PannageMan

PannageMan

About this blog

An occasional blog about commons — and just possibly even more occasionally about village greens and rights of way. New posts will be tweeted at @PannageMan.

The withered arm

GeneralPosted by Hugh Craddock Tue, July 05, 2016 10:11:03

Debbie and I acquired a horsebox about eight years ago. It opened up many new opportunities to explore the Surrey countryside on horseback, riding our two horses. One of the hacks which quickly became a favourite circuit is based on the rough parking area at Albury green (actually part of Albury Heath). Most riders who come here, whether from local stables or, like us, in a horsebox, then head west down Sandy Lane and up to the many sandy paths on Blackheath, which is indeed rewarding.

But we soon 'discovered' a more diverse ride to the east. It takes us over Shere Heath, down the deeply incised Dark Lane, over two fords on Chantry Lane and the delightfully narrow Rectory Lane, through the heart of Shere village (teeming with visitors on bright weekends), east towards Gomshall, then up Tower Hill Lane — another sunken lane doubtless of great vintage — and down Jesses Lane before heading west again along cross-field bridleways, descending down an enclosed path to Hound House Road, up to Parklands, across the bridle crossing over the railway at Shere Heath, and back to Albury Heath. We come this way perhaps once every month or two: the land is well drained, and the paths a pleasure in every season.

Dark Lane Copyright Stefan Czapski and licensed for reuse under this Creative Commons Licence.

Or at least, we did. Yesterday's ride demonstrated the long term impact of successive years of cuts to the county's rights of way budget. Whereas, when we first came this way, paths might have got cut three times a year, now there are funds sufficient for only one — and that's true of most paths in the county. Tackling vegetation just once a year is always going to be far from sufficient: if the contractors arrive late in the summer, that leaves users to press through the entire growth of the spring. While if a vernal cut is done, much will regrow during the summer, and passage may well remain restricted even through the following winter. Horse riders are particularly disadvantaged by overgrowth:

  • horse and rider are taller than walkers, up to about 2.75m, but contractors may not be paid, bother, think, or notice, to clear above head height,
  • whereas walkers might use a stick or secateurs to deal with overhanging vegetation, it's not so easy to do that on horseback, and could set off the horse where careful progress is most required,
  • horses are as susceptible to, and averse to, nettle stings and bramble scratches as humans, but have no means to insulate themselves (such as thick trousers or an unfurled map!) — see this posting on Facebook for what can happen [Facebook login likely to be required],
  • low branches or projecting brambles are hazardous: the horse has little sense of any obstruction above its own height, and the rider must watch out for him or herself — else the rider may be injured or knocked off.

Over the last ten or fifteen years, the bridleways, lanes and indeed many roads we have been riding have been getting narrower and more hemmed in. This is because the use of contractors on diminishing budgets has established a cycle of decline.

Each contractual period, firms bid for the cutting contract on price. Once the contract is awarded, they have no incentive to perform on specification, and will do the minimum that is necessary to permit passage (at least, on foot). The contract will provide for a minimum width, but will not take account of the character of the path, so each year, the vegetation on the outer edges of the path becomes better established and closes in. After a few years, saplings growing in the margins become trees, and can only be removed with a saw, which would add time and cost to the performance of the contract, so they are left. Those trees project branches over the path, or lean into the path to draw light, which narrows what is left for the user (and creates more work for contractors in future years: but that will be some other contractor's job). The council has no wish to demand compliance with even the limited contract specification, because to do so would push up bid prices in future — and the council cannot afford to pay more. So each party turns a blind eye to the specification. Ways which were once broad lanes become narrow paths, and even if cut to specification, allow for little more than the profile of a horse rider in the days immediately after the work has been done. Three months later, however, or after heavy rain weighs down all the branches, it is very different.

