Page 1

Waymark

INSIDE

IPROW – working for access professionals

VOLUME 23 • ISSUE 3 • WINTER 2011 • ISSN 1363-7649

What is ‘The Localism Bill’?

P. Ramorum – the next Foot & Mouth?

Crown land and claimed public rights of way

Page 8-9

Page 10-11

Page 12-15

News in Brief

Page 16

Protecting public benefits …or selling the family jewels?

Page 17-19

World Trails Conference 2010 In early November, the first World Trails Conference was held on the breathtakingly beautiful island of Jeju, South Korea. The Cotswold Way Officer was invited to attend on behalf of the 15 National Trails in England and Wales, and this fantastic opportunity to exchange ideas with trail managers from around the globe was not to be missed... James Blockley reports from the World Trails Conference.

James Blockley The Cotswold Way National Trail Officer

Walking on Jeju Olle

T

he World Heritage Site of Jeju is a large volcanic island off the south coast of Korea. Almost sub-tropical in climate, the scenery passes from windswept coastline, through countless tangerine groves crisscrossed by distinctive stone walls, and up to the 6,400 foot peak of Hallasan, an inactive volcano and the highest mountain in South Korea. Inspired by the unique natural beauty of the island and experiences on European longdistance walking routes, in 2006 a dedicated group of volunteers began seeking out a way of promoting access to the coastline of Jeju, discovering old paths and creating new ones. Just four years later, and after a vast amount of work and private sponsorship, Jeju Olle is now the most popular of Korea’s few promoted walking routes. So far it provides over 200km of well-signed and excellently maintained paths, but the project has in no way exhausted its momentum, and plans to extend the trail to encircle the island over the coming years.

trails, organisations and countries present: • USA: The John Muir Trail • Spain: Camino de Santiago • Japan: Shikoku Tourism • China: Volksport Association • Canada: The Bruce Trail • France: Federation Francaise de Randonnee • Australia: Parks Victoria – The Great Ocean Walk • Switzerland: Tourism and Hiking.

Proud as they should be of this wonderful achievement, the Jeju Olle Foundation sought to promote their trail internationally whilst seeking inspiration from other, older longdistance walking routes by playing host to the World Trails Conference in November. Perhaps the first conference of its kind, it brought together trail managers from all over the world for three days of dialogue, discussion and debate... with a little walking thrown in for good measure.

Nerve-wracking as it was, I was given the chance to add the Cotswold Way to the list of presentations. So, in front of nearly 200 people from across the globe, I gave a 30 minute talk using the Cotswold Way as a case study for the National Trails model. Beginning with the legal framework, I went into a bit more detail on how our trails are managed and funded, who they are for, and what makes them so uniquely special. Concentrating on volunteer input, and the efforts we make to keep our trails up to standard, it was a chance to demonstrate the British pride in our rights of access, and the special place the natural landscape has in our national consciousness. To my relief, and somewhat to my astonishment, the talk was extremely well received and generated a lot of interest from the other delegates, primarily in rights of way law, volunteer management, and

The first day of the conference was taken up by inspirational and compelling presentations from just some of the Jeju Olle Route 3 – Cotswold Way Friendship Trail

WAYMARK WINTER 2011

With such a large geographical spread, the presentations gave the fascinating chance to draw comparisons on how promoted access is managed, funded and protected in different countries and cultures. Whilst each trail and each country had their own set of constraints and opportunities, the common theme running through all the talks was one of people and nature – and how trails can serve to bring the two together.

continued on page four

PAGE ONE


Contents World Trails Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4 & 5 James Blockley Editorial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Ed.

Waymark Waymark is the journal of the Institute of Public Rights of Way and Access Management (IPROW) Editor: Mike Furness Telephone : 01844 358241 e-mail: editor@iprow.co.uk

IPROW PO Box 78, Skipton North Yorkshire, BD23 4UP Telephone: 01768 840428 Training: 01536 514749 Training e-mail: training@iprow.co.uk IPROW Website: www.iprow.co.uk Board of Directors President: Marilyn Meeks Treasurer: Chris Scaife Jayne Benson Richard Cuthbert Fiona Plane Ruth Rourke Emma Noyce Will Steel Executive Officer: Lisa Smith Executive Officer/Company Secretary: Geri Coop Accounts Administrator: Val Richardson IPROW was formed in 1986 and is the only organisation dedicated to representing access management practitioners in Great Britain. For membership details and Waymark subscriptions contact IPROW at the above address, or on membership@iprow.co.uk The views expressed in Waymark are not necessarily those of IPROW, its Directors or Waymark. It is part of Waymark’s role to stimulate informed debate; contributors may express views that are contrary to those of IPROW or its Directors. Your contributions are needed. Please send articles, photographs or ideas to the Editor at the above address. All material is copyright IPROW unless otherwise stated. © Institute of Public Rights of Way and Access Management 2011. Permission to reproduce extracts will usually be given provided that the source is acknowledged.

Designed and printed by Peter Turpin Associates Limited, York.

WAYMARK WINTER 2011

Member news. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Letter from the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Marilyn Meeks What is The Localism Bill? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9 Ed. P. Ramorum – the next Foot & Mouth? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11 Ed. Crown Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-15 Sue Rumfitt News in brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Protecting public benefits …or selling the family jewels?. . . . . . . . . . . . . . . . 17-19 Mike Furness Training News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Geri Coop

STOP PRESS DCLG has launched a consultation into the proposed Community Right to Buy and Right to Challenge under the Localism Bill. The consultation documents can be found at www.communities.gov.uk/consultations/ and run for 12 weeks fro February 4th. Tim Chinnick at Wiltshire County Council has just finished the Diploma at Sheffield Hallam University with a distinction. Congratulations, Tim. In the Yealden Woods case (Leeds Group plc v Leeds City Council [2010] EWCA Civ 1438, case no A3/2010/1194 http://www.bailii.org/ew/cases/EWCA/Civ/2010/1438.html) the Court of Appeal has ruled that evidence of recreational use for greens claims may come from more than one neighbourhood. This is particularly significant for urban greens, where users generally come from a number of surrounding areas.

Erratum In the Autumn Edition we gave incorrect contact details for the Ordnance Survey Rights of Way Team at its new location. The correct email address to use for contacting the OS is rightsofway@ordnancesurvey.co.uk. (Please note that the telephone number quoted in Waymark should no longer be used.) We apologise for any confusion caused.

Next Edition The first digital edition of Waymark will be published in early April. If you would like to contribute to this edition, please submit your copy together with any photographs or illustrations by Friday 25th March. If you have any suggestions as to subjects that you would like to see covered or ideas for articles, please email them to editor@iprow.co.uk.

PAGE TWO


Congratulations IPROW on 25 years providing support to rights of way and access professionals. T Mike Furness Editor editor@iprow.co.uk Tel: 01844 358241

he first quarter of a century is a milestone for any organisation and is something that, as an institute, we should spend the year crowing about. Those enthusiastic and visionary young rights of way officers that got together in Worsbrough Country Park, near Barnsley, in early 1986 would have been proud to know that the infant IPROW they were founding would be such an asset to them and their profession for the next 25 years – and beyond. None could or should have been more proud than Steve Tivey who came up with the idea for an institute and, together with colleagues, organised that inaugural meeting in the Peak District. On behalf of Waymark – one of IPROW’s many on-going benefits, “Thank you, Steve!” While the jubilee is something to celebrate, unfortunately it is not a time for jubilation: IPROW’s members, whole departments and the access systems that depend upon them are all under threat. IPROW, as a mature and respected professional body, will not be quietly sitting on its laurels while the good work of the last 25 years is cut to ribbons. It will continue to provide support to members, to be a resource for them and to lobby on their behalf and that of the tens of millions of access users and others who enjoy the health, quality of life, sustainable transport and business opportunities that rights of way provide. We look to our LAF colleagues and rights of way user groups to work with us to help protect the public benefits that mean so much to us professionally and personally. Membership is very strong but the more members we have, the stronger we are, the louder our voice and the more support your institute can provide for you. So, let’s use this special year to recruit even more of your colleagues in support of Steve Tivey’s big idea.

