Lord de Mauley was mistaken to ignore the issue but eagerly await the response from Natural England she promises.
   Email to Damian’s Secretary
4. 5th February 2014 is the date of a reply from Natural England. They are opting out of the responsibility and just like the other Quangos suggest I could take the matter to the Attorney General myself!!
   2014 Feb. from Natural England
5. June 2014. HCC’s ASBO appears to be working for them. I am dismissed in my voluntary role as the County Bridleways Officer by the BHS. They say they need someone who can work with Hampshire County Council!!
   2014 June BHS sack me
6. I don’t know whether to laugh or cry but I will certainly carry on regardless.

BW46 is to show the available width of the bridleway with person and dogs filling it.

Next time: Another line of enquiry

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 48

1. 24th November 2013, I once again email my long-suffering MP with regard to correspondence I had been having with Natural England.
   2013 RE_ Response for Natural England’s answers to my questions of 17th July 2013
2. 4th December 2013 is the day HCC’s Executive Member for Culture, Recreation and Countryside makes his decision for the Yately Common proposal and the many funding streams which will pay for it.
3. In good faith I travel to Winchester to make a Deputation to the Committee. I am concerned with the accuracy of the Report on which the decision will be made.
   2013 Deputation for the HCC Committee of Culture
4. Colleagues also make deputations, but as you might have guessed nothing changed and the application goes through on the nod.
   4th December Yateley COmmon Exec Mtg Background_paper – VIP Unfavourable Recovering
5. 5th December 2013. It seems as if another agenda is at work here, especially when I received the attached from my hard working MP. It appears that my correspondence has been passed from the Attorney General to DEFRA!
   2013 Attorney General & Lord Mauley response re Broxhead
6. 18th December 2013, I email Eric Pickles with my concerns
   2013 December MC to E. Pickles

Next time: The Demise of the Commons Commissioners’

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 47

1. August 2012, a local consultation on the management of Broxhead Common is announced by Footprint Ecology in which fencing is a leading proposal.
   2012 HCC Broxhead Management.pdf Footprint Ecology
2. Footprint Ecology has strong ties to Hampshire County Council through its founder who was once their Conservation Officer.
3. Yateley Common was also in their sights, so I and others wrote to our MP’s and Eric Pickles the then Minister for DEFRA, about the fencing applications being made by the Wildlife Trusts.
   Anthony Barnett.doc LETTER TO ERIC PICKLES
4. 8th January 2013 I receive a reply from DEFRA. It suggests I write to my MP, whom I should add had been doing his best to help for some time: – full circle then!
   2013 DEFRA 8.1.13
5. 25th September 2013, we deliver a petition to No. 10 Downing Street regarding the fencing of the common lands and special mention of some other commons of which Broxhead is one.
6. 24th November 2013, I write to my MP, Dominic Grieve QC and Lord Neuberger explaining that I fear EU funding is being mis-appropriated.
   2013 November Letter to Damian re Common Lands of England

Next time: My Deputation to the HCC Committee of Culture, Recreation and Countryside

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 46

1. Through 2012 to 2014, I and others had mounting concerns at the number of applications being made by the Wildlife Trusts to fence common land.
   Copy of Lowland commons. & HLS agreements
2. Under Section 9, 1965 Commons Registration Act, Commons with no known owners were vested with local authorities whose job it was to protect them from adverse possession, encroachment, or unsolicited works etc.
3. Various Wildlife Trusts throughout England were making applications to fence a common by falsely stating that the County and/or District, Parish Councils were ‘owners.’
4. After objections to the proposed fencing, the matter would proceed to Public Inquiry, but the Planning Inspectors avoided the issue by using a get out clause. Permission was given so long as it did not contravene any other statute, which of course it always must as protection for common land is comprehensively covered by many Acts of Parliament.
5. So, it was left to interested parties to object and appeal. Democracy now had a price it seemed. A payment when objecting at Public Inquiry while the officials used the public’s money for same!
6. The reason given for fencing was that the commons could then be grazed to keep the vegetation in check, even though here in the south many of the commons were sandy heaths not suitable for this type of management, unlike the grassy fells and dales of northern England. Fencing in the land ultimately takes away its protection because once enclosed who is to know that it is not private land? Also, in law it must be open and accessible from any point of view.
7. Finally, the openness of the landscape would forever be lost and how much construction work could then creep in on the boundaries?

Next time: Around and around we go.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 45

1. 31st January 2014. I am so concerned with the apparent lack of Democracy that I write to my MP. Looking back, I see Dominic Raab gets a mention.
   2014 to Damian Hinds Original Message
2. 1st February 2014 I receive an email from an unexpected source.
   2014 Jim C to Damian Hinds
3. 3rd February 2014, I reply to HCC’s letter and accept the offer of an Internal Review. Maybe this is the chance to try to explain the matter face to face.
4. 17th February 2014, I receive a reply. Apparently, it has now been decided that the matter is not suitable for an ‘Internal Review’.
   2014 Feb. MC reply to HCC ASBO15032021
5. I was therefore left with no alternative save to apply to the Information Commissioner’s Office. But that turned out to be another long and frustrating road with a very narrow focus. The Commissioner thought that it was possible that HCC were right to say that I only wanted the contacts so that I could pursue the matter of Broxhead Common, although how junior officers could possibly help with such a complicated matter over and above the Senior Managers, is not explained. He says:
   “The Commissioner’s decision has only been made in regards of the request that has been refused and has not been made in respect of any other requests for information that the complainant has made or may choose to make in the future”.
   “In this case the Commissioner has identified that the council provided its response outside 20 working days, and therefore breached the requirement of section 10(1).But let us stay focused on the common land.