And so it was yesterday. We are familiar with Tower Hill Lane, an old sunken bridleway heading south out of Gomshall, as a steady uphill trot for the horses, but no more. Nettles infest the first thirty metres, while endless low branches on the lower section make it unwise to pick up any speed. The top part has always been a bit narrow, but now, the combination of brambles, bracken and holly made it all but impassable: had it been physically possible to turn round, we would have done. I had brought a pair of secateurs with me, but it is hard to do more than remove the most threatening strands which are suspended provocatively across the path when you're mounted. The outcome was a left arm covered in scratches, horses' flanks covered in nettle stings, and an £80 new pair of breeches looking like they're fit only for mucking out.

We can, and will, report the overgrowth to the council. The rights of way team has recently lost three officers and has a huge backlog of unfulfilled reports. Even if there is someone to act on the report, there probably won't be any budget to deal with spot problems, and these paths will have to await their annual cut. We don't know when the cut will take place: it could be this week, or it might not be until the end of the summer — or it might have already taken place, and that's it for this year. I'm not sure even the council officers know, individually, which path is cut when: that may be a matter of considerable discretion for the contractors (which will also save money). So we have no idea when it might be sensible to return, although a visit during the winter might be more realistic. Instead, perhaps we will head west in the future, along with all the other riders, and ride over the unenclosed tracks on Blackheath instead.

Some will say that a few overgrown paths impassable to horse riders is no big deal at a time of searing cuts to public services. Yet these are paths in one of the most popular areas for rural recreation in England: about 40km from central London, easily accessible to millions, hugely popular for walking, cycling and horse riding. If paths in the Surrey Hills are becoming difficult to use, what can we expect in the more remote parts of England (to find out, try reading Catriona Cook's day 8 blog of the Journey for Access from Dartmoor to the New Forest)?

After the ride

And if motorists think that they're immune from such trials, don't be so sure. Just the same cuts are being made to road maintenance budgets, and in the same way, many roads have their vegetation cut just once a year. Trees have become well established in the verges and hedges, many roads have become enveloped in walls (and often ceilings — try a double deck bus route in the countryside) of greenery, and we have greatly increased the costs of future maintenance by reducing expenditure in the short term. Try taking a delivery van down some of those minor roads which we road last weekend, such as Chantry Lane, and you'll find it's not just horses and riders that end up with scratches. On some roads, even motorists struggle to avoid the overhanging brambles and branches, and this will continue to deteriorate.

A concluding thought: last year, Chantry Lane, which apart from being a useful road for walkers, riders and cyclists, also serves two cottages, was resurfaced. There was nothing particularly bad about the state of the road before, but the highways authority, like many others, receives additional, ring-fenced funding (Surrey receives nearly £1m in 2016–17, now virtually the only grant paid for specific purposes) for resurfacing roads. So it is that the council can afford to resurface a truly minor road to some cottages — but it cannot find the funds to keep the high, roadside banks from closing in over the smart new blacktop.

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Gov.uk on commons

GeneralPosted by Hugh Craddock Sun, December 06, 2015 11:05:45

Government guidance on commons and greens, most notably on applying to update the registers of common land and town or village greens held by certain local authorities (i.e. 'commons registration authorities'), has undergone the transformation to 'smarter guidance', part of a Government-wide project to reduce the volume of all public sector guidance, and to improve its quality, consistency and accessibility.

The key to the new guidance is the launch page, Common land: guidance for commons registration authorities and applicants, which contains links to specific pages of guidance in two groups, targeted at commons registration authorities, and at the public who may have an interest in the registers.

The original guidance was published in two volumes targeted at the same two interests. Each volume was pretty lengthy: the guidance to authorities (ver. 2.0 is currently still available on gov.uk, and in any case, via the National Archives) tallied at around 180 pages. The new guidance, which is advertised as at 'beta' stage, is divided into several now much briefer themes. Guidance to authorities is available on:

And the same themes are available to anyone looking to make such applications (there is, understandably, no parallel theme for maintaining the register):


Much has changed. Indeed, the switch to 'smarter guidance' is not the first occasion on which the guidance has been pared down: version 2.0 replaced version 1.43 in December 2014, and at that time excluded guidance about commons councils, the protection of common land, local authority schemes of regulation and management, 'intervention' (enforcement), vehicular access over common land and greens, deregistration and exchange, and public access rights over common land, all contained in chapter 3, which is as close as Defra has got to fulfilling the Parliamentary commitment to publishing a circular on common land (Lords Hansard, 30 Nov 2005, Col.281) — albeit the guidance has never formally applied outside the commons registration authority areas pioneering Part 1 of the Commons Act 2006.