More information If you would like further information please contact Mike Furness on 01844 358241 or email him at editor@iprow.co.uk

WAYMARK WINTER 2011

25 years is a time to reflect on the thousands of training days delivered, hundreds of pages of Waymark, and countless entries on the Forum; it’s time to remember the development of the Good Practice Guide and the influence IPROW has had on legislation through the Rights of Way Review Committee, and its direct contact

with ministers, lords and MPs. Equally, it’s time to look forward and here at Waymark there are big changes ahead. This will be the last paper edition of Waymark. The Spring Edition will come to you as a ‘pdf’ file. It will be in a format that you can, should you choose, print out onto A4 paper and read as before, but we hope that you will quickly get into reading it on-screen. We are keeping the format as simple as possible, eschewing bells and whistles in favour of an easy-reading layout but with the practical features that we think will really add value. Many of Waymark’s technical articles contain references to on-line documents; with the pdf these will be live links – click on the reference and you will be taken straight to the document. Or, if you want to follow up anything with the author, click on their email address and get straight in touch. Similarly, if an advert catches your eye, click on it to go straight to the website. Simple! It’s going to be a big change and I’m grateful to Geri Coop for the work that she is doing to make the new look Waymark as legible, attractive and useful as we possibly can. We hope to get everything right first time, but, if we don’t, let us know – we’ll try not to take too long to get used to the new media. One thing is for sure, the Waymark of 2036 will look very different, wherever and however you look at it. Some things don’t change: in life, things happen. This edition of Waymark is not at all as planned. Two major features have had to be cancelled at the last moment due to unforeseeable circumstances. This means that there is much more of this edition with the Editor’s prints over it than is desirable. So let me turn this crisis into a good opportunity to encourage you all to send in your thoughts, ideas and articles for future editions. Waymark is here for you – as reader and, I hope, author. I can no longer promise that you will see your name in print but, with the new, flexible, digital edition, I can be much more confident that we will have space for your story.

PAGE THREE


World Trails Conference 2010 the use of off-road mobility scooters to improve disability access. It’s quite a task trying to give a profile of such a large topic in such a short time, but nevertheless it was a fantastic opportunity to promote National Trails on an international stage and definitely gave me personal pride in who we are and what we do. The second day consisted mainly of panel discussions on various topics around trails and trekking, such as cultural events on trails and how the deeper psychology behind walking can cross international boundaries. The depth of understanding and commitment was evident through all three discussions, and the conviction with which people discussed their subjects was infectious. The case studies the previous day served well to stimulate debate, but perhaps the most interesting was titled ‘Creating and Maintaining a Trail Focussing on Ecology and Ecotourism’. Takayama Masaru, of

Basalt stone wall – Baegopeun Dari

the International Ecotourism Society based in Japan gave an inspirational speech on the principles of ecotourism and how they can relate to trail management through tools such as well thought out and practical conservation plans, regardless of the cultural and legal differences that affect trails in different countries. The debate that followed essentially boiled down to one question, a question that trail managers throughout the UK and beyond frequently ask themselves; ‘how do we balance the landscape pressures of increasing visitor numbers against the benefits of promoting access to, and understanding of, the same landscape?’ I’m sorry to disappoint you, but sadly no single magical solution arose, and so the debate rolls on... After two very long days seeing not much more than the inside of a hotel, the third thankfully took us walking along the first section of the 12 that make up the fantastic Jeju Olle Trail. With the site visit timed to coincide with the Jeju Walking Festival, conference delegates were joined by around 1000 walkers and 200 or so soldiers from the South Korean Army who provided a thorough, if slightly embarrassing, half hour of physical exercises. Suitably warmed up, and fully stocked with the ubiquitous tangerines, we saw a slice of the history and scenery that make this trail so special. Before heading back to the coast, ingeniously surfaced paths led us briefly inland and to the top of one of the many smaller volcanic mountains with breathtaking views over the east of

Jeju, where, inexplicably, a Korean pop star was waiting with a flask of coffee and a small stereo to treat us to a Korean language version of Abba’s irritating ‘Dancing Queen’. Don’t ask. For the rest of the day, we left the throngs of walkers and followed Route 3 of Jeju Olle back towards the conference venue. Perfectly signed routes, maintained by volunteers and often installed by soldiers on national service, follow coast line not dissimilar to parts of the South West Coast Path. Through enchantingly thriving fishing villages, they took us across a deserted estuary and over a cliff top where acre upon acre of tangerine skins were laid out to dry in the stiff sea breeze and bright autumn sunshine. Jeju is a beautiful part of the country, and if your carbon footprint is small this year, I cannot recommend it enough as the perfect place for a hiking holiday. Scenery and tangerines aside, Route 3 is a special part of the trail for the Cotswold Way. One of the many ideas discussed at the conference and earlier in the year when the Cotswold Way played host to representatives of the Jeju Olle Foundation, was the concept of ‘friendship trails’. Essentially similar to twin towns, the basic idea is for trails in different countries to team up in the name of partnership, mutual publicity and international cooperation. Realising the scope for part of the Cotswold Way to be a mini Jeju Olle and vice versa, I was keen to demonstrate commitment and at the closing ceremony, amidst

Across the cliffs – Bada Mokjang

Jeju Olle Walking Festival – Malmi Oreum

WAYMARK WINTER 2011

Signing up to Friendship Trails

PAGE FOUR


World Trails Conference 2010

Jeju Olle Walking Festival – Malmi Oreum 2

Conference questions

WAYMARK WINTER 2011

much fanfare for the local and national media (international media being otherwise occupied with the G20 summit up north) I joined the Bruce Trail from Canada in signing a ‘memorandum of understanding’. Switzerland is already committed to the scheme, and with the right level of interest, it really could be something that grows to benefit trails all over the world.

outlook on access to natural environments. But if nothing else, the conference proved that we are similar enough to at least try; that the essence of trail management is the same the world over – seeking to promote understanding and protection of the natural world through the provision of well managed, well interpreted and truly sustainable access.

Apart from a genuine feeling of unity, the other main product of the closing discussions was the proposal for a world trails network. Nearly all of the countries represented had some form of national forum for trails – places to share news, ideas, best practice and responses to legislation, but as far as can be seen, there is no single international network for promoted routes and trails. The conference in itself was a truly successful exercise in information sharing, and although certain notable countries were not represented, it was essentially the first meeting of a ‘world trails network’ in its own right, with all delegates agreeing to take the idea back to their respective organisations in the hope of gaining support and momentum. At the very least, it could be the seed from which a meaningful international forum could grow, and the task that I suggested could be a very useful first test case was to try and devise an international code of conduct for countryside access. However, along with many of the ideas and topics discussed over the three days, this in itself is fraught with the pitfalls of each different country having a different

If you have any questions at all about the conference, or have any comments to make (perhaps there already is a world trails network!) I would love to hear from you. For the time being however, by spring there will be a little a little corner of Korea that will remain forever Cotswolds...

More information For further information about the World Trails Conference or to discuss the World Trails Network you can contact James Blockley at: Cotswold Way National Trail Office Cotswolds Conservation Board Fosse Way Tel: 01451 862034 Northleach Mob: 07738 040456 Glos. GL54 3JH E-Mail: james.blockley@cotswoldsaonb.org.uk For more information about Jeju visit www.jejuolle.org (click on ‘English’ towards the bottom if you’re not fluent in Korean!)

PAGE FIVE


Membership News Congratulations to the following member who has upgraded to Full Membership of the Institute:

Lisa Smith IPROW Executive Officer

NORTH WEST Andrew Smith Bolton Metropolitan Borough Council Welcome to the following new members of IPROW: EASTERN Elizabeth Barham Associate Suffolk County Council EAST MIDLANDS Debby Braund Associate Lincolnshire County Council SOUTH WEST Richard Adey British Army

Associate

WALES Andy Powell Full Caerphilly County Borough Council

IS THIS YOUR COPY OF WAYMARK? ARE YOU A MEMBER OF IPROW? If you answer no to the above questions but you work in rights of way or broader countryside access management then contact the Executive officer (Tel 07000 782318 or email membership@iprow.co.uk) or apply online at www.iprow.co.uk/join just a little effort will result in a host of benefits available only to IPROW members. If you don’t qualify for membership but wish to receive your own copy of Waymark contact the Executive Officer for subscription details.