Next time: A problem with the Wildlife Trusts.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 44

1. Even though I was by now the County Bridleways Officer for The British Horse Society and therefore dealing with the numerous other problems encountered by riders in Hampshire on Rights of Way etc. I did not contact them again until a year later.
2. 29th October 2013. I had spotted a snippet in a local newspaper from Nicki Paton of Area Team North Hants, telling people to get in touch if they needed help with anything. I emailed a request for a pro forma of who does what in the Countryside Department of HCC so that I knew who to contact should the need arise in my voluntary job as County Bridleways Officer. Such lists had always been forthcoming previously but the one which I already had, was out of date.
   2014 Area Team North Hants.pdf Nicky Paton
3. 6th January 2014, to my surprise a reply comes not from Nicki Paton but from ccbbs.foi.hants. ??? It attaches 37 pages containing 217 positions in Countryside, but only the seven names of the Managers!?
   2014 pro forma FW_ Structure chartCountryside Service Organisation Structure – FOI names redacted_(HF00000…_(HF000005953612) (002) 2014 FOI – 6837 – Comber – Formal Response – for pro forma 2014-01-06_(HF000005956326) (002)
4. I respond immediately asking if all these positions are filled as there are no names save for the seven managers. Please could she provide contacts for North and Central Areas. I am trying not to bother Managers with everyday problems which the Officers are quite capable of dealing with.
   Re_ FOI – 6837 – Comber Formal Response
5. 31st January 2014 By way of reply I receive the ASBO accusing me of ‘Unreasonable complainant behaviour’ and harassment of members of the Countryside Team.????????
   HCC ASBO Contact – 1214 – Comber – Formal Declaration – 2014-01-31_(HF000006116112)
6. It looks as if I am also carrying the can for the many other people who cannot get a resolution to the numerous problems, by the repeated mention of ‘my associates’. Their letter is full of misleading and false information. I had, as instructed made no mention of Broxhead Common or any other common land in my latest enquiry,

Next time: Read my letter of response.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 43

1. 31st October 2012 is the date of the response to my letter dated 14th February 2012. It came from Hampshire County Council’s Head of Information Compliance and not from the CEO to whom it was addressed.
   HCC RESPONSE BROXHEAD 31.10.12
2. I note the usual story, that the High Court or Court of Appeal had ordered them to extract the 80 acres has been dropped from the narrative. Now in the 4th Paragraph they are saying that the FDN dated 18th December 1978, instructed Hampshire County Council to remove this land from the Register following a Court of Appeal Order!!
3. That is impossible under the legislation, but if it had been the case and they had cancelled the provisional registration, why had they not also cancelled the owner, as Sec.6 (3) CRA 1965 instructs?
4. The Chief Commons Commissioner’s integrity was never in question. Besides, having won the appeal against his 1974 Decision, in the High Court and the Court of Appeal, why would he wish to change anything at all?
   • • The case had been dismissed from out of the Appeal Court and his decision affirmed.
     • Without a Hearing the Court could not have made any Orders.
     • The Court of Appeal cannot order anything which is perverse or against the public interest. Removing 80 acres of common land most certainly would have been.
     • It is false to say there was one remaining commoner with rights. There are nineteen other commoners with rights over the whole common.

   The Final Paragraph tells me not to contact them again otherwise they will implement their policy of unreasonable complainant behaviour.!?

5. During the whole of this time, it was never suggested we should meet or discuss the missing 80 acres of Broxhead Common.

Next time: Is there anything or anyone at HCC that can be trusted?
Democracy seems to have disappeared from their vocabulary!

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 42

1. I had throughout the process been asking reasonable and relevant questions, most of which remained unanswered. On page 14 of the Guidance on Procedures for considering objections to Definitive Map and Public Path Orders, November 2008, it says under, “Procedure at the Inquiry, (3) ‘Paragraph (2) shall not preclude the addition in the course of the inquiry of other issues for consideration or preclude any person entitled or permitted to appear at the inquiry from referring to other issues which he considers to be relevant to the inquiry’.”
2. However, in my experience, the goalposts were almost always moved at Public Inquiries to focus narrowly on a claimed path itself. The rules and regulations such as the above, which permitted the consideration of the environment surrounding it or the history, were simply ignored by Hampshire County Council, Natural England, and the Planning Inspectorate; for example, at the 2009 PI, the Planning Inspector had ordered costs to be applied if anyone mentioned the word “common”!
   It was as if the law of the land no longer existed. So, on:
3. 14th February 2012, I wrote to Hampshire County Council’s Chief Executive. (See link.)
   2012 MC letter to HCC CEO 14th Feb. 201227012016
4. April 2012. I had also been waiting for a response from the Local Government Ombudsman which when it arrived did not seem of much help. In short, the matters were too long ago now, the LGO only considered matters within the preceding twelve months, or it was outside the Ombudsman’s jurisdiction.
   LGO FINAL DECISION, BROXHEAD
5. However, although it took nine months and the intervention of my MP, the LGO had helped to get a response to my letter. It came from Hampshire County Council’s Head of Information Compliance on behalf of the Chief Executive. Disappointingly only three of the thirteen questions were answered and as for the Chief Executive himself, he remained faceless and incommunicado.

