Maureen Comber comments

- I really think we should Judicial Review this decision since no notice has been taken at all

- They are wasting public money in applying to PINS when they know the officers report was inaccurate and misleading.

- If we succeed then a shot will have been fired across the bows of HCC, that they can expect more of the same.

Says Maureen Comber

The only Councillors or decision makers attending were the Chair, Keith Chapman and his deputy Frank Pearce. The latter did not contribute to the meeting in any way having listened to all four deputations.

The Chair simply said he lived near a fence managed in the way described and it had never been a problem as far as he knew, and he did not believe the qualified facts the three were giving him. As for all my points of law he said PINS could argue them at PI.

Not democratic and no localism, as no support being given to the local Cllr who was not there, probably because he knew it would be a waste of time. The decision had obviously been made in Cabinet beforehand.

I really think we should JR this decision since no notice has been taken at all, despite our efforts to personally attend. In addition they are wasting public money in applying to PINS when they know the officers report was inaccurate and misleading. This fact and all the points of law I am making, should be more than enough to succeed in an application for JR.

If we succeed then a shot will have been fired across the bows of HCC, that they can expect more of the same. If we are lucky it may be picked up that they have been acting unlawfully for some time, by taking money from the EU which only farmers are elligible for, and will have to answer for it even if they attempt to quash the Chapman decision.

Maureen Comber writes to Mark Weston,
Director of Access, Safety and Welfare, British Horse Society

- If the BHS do not wish to support the stance we are taking, they should make it clear so that we can then approach the Charities Commission and/or HMQueen as our Patron and anyone else we can think of, for help and advice.

- BHS Members will want to know why little, or inadequate support was forthcoming from the BHS, when their rights of access to sec.193 common land is being seriously impeded and obstructed.

- I would like you to answer one question. Why do the BHS wish to continue to work with these lawless scoundrels rather than do the right thing and call their bluff?

- We need clarity and transparency from you too please. Sitting on the fence any longer will not do.

Says Maureen Comber

Says Caroline Smith-Senior

The Statement presented to the Committee by Maureen Comber

Deputation for the HCC Committee of Culture, Recreation and Countryside
- Wednesday 4th December 2013

By Maureen Comber, Hampshire County Bridleways Officer
for The British Horse Society

Members:

I have grave concerns with the accuracy of the report by your officer Kerriann McLackland as presented to you, because it appears inaccurate and therefore likely to mislead.

I will try and explain.

“Common land in England and Wales covers more than 550,000 hectares of land (3% England and 9% Wales) in 8,675 separate commons. The essential character of many commons has remained unchanged through many centuries and common land is widely recognised as a vital national asset because of the limited extent to which man has exploited it.” [Defra]. It has customarily been protected by the fact that an owner cannot fence it because of the rights of the commoners and the commoners cannot fence it because they do not own it. [Tavener]. To change the status quo and remove this historical protection will undoubtedly put these open spaces at further risk from misappropriation.

This has been recognised by the laws which govern the protection of common land through the centuries, and from 1866 onwards, statutory changes were introduced to protect wastes from inclosure. In 1893 further approvement was forbidden without the consent of the Inclosure Commissioners. There has been no large scale enclosure since.

Until now that is, 110 years later, and after the Commons Commissioners have been abolished! This is in itself strange, since one might have thought, not unreasonably, that they would have been an essential requirement in helping with the formal enactment of Part 1 of the Commons Act 2006, if nothing else. The law governing common land, although sometimes seen as detailed and complex, is very clear when it comes to sec.193 and 194 of the Law of Property Act 1925. This is prominent amongst the vast quantity of legislation which applies, because sec. 193 gives a right of ‘air and exercise’ to the public which includes horse riders. Sec 194 which was clearly written to support sec. 193 is now replaced by Sec 38 Commons Act 2006. This if anything strengthens the legislation by widening the scope of the land to which it applies. There can be no doubt that “The access for the public to take air and exercise, provided by section 193 then, is one form which must not be prevented or impeded.” [Gadsden]

Therefore the application before you, to install fencing on Yateley Common is one which cannot by law be complied with. To have the slightest chance of success there would have to be in place a Commons Council set up under the 2006 Commons Act which was in unanimous agreement with the neighbourhood and the land owner if any. An unlikely scenario in any event if only because of the outdated common rights registers.

This again presents a difficulty because whether or not Hampshire County Council actually own Yately and other common land in a manorial sense, it will be found that in fact the land is but vested in them for its protection. This enables them to do no more than protect the land in the same way an owner might do. One of the requirements of that ownership or vesting is the protection from fencing or encroachment.

It therefore seems to me that there is a direct conflict of interests involved with this application!

2.6 of the report shows the support of Natural England for grazing, as being beneficial to the future management of the land. That is in spite of, as stated in para 3.5, ‘the difficulty in quantifying savings because of the necessity of continued mechanical management, labour and a range of tools which will still be required?’ In addition, no scientific studies have been presented supporting the benefit of grazing cattle on lowland commons. These have never been customarily used for grazing in an agricultural sense! The product of the land was used for the socio-economic needs of the commoners such as wood for domestic fuel and bracken for bedding etc.

This then brings me to paragraph

3. Finance The report states that the proposal will be funded through the HLS and Single Farm Payment schemes. I would ask how that can be when the law is as follows:

“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)

As Yateley Common is not a farm I would like to know, please, if Hampshire County Council have registered themselves as farmers and on what basis they have done so? Over what period of time they have been receiving payment for any of the above schemes on Yateley and other Hampshire Commons, and to whom it is paid? I am in correspondence over these concerns and other closely related issues with my MP, Defra, Natural England, the Attorney General and the Supreme Court, as there seems to have been serious breaches of trust with the management and ownership responsibilities of common land and indeed the law itself. Natural England say they are finding these matters are detailed and complex so need more time to complete their investigations. In view of this I would humbly suggest that Members should seriously consider whether this is the right time to consider this application, rather than at a later date when more information on the legalities will be available. They should also take note of paragraphs 2.10/11 of this report which clearly shows there is not unanimous agreement with the proposal from the commoners, councillors or the neighbourhood; this would be prerequisite ahead of any application to the Planning Inspectorate. [Defra]. Members are also now informed of points of law which were not included in the report from the officer, and do not appear to support the application or the proposal.

Are you also aware that for:
Consents to works on common land although

The Planning Inspectorate has responsibility for determining applications for statutory consents in relation to common land and town or village greens. Consent is generally needed from the Secretary of State for any restricted works on registered common land. Restricted works are those which prevent or impede access to or over the land, which might include erecting fencing, constructing buildings, digging ditches, but also includes the resurfacing of land with tarmac and similar materials. [Defra]
Therefore to proceed at this point could be costly and time consuming especially if your decision became the subject of Judicial Review.

Just one more thing and on a somewhat different subject. Please may I ask for an explanation as to how it is, that despite asking the Chair of the Regulatory Committee to ensure I had detailed answers to the list of questions sent to all members before their last meeting, (20th Nov. 2013), in which proposals to divert various bridlepaths on Yately Common were given approval, I have heard not a word. Please may I be advised who to contact so that the answers are at last forthcoming?

I would also like reassurance please, that I will not again be threatened with the implementation of HCC’s unreasonable complainant behaviour policy when my questions cannot be answered reasonably or truthfully or are for that matter just ignored.