WAYMARK WINTER 2011

Student Membership The Board of IPROW is pleased to announce that, following consultation with IPROW members, the category of ‘student membership’ has been re-introduced. Student membership will be open to anyone enrolled on a course of study approved by the Directors (or appointed Group) at the time of application or renewal, provided that they do not qualify for any other category of IPROW membership. The only course currently approved is the MSc in Public Rights of Way and Access Management run by Sheffield Hallam University in association with IPROW. We have had three applications for membership from those currently enrolled on the course and have welcomed Mary Mills, John Walmsley and Rob Bowra as Student Members.

Membership Renewals 2011-2012 – Watch out for your form, it will be sent by email this year All IPROW members have already been informed that membership fees will again remain at £52 this year. Not only has the Board of Directors decided that IPROW will

cover the raise in VAT and inflation but it has also removed the administration fee associated with payments made by standing order and paypal. In this way it hopes to help members in these difficult times. (Standing orders are now available on a monthly, quarterly or annual basis). Following one member’s suggestion; this year renewal forms will be sent out by email so please watch your inbox carefully. Not only will this save some expenses but it will allow IPROW staff to pick up on ‘bounced’ forms.

Payments in this Financial Year A significant number of authorities have already asked for IPROW to invoice for membership renewal fees in this financial year. If you have not already done so, but would like to take advantage of this offer, please contact Lisa on membership@iprow.co.uk as soon as possible.

Redundancy Unfortunately the issue of redundancy is bound to affect some members this year. The Directors have agreed that if any IPROW member is made redundant, as long as they inform IPROW of this at membership renewal time, they may either pay their fee and remain a member or have their membership ‘suspended’ for up to 2 years - so that when they then regain employment they do not have to go through the application procedure again. (Members may also, of course, become a Waymark subscriber in the meantime, should they so wish).

Appointment Service IPROW’s Appointment Service is consistently praised for its effectiveness and reliability so, if you have a vacant post to advertise, do encourage your authority to use it and, even better, to state in the advert that IPROW membership is desirable. (For more information on using the IPROW Appointment Service email membership@iprow.co.uk or telephone 07000 782318)

PAGE SIX


Letter from the President A

Marilyn Meeks, IPROW President.

s I watched a recent Sunday evening’s television - with Ray Mears exploring the Canadian Wilderness and Countryfile visiting the Quantocks – it was apparent to me that none of this would be achievable without exercising the right to gain access and to walkthrough these exceptional landscapes.

In a recent article that IPROW had printed in The Ramblers’ Walk magazine I commented on the decades of improvement to the network that is in danger of being sacrificed. All could be lost with the stroke of a pen. Rights of way are one of the most green, if not the greenest means of transport. With the savage cuts that are being made by both Government and Local Authorities in England there is a complete lack of understanding of what our profession undertakes and how much it saves each authority on a yearly basis. It seems memories are very short; we only have to think back to 2001 and the effects that closing the entire rights of way network had with an estimated £5bn was lost to the rural economy. The entire network in England, Wales and Northern Ireland is a major asset to the local and national economies and the £5bn of 2001 is probably double that today. So, with this lack of foresight from the Coalition Government, tourism in this country will fall, not just from foreign visitors but from local as well. The repercussions for local communities are at least tenfold of any ‘savings’ made. We all know the Natural Environment White paper made no mention to Access and Rights of Way but have been told that they will be incorporated in subsequent Acts. Don’t hold your breath! Not when the Secretary of State

has commented that her interests are for conservation and farming, but IPROW did make its voice heard as part of the consultation. I know many of you were annoyed by The Ramblers’ campaign ‘A dead end for walking?’. We did take this up with them in person but also incorporated this in the article for their Walk magazine. They responded that this campaign did have the effect they had wanted but accepted that it backfired on IPROW officers, which wasn’t their intention. Can I ask that you make contact with your local Ramblers’ representative, if you haven’t already? During these exceptional times we need to work with and gain the support of all that use rights of way. Even if you haven’t had a good relationship in the past, The Ramblers HQ has asked all its members to support rights of way and access professionals over the coming years. (This doesn’t mean we will not receive notices in response to a legal order or requests to maintain a path: It will remain business as usual.) I do know that Bolton Council will have a number of section 56 notices served on them as there is no longer a team dedicated to rights of way. The team has just recently been axed due to the cuts and no decision has yet been made as to who will cover rights of way at Bolton. I know it is difficult to remain focused on our day-to-day work but, as professionals, we still have a duty to undertake and I know we can achieve this together. If IPROW can help you, please do contact me at marilyn.meeks@hants.gov.uk or 01962 846091 ■

News in Brief New land designation promised by Defra The Department for Food and Rural Affairs’ (Defra) Business Plan for 2011-15 includes three Structural Reform Priorities. The second of these is to; “Help to enhance the environment and biodiversity to improve quality of life.” The Priority includes a number of Actions. Of note is item 2.1 iv. “Develop, with the Department for Communities and Local WAYMARK WINTER 2011

Government, proposals for a new designation, similar to Sites of Special Scientific Interest, to protect green areas of particular importance to local communities” The action is listed in the Business Plan as having been started and being due for completion in March of this year. Waymark is not aware of any specific consultation about this new designation (please contact me if you know something! – Ed.), but it seems most

likely that this designation will be the ‘Land of Community Value’ briefly described in the Localism Bill (see PP 8 & 9). However, the Bill is silent as to what protection will be given to this land and what regulations will be in place governing the addition of land to this category or its removal from it. You can find the full business plan at; http://www.defra.gov.uk/corporate/about /what/documents/defra-businessplan101108.pdf PAGE SEVEN


What is ‘The Localism Bill’? “Entrepreneurial officers may seek to buy out threatened services.”

W

ith the coalition Government throwing out major reforms like shrapnel from a grenade it is hard to know what will be important to IPROW members and Waymark readers, and what can be left to other interests. It’s not hard to see that the Comprehensive Spending Review is of major import and is already having, frankly, devastating effects on access management and managers in many areas. The financial cuts are being felt immediately by officers and will be increasingly felt by users and rural businesses as time goes by. But it’s much harder to predict the impact of something as experimental and nebulous as The Localism Bill. The Bill was presented to Parliament on 13 December 2010. On 17 January 2011 the House of Commons very briefly debated its main principles. The Commons decided that the Bill should be given its Second Reading and has sent it to a Public Bill Committee for scrutiny. The Localism Bill Committee heard oral evidence on Tuesday 25th and Thursday 27th January but is still taking written evidence. Written evidence1 must be submitted before the 10th March, and the sooner the better. But why should you consider writing to the Committee and what might the Bill mean for you? The Bill is wide ranging but there are several key aspects that may impact on access management:

The Localism Bill begins the delivery of “the six essential actions required to deliver decentralisation down through every level of government to every citizen.” (Department for Communities and Local Government, December 2010. Decentralisation and the Localism Bill: an essential guide, www.communities.gov.uk.)

Allowing authorities to charge the full cost of providing some non-statutory services (s.3) If implemented and, as always, subject to regulations, this power may mean that more of rights of way work could become cost neutral to the employing authority. The increased costs to, for example, land owners seeking diversions would possibly result in a reduction in the

numbers of applications but may have the benefit of providing an authority with an incentive to process them, resolving the current situation where some land owners have proposals held in limbo for years on end. Amending the Community Infrastructure Levy so that some of the revenue will be available for the local community (s.94-95) This may become a valuable source of capital monies in areas subject to major development; the key will be maintaining close links with planners to ensure maximum public benefit. Provision for neighbourhood development orders to allow communities to approve development without requiring normal planning consent (s.96) It’s hard to call how significant these hotly debated changes may be. Developers are split on the effects for them of the overall planning proposals but a particular concern for Rights of Way officers must be that public paths will be more often overlooked if development decisions are taken at the most local level. Giving voluntary and community groups the right to challenge local authorities over their services (s.66-70) Under the Bill’s current provisions any suitably constituted group could put a proposal to an authority to take over the running of a particular service – there appears to be no reason why this will not include the management of public rights of way, parks, open spaces and other countryside access. If a ‘relevant body’ submits an expression of interest in running a ‘relevant service’, the authority will have a duty to consider it. If the authority accepts the expression of interest (EOI) it must undertake a procurement exercise – and in the current political and economic climate it would seem that there would have to be very good reasons for not ‘localising’ the service. Interestingly, two or more employees of an authority may also put forward an EOI for running the service. Perhaps this is a provision which may gather appeal to officers and councillors as local authority cuts bite deeper. There appears to be at least a potential for entrepreneurial officers to ‘buy-out’ threatened services, perhaps even in conjunction with volunteer groups, and offer a more locally responsive service. Local user groups or parish councils could also submit their own EOI if they felt that they could offer a better service, with or without professional input. How