Next time: The reply arrives on 31st October 2012.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 41

1. An exceptionally large sign had been strategically placed near the junction with BW54 and my previous bridleway claim, just before the last Public Inquiry. It seemed odd because it was directed at people leaving the common rather than entering it?
2. I had seen no planning applications and more of these large and intrusive signs were appearing. There had been no consultation with the Broxhead Commoners about this, so I made an EIR/FOI for the consent from the Secretary of State which would have been needed as they are all on common land, and one of them is actually on BW46.
3. 18th January 2012, I receive a response from my EIR enquiry. It tells me that the signs do not fall under sec. 38. CA 2006 so no consent is required.
   An email from a Senior Map Review Officer says something similar but includes the statement “We have no evidence that Broxhead is a common to which section 193 of the Law of Property Act applies….”!!!!!!!!!!!!!!!!!!!!!??
   2012 The signs on Broxhead Common06032021.pdf FOI
   email from Emma Noyce06032021
4. 19th January 2012, I reply by asking a few more questions and referring them back to sec. 38/39 CA 2006
   (a)works which have the effect of preventing or impeding access to or over any land to which this section applies;
   383(b)the construction of buildings and other structures,
   and these were structures not mere signposts. In addition, they were by the wording, impeding the rights of horse riders to access the common from any point of view. Although clear, the information was not accurate.
5. I receive another email from HCC’s Head of Countryside. In the last paragraph they are still rejecting the right of horse riders to access the land under the terms of the lease. They have been and are continuing to reject the decision of the Planning Inspector to the 2006 Public Inquiry. Because they have not appealed the decision, there is no way to correct yet another of their mistakes. This is not fair, right, or proper, to quote Winston Graham. Where is democracy?
   2012 Andrew Smith re signs
6. Well if I cannot get the answers from the official source, I will have to ask the boss himself.

Next time: I write to the Chief Executive of Hampshire County Council.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 40

1. 14th December 2011. I made further enquiries regarding the documents I had been sent under EIR and point out that the ‘Land’ section of the Register is not amongst them. Also, that the copy of the Consent Order is missing page 3. Has it been missed or is it not there?
2. A reply from the Freedom of Information Co-Ordinator apologises and sends copy of the ‘Land’ section of the register. Most interestingly she confirms that despite a thorough search she cannot find a copy of the Consent Order of the Court of Appeal May 1978, with page 3. In addition, the copy which they hold only came to them in 2002 and has page 3 missing! No doubt that is the copy from Headley Wood Estates (See Part 24)!
   14th December 2011 emails under foi HCC cannot find page 3
3. Question is why has HCC not got a complete copy in its files?
4. My last query to HCC concerned the difference between the Final Disposal Notice dated 18th December 1978 for entry No.3 which is that of the ‘said’ landowner which simply referred to the exclusion of the land edged red on the plan hereunto annexed marked GDS1 and GDS2. Undoubtedly this would mean the small areas referred to in the Land Decision, as against the Register Sheet for the Land Section dated 1st August 1979 which shows 80 acres have been removed?
   Broxhead Final LAND Decision 197417072020 (2)
5. Her explanation is clear in that the FDN became final on the date at the top which is 24th May 1978 while the date at the bottom 18th December was when the notice was sealed. There was only one FDN.
6. Therefore, the record sheet stating 80 acres has been removed in accordance with the Final Disposal Notice dated 18th December 1978, cannot be correct, because CRA 1965 Sec.7 (1) states, “…the registration shall become final at the date of withdrawal” and Sec.10 CRA 1965 states the date of registration is conclusive evidence of registration! No change to the Final Decision could be legally made!
   Broxhead Registration LAND FDN 22082020

Next time: Now new large and intrusive signs are being erected on the common land telling horse riders to keep to the bridleways? There are only two bridleways and they are in the form of a cross!

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 40

1. Until this moment in time my focus had been to get a reasonable riding route over the common land to replace at least a few of the 23 trails which had been obstructed by the unauthorised fencing.
2. This had been the ninth Public Inquiry which I had attended so I was not unfamiliar with the procedure and realised that the process had changed considerably for the worse. This was not a peoples’ court anymore and I was up against what was beginning to look like an Establishment or Bureaucratic cover up to do with the registration of Broxhead Common.
3. The problem was that on more than one occasion I had perused the files to be found in the County Commons Registration Office and knew there was nothing more to be found there, indeed some of the papers had in any case disappeared.
4. Nevertheless, with the help of my MP, I made a complaint to the Parliamentary Ombudsman about the previous Planning Inspector’s decision. The upshot of that was that they were unable to change anything, and the case needed to go to the High Court.
5. December 2011. So, while I read from cover to cover of the two reference books by Gerald Gadsden on the Law of Commons, I decided to make a few FOI/EIR enquiries of my own.
6. 12th December 2011, I receive a reply from Hampshire County Council, Culture, Communities and Business Services. They say: “No records have been found with reference to the extinguishment for the whole or part of the 180 acres” of Broxhead Common.
   2011 EIR No documents of extinguishment

Next time: I make further enquiries under EIR

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 39

1. No wonder HCC had requested that no historical information be considered at the forthcoming Public Inquiry. (Part 36)
2. 28TH June 2011 the date of the next Public Inquiry, to be held in the Kingsley Village Centre, where I again must submit to four hours of questioning by HCC?!
3. 20th September 2011, the date of the decision by the Planning Inspector. He decides the routes shown on all the historical maps do not provide evidence of a public bridleway and the Finance Act 1910 records do not provide evidence of the status of the claimed route over the common despite the award of £655 for Public ROW or User.
   1910 FA Record Book24042019_0003.
4. In fact, the 1787 map of the Survey for Geo.111 does show the claimed way as a ‘road’ but he chose to disregard that merely noting that it was “interesting”. We also pointed out that the claimed path was on and led to the common which was a place of public resort before it had been fenced without authority in 1963.
   1787 Part of Commissioners Map
   1787 Commissioners Map.jpg showing roads etc.
5. Nevertheless, he refuses to confirm the Order and in addition awards costs of £3,000 against me for providing too much evidence for the objectors to read.!!!??? Except that they should have read most of it at the previous Public Inquiry and PINS themselves had told me to present as much evidence as I could (see Part 34/35).
6. However, my lawyers advise I do not Judicially Review again because they have concluded there is something wrong with the registration of the common land itself. I am advised to dig deeper to find out what it is.

