Says Bob Milton

You will note that various Inspectors and the planning inspectorate [ie Richard Hepburn] have various differing interpretations. On Chailey that was twenty years and for chobham it was six months per year forur five years. Odiham was five years x twice.

Also it is important to understand that any stewardship agreement signed without the legal agreement to implement is unlawful and any moneys paid would in my opinion be fraud. It is also my belief that the signing of stewardship agreements prior to consultation is de facto a complicit scam by Natural England and the applicants as no amount of objection will change the agreement or its implementation.

On top of that it is NE is paying CAP money for existing access on two accounts. the first for gates, fencing and cattle grids on land which already has public access by right and the second for the consultation which aims to displace or restrict exisiting public access by right. These are again, I believe, a fraud though this time against the EU Commission.

There are no powers under the Habitats Directive or any of the legislation enacted in its support that empowers NE or anyone to remove or restrict exisiting public access which is by right even though NE has based the whole of its Thames Basin Heaths SPA Access implementation policy on such a supposition through primary legislation.

Read Bob Milton's full discussion on The Meaning of Temporary below

Says Maureen Comber

Very well done Bob.

We certainly need a Court decision on that one.-------------------------

The meaning of Temporary

The following may help, although it looks like it night need a JR to establish what 'temporary' means in the context of S.38 decisions

A. Lewison J quoting Cooper v Cadwalader at 35 in Revenue & Customs v Grace [2008] EWHC 2708 (Ch) (11 November 2008)

"temporary" does not mean the negation of perpetuity, but means that it is casual or transitory

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Kitchin LJ at 17 in Giles v Tarry & Anor [2011] EWCA Civ 1553 (30 November 2011)

Mr Hill-Smith submits that the judge fell into error because the regular and systematic use of the hovel for lambing every year cannot be described as temporary, because it is neither transient nor does it meet what may be described as a passing need. I am persuaded -- just -- that on this point too Mr Giles has a real prospect of success.

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9(3) in De Brito & Anor v Secretary of State for the Home Department [2012] EWCA Civ 709 (30 May 2012)

longer than 6 months is not considered temporary:

Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

and at 31:

These definitions give strong support for the argument that a state of affairs which is not permanent is temporary although, reflecting Mr Gulvin's submission, temporary is also regarded as lasting only a short time.

Norris J at 28 in Giles v Tarry & Anor [2012] EWCA Civ 837 (21 June 2012)

The meaning to be given to the word "temporary" is the meaning that the word has in the context of the Conveyance. It plainly does not have a single legal meaning in all legal contexts: each party on the appeal recognized that the other's reading of the word was one which the word could bear. I consider that the judge correctly recognised that the word was an ordinary English word containing within it a variety of nuances (some of which would be more prominent than others when the word came to be applied to different sets of facts). I consider that he correctly held that whether a particular use (or combination of uses) was "temporary" was a question of fact and degree:

This seems to be at odds with Sue Arnott's recent decision for Pound Green Common where she recognises, in a directly parallel case regarding rights, that anything she decides cannot stop the exercising of various pre-existing rights, and goes out of her way to make sure she doesn't. In RH's Hednesford Hills decision he clearly completely stops any rightful access by horses with approval of the kissing gates to certain areas of a S.193 Common. The SOS's inspectors are not being consistent, and RH should be first up against the wall come the revolution.

See in particular Sue Arnott's para's:

46 ...Whether or not rights are taken up, they continue to exist in law....

63 .... However, despite there being no submissions made that private access would be needed for bicycles or horses, I am concerned that these are not provided for at all in the proposed arrangement. Further, those with rights to graze animals on the common would have no way of bringing them onto the common...

64 The demand for such access may not exist at present but in my view it should be accommodated....

72 ...but with the addition of a field gate for the use of non-motorised private traffic

79 ...the gradual decline in grazing over the last half century cannot remove the legal right of the commoners to exercise their rights.

114 et seq She devotes a whole section to maintaining The protection of public rights of access

141 As regards the effect of the works on access generally, gates will be provided in the fencing at convenient entry points, the green itself would still be open and accessible...

148 In addition, to protect the interests of residents living within the common, I consider it necessary to provide a field gate for private use in the new fence at the green, located at its southern end.

Regarding 'Temporary', in 129, she addreses the conditions and clearly considers not more than 6 months 'very temporary' (NB Bob, is there a distinction between temporary and very temporary? Isn't it either temporary or not?)