WAYMARK WINTER 2011

PAGE EIGHT


What is ‘The Localism Bill’? realistic this might be will depend very much on the final Act and those allimportant regulations which would follow from it. Giving residents the power to instigate local referendums on any local issue (s.39-55) Many readers will be painfully aware of the capacity of changes to rights of way to generate more heat than light amongst local communities, especially where motor vehicles or promoted routes are concerned. The provisions in sections 39-55 of the Bill could possibly be used by savvy lobbyists to delay unpopular proposals beyond the existing determination, inquiry and appeal processes. But, more positively, the power to request a referendum could be a useful lever for local communities seeing valued services undermined. For example, a user group, if it can raise signatures from 5% of the local electorate, could ask for a referendum on a question relating to the investment that an authority should make in its countryside access provision. If the referendum was held and a majority were in favour of the motion, this would be a powerful steer to the authority to implement the wishes of its constituents. The authority could decline to hold a referendum, but the very act of raising a petition and going through the process of submitting a request for a referendum would, in itself, send a powerful message of what is considered to be of local importance. Preparing a list of land of community value (s.71-88) The Open Spaces Society has been particularly exercised by the ill-defined provisions for preparing and maintaining a list of ‘land of community value’. The society’s case officer, solicitor Nicola Hodgson, has analysed the bill as follows: ‘The bill requires every local authority to compile and maintain a list of land of community value in its area, to remain on the list for up to five years, but inclusion on the list appears to offer little protection to the land. If the owner of such land wishes to dispose of it, a community interest group must be given an opportunity to bid.

WAYMARK WINTER 2011

‘We cannot see how the bill provides any new protection for open spaces which local people enjoy for informal recreation. Indeed, once land is on the list, the owner may be encouraged to consider selling it for development. ‘The purpose of the list of land of community value is not clear. Why does land only remain on the list for five years, and what happens to it after that time? What protection is offered to land on the list? ‘Land may be nominated for the list by others, but it is for the local authority to decide whether it is included. Since much of the nominated land is likely to be owned by the local authority, how can we be sure the authority will be sufficiently impartial? ‘If the owner of listed land wishes to dispose of it, a community interest group must be given the opportunity to bid for it, but there is little chance that the group can raise sufficient funds to buy the land, especially if it is at market value based on any obtainable planning permission. ‘We [OSS] fear that the bill’s provision for payment of compensation to landowners will encourage them to put land of community value on the market. ‘And this bill does not mention the government’s proposed “new designation ... to protect green areas of particular importance to local communities” heralded in the business plans for the Department for Communities and Local Government and the Department for Environment, Food and Rural Affairs. How does the bill fit in with those plans?’ If land is of community value, that value should be protected2; it is after all a primary duty of local government to protect the interests of the public from those of the individual. If the ‘value’ enjoyed by the community is protected then the additional right of a local interest group or community to acquire the land, is to be welcomed. But if it is a case of ‘buy it or lose it’, that is a desperately retrograde step. It is not clear what will happen to land crossed by a public path; does this become land of community value? In

which case, does all land crossed by a public right of way have to go through the moratorium process before it can be sold? This would not be popular with landowners. If land crossed by a path (maybe an unrecorded path) is to be included on the list, this will constitute a charge on that land and so there will be the benefit of the path showing up in searches. But how will the ‘list’ be prepared; how can you meaningfully list an area of land? Buildings, yes, they can be listed, as can many other easily defined community assets, but land must be mapped to clearly define where the community value resides. This suggests a possible repeat of the hugely costly and contentious mapping exercise for Access Land; surely not what the Government has in mind? As usual, whether or not land would be included as land of community value, and just how it will be ‘listed’, will come down to regulations and their interpretation. So just what is the Localism Bill? Is it a threat to the status quo or an opportunity for radical, innovative and progressive reforms? Is it a licence to stall statutory processes or an opportunity for local people to galvanise their reluctant service providers? And just what is the purpose of ‘land of community value’? Whatever the answers, this is just one of many coalition projects that deserves close attention. Editor. 1 Advice on submitting evidence is available at http://www.parliament.uk/business/news/2011/january/lo calism-bill-second-reading/guidance-on-submittingevidence-to-a-pbc/ 2 A new designation ‘similar to SSSI’ is promised in Defra’s business plan – see News in Brief, p.7

More information You can find out more about the Localism Bill and track its parliamentary progress through http://www.communities.gov.uk/localgovernm ent/decentralisation/localismbill/. Two useful guides can also be found at www.communities.gov.uk - Decentralisation and the Localism Bill: an essential guide and A plain English guide to the Localism Bill. To discuss anything arising from this article with the Editor, please call Mike Furness on 07815 886134 or email editor@iprow.co.uk.

PAGE NINE


P. Ramorum – the next Foot & Mouth? “

“Far from dwindling, forest cover is now at its highest since the Middle Ages.”

D

eadly oak virus spreads through Britain’s Forests”…so screamed the sensationalist headline of a ‘special report’ recently1 published in The Observer newspaper. The “virus” is actually a fungus-like organism – Phytophthora ramorum. P. ramorum is believed to have caused the death of millions of oaks in America. It has been known to be in the UK since at least 2000, causing only isolated damage to hardwood trees and shrubs, but in 2009 it was found for the first time in commercially important, softwood larches. This sudden jump in species, particularly to a commercial forestry tree, has caused much consternation in forestry circles and is increasingly being reported in the media.

Infected beech infected larch

Shoot dieback on infected

rhododendron giving a “crook” effect

WAYMARK WINTER 2011

Initial thoughts of passing over the risible claims that ‘all of the country’s woodlands [are] under threat’ (a popular theme with the developing plans for state forest sell-off), gave way to an altogether more worrying thought; could this be the Foot and Mouth Disease for 2011? Sure enough, the pathogen is described as having its spores “carried on the wind, as well as on the shoes and bike tyres of the tens of thousands of people who spend leisure time in Britain’s already dwindling forests every year.” Leaving aside that the forest cover of the UK, far from dwindling, is now higher than it has been since the middle ages, and is still growing; there it is in black and white – ‘carried on shoes and bike tyres’. The comparisons with 2001 grow ever stronger. The Observer article focused on the Afan Valley forests in south Wales; forests which over the last decade have become a mecca for mountain-bikers from all around the country. This previously economically depressed valley has benefited enormously from visitors to the forest, predominantly ‘bikers’. They buy car park tickets, fill the cafes, rent bikes, buy spares when they crash (which they do frequently), get hungry, thirsty and tired, booking out the limited accommodation available to the extent that several new hotels and B&B have recently opened. I know because several hundred pounds of my own money goes into the valley every year. In short, the development of recreation in the forest, especially mountainbiking has led to more money and jobs in the local economy per annum than the forests that it takes place in. The commercial value of the

forests is mainly in their recreational value, not the trees. But, as we saw in 2001, the real economic impact can often be overlooked by land managers focused on their traditional land use. So, sensationalist reporting aside, what can we say for certain about P.ramorum? P. ramorum is a ‘quarantine’ organism under European Union Plant Health legislation and its presence on trees or woodland plants must be notified to the relevant authorities (The Forestry Commission’s Plant Health Service for woodland trees). It has been found widely across England and Wales, reaching to Newcastle and East Anglia, with over 250 outbreaks in gardens, woodland and heathland, and over 500 in nurseries and garden centres. Both P.ramorum and the related P. kernoviae cause leaf blights and dieback on a wide range of shrub hosts and some trees, and bleeding bark cankers on certain tree hosts. We know that the pathogens spread by producing spores, but it is their dispersal mechanism which will be critical to disease control. The spores can be spread by water, including wind-blown rain or fog, or in soil or plant debris. The Commission’s Plant Health Service says that spores in soil and plant material can be moved ‘on footwear or vehicles’ – but it seems reasonable to surmise that such transport can also occur using animal vectors, which no amount of restrictive orders would control. Movement of infected plants is recognised as a significant source of long-distance spread; infected timber can only be moved under controlled conditions and to specialist mills. Both pathogens can also persist for several years in soil and plant debris, infecting re-growth or replacement plants. No known chemical treatments reliably kill P. ramorum or P. kernoviae, although some fungicides can reduce symptoms and sporulation, so boot, wheel or hoof cleaning is likely to be of limited effect. Eradication requires removal and burning of all infected plants. Self-sown regenerating trees need to be carefully monitored for years or perhaps replaced with non-susceptible species. Rhododendron ponticum is one of the chief host plants in the UK and a major source of spores, although spread has been generally