The new guidance is concise, even terse, and lacks an explanation or context: the commons registration officer is informed, for example, that two authorities may enter into a straddling agreement as regards land straddling the authorities' common boundary (so that "only 1 [sic] of you’ll [sic] be responsible for the registration of that land"), and even that agreements made before 1 April 1974 expired on that date — but not the legislative authority for such agreements, nor the legislative cause of the demise of pre-1974 agreements. This isolation from the legal context is found throughout the guidance (indeed, it's common to smarter guidance generally) and may make it less daunting and therefore helpful to the casual reader, but it may also impair its utility to a local government officer who wishes to understand, and justify, why the guidance is framed as it is. Nor does the new guidance offer the local government officer any interpretation or explanation of the legislation beyond the bare recital of its requirements. So, for example, the guidance to authorities on dealing with applications to register a statutory disposition (such as a compulsory purchase order affecting common land) states that: "Statutory dispositions normally come into effect after the date on which they’re confirmed. You’ll need to check its [sic] terms to find the date on which it has or will come into effect, as you can only register land or rights after that date." But there is no illustration of what this might mean in a particular case, or what to look for in the statutory disposition, as there was previously, to ensure that the instrument is effective and capable of being registered. Exceptionally, the guidance to authorities on registering a new town or village green does include some references to case law, albeit the citation of cases is inconsistent and truncated, and there are no hyperlinks to Bailii.org or elsewhere.

Inevitably in such a large rewrite, a number of questionable aspects have found their way into the text. For example, in advice to authorities on dealing with applications and proposals:

  • • under amend your register, the advice is that, "If you make an amendment that isn’t a deletion, you must transfer the information on the whole sheet to a new form" — this advice is based on r.8(1) of (The Commons Registration (England) Regulations 2014), but this requirement applies only if the register sheet is non-compliant with the 2014 Regulations;
  • • under site visits authorities are informed that: "You can visit unclaimed land without permission", but the definition given of what is unclaimed land makes the advice questionable even if one assumes that it is proper for an officer without a power of entry to enter onto land because the owner cannot be identified;
  • • under land or rights that belong to the Church of England, authorities are advised on how to deal with "land or rights that belong to the church", but the advice is relevant only to land or rights that belong to a benefice (and which are held by the incumbent where one has been appointed), and not where the land or rights belong to the Church otherwise.

I submitted these observations to 'Is there anything wrong with this page?' today, so we'll see what happens.

Perhaps the most remarkable diminution in guidance is that specifically directed at applicants to register a town or village green, which is now contained in Commons registers: apply to record new events, under Apply to register a town or village green. This now comprises 43 lines: indeed, one will find more (82 lines) in the preceding section on Apply to register a statutory disposition (there is more about the mechanics of making an application in the separate guidance on Commons registers: how to apply to make changes). The potential applicant would be well advised (but is not advised) to refer to the somewhat more detailed guidance provided to the commons registration authority — or better still, to refer to the guidance published by the Open Spaces Society, Getting Greens Registered. Section 7.11 of version 1.3 of the guidance to applicants in the pioneer areas (not found online) published in 2013 provided over six pages on registering town or village greens, while version 1.3 of the guidance (available via the National Archives webarchive) to applicants elsewhere in England specifically on registering greens extended to 20 pages. For those who yearned for further detail, section 8.10 of version 1.43 of the guidance to commons registration authorities (available via the National Archives webarchive) published in 2011 filled 26 pages, much of it drafted by a well known barrister specialising in town or village greens cases.

