To: Sue Goodfellow
From: Christopher Walledge
Date: 13 February 2012
I have been asked to advise in writing regarding the proposed fencing works on Broad Down relating to hydrological monitoring equipment which is to be deployed as part of the monitoring process for the Dartmoor Mires Project.
The proposed fencing of part of the commons engages the provisions of the Commons Act 2006 and the Dartmoor Commons Act 1985.
1. Commons Act 2006
Section 38 of the Commons Act 2006 enacts a general prohibition on any restricted works on common land without the consent of the Secretary of State. Fencing (permanent or temporary) is one of the restricted works:
- A person may not, except with the consent of the appropriate national authority, carry out any restricted works on land to which this section applies.
- In subsection (1) ‘restricted works’ are:
- works which have the effect of preventing or impeding access to or over any land to which this section applies;
- works for the resurfacing of land.
- The reference to works in subsection (2)(a) includes in particular:
- the erection of fencing;
- the construction of buildings and other structures;
- the digging of ditches and trenches and the building of embankments.
This makes it clear that the prior consent of the Secretary of State is required for the erection of fencing if it will have the effect of preventing or impeding access to, or over any common land.
However, there is an exception within section 38 which is relevant to the proposed fencing at Broad Down. Section 38(6) provides that the general prohibition in s.38(1) shall not apply to:
- works on any land where those works, or works of a description which includes those works, are carried out under a power conferred in relation to that particular land by or under any enactment;
- works on any land where the works are carried out under a power conferred by or under any enactment applying to common land.
This means that if there is a specific statutory power to erect fencing on the commons, it will override the general prohibition in the Commons Act 2006.
2. Dartmoor Commons Act 1985
Section 10 of the Dartmoor Commons Act 1985 makes provision concerning public access to the commons. Section 10(4) empowers the National Park Authority to regulate or prohibit for such period as may be reasonably necessary, access by all or any part of the public to any part of the commons, provided it is for one of three purposes specified in the subsection. The second exception is as follows:
- After consultation with the Commoners’ Council:
- for the protection and restoration of the natural beauty of the commons and their suitability for rough grazing or recreation;
The 1985 Act also provides that the Authority may fence and enclose parts of the commons for as long as may appear necessary for the attainment of the purposes of the regulation or prohibition of access in pursuit of the aim set out in (b)(i) above.
3. The Proposed Fencing on Broad Down
The Dartmoor Mires Project is primarily concerned with the restoration and conservation of the commons. The hydrological survey equipment is required to monitor the restoration work and evaluate its success. The fencing is a direct consequence of the deployment of the hydrological equipment. Given the intended use of the equipment and fencing, the Dartmoor Commons Act permits the Authority to deploy the equipment and fence it without the need for consent from the Secretary of State.
It should be noted that the power in section 10(4) is subject to a number of restrictions. Section 10(8) preserves the right of the owner of the commons (or any person acting on behalf of the owner) have access to every part of the commons at any time. Section 10(9) requires the Authority to serve notice by newspaper advertisement of the regulation/prohibition of access by the public, its intended duration and the reasons which it has made and inviting written representations within 28 days after the date of publication of the notice. The Authority is also required to consider all such representations so made before making its determination, save in case of an emergency.
4. Consultation & Representations
A notice was place in the Western Morning News setting out details of the proposed restriction of public access on common land at Broad Down and inviting representations by 10 February 2012.
The Dartmoor Commoners Council and Dartmoor Forest Commoners Association were individually consulted, as required by section 10(4)(b) of the 1985 Act. The Central Council of Physical Recreation were also consulted, as required by section 10(9) of the 1985 Act. In the event, three responses were received: from the Open Spaces Society, the Dartmoor Society and a Mr Paul Rendell.
- The Dartmoor Commoners Council raise no objection
- The Dartmoor Forest Commoners Association raise no objection
- The Open Spaces Society express concern about the proposed use of s.10 of the Dartmoor Commons Act 1985, which they regard as inappropriate. In their view, the fencing is not in itself for the purposes of protecting and restoring the natural beauty of the commons and an application should be made to the Secretary of State under s.38 of the Commons Act 2006. However, the Society also indicate that they have no objection to the fencing per se and no objection is made to the location of the proposed fencing, the extent of the proposed fencing or the type of proposed fencing.
- The Dartmoor Society calls for a full Public Inquiry into the Dartmoor Mires Project. It rejects as inappropriate the use of section 10(4) of the Dartmoor Commons Act 1985 and states that an application should be made to the Secretary of State under s.38 of the Commons Act 2006. However, the Society welcomes advance monitoring in principle and accepts that scientific equipment for advance monitoring will need to be fenced. No objection is made to the location of the proposed fencing, the extent of the proposed fencing or the duration of the proposed access restriction.
- Mr Paul Rendell raises concerns about the potential disturbance of a military crash site in the vicinity of the proposed fencing.