PAGE TEN


P. Ramorum – the next Foot & Mouth? limited to a few metres. However, the newly infected larches reportedly produce at least five times as many spores of P. ramorum as R. ponticum does, and evidence considered by the Commission suggests it may be aerially dispersed up to 50km, or more, making the few hundred metres of potential spread by boots, hooves or bikes along defined linear routes seem relatively unimportant.

carry the spores out on their tyres and boots.” He’s right of course; we mustn’t ignore the dangers. But let’s concentrate on the right ones. The biggest danger is another rural economic catastrophe following a knee-jerk closing of forests to the spending public, as happened widely in the countryside with Foot and Mouth. As we know, money doesn’t grow on trees but it is certainly being made from the spaces in-between them.

Where infection is identified, control conditions can be imposed. The Plant Health (Forestry) Order 2005 can be used to impose conditions to limit the risk of spread, including removal of plant debris from paths, restrictions on access if appropriate, and disinfection of tools, footwear and equipment. But, as the Forestry Commission’s Lee Dawson is quoted as saying in the Observer, “We can put up signs, but can’t police it. People will just ignore the dangers and

Ed.

WAYMARK WINTER 2011

1 16th January 2011. PP 14 & 15

Photos from http://www.forestry.gov.uk/website/forestry.nsf/byu nique/infd-5vfmzu

More information For more information about Phytophthora ramorum you may wish to visit the Forestry Commission’s web pages at http://www.forestry.gov.uk/forestry/WCAS4Z5JLL. For those of you also planning to visit Afan forest, Jonathan Price, the Commission’s Community Ranger says; “The disease is causing some problems but all of the trails except the Penhydd Trail are open, (except for any local closures of particular sections). It is worth checking the FC website for closure info or the Afan Forest Park website. The FC is just asking bikers to act responsibly by following advice that is posted at the visitor centres and car parks, mainly washing kit and bikes before going into other woods, to limit cross contamination. There are bike wash facilities in numerous locations around Afan and we are just urging riders to use these to clean down. For more up to date info contact the Afan Visitor centre on 01639 850564, but just to confirm we are still open for business but just asking visitors to take some simple precautions.”

PAGE ELEVEN


Crown land and claimed public rights of way Sue Rumfitt looks at how the application of public rights of way law differs in respect of land in Crown ownership.

Sue Rumfitt Rights of Way Consultant

“Crown Land includes about 55% of the foreshore, together with other less obvious properties such as Unit G Magna Park in Milton Keynes and Sunk Island”

WAYMARK WINTER 2011

T

he phrase ‘Crown Land’ is often used rather imprecisely and can refer to any or all of: land belonging to the Queen; land that is the Queen’s private property; land held in trust by the Queen as Sovereign; land owned by the Duchies of Cornwall and Lancaster; and land held by government departmentsi. For the purposes of this article the term Crown Land will be used to cover land owned directly by the Crown (as opposed to the private property of the Queen and members of the Royal family), land owned by the Duchies of Cornwall and Lancaster, and land owned by government departments.

readers will know, this includes about 55% of the foreshore, together with other less obvious properties such as Unit G Magna Park in Milton Keynes and Sunk Island (an agricultural holding in the East Riding of Yorkshire).ii

Technically, land in England and Wales is not owned outright by the owner, what the landowner has is an ‘estate in the land’ that can be either freehold or leasehold. All such freehold and leasehold land is held ‘of the Crown’. In the vast majority of cases the Crown in practice has no interest in this land, but in certain circumstances land can revert back to Crown ownership and become Crown Land.

Bona Vacantia land

Why is Crown Land relevant to rights of way work?

Foreshore land

The general principle of English law is that legislation passed by Parliament does not bind the Crown, and therefore does not apply to Crown Land, unless the particular Act specifies that it does apply. The National Parks and Access to the Countryside Act 1949 (“the 1949 Act”) and the Wildlife and Countryside Act 1981 (“the 1981 Act”) specify that they apply to Crown Land. The Highways Act 1980 (“the 1980 Act”) does not apply to Crown Land. The immediate effect of this is that whilst rights of way over Crown Land can be, and are, recorded on definitive maps and statements, the provisions of Section 31 of the 1980 Act do not apply, and so any claim for a right of way over what is (or was at the relevant time) Crown Land cannot rely on the ‘twenty-year rule’.

Who manages Crown Land? The Crown Estate is the body that owns and manages what it terms ‘Crown Estate Land’. This is broadly the bulk of Crown Land owned by the Queen ‘in right of the Crown’. As many

Other Crown Land is held and managed by government departments, such as the Ministry of Defence, and by the individual Duchies of Cornwalliii and Lancasteriv. The Duchy of Cornwall owns around 54,000 hectares of land in 23 counties, 13% of which is in Cornwallv. The Duchy of Lancaster owns around 7,500 hectares of land largely in the counties of Lancashire, Yorkshire and Cheshirevi. The term Bona Vacantia directly translates into English as ‘vacant goods’. It is the legal term for ownerless goods and land without a legal owner that pass to the Crown. Where land belonged to a person who dies intestate and with no heirs, or land is the asset of a dissolved company or failed trust, then in certain circumstances it reverts to the Crown. This process is known as escheatvii. The foreshore is legally defined as being the area between mean high water (“MHW”) and mean low water (“MLW”) and as such it is effectively a moveable freehold, subject to the doctrine of accretion and diluvion. Diluvion is the gradual, imperceptible and natural erosion of land above MHW causing the land to become foreshore. The newly created foreshore becomes owned by the owner of the adjacent foreshore. Accretion is the opposite of this process whereby foreshore is subject to natural deposition of material, which causes it to increase in height above MHW, rendering it non-tidal. In such instances, this former foreshore becomes owned by the owner of the adjoining land above MHW. (A sudden or man-made change would not affect the land boundaries.) There is no legal public right of access to the foreshore on footviii: though many readers will be aware of public paths recorded on definitive maps and statements that end at the foreshore or beach, implying de facto public access.

PA G E T W E LV E


Crown land and claimed public rights of way However, when the tide is in there is an absolute public right to navigate through the water covering the foreshore (though not necessarily to land or launch a boat). As noted above the Crown Estate owns about 55% of the foreshore, though much of this is leased to bodies such as Natural England. The other 45% is owned by a combination of the two Duchiesix, port and harbour authorities, local authorities, government departments and private landownersx.