Next time: I realise that to get to the bottom of this malfeasance, I need to educate myself on the law of common land and how it should work.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 38

1. 21st April 2011. I asked HCC Chief Executives if they could find any trace of page 3. Their reply was negative with advice to contact the Court of Appeal.
   2011 HCC Chief Exec email
2. My lawyers had done that already and drawn a blank, so I was wondering where to look next when I had a stroke of luck. My friend Jim Colbourne reminded me that my Mackenzie friend, Bob Milton had submitted an foi at the end of September 2009 about papers concerning the Court of Appeal hearing in May 1978. It was worth an ask.
3. 3rd May 2011. As luck would have it, Bob came up trumps and supplied me with a copy of the whole document including the missing page 3.
4. It was only now that I learnt that the Court of Appeal, far from ordering Hampshire County Council to remove the 80 acres from the Register, had dismissed the case from out of that Court.
   2011 Search for page 3
5. Of course, if the Court had not heard the case and reviewed the evidence, then it could not order anything. In any case it cannot make any order which is perverse or against the public interest.
6. There had therefore been no Court Order to remove the 80 acres from the Register of Common Land as we had been led to believe all these years!
7. The case had been dismissed on the terms of the Schedule. This is simply an agreement between the Parties involved and had been misused to appear as an actual Order of the Court.
   Broxhead Consent Order CA 197802072017.pdf with page 3
8. The Court of Appeal knew that for the Schedule to apply, application for the unauthorised fencing would first have to be made to the Secretary of State, as stated on page 4 of the Consent Order.
9. However, such application has never been made either by the ‘said’ landowner or Hampshire County Council, who as usual ignored the law and carried on regardless.

Next time: Another Public Inquiry but this time I am represented by a barrister.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 37

1. Notwithstanding, our initial success in obtaining the Order for a bridleway between BW54 and Cradle Lane and the following successful Judicial Review of the previous Inspector’s negative decision, Hampshire County Council are still insisting on another full Public Inquiry!?
2. In the meantime, my Barrister had informed me that the 1978 Consent Order from the Court of Appeal, had a page missing!
   Consent Order sent via EIR 2011
3. I had noticed the pages were misnumbered but had not realised that a page was in fact missing. My lawyers had written to the Court of Appeal for a copy, but they were unable to find one, so I was told I needed to look for it.
4. That was an almost impossible request. Where to start? I had after all looked at all possible documents previously more than once over time and they all had the same page missing, even the copy originally given to me by John Ellis, Chair of the Broxhead Commoners Association.
5. 6th April 2011, I emailed the Commons Registration Office in Winchester and asked if they could send me a copy of page 3 of the Consent Order from the Court of Appeal 24th May 1978. – No reply until on:
   2011 Re_ Broxhead Common sheet 89.pdf & page 3 Andy G-K
6. 13th April 2011 the Commons Registration Map is emailed to me, but that is not what I had asked for!
   Commons Reg maps via EIR
7. 15th April 2011, I send another email and book a table so that I can make another personal search.
8. 19th April 2011. I once again look through the files but this time there is not even a Consent Order to be found let alone one with page 3 in it!?

Next time: My searches for page 3 of the Consent Order 1978 continue.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 36

1. 11th October 2010, I simply could not accept such an erroneous decision. I had to get the lawyers involved.
2. We successfully Judicially Review the most recent Inspector’s decision, and it is quashed.
   2010 Judicial Review win for MC18022021
   2010 November PI letterwith CO19022021
3. 3rd December 2010, we write to HCC suggesting they may like to now reconsider their objection to their Order.
   2010, December Godwins to PInsp.19022021
   Norman Baker on sustainable transport
4. 8th December 2010, we write again to say that we cannot see anything would be served by now re-opening the Public Inquiry as the new Inspector will already have access to all the necessary evidence. However, it is essential for the new Inspector to receive submissions on the legal significance of the existing evidence, particularly in light of our successful court proceedings with respect to the earlier Inspector’s reasoning. We suggest this might be done simply in writing, or by way of a limited hearing.
   2010, 8th December Godwins to PInsp.19022021
5. 513th December 2010. The Planning Inspectorate forward a letter from Hampshire County Council’s Case Officer. He is requesting that the historical evidence should not be considered if there is another Public Inquiry!
   2010 8.12.10 HCC Colin Piper letter to PL INSP27022021
6. 28th January 2011. I receive a reply from HCC’s Chief Executives Senior Solicitor to my request from Head of Governance, as to the process to be followed when HCC’s Regularity Committee have made a decision only for it to be overturned by the Planning Inspectorate.
   She says:
7. “if on considering the appeal, the Secretary of State considers that an order should be made, the Secretary of State may direct the County Council to make an order, and the same procedure would then be followed as if the Application had been approved by the County Council’s Regulatory Committee.”
8. It was as I had thought, but no-one was taking any notice of my complaint that the matter had not returned to the Committee, and that the usual protocol was not being followed.

