Says Bob Milton

I am afraid to disagree with you as the experience in both s38 and Hartlebury in particular and development planning such as in Farnham and Surrey Heath have been specific in the application of a positive weighing of statutory duty supposedly under s28G to the detriment of public access and the inspectors refusal to allow any questioning of the advice given by Natural England.

There has been no application for fencing where the benefits of extensive grazing have been subject to any cost benefit or appropriate environmental assessment to balance landscape or access including displacement nor has there been any attempt to compare alternative regimes which do not impact on those issues since the 1998 s194 inspector’s decision. How can you state categorically that the Hartlebury decision and others do not show an institutional bias and discrimination against the public when the key reasons are given as both the only way for the Local Authority to access HLS funding from Natural England and for the inspector to meet his statutory duty was to grant the application. Both reasons are incorrect in law.

I would suggest that perhaps you and the Inspectorate revisit the decisions made on behalf of the Secretary of State in respect to fencing for extensive grazing to see if the decision making process is as you claim really impartial and seeks to balance all the issues not just the narrow one that the public interest can only be served by a single form of nature conservation, which you seem to imply in your email below.

It would also be appreciated if the Inspectorate clarifies to me its position regarding its guidance to inspectors and its interpretation of its position with regard to s28G(1&2) as by my reading of the twenty or so s38 fencing application which have been granted they all quote the need for the Inspectorate to fulfil its statutory duty above all other considerations and that issue is at the heart of the proofs of evidence from Surrey Wildlife Trust ltd and the supporting evidence of Natural England conservation officers for the forth coming Chobham common fencing for extensive grazing public inquiry as well as being quoted by the applicants for the Padworth, Southborough, Tonbridge, Ashdown forest and Thursley/Royal/Bagmoor commons. The same applied to the decision in the Chailey decision where the supposed overriding statutory duty of the Inspector becomes the back stop to his decision making process.

Your initial response and this one only reinforces my feeling that the fencing/ extensive grazing and associated self closing gates is a done deal with Natural England despite there duty to treat public access equally to nature conservation and that the duty set out in the Habitat Directive has no effect on existing public access by right such as s193 LPA 1925. You should make plain to all involved that your statement in the first response email below ‘However, there may of course be other factors unconnected with nature conservation that might also justify the erection of fencing’ is but one side of the argument and that there may be other overriding factors such as displacement and discrimination as well as the introduction of dangerous self closing gates which are not in the public interest. Consideration should be given to whether there is a reasonable alternative. The test of reasonableness in respect to any alternative management regime, the imposition of dangerous self closing gates or the likely affect on lawful public access through displacement is missing from all the decisions I have read.

It is I believe incumbent on Natural England as a result of its enabling Act not to give one sided and biased advice as was the case with English Nature but to consider the whole effect of its recommendations and any alternatives that may be considered appropriate to meet the reasonable test and not to discriminate against one or more minority user groups. In my opinion at the moment none of the s38 fencing for grazing cases have Natural England give a balanced consideration as to the other aspects of its work and Inspectors have not sort to have those other aspects tested relying on the Inspectorates interpretation of the s28G duty. I look forward to a definitive legal opinion and copies of any guidance to its inspectors from the Inspectorate before the Chobham inquiry on the 17th April. If you need this request to be considered official please do so under the Environmental Information Regulation 2002.

I am sorry if you feel that the Planning Inspectorate or its Inspectors approach s38 applications with anything other than an open mind; please let me assure you that it does not. Decisions are only reached after a careful and impartial weighing of all the available information having due regard to the interests as set out in section 39 of the 2006 Act, Defra's Common Land Consents Policy Guidance and other relevant matters.

There is indeed no statutory duty to find in favour of applications for fencing on the say so of Natural England. The decision-maker must undertake a balancing exercise when assessing a proposal for fencing (as with any application for works) and weigh the likely harmful impact on interests such as protecting the landscape or safeguarding public access against any likely benefits such as furthering, in the case of SSSIs, the conservation and enhancement of the flora, fauna or geological or physiographical features. If the decision-maker concludes that the benefits outweigh the harm then the application should be allowed.

The reasons for a decision must be clear and adequate and enable the reader to understand why the application was decided as it was. In my view, the Inspector's reasons for allowing the Hartlebury application to which you refer are clear and cogent.

Says Bob Milton

Thank you for the response and the back ground correspondence from Hugh Craddock, unfortunately none of it addresses the specific issue of whether the Planning Inspectorate or its Inspectors have the statutory duty to positively weigh the adjudication of any application for conservation fencing as stated in decisions such as we saw with Hartlebury. My point is, I believe, clearly set out in my letter to Sir Mike Pitt that the Inspectorate is adjudicating in a quasi judicial sense and that the arguments have to be sufficiently made to meet the reasonable test [s28G(2)] given all the factors which need to be considered and not to be prejudiced from the outset. It is my belief that such prejudice or bias is discriminatory and ultra vires and brings into disrepute the whole process of s38/39 objections and inquiries if the outcome is preordained on the say so of Natural England, which may have its own or its officer’s narrow self interest at heart [for example with respect to future funding], without taking into account the whole gambit of the enabling Act.

I see nothing in the correspondence to indicate that Inspectors have a statutory duty to find for fencing on the say so of Natural England yet that it seems is what they consistently use as a reason in relation to s38 fencing for conservation on lowland heaths. It is also true that there have been a number of inquiries where Natural England’s advice or decision [eg SANGS] was challenged but the challenges were not allowed for the same reason.