Claimed rights of way leading to the foreshore There may be particular evidential difficulties in dealing with claimed rights of way leading to the foreshore: In a Kent casexi, Inspector Mrs Helen Slade had to consider three claimed public footpaths leading to the beach in Whitstable. The Order Making Authority

(OMA) had determined to make the Orders to add the footpaths on the basis that the termination point in each case was ‘the beach’. The Whitstable Society, the applicant for the Orders, contended that the termination of the paths at ‘the beach’ was untenable and that the terminus of the path must be a legally recognised point, it proposed that the Orders should be modified to give the termination point as the high water mark resulting in an extension of the paths in each case. In this case the owner of the foreshore was not the Crown, but rather the Whitstable Oyster Fishery Company, but the particular evidential difficulties of establishing the likely termination point of a route leading towards the sea are likely to apply equally where the Crown is the owner. Inspector Mrs Slade agreed with the OMA that, although the judgement in

Blundell v Catterellxii had determined that there was no right of public access to the foreshore, this did not preclude the possible acquisition of public access rights through user or by dedication across either the beach or the foreshore, should the evidence support the existence of such a right. The difficulty before the Inspector was the need to identify a particular linear line that had been used, in this case over a loose shingle beach. The Inspector concluded that in the case of only one of the paths was there sufficient evidence that suggested that users had continued over the beach in broadly (though not precisely) the same line to reach the high water mark. In coming to this conclusion, Inspector Mrs Slade took into account the stated aims of the witnesses in using the path and determined that those whose use was for swimming and

a growing firm with a glowing reputation Nigel Farthing

Carol Ramsden

Birketts LLP offers a wide range of services in public rights of way and access work G G G G

Advocacy at Public Rights of Way Inquiries Inspector at Town and Village Green Inquiries Applicant-Led Public Path Orders Public Path Order Service for Local Authorities

For further information please contact: Nigel Farthing on 01473 406255 or nigel-farthing@birketts.co.uk Carol Ramsden on 01473 406338 or carol-ramsden@birketts.co.uk

Birketts LLP 24-26 Museum Street Ipswich Suffolk IP1 1HZ T: +44 (0)1473 23 23 00 F: +44 (0)1473 23 05 24 E: mail@birketts.co.uk

WAYMARK WINTER 2011

also at: Norwich T: +44 (0)1603 23 23 00 Cambridge T: +44 (0)1223 32 66 00 Chelmsford T: +44 (0)1245 21 1 2 1 1

www.birketts.co.uk

PAGE THIRTEEN


Crown land and claimed public rights of way launching boats were on balance more likely to have followed a linear route as against those whose use of the route was to access the beach area for a variety of recreational purposes, none of which were likely to give rise to the need to travel directly to the high water mark. She concluded that activities such as general walking, picnicking, bird or boat watching, or playing games did not demonstrate linear access to the sea.

Claimed public rights of way on Crown Land Section 327 of the 1980 Act deals with the applicability or otherwise of the Act to Crown Land. Section 327 (1) defines land that is exempt from the provisions of the Act as land belonging to Her Majesty in right of the Crown or of the Duchy of Lancaster, or belonging to the Duchy of Cornwall, or belonging to a government department, or held in trust for Her Majesty for the purposes of a government department. Section 327 (2) provides that the

“Inspector Mrs Slade concluded that activities such as general walking, picnicking, bird or boat watching, or playing games did not demonstrate linear access to the sea.”

“appropriate authority in relation to any land and a highway authority may agree that any provisions of this Act specified in the agreement shall apply to that land, and while the agreement is in force, those provisions shall apply to that land accordingly….”. Without any such agreement the 1980 Act does not apply to Crown Land. Therefore, any claim for public rights over land held by the Crown (as defined by Section 327) can only arise at common law; the provisions of Section 31 of the 1980 Act cannot be used. This can have important consequences. In a Northumberland casexiii, Inspector Alan Beckett notes in his decision that it did not come to the applicant Parish Council’s attention until shortly before the inquiry that the Forestry Commission had submitted that the land crossed by the alleged footpaths was Crown Land and as such exempt from the provisions of the 1980 Act. Inspector Beckett agreed with the Commission and found that as the Crown had acquired the freehold of Swarland Wood in 1938 the latest date that the provisions of Section 31 of the 1980 Act could apply with respect to the claimed paths was 1938. He went on to consider the user evidence for the period 1918 to 1938 and found that it was insufficient to raise the presumption of dedication.

The position of the Crown as lessee

In a 1996 Buckinghamshire casexiv Inspector B W James found that the fact that land was occupied by the Forestry Commission under a lease for a term of 999 years granted to the Minister of Agriculture, Fisheries and Food from 1956 until the lease was assigned in 1992 did not preclude Section 31 from applying for the period from 1985 running back to 1965. Accordingly he confirmed the Order before him to add a public footpath to the definitive map and statement. More recently in a Leeds casexv, Inspector Alan Beckett was of a different view. In paragraph 62, Inspector Beckett notes: “The provisions of section 31 of the 1980 Act do not apply to land belonging to the Crown. Whilst it was argued that the Crown exemption did not apply to leasehold land; as the creation of a right of way would adversely affect the Crown’s leasehold interest, I consider that Crown exemption would encompass both land belonging to and leased by the Crown.” In coming to this conclusion, Inspector Beckett was following the advice in paragraph 5.52 of The Consistency Guidelines, which states: “It seems likely that s31 does not apply to land leased to the Crown, because the existence of the lease would take the land outside its scope. Furthermore, the creation of a right of way would adversely affect the Crown’s leasehold interest. These arguments do not appear to have been tested in the courts, but, even if they were accepted, they would not prevent an effective presumption of dedication under s31 for a period before or after the Crown’s ownership or leasehold of land.” In the Leeds case Inspector Beckett found there was only a period of seventeen years between the Crown surrendering its lease of the land and the date of bringing into question. The guidance at paragraph 5.52 of the Consistency Guidelines has recently been criticised as wrong by the Byways and Bridleways Trust.xvi The Planning Inspectorate has indicated to the Trust

Caution is advisable with foreshore claims

WAYMARK WINTER 2011

PAGE FOURTEEN


Crown land and claimed public rights of way that Section 5 of the Guidelines is under review, but it is not clear at the time of writing whether or not the guidance at 5.52 will be changed.

Crown Land and common law dedication It is clear from a number of Order Decisions that the Crown is bound by common lawxvii and dedication will be found on routes over Crown Land where the evidence supports it. That dedication can be presumed against the Crown is supported by a number of 19th Century court cases. In R v East Mark Inhabitants (1848)xviii it was held that dedication might be presumed against the Crown on the evidence of long public user. In this case the road in question had been set out by Inclosure Commissioners as a private road, but had been used by the public as a public road for fifty years. It was argued for the defendants that the soil of the road had been taken from the Lord of the Manor (by operation of the Inclosure Award) and had been transferred to no other person. That being so, there was no owner against whom a dedication could be presumed, and that if the owner of the soil was (in the absence of any other owner) the Crown the jury should have been directed that stronger evidence was necessary to raise a presumption of dedication than if the owner had been a private person. The Court disagreed, finding that it was immaterial who owned the land if there had been long user as a public road. Lord Denman, C.J. said: “The law, as lately laid down, has led the courts into unimportant inquiries as to there being an intention to dedicate a road to the public. It seems to me that if the jury find that there has been a long user as a public road, I am not at liberty to inquiry into the question whether there was such an intention or not…. If persons have found a road used as public, and have built a town by it, are we to enter into the question of whether it was intended to dedicate the road or not? On the contrary, I think that the mere fact of the enjoyment of a public road, for a great length of time, ought to be perfectly

WAYMARK WINTER 2011

conclusive of such an intention, and it is immaterial to inquire in whom the soil was vested as owner.” In Harper v Charlesworth (1825)xix an application for a re-trial was dismissed, in part because the Court considered that it was proper for the jury to have found that the evidence of twenty years public user of a footpath was not sufficient to show dedication by the Crown. In that case the public footpath had existed until it was stopped up by the action of an Inclosure Award. As in any other common law dedication case, the evidence as a whole would have to support dedication (in this case the jury was not persuaded) and length of user remains an important evidential element. In Turner v Walsh (1881)xx a case that was decided by the House of Lords on appeal from the Supreme Court of New South Wales, it was held that dedication as a highway could be presumed from a continuous period of user of twenty-one years from 1861 to the time of the legal action, there having been no interruption or interference by the Crown. The Court accepted as a general principle that longcontinued user of a way by the public, without any action to interrupt user, which amounted to evidence from which common law dedication could be implied, applied just as much to land held by the Crown as it did to land in private ownership. i It may not be very obvious what is or was a government department; the Forestry Commission for instance proclaims on its website, “we are the government department responsible for protecting….woodlands….” ii A schedule of property rights and interests of the Crown Estate can be found at http://www.thecrownestate.co.uk/our_portfolio.htm iii The Duchy of Cornwall was established in 1337 as a form of settled estate by Edward III for his son and heir Prince Edward; its function is to provide an income for the Duke of Cornwall; the male heir to the throne. In the absence of a male heir to the throne the Duchy holdings would revert to the reigning monarch. iv The Duchy of Lancaster has its origins in the grant of land by Henry III to Edmund, his son, in 1267. It is governed by charter and has the function of providing an income for the reigning Monarch. v Source: Duchy of Cornwall website accessed 2