Next time: Given HCC’s policy with Rights of Way Improvement Plans and their published search for lost ways, this situation is incomprehensible.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 35

1. 3rd April 2009, a letter from the Inspectorate had said: “The Inspector will not have access to the appeal documents. It is therefore very important that you submit all the evidence you intend to rely upon to the Inspector in advance of the Inquiry, even if it was submitted as evidence for the Schedule 14 appeal.”
   2009 Planning Inspectorate to MC17022021
2. Page 14 of the Statutory Instruments of ROW Hearing and Inquiries Procedure (England) Rules, within the Guidance on Procedures for considering objections to Definitive Map and Public Path Orders 2008, under Procedure at the Inquiry, (3) Paragraph (2) shall not preclude the addition in the course of the inquiry of other issues for consideration or preclude any person entitled or permitted to appear at the inquiry from referring to other issues which he considers to be relevant to the inquiry.”
3. I was not surprised therefore, when many people turned up to the Public Inquiry because of their interest in Broxhead Common itself.
4. 25th September 2009, the Public Inquiry was held in Liphook. It turned out to be one of the most unpleasant experiences I have had to endure. A Kangaroo Court where the first thing the Planning Inspector said to those assembled was, that if they had come to hear about the ‘common’ then they would be disappointed as costs would be applied to anyone mentioning the word ‘common’. As the claimed path was on common land and led to further common land my case was completely nullified before the start!
5. In addition, instead of presenting the case as had been requested by the Planning Inspectorate, I was asked to take the witness stand where I spent the rest of the morning being pummelled by HCC’s legal bullies. Public Inquiries had now, it seemed, been hi-jacked by professionals.
6. 11th December 2009 is the date of the Planning Inspector’s decision. Unsurprisingly it is negative. She has discarded and ignored much of the historical evidence of access to the common land but crucially misled herself regarding ‘the public at large’.

Next time: I cannot live with such a fallacious decision.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 34

1. 6th February 2009 is the date of a letter from HCC’s Executive Member for Efficiency, Performance and Rural Policy, Cllr. Raymond J. Ellis in reply to mine of 12th December 2008.
   2009 From Cllr Ray Ellis re Order 54 to Cradle Lane27022021
2. The letter is incomprehensible in that it speaks of the need for a full and proper debate as if that has not already taken place previously through the Planning Inspectorate and the Order confirmed.
3. 14th February 2009 I respond by email asking for further clarification of the points he was making and ask why they are disregarding HCC’s own policy.
   2009 Feb. Reply to Cllr Ray Ellis16022021
4. 23rd February 2009. I receive an exact copy of his previous letter. No help there then.
   2009 Letter from Cllr Ray Ellis 23.2.09
5. March 2009 I am contacted by the Planning Inspectorate. They tell me that HCC are objecting to their own Order and ask how I would like to proceed. I suggest that a Local Hearing would be more than sufficient as I cannot see the need for yet another full Public Inquiry.
6. 3rd April 2009 is the date of a letter from the Planning Inspectorate. It appears that HCC are insisting on another Public Inquiry and asking me if I will present the case at that Public Inquiry.
   2009 Planning Inspectorate to MC17022021
7. I had done this twelve years before when the Creation Order restored the link in the bridleway network with BW54. On that occasion HCC had taken a neutral stance so I reluctantly agreed.
8. I also asked PINS what reason the HCC had given for their objection to their Order for the bridleway but was told I should ask them.
9. I had already asked but informed that the reason was too complicated a matter to discuss in public, so I had no option but to agree a written reply which of course was never forthcoming.

Next time: A very unpleasant experience and a set-up

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 33

1. 10th January 2007, I receive a letter from Hampshire County Council telling me that the Regulatory Committee has refused my application for a bridleway from BW54 to Cradle Lane.
   2008 Claim BW54 to Cradle PLAN03022021
2. One of the reasons is that “The Lease Agreement between the landowner and the county Council, does not give horse riders a right of access to Broxhead Common” This statement completely ignores the decision of Planning Inspector, Mark Yates to my previous claim for bridleways on Broxhead Common.
3. 24th January 2007, I appeal this ill-informed decision to the National Rights of Way Casework Team in Newcastle under Paragraph 4 of Schedule 14 to the WCA 1981.
4. 3rd January 2008, the decision of Planning Inspector, Susan Doran says she concludes that Hampshire County were not justified in their decision to refuse to make the Order and allows my appeal.
   And that should have been that.
5. Except it was not because,
6. Hampshire County Council made the Order for the bridleway but then immediately objected to their own Order. !!??
7. The making of the Order for the bridleway constituted a material change to the circumstances and as such the matter should have returned to the Regulatory Committee for further discussion. But it was not. In not following protocol the Officers were avoiding a democratic decision.

Next time: Locals know that HCC like to have their own way. Their address is The Castle, Winchester but jokingly referred to as The Castle, Westminster. Except this is now no joke.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 32

1. 9th August 2007, I email the Leader of Hampshire County Council asking him to restore the rights of ‘air and exercise’ to horse riders without delay. I am hoping that my recent election to the District Council for the Parish of Selborne, my position as the District Access Officer for The British Horse Society and a Trustee of same will count for something.
   2007 MC to KT email 9.8.07 10022021
2. 12th September 2007, is the date of his reply in which he says he thinks ‘that it would be the right time to review with the landowner the possibilities for allowing permissive access for riders.” !?
   2007 KT to MC email 12.9.0710022021
3. 17th September 2007. I reply asking for four points of clarification.
   2007 MC to KT email 17.9.0710022021
   • ‘Air and exercise for horse riders already exists under the terms of the lease.
   • The right to ride over the common land already exists
   • The Planning Inspector has already stated that he “considers horse riders using the land in question would not necessarily constitute a nuisance, annoyance or damage to the landlord or his property.”
   • DEFRA and Natural England say conservation is not an issue.
4. 10th October 2007, the reply says that the Inspector’s view is not binding and again raises conservation matters!
   2007 KT to MC email 10.10.0710022021
5. 15th October 2007, the date of my reply, reminding them the original lease was drawn up between the County Council and the landowner, after local commoners won their case in the High Court for the removal of the fencing of 80 acres of ‘the most valuable and scarce wildlife habitat.’
   2007 MC to KT email 15.10.0710022021
6. 1st November 2007. The reply says my points ‘have been noted and will be taken into account.” This proved to be yet another unfulfilled promise. Nothing changed.
   2007 KT to MC email 1.11.0710022021

