Bob Milton writes to Pippa Langford, Natural England

- The lack of guidance to NE officers in signing agreements where public access is by right [ie not by CROW] is a serious failing and which we were promised would be rectified but it has not.

- The condition that fencing and self closing gates is written into the scheme agreements with no consideration of the likely consequences which include physical damage to equestrians and displacement. Perhaps the latter is the underlying reason ie to unlawfully remove existing rights to air and exercise and recreation through subterfuge.

Says Bob Milton

I understand that you have the powers to pay third party contractors of public bodies but not where those third parties are executing work which is covered by statutory duty.

All the freeholders of lowland heaths commons on your recent list and I am sure many more [over 100 agreements exist] which are in the possession of s28G bodies eg MoD on training lands and local authorities where the land is held for public recreation, and to which the statutory duty under s28G applies cannot divest themselves of that duty and enable their third part contractors – which you call contractual licensees, to be paid for what is the landowners statutory duty.

The work required to maintain and renovate to favourable condition on SSSIs is statutory duty and therefore cannot be paid for under stewardship. That is what NE is doing and such payments in the majority of cases seem to be to wildlife trusts acting as third party land management contractors. This was made clear in the original Stewardship compliance regulations and guidance but has since been slowly dropped.

The case is not that you have paid directly to s28G bodies but are paying for the work those bodies have a duty to do. If they do not have a duty to do the work then the works cannot be considered as relevant for stewardship so no payment can be made directly to the public bodies or indirectly to the third party contractors. It is that payment which I believe is fraudulent in terms of the EU.

On top of this issue is the consistent refusal of NE officers to confirm in relation to stewardship agreements that the legal agreement required by the regulations with all the commoners actually exists. I have not come across one stewardship scheme on lowland heath commons where a legal commoners’ agreement actually exists. Mostly they refer to consultation which may or may not be true and verbal agreement with some of the commoners. This is not sufficient to meet the stringent requirements under EU Stewardship rules as NE cannot enforce when the agreement is broken or when NE require the reduction in lawful exercising of rights.

The opposite holds true as can be seen from commons like Tadley where despite over £600,000 having been paid the visual deterioration is plain to see as is the reduction in public access rights to just a few overgrown tracks. The lack of guidance to NE officers in signing agreements where public access is by right [ie not by CROW] is a serious failing and which we were promised would be rectified but it has not.

It is also not sufficient to say that PINS grants consent for fencing and gates as we have seen the basis of PINS actions on behalf of the SoS is confused and even what we believe is the unlawful granting consent to a local authority on the grounds that it had to have consent to activate the HLS payment as freeholder, which the LA claimed. Evidence shows that the LA was only vested the land under s9CRA1965 for the protection of the land not to manage it for nature conservation. The condition that fencing and self closing gates is written into the scheme agreements with no consideration of the likely consequences which include physical damage to equestrians and displacement. Perhaps the later is the underlying reason ie to unlawfully remove existing rights to air and exercise and recreation through subterfuge.

I would also make it clear that I disagree with the use of the rural register as a foundation of what is agricultural land for the purposes of deciding on the power to pay stewardship monies as it does not disclose the reason for holding the land or the dominant tenement for which the land is used.

The quote from the eminent academic lawyer Charles Rogers - Newcastle University School of Law I believe supports this view

“Measures under the EC Rural Development Policy are only available for applicants engaged in 'farming', and are therefore inapplicable if a common is not put to an agricultural use. The determining factor here is the economic use to which commoners put their rights, rather than the nature of the rights themselves - only common rights holders who are registered as farmers for the receipt of European Community subsidies can claim agri-environment payments under schemes such as ESA, ELS or HLS.

It follows that agri-environment schemes such as HLS have no potential application for the management of 'recreational' commons or those whose primary feature is (paradoxically) their high nature value rather than their value as an agricultural resource." (Rodgers)

‘Contested Common Land’ Rogers et al 2011 [ISBN 978-1-84971-094-7]

I do hope that some proper consideration of these issues are made soon.