Yet while it remains possible to access some earlier versions of the guidance, it is not kept up-to-date, and the lay reader will have no likelihood of locating it, let alone any means of knowing whether any particular aspect of it remains valid. The majority must therefore rely on what appears on gov.uk. It is not hard to understand why the new guidance lacks much of the content of the old — content requires revision, and revision requires resources. The law on registering town or village greens in particular continues to evolve through challenges in the courts, and what was written several years ago — even by a barrister — may be misleading today. Still, it is a pity that no signposts have been included to direct the lay reader to more fertile sources of guidance.

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Decision making in local authorities with executives

GeneralPosted by Hugh Craddock Sun, February 15, 2015 11:01:32

DCLG is half way through a consultation on the proposed Local Authorities (Functions and Responsibilities) (England) Regulations 2015. The regulations, if made, would not be novel, but would consolidate the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 and no fewer than 15 amending regulations. The consultation closes on 6 March and one suspects that the intention is to make the regulations before the end of March in order to clock up the revocation of a further 16 statutory instruments before the election.

The regulations are a consequence of the legitimisation of executive forms of local government introduced by Part II of the Local Government Act 2000, meaning that, where authorities have an executive in place, many decisions must be made by an executive mayor or a small cabinet of executive councillors. The effect of s.13 of the 2000 Act is that decision making is vested in the executive unless regulations provide otherwise. Broadly speaking, the regulations tend to provide that regulatory functions are not capable of being discharged by the executive: e.g. licensing and planning development control. However, any function may nevertheless be delegated to officers, either under s.101(1)(a) of the Local Government Act 1972, or under s.14, 15 or 16 of the 2000 Act.

As an example, the existing regulations (para.3 of part I of Sch.1 to the 2000 Regulations) require that the 'power to divert footpaths and bridleways' under s.119 HA 1980 is one which cannot be exercised by an executive member, but must be done by committee or by council (or by an officer, if an appropriate delegation is in place). This is why highway authorities have rights of way, regulatory, or similar committees to discharge these functions, even if they operate executive arrangements, and of course, why every planning authority still has a planning committee.

The consultation is of considerable relevance to highway authorities, because of the continuing requirement that public path orders are not made by the authority though executive arrangements. Note, however, that the relevant entries in Part I of Sch.1 to the draft regulations refer to exercising the power to 'make' an order, which suggests that confirmation of an unopposed order could be done by the executive.

There are also various other specified commons, CROW access, highway and rights of way functions which, generally as before, are excluded from executive arrangements, including:

  • power to enter into agreements to form means of access under s.35 CROW 2000
  • power to create means of access under s.37 CROW 2000
  • registration functions under s.13 Commons Registration Act 1965 (with exceptions)
  • registration functions under Part 1 Commons Act 2006 (with exceptions)
  • power to apply for enforcement order under s.41 Commons Act 2006
  • power to protect unclaimed common land under s.45 Commons Act 2006
  • power to authorise gates and stiles on public paths s.147 Highways Act 1980

There is also a rather bizarre removal of reference in the regulations to determination of applications for public path orders under s.118ZA of the Highways Act 1980, because that provision is not yet in force, yet with Royal Assent to the Deregulation Bill imminent, it may well be commenced in the next few months (the consultation does not even mention the parallel s.119ZA). From which one might guess that there has been no thorough prior consultation within Government, and it's all a desperate rush to complete the job before Parliament is dissolved and no new regulations may be laid before Parliament.

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Welcome to PannageMan

GeneralPosted by Hugh Craddock Wed, October 23, 2013 23:05:35
This new blog will accompany the Twitter handle @PannageMan, and will contain occasional posts expanding on tweets mainly about common land: news, court cases, notable applications and decisions, perhaps even the odd visit. It may stray into town and village green and rights of way territory too. Any views expressed here or on Twitter will be entirely my own.

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