Next time: My next and final claim for a bridleway between BW54 and Cradle Lane has been taken up for research.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 31

1. There followed an appeal by written representation which went on until October 2006.
2. 23rd April 2007 Planning Inspector, Mark Yates decided not to make an order for the bridleway. The reason given in paragraph 38 is:
   2007 PI Mark Yates for Broxhead claim for BW’s08122020
3. “In my view, the reference in the lease to incidental use of the common (Clause 2 iii) does not appear to be limited only to pedestrians and it could equally relate to horse riders. Further, I can see nothing in the lease that prohibits use of the land by equestrians as is the case with use by vehicles (Clause 2 vi). In addition, I do not consider that horse riders using the land in question would necessarily constitute a nuisance, annoyance or damage to the landlord or his property (Clause 2 ix). However, the provision in the lease for incidental use of the land for the purposes of air and exercise, whether as a pedestrian or equestrian, would be a permissive right revocable on the expiry of the lease and as such I do not believe t hat it could lead to the acquisition of a public right of way over the land in question.
4. In Paragraph 42 he goes on to say: “In particular, a lease has operated for the whole of the relevant period which provides for public access for air and exercise. There is no apparent limitation in terms of use by horse riders; however, I consider that the lease would constitute a permissive right of access in relation to use of the claimed routes.”
5. So interestingly although we did not get the bridleways the right of horse riders’ access to the common land had been confirmed.
6. However, it is now obvious that the illegal lease of the common land drawn up by Hampshire County Council and the ‘said landowner’, is obstructing normal rights of access to the registered common land, at least for horse riders.

Next time: The County Council totally disregard the Planning Inspector’s decision.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 30

1. It was difficult to see how there could be insufficient evidence of use for my claim. We were submitting user evidence from twelve horse riders which went back well beyond the 20 years required. Then of course there were the claims from the 1965 Public Inquiry about bridleways in general across the common land.
   1965 evidence of use, Broxhead05022021
2.  20th December 2005, I receive a letter from the Government Office for the North East attaching another letter of objection from the ‘said’ landowner.
   2005 Objection letters from Whitfield05022021
3. 3rd August 2005 I write to my County Councillor asking who is responsible for putting all the ‘no horse riding’ signs on Broxhead Common while the appeal is still active.
   They are also in direct contravention to the Regulatory Committee’s promise to improve horse riding on Broxhead Common.
   2006 email to County Cllr. re signs on common17022021
4.  12th August 2006 the date of a letter to HCC Chief Executives from the County Bridleways Officer for The British Horse Society, Brenda King. She was chasing a response from the Director of Recreation and Heritage on how Broxhead Common could be managed for the benefit of horse riders. A response which never transpired, so yet another promise broken.
   2006 August Brenda King letter to Chief Executives08122020

Next time: Planning Inspector, Mark Yates gives his decision.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 29

1. November 2005. The matter came before the Regulatory Committee of Hampshire County Council. Their reason for refusal was:
2. “The lease agreement between the landowner and the County Council, does not give horse riders a right of access to Broxhead Common, and therefore access land as defined by the Countryside and Rights of Way Act 2000, this access does not convey a right of access to horse riders.”
3. “The lease between Mr Whitfield and Hampshire County Council dated 5th March 1980 covenants not to use or permit to be used the Common or any part thereof other than for a nature reserve within the meaning of Sec.15 of the said act of 1949 and for incidental use by the public for air and exercise and:
   To be responsible for the proper control of the common and not to do or permit anything in or upon the common or any part thereof which may be or become a nuisance annoyance or damage to the Landlord or his property.”
4. This statement made on the back of a lease never agreed with the commoners, or as it turned out, on any lawful basis! Also, completely different to their explanation to Natural England’s CEO (see Part 28).
5. However, Hampshire County Council gave a firm commitment that they would take steps to see access for horse riders on Broxhead Common was improved.
6. Knowing by now that they could not be relied upon to do as they said, I appealed their decision to the Secretary of State in the form of the Planning Inspectorate.
7. 1998 Case law in the form of Bilson v Surrey County Council re Ranmore Common had in fact confirmed horse riders do have the right of access to common land. Indeed, why would they not since there was nothing else before the invention of the bicycle.
8. Small ‘No Horse Riding’ signs now appeared on all remaining tracks on the common!!

Next time: A follow up letter of objection and a letter to HCC from the British Horse Society County Chairman.

The Battle for Broxhead Common

Gate on BW4 which seems to be permanently stuck in the sand, with part of the 80 acres beyond.

The Case for Hampshire County Council – PART 28

1. It seems to me that during my long fight to restore the rights of common and access by the public to this open space, that I have inadvertently been led into a situation where the ‘said landowner’, English Nature and Hampshire County Council are not only unhelpful but hostile. Surely the last two of these are paid by the public to help and advise the taxpayers and certainly not to obstruct? However on:
2. 7th February 2005 comes an objection letter from English Nature. They say: “If Hampshire County Council sought assent for the instatement of these public bridleways, English Nature would not be in a position to assent to the proposals.”
   2005 English Nature OBJECTION LETTER04022021
3. We are now talking about the rest of the common land leased to Hampshire County Council, so it seemed to me that if this was the case, the designation of SSSI was completely out of step with the original registration as common land. So, in July 2005, I wrote to English Nature’s Chief Executive Dr Andy Brown.
4. 18th August 2005, he replies saying he has been waiting to hear from Hampshire County Council, and: “the officer’s recommendation is to refuse on the grounds that there is insufficient evidence about use of the paths. We understand that the nature conservation issues are effectively irrelevant.”
   EN Andy Brown
5. 9th November 2005 came a reply from an HCC Senior Solicitor confirming that Sec.15 of the National Parks and Access to the Countryside Act 1949 applied and “for incidental use by the public for air and exercise’.
   2005 EMAIL from HCC Senior Solicitor re terms of lease04022021_0001

Next time: The Regulatory Committee meets.

The Battle for Broxhead Common

Gate on BW4 which seems to be permanently stuck in the sand, with part of the 80 acres beyond.

The Case for Hampshire County Council – PART 27

16th September 2003 is the date of my letter to HCC Estates after I noticed some clearance work being done on part of the common. Sadly, no reply received.
2003 HCC Claire Beverley re land opposite rifle range27022021

January 2005. My claim for Bridleways on Broxhead Common was taken up for research.
2005 Objection letter from Whitfield05022021

1. 18th January 2005. It did not take long for one of the first letters of objection to arrive from Mr A. G. P Whitfield, the ‘said’ landowner.
2. First to note in this letter is “Broxhead is vitally important to wildlife and contains habitats and features that cannot be recreated, it is in unfavorable condition and declining, so it is therefore important to ensure that this sight (sic) is not lost it continues to be managed for its wildlife interest, thus forming a vital component of the biodiversity of Hampshire. For this very reason, the common has been leased to Hampshire County Council (HCC) ….”
3. The question which arises from this is, why then has he not followed the Schedule to the Consent Order and either sought authorisation for the fencing or more in keeping with the sentiments expressed here, removed the fences around the 80 acres altogether?
4. Why is it in an unfavourable ‘condition and declining’ when the Hants and Isle of Wight Wildlife Trust has been well funded to manage the whole common since 1978?
5. He goes on to say on page 2 of this letter: “but I strongly object to the notion that this narrow corridor of Hampshire be subjected to any further heavy equine traffic just to satisfy the whims of a handful of local jockeys. Indeed, English Nature objected to proposals for new bridleways back in 1999, I feel confident that their views will not have changed on the basis that this proposal is in direct conflict with the management principles for conservation of this SSSI.”
6. Obviously, a close relationship here with English Nature but no thought to the ‘benefit of the neighbourhood’, and no mention of the Commoners.

NEXT TIME: ENGLISH NATURE objects at local level but then HQ supports!!??

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 26

1. We had a look at the HCC Land Sub-Committee minutes in Part 3 but after reading the letter from Headley Wood farm to the Chief Executives in Part 24, it will be of interest to look again.
2. Paragraph 9 of that document states that: “After lengthy negotiation terms have been agreed by all parties and they were approved by the Court of Appeal on 24th May 1978.” Except of course this was not a matter to be negotiated because it was a matter of LAW. However, the law would be complied with if the Schedule approved by the Court of Appeal for the dismissal of the case, was adhered to.
3. There follows an outline of the package of agreements that the parties have come to, but of note in paragraph 10 is that: “The owner may use his enclosed area with the prospect that the overall package now agreed should enable him to obtain the Secretary of State’s consent to authorise the fencing with support from the County Council……”
4. When at a later date HCC were asked why such authority had never been sought, they replied that since the 80 acres is no longer common land there was no need to seek consent. This is an admission that they had not obeyed the terms of the Schedule to the Court of Appeal which had required application to the SOS for fencing the 80 acres. They are therefore IN CONTEMPT OF COURT.
   Mason to Potter 1989.jpg
5. Paragraph 9d informs that the ‘owner’ will pay two thirds of the costs of the County Council and the B.C.A. in connection with the hearings before the Commons Commissioner and the first appeal (High Court).
6. Hampshire County Council have therefore exchanged the common land for their package of measures and a contribution of costs rather than follow their legal obligations under the LAW of the land.
7. It is now clear that the Broxhead Commoner’s have been denied their common rights and the public their rights of access, because of the criminal actions of their County Council.

Next time: My claim for bridleways on Broxhead Common reaches the top of the pile.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 25

Continued from Part 24.
Letter Porter to HCC Chief Executives 15072019

1. As there was no point of law against the decision of the High Court, the only appeal could be on costs. Brightman J. had awarded costs against Mr Whitfield who was also ordered to pay two thirds of the Respondents costs as well. The Judge gave his permission to appeal the costs saying that if he chose to go there the Court of Appeal would make short work of it.
2. The Judge was right for on the first page of the Consent Order we can see “the said Order in so far as it dealt with costs should be set aside.”
3. However, in the Schedule to the Order on page 5 paragraph 5 it says that “each of the parties shall bear their own costs”
4. Only page 5 is numbered in Mr Porter’s copy but like all other copies shows a misnumbering of the pages, in that page 3 has either gone missing or does not exist.
5. Also of note is that Hampshire County Council now make themselves joint respondents with Mr Connell and Mrs Cooke.
6. Why they felt it necessary to do this when they had not bothered to attend the High Court Case can at present only be a matter of speculation but the question has to be asked if this was to enable the first part of a plan to try to steal the 80 acres of Broxhead Common??