Some Forestry Commission woodland is Crown Land

November 2010. vi Source: Independent Online website accessed 2 November 2010. vii For a fuller explanation of escheat and the circumstances in which it may arise see http://www.thecrownestate.co.uk/tce_faqs/faqescheats.htm viii Blundell v Catterell (1821) 5 B & Ald 268 ix The foreshore in Cornwall is owned by the Duchy of Cornwall. x For example the Duke of Beaufort owns the foreshore in the Severn Estuary. xi The Kent County Council (CWX27, CWX28 and CWX29 Whitstable) Public Path Modification Orders, 2002 FPS/W2275/7/27, 28 and 29 xii Blundell v Catterell (1821) 5 B & Ald 268 xiii The Northumberland County Council (Public Rights of Way) Modification Order (no. 23) 2005 FPS/R2900/7/38 of 27 June 2007, the OMA adopted a neutral stance. xiv The Buckinghamshire County Council (Parish of Wooburn) Definitive Map Modification Order 1995 FPS/A0400/7/49 of 7 May 1997, reported in Byway and Bridleway 1996/8/48. xv Leeds City Council (Footpaths at Methley Junction, Methley, Rothwell Leeds) Modification Order, 2009 FPS/N4720/7/20 of 7 September 2010. xvi Byway and Bridleway 2010/11/182. xvii See for example the decision of Inspector James Wilson FPS/L5240/7/ of 12 January 1995 as reported in Byway and Bridleway 1995/4/19 and the direction to Monmouthshire County Council to make an Order reported in 1998/8/53. xviii 11 Q B 877 xix 4 B&C 574, 6 D& R 572 xx 6 App.Cas 636

More information For more information about Crown Land, or to discuss this article, you can call Sue Rumfitt on 01234 270210 or by email to sue@rumfitt.com.

PAGE FIF TEEN


News in Brief CRA’65 greens under threat High Court judge, Mr. Justice Morgan, in the case of Markham and Little Francis village green at Weymouth in Dorset, has determined that the land should not have been registered as a green, and has directed that it be removed from the register, thus laying it open to development. (23/11/10)

The 42-acre site was registered by Dorset County Council as a village green in 2001 under the Commons Registration Act 1965. In 2004 the land was purchased by prospective developers Betterment Properties Ltd which applied to the High Court to have the land struck from the register, challenging Dorset County Council’s decision-making procedure. Markham and Little Francis green was registered under the Commons Registration Act 1965 but the matter was delayed, and was finally determined by Dorset County Council after the greensregistration law had been changed by the

Countryside and Rights of Way Act 2000. Dorset therefore used that law in deciding the application in favour of a green. Betterment Properties argued that because the process had started under the 1965 Act it should have been completed under that Act and therefore the registration was void. Says Kate Ashbrook, general secretary of the Open Spaces Society: ‘We are dismayed at this outcome for Markham and Little Francis green. Not only does the judgment threaten this much-loved open space and green lung for local people, but it endangers the thousands of greens which were registered under the Commons Registration Act 1965. It will encourage landgrabbers to try to unpick those registrations and lay the land open to development.’

Land at Markham and Little Francis

The Local Sustainable Transport Fund The Local Transport White Paper sets out the Government's vision for a sustainable local transport system that supports the economy and reduces carbon emissions. It explains how the Government is placing localism at the heart of the transport agenda, taking measures to empower local authorities when it comes to tackling these issues in their areas.The White Paper also underlines Central Government's direct support to local authorities, including through the Local Sustainable Transport Fund. The LSTF is a £560million fund for sustainable transport projects that help to create economic growth and reduce carbon emissions. Full details have been published in the white paper “Creating Growth, Cutting Carbon” which, as well as encouraging the use of public transport, is also targeted at walking and cycling. Waymark is not aware of how all the funding will be divvied up although it is likely that public transport will take the bulk of the money. Have a look at the white paper and submit your

WAYMARK WINTER 2011

scheme(s) as soon as possible.

Transfer of rights of way case work functions from Government Office North East to the Planning Inspectorate Following the decision by the Government to abolish all of the regional Government Offices, all rights of way casework carried out by the National Rights of Way Casework Team in the Government Office North East (GONE) has been transferred to the Planning Inspectorate in Bristol. As of 1st February 2011 any new appeals and new requests for directions under Schedule 14 of the Wildlife and Countryside Act 1981 should be referred to the Planning

http://www.dft.gov.uk/pgr/regional/sust ainabletransport/pdf/whitepaper.pdf

Inspectorate. In addition, orders under sections 247, 251 and 261 of the Town and Country Planning Act 1990 will also now be dealt with by the Planning Inspectorate.

PAGE SIXTEEN


Protecting public benefits …or selling the family jewels? “The consultation is fundamentally flawed and, frankly, disingenuous. It is illconsidered, terminally selective and possibly – even probably irrelevant.”

WAYMARK WINTER 2011

Mike Furness, Countryside Access Consultant, gives his personal analysis of the Government’s proposals for the forestry estate in England and its threats to public access.

T

he Coalition Government’s announcement that it intends to sell off the nation’s forest estate has been met with a broadside of public dissent that apparently wasn’t even considered when this hastily conceived, apparent quick-win idea was put forward. To say that the idea has been miss-sold is a simplistic understatement. The Government, through the Secretary of State, Caroline Spelman, is now rapidly engaged in a rear-guard action, re-positioning its stance as one of; seeking the public’s approval for protecting ‘our’ forests for the future, enabling local communities to be more involved in woods and addressing a gamekeeper-poacher anomaly in the running of forestry in the UK.

two are inextricably linked) preclude it.

But why is the public so agitated that the campaign group 38 Degrees could raise a ¼ million name petition against the plans in just a few days and that protesters have taken to the woods all around the country? It essentially comes down to a fear of loss of the woods themselves and a fear of loss of access to those woods.

Selective, widely reported headlines from Defra’s press releases have encouraged the media to suggest a ‘U-turn’ and at least a partial victory for campaigners. But the reassuring platitudes that have been dished out do not tell the whole story and there is no substitute for carefully reading the full consultation paper.

With respect to the perceived threat to the woodlands themselves; this is largely a result of understandable but widespread ignorance of the practicalities of woodland management and the regulatory regime that they operate under. Woods are not going to be clear-felled and turned into golf-courses overnight. The law doesn’t (currently) allow that and the economics of forest and tax management (the

The consultation is fundamentally flawed and, frankly, disingenuous. It is ill-considered, terminally selective and possibly – even probably - irrelevant. To put these harsh judgements in context it needs to be remembered that the Government has already decided that 15% of the estate (40,000ha) will be sold off over the next 4 years – there is to be no consultation on the fact of these sales. The consultation paper never adequately addresses the main drivers for the proposed sales which are financial - to raise short-term cash - and ideological - to privatise woodland management (or ‘reducing Big Government’ if you prefer). It talks a lot about the need to move to a ‘mixed model’ of ownership that better fits the diversity of our woodlands but gives no recognition to the mixed model that already exists. We are told repeatedly that FC woodlands are only 18% of the UK’s forests. The document then chooses to focus on the FC’s estate in isolation from the other 82% of woodland already in private, community or charity ownership. Far from creating a mixed

So what about loss of access? Caroline Spelman has recently said1 that; “The government is absolutely committed to the ongoing provision and protection of the public benefits provided by the public forest estate, and the consultation shows how we intend to achieve this.” So there’s really nothing to worry about then, is there? Comforting words from the Secretary of State, but what does the Government’s consultation document, The future of the public forest estate in England, actually say and what is theGovernment actually doing?