5. Conclusions
The Authority has given public notice of its intention to rely on powers conferred under s.10 of the Dartmoor Commons Act 1985. It has also consulted with the Dartmoor Commoners Council, the Dartmoor Forest Commoners Association and the Central Council of Physical Recreation as required.
No objection has been received to the need, location, extent, type or duration of the proposed fencing.
Some questions have been raised whether the proposed works constitute an appropriate use of the Dartmoor Commons Act 1985, but no case law or legal opinion has been produced to show that the Authority is not entitled to rely on the powers under s.10 of the 1985 Act in conjunction with the exemption under s.38(6) of the Commons Act 2006.
In all the circumstances, it is my opinion that the Authority has engaged in an appropriate public consultation process which has not resulted in any significant objection in law or principle to the proposed works.
I do not believe that there is any legal impediment in proceeding with the erection of fencing and siting of hydrological monitoring equipment on Broad Down as proposed.
DNPA Memorandum Regarding Dartmoor Mires Project – Proposed Fencing Works at Broad Down
To: Sue Goodfellow
From: Christopher Walledge
Date: 13 February 2012
I have been asked to advise in writing regarding the proposed fencing works on Broad Down relating to hydrological monitoring equipment which is to be deployed as part of the monitoring process for the Dartmoor Mires Project.
The proposed fencing of part of the commons engages the provisions of the Commons Act 2006 and the Dartmoor Commons Act 1985.
1. Commons Act 2006
Section 38 of the Commons Act 2006 enacts a general prohibition on any restricted works on common land without the consent of the Secretary of State. Fencing (permanent or temporary) is one of the restricted works:
This makes it clear that the prior consent of the Secretary of State is required for the erection of fencing if it will have the effect of preventing or impeding access to, or over any common land.
However, there is an exception within section 38 which is relevant to the proposed fencing at Broad Down. Section 38(6) provides that the general prohibition in s.38(1) shall not apply to:
This means that if there is a specific statutory power to erect fencing on the commons, it will override the general prohibition in the Commons Act 2006.
2. Dartmoor Commons Act 1985
Section 10 of the Dartmoor Commons Act 1985 makes provision concerning public access to the commons. Section 10(4) empowers the National Park Authority to regulate or prohibit for such period as may be reasonably necessary, access by all or any part of the public to any part of the commons, provided it is for one of three purposes specified in the subsection. The second exception is as follows:
The 1985 Act also provides that the Authority may fence and enclose parts of the commons for as long as may appear necessary for the attainment of the purposes of the regulation or prohibition of access in pursuit of the aim set out in (b)(i) above.
3. The Proposed Fencing on Broad Down
The Dartmoor Mires Project is primarily concerned with the restoration and conservation of the commons. The hydrological survey equipment is required to monitor the restoration work and evaluate its success. The fencing is a direct consequence of the deployment of the hydrological equipment. Given the intended use of the equipment and fencing, the Dartmoor Commons Act permits the Authority to deploy the equipment and fence it without the need for consent from the Secretary of State.
It should be noted that the power in section 10(4) is subject to a number of restrictions. Section 10(8) preserves the right of the owner of the commons (or any person acting on behalf of the owner) have access to every part of the commons at any time. Section 10(9) requires the Authority to serve notice by newspaper advertisement of the regulation/prohibition of access by the public, its intended duration and the reasons which it has made and inviting written representations within 28 days after the date of publication of the notice. The Authority is also required to consider all such representations so made before making its determination, save in case of an emergency.
4. Consultation & Representations
A notice was place in the Western Morning News setting out details of the proposed restriction of public access on common land at Broad Down and inviting representations by 10 February 2012.
The Dartmoor Commoners Council and Dartmoor Forest Commoners Association were individually consulted, as required by section 10(4)(b) of the 1985 Act. The Central Council of Physical Recreation were also consulted, as required by section 10(9) of the 1985 Act. In the event, three responses were received: from the Open Spaces Society, the Dartmoor Society and a Mr Paul Rendell.
5. Conclusions
The Authority has given public notice of its intention to rely on powers conferred under s.10 of the Dartmoor Commons Act 1985. It has also consulted with the Dartmoor Commoners Council, the Dartmoor Forest Commoners Association and the Central Council of Physical Recreation as required.
No objection has been received to the need, location, extent, type or duration of the proposed fencing.
Some questions have been raised whether the proposed works constitute an appropriate use of the Dartmoor Commons Act 1985, but no case law or legal opinion has been produced to show that the Authority is not entitled to rely on the powers under s.10 of the 1985 Act in conjunction with the exemption under s.38(6) of the Commons Act 2006.
In all the circumstances, it is my opinion that the Authority has engaged in an appropriate public consultation process which has not resulted in any significant objection in law or principle to the proposed works.
I do not believe that there is any legal impediment in proceeding with the erection of fencing and siting of hydrological monitoring equipment on Broad Down as proposed.