Next time: It is time to take another look at the HCC Land Sub-Committee minutes dated 22nd June 1978. One month after the Court of Appeal hearing.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 24

1. 7th January 2002. A letter from the Headley Wood Estate Manager, Mr Michael Porter to Miss Walters of the Committee Division of the Chief Executive’s Department regarding the CROW Act 2000.
2. Read with the benefit of hindsight, it is possible to see how the malfeasance on Broxhead Common was perpetuated. Starting with paragraph 3 in the letter, it should have read:
   Letter Porter to HCC Chief Executives 15072019
   • “Part of the Common was enclosed many years ago” STOP.
     “After hearings before the Commons Commissioner in 1975 a final decision on the status of the enclosed land was given.” STOP. In fact, this is incorrect as the final decision of the Chief Commons Commissioner is dated 22nd November 1974. However, it goes on to say:
   • “by the Court of Appeal in May 1978.” STOP. This is totally FALSE because the CA had dismissed the case from out of that court.
   • “when Hampshire County Council were instructed to exclude the enclosed land from the Commons Register. See paragraph 3 of the enclosed copy of the decision.”
3. The paragraph 3 referred to is in fact part of the terms of agreement between the parties which enabled the case to be dismissed. The reference to “the County Council not pursuing its provisional registration pending before the commons commissioner of the said area so as to exclude all reference to the said area on the Commons Register” had in fact been overtaken by the affirmation of that decision stated on the first page of the Consent Order itself.
4. However, the inclusion of the necessity of the application for the said fences, “and shall further consent to and support any Application by the said Anthony Gary Peter Whitfield or his successors in title to the Secretary of State regarding the said fences under Section 194 of the Law of Property Act 1925”, obviously secured the integrity of the 80 acres as common land.

Next time: to be continued, issues with the Consent Order.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 23

1. It had been third time lucky for Hampshire County Council to get the diversions it wanted to BW’s 4 and 46, but it would take another seven years to restore the missing link in BW4 by way of a Creation Order in 1997.
2. My focus was to restore not only the missing link in BW 4 but a comprehensive network of paths over the common land which had been and were being used by horse riders. Despite all the foregoing, the aim of the land managers appeared to be to let it overgrow with gorse and brambles so that access by the public was all but impossible.
3. Another path ran across the common land from the newly created BW54 to Cradle Lane. This would be beneficial in taking horse riders off road away from the proximity of the Headley Park Rifle Range. It would also avoid the dangerous bends on the C102 at the end of Cradle Lane and adjacent to the Headley Park Hotel.
4. This path had been in use until the October 1988/90 cyclones blocked it. Since then, I had been asking East Hants District Council if the treefall could be cleared to provide a cheap and easy solution to the problems.
5. A claim for a right of way can take at least five to ten years and more before being taken up for research by the countryside team, so hoping for a quicker solution I had asked Hampshire Highways to consider the problem under sec. 130 Highways Act 1980 where there is a duty of care to users of the highway.
6. Sadly, my not unreasonable request was refused. So on:
7. 16th April 1997, I Judicially Reviewed their refusal and won. The judge said that this was a matter which could be resolved by discussion and agreement.
   2007 Judicial Review granted05022021
8. Obviously not something HCC were keen to do as they rushed to Cherie Blair’s Chambers and had it removed!?
9. In 1999/2000 I submitted the above claims under Sec 53(2) WCA 1981.

Broxhead Common

Broxhead Common

Broxhead Common

Broxhead Common

Broxhead Common unauthorised fence and the stolen common land beyond

Willy and Shep on Broxhead Common

Next time: We look at a letter from the Estate Manager for Headley Wood Farm in response to enquiries about Broxhead Common and CROW 2000.

The Battle for Broxhead Common

The Case for Hampshire County Council – PART 22

1. 3rd February 1992. Planning Inspector D. A. Barker-Wyatt CBE gives his decision.
   PI Feb 1992 Broxhead, Barker-Wyatt06072019 (2)
2. Paragraph 9 of his report speaks of ‘leased heathland’ to HCC rather than ‘common land’! It describes how the land had been cleared and a five-metre wide east-west way was fenced on both sides. The farm manager, “Mr Porter was not aware of any public right of way on the line of BW46 at the time or that BW46 had been added to the Definitive Map in 1965 after a Public Local Inquiry.” He must have completely forgotten a letter he sent to the Clerk of Headley Parish Council in June 1964 in which he says, “I have shown the Public Footpaths, as taken from the footpath map at the Alton R.D.C. Offices, and anyone wishing to ride or walk along the tracks from point A to B and C or D and E should continue to do so.”
   1964 Porter re paths14112020_0001
3. Paragraph 12 discusses the farming and recreational interests of the ‘said landowner’ and Hampshire County Council “caused by alterations to the landscape over a period of 25 years.”!!! A misleading statement that does not qualify for ‘opennesss, transparency or accountability.’
4. Paragraph 16 defines the legal width of the proposed route as 4-5 metres. It also notes the work to be done on the path in the best interests of its users. – NB: recent requests to HCC to have BW46 cleared produced replies to the effect that it was not one of their priorities. They do not it seems, acknowledge that ROW maintenance is a Statutory Duty which they signed up to here, rather than a power to prioritise.
5. Paragraph 26 disguises the original problem which necessitated the making of the Order because the fencing around the 80 acres is still unauthorised.
6. Paragraph 30 confirms the minimum width for the path of at least 4 metres and the groove on the surface to be regraded.
7. Paragraph 35 shows the Inspector is aware of the frustration over the last ten years and obviously hopes that his confirmation of the Order will help in the satisfactory resolution of the other matters.
   Some hope as it turned out.
8. The Order for the diversion of BW’s4 and 46 is confirmed

Next time: The ‘said landowner’ and Hampshire County Council have their way but has it helped the neighbourhood?