PAGE SEVENTEEN


Protecting public benefits …or selling the family jewels? model of ownership the proposal to remove the State from the mix will only impoverish the existing one. And irrelevant? Well, consider that the Public Bodies Bill is already well advanced through its parliamentary process and is due to complete its passage well before the results of the consultation are announced this summer. The Bill currently contains sweeping powers for the Secretary of State, giving her carte blanche to reorganise forestry in the UK however she sees fit, regardless of the consultation. Similarly, the Localism Bill is well underway (see pages 8& 9) and will set in law the criteria for the muchheralded community empowerment about which we are supposedly being consulted. We used to hear a lot about joined up Government and we are certainly seeing it in action now. Unfortunately, Big Society is only belatedly being invited to comment on joined up action that is already in-train. There is much to question about the proposed sell-off, but space is limited, and many of the arguments are not directly relevant to our countryside access interests, so let me focus on the key points for access professionals: First and foremost we should note that public rights of way will not be directly affected. The only question is whether private owners will be as rigorous at keeping them open and, particularly, in clearing up after timber extraction or, storms as their FC counterparts. Similarly, walkers’ rights granted by FC dedication of Access Land under section 16 Countryside & Rights of Way Act 2000 will generally be uninterrupted. But, as we all know, the use of Access Land is not that simple. What protection will be given to established access points away from rights of way? What safeguards will there be for horse access, or for cycling? How many more temporary closures will be imposed, and will due procedure be followed?

WAYMARK WINTER 2011

Many of you will recall the debate about whether or not woodland should be included as Access Land in the run up to CROW. This was the original intention and had been envisaged since1949. But the Labour Government in 2000 decided that it was sufficiently assured by land owner representation that voluntary woodland dedications would come forward that it shelved plans for compulsory access. In practic, the dedications that came forward were almost exclusively from the public estate. A handful of public-spirited owners dedicated their woods, tens of thousands didn’t. So, when the consultation reminds us yet again that the FC estate is [only] 18% of the country’s total, what it doesn’t mention is that this is almost 100% of the forest Access Land. Selling off this 18% would expose most of it to unsympathetic control. Horse riders and cyclists will lose out most, of course. They will have no recourse to rights and any amount of ministerial assurances about protecting public benefits will be so much flannel. If the Secretary of State means what she says, the Government must include provision for the protection of the nonstatutory access that State woodland users currently enjoy. Not surprisingly, the CLA2 has broadly welcomed the proposed privatisation but on the basis that the public benefits provided by the new owners are adequately supported by Government, i.e. that access and conservation should be paid for by grants. We’ve already seen that access payments have been axed from new Higher Level Stewardship schemes, so it is not likely that money will be found for new owners to ‘provide’ access. (However, owners will be able to apply for woodland management and improvement grants as they can now – increasing the potential grant burden by at least 15%.) The added benefits of FC owned woodland; path improvements, high

PAGE EIGHTEEN


Protecting public benefits …or selling the family jewels? quality infrastructure, waymarking, guided walks and events, interpretation, and so on will be a thing of the past. The provision of public benefits has since the mid-1980’s been the Commission’s biggest output, far outstripping the financial gains from timber production. In the Forestry Commission’s Corporate Plan for 2010-113 four of the five objectives relate to public benefits of forestry, only one relates to commercial issues. ‘Heritage Woods’, the big-name, flagship forests (often established by ancient monarchs to preserve benefits for themselves!) such as the New Forest and the Forest of Dean have attracted a lot of media attention. The emerging picture is that these will probably be taken over by the National Trust (the Woodland Trust seems to be keeping a low profile at the moment). This is probably the best scenario for public access to these extensive areas – always providing that, as is common with Trust owned countryside, access is available to all, not just members. The Trust has a good record of managing woods for both access and conservation, as well as providing many of the ancillary benefits that the public has come to value from FC ownership. More troublesome will be plans for large, commercial forests such as Kielder, with its lower, but still highly significant visitor focus. Forestry on the scale of Kielder will be attractive to large investment companies looking for client tax breaks and company profits. Visitor spend in the local economy is of no interest to them so why should they hit their bottom line providing public benefits? Most money goes into forestry for the tax breaks, not to grow timber. It is unfathomable why the Government

“Missing links identified in ROWIPs should be put in place before any sell-off”.

WAYMARK WINTER 2011

should want to provide 200,000ha of additional tax breaks and increase the public grant liability to boot. Much has been made of increasing opportunities for community and civil society involvement with valued woodlands. But how many communities will be able to raise the funds to purchase local woods in the 28 days provided by the Localism Bill? (Leaving aside the question of why they should have to buy something that is already owned and run for them.) If they do manage it, experience suggests that there is a strong likelihood of chronic undermanagement to follow, leading to deteriorating standing stock and decreased accessibility. Smaller, less commercially attractive woodlands have increasingly found a market with hobby owners. Woods are bought up by speculative companies and broken up into smaller lots for immediate resale at inflated prices to wannabe owners. It’s a lucrative way of retailing woodland but can be disastrous for its future management – which is often no longer financially viable and is now in the hands of inexperienced owners. And the effect of an open 20ha wood being fenced into ten 2ha blocks by excited new owners does nothing positive for public access, even where that is by public right of way. These are just some of the issues arising from this ill-conceived and ill-thoughtthrough policy change; there is a multitude of other highly significant issues which together should demonstrate to the Coalition Government that there are very good reasons why, to quote the consultation document, “Globally, the majority of forests are publicly owned.” As access professionals we must get actively involved in shaping the future of the country’s wooded Access Land. I would urge you to respond to the consultation, whether individually or as

an officer of your authority, – it may be deeply flawed but it must be responded to thoughtfully and objectively. Mrs Spelman’s commitment to maintaining public benefits is doubtless made in good faith; she can prove this by a few decisive actions: All unrecorded paths should be dedicated as rights of way before any sale is completed and the public given adequate opportunity to flag up the routes they have been using. Public footpaths should be upgraded to bridleways and all section 16 land should be rededicated with access rights for horse riders and cyclists. At the very least, missing links identified in Rights of Way Improvement Plans should be put in place. And there should be a covenant on any land sold that it cannot be broken into smaller parcels for resale for at least 25 years. But what if the Government can’t see its way to making such conditions? Suggest to your authority that they might need to plan for a sudden surge in claims for woodland paths.

More information The public forest estate managed by the Forestry Commission has a total area of 258,000 ha including 202,000 ha of wooded habitat and 56,000 ha of non-wooded habitat and includes over 67,000 ha of SSSI. The estate supplies approximately 1.4 million m3 of timber each year and is the largest single supplier in England. The FC issues about 2,500 felling licences each year and has approximately 20,000 active grant schemes. Forestry Commission England employs approximately 1,100 (full-time equivalents). The consultation period runs from 27th January to Thursday 21st April 2011. If you would like to discuss any aspect of this article or the proposed changes to the forestry estate, you can contact Mike Furness by email to editor@iprow.co.uk or by telephone on 01844 358241.

1 Defra press release, 27/1/11 2 Country Land and Business Association 3 http://www.forestry.gov.uk/pdf/eng-corporate-plan-

2010-11.pdf/$FILE/eng-corporate-plan-2010-11.pdf

PAGE NINETEEN


Training News News It's difficult to know what training demand is going to be this year, but the general impression from those members who have contacted me is of changing workloads so training needs are likely to be for getting to grips with those new duties as quickly, efficiently and costeffectively as possible. Proposed courses therefore are: • Law and Practice: modification orders – the definitive map process, dedication at common law and HA80s31, evidence • Law and Practice: public path orders – HA and TCPA provisions, policies and practices, meeting the tests • Processing Schedule 14 claims – evaluating and processing claims, quality of evidence, determining whether to make an order • Introduction to documentary evidence – inclosure, tithe, finance act and other sources

WAYMARK WINTER 2011

• Dealing with opposed orders – statements of case, proofs of evidence, public inquiry practice

Coastal Access Report Guidance

• Asset management – contracts, tendering, reducing maintenance requirements

Before a new right of access can come into force on a stretch of coast, Natural England must submit a coastal access report to the Secretary of State setting out how it proposes to implement access on that particular stretch of coast. Defra has now published guidance which explains

None of these courses are quite repeats but more revision and combination to offer the essentials in condensed form (much like your new jobs!). If you are interested in any of these courses or have suggestions for others, contact Geri Coop at training@iprow.co.uk straight away.

how a Natural England report will be considered. This ‘plain English’ guide covers the process for making and considering representations and objections and also identifies the roles that the Secretary of State and the person appointed to consider objections. A copy of the guidance can be downloaded at: http://ww2.defra.gov.uk/rural/countrysid e/access/

PAGE TWENTY

Waymark Winter 2011  

The journal of the Institute of Public Rights of Way and Access Management

Read more
Read more
Similar to
Popular now
Just for you