Guidance

Common land and shared grazing: supplement to the Countryside Stewardship manual

Published 22 July 2015

Applies to England

Introduction

This supplement contains important additional information relevant to any Countryside Stewardship (CS) application on common land and shared grazing.

In the context of this document ‘common land’ means:

• land registered as common land in a register of common land kept under Part 1 of the Commons Act 2006
• land to which Part 1 of that act does not apply and which is subject to rights of common within the meaning of that act

This is drawn from the definition of ‘common land’ given in schedule 5 of the Commons Act 2006.

‘Shared grazing’ means communal pasture where graziers have a legal entitlement to graze (for example, a pasture used jointly by tenants) where the land is not registered as common land.

In the term ‘commons association’ the word ‘association’ is used to cover landowners, sporting tenants and graziers working together in an association or group unless otherwise stated.

Due to the complexity of tenure, common land and shared grazing agreements are only available via the Higher Tier of CS and for 10 years duration. A Natural England adviser will work with applicants to build a suitable application.

Organic maintenance and conversion options in CS are not available on common land or shared grazing.

Applicants for CS on common land or shared grazing must read this supplement together with the CS manual. Where there is any inconsistency between this supplement and the CS manual, this supplement takes precedence. Also, where it states in this supplement that an agreement holder must do something, it is a requirement (along with the requirements in the CS manual) of your CS agreement.

If the CS application will be made by the landowner who owns the whole common and has sole use and rights to the land, the common can be entered as the landowner’s holding or be attached to the landowner’s holding as part of a standard application. In these circumstances this supplementary guidance does not apply, and a supplementary application form does not need to be completed.

If you do not have sole use of the land

If the CS application will be made by someone who does not have sole use of the land and where there will be 2 or more beneficiaries to the CS agreement, this supplementary guidance will apply. A common land and shared grazing supplementary application form must be completed and an internal agreement must be established, signed by all the parties to the CS application, specifying the obligations placed on each person and the payments they may expect to receive.

Natural England will ask for a copy of this internal agreement to be submitted before the CS agreement can commence and may, during the agreement period ask to see formal evidence that the internal agreement operates effectively, minutes of recent meetings for example.

In all cases where there are 5 or more parties benefiting from or contributing to the delivery of the CS agreement, a more formal commons association must be established with officers to manage the association.

If there is no known landowner

Where there is no known landowner, for example, where ownership is recorded as unknown on the commons register, discuss the circumstances with a Natural England adviser.

Where there is no known landowner ownership will almost always be vested with the local authority. In addition, responsibility for management of some commons is vested in the local authority under a scheme for the regulation and management of a common made under the Commons Act 1899, including in some cases where the common has no known owner. In such cases, the local authority will be required to consent to the application.

Where the landowner cannot be identified or contacted, a full explanation to Natural England will be required to progress an application.

Part common agreements are only permitted under exceptional circumstances, on a case-by-case basis, as agreed with Natural England.

Before making an application

In addition to the requirements outlined in the CS manual, to make an application in respect of common land or shared grazing each of these steps must be completed.

Step 1: consult stakeholders

Where a common has not previously been subject to an agri-environment agreement, or where consultation is required to bring the land owner(s), rightsholders and other stakeholders together in support of the management proposals, activities to develop awareness, understanding and agreement across these interest groups will be required before a CS application can be made. Further guidance is given.

The extent of public engagement required will depend upon the management change which is being considered within the CS agreement.

Step 2: select a representative or agreement signatory

Once potential applicants have read this guidance, and have decided to pursue a CS application, they will need to agree on the person who will make the application on their behalf. Natural England will require a letter of authority signed by all potential participants in the CS agreement, landowner, sporting rights holders and graziers.

This person (who can be an agent) will be the main business contact for the CS application and subsequent CS agreement. This person will sign the CS agreement on behalf of the group or association, act on behalf of the association and receive the payments. Throughout the remainder of this document this person will be referred to as ‘the applicant’.

Step 3: start to establish a group with an internal agreement

If there is already an association in place, it is acceptable to continue it, provided that it can fulfil the minimum requirements set out in this supplement.

If an existing commons association covers a number of commons, a separate group of members must be formed (under the auspices of the association) to create an internal agreement for their common where it is the subject of a CS application.

If help is needed to set up an association, this may be available from farmers’ representative bodies, a federation of commoners, commons councils, a land or agricultural agent or surveyor, or a solicitor specialising in rural practice.

They may charge for assistance but note there is a supplement available of up to £6/hectare/year to cover the administrative costs of establishing and managing a CS agreement where there are 2 or more parties involved. This payment is intended to make a contribution towards the cost of drawing up internal agreements in accordance with the particular requirements of CS.

To establish a valid association

The association must effectively represent all those who have a legal and active interest in the management of the land. The landowner, all the active commoners or graziers and other people who may have a legal or active interest in managing the common or shared grazing, the owner of the shooting rights for example, must be consulted. Whilst some landowners may not wish to be involved, they may wish to be represented by their agents or their tenants who are permitted to graze or utilise rights; always consider the landowners’ surplus in any negotiations.

The internal agreement must involve all the active rights holders but inactive rights holders must also be considered, especially those who have the capacity to exercise their rights, as they may wish to do so during the course of the agreement. Some rights holders may lease their rights and this will need taking into account.

Rights of common attached to land cannot be leased for a term longer than 2 years (although the lease can be renewed at the end of each term): a Rural Payments Agency (RPA) inspector or other inspector or auditor may ask to see evidence of any lease.

Those who express a wish not to participate in the CS agreement or have a grievance must also be contacted. Their existing management practices and proposals for changes must be considered in case they could jeopardise the objectives and requirements of the internal agreement and CS application.

It may be possible to address their concerns and make them a party to the internal agreement and CS application. Alternatively, since they can legally exercise their rights on the common, it may be necessary to negotiate ways to fulfil their aims without prejudicing the internal agreement and CS application. Decisions must be recorded in order to address any disputes that occur at a later date.

To ensure all potential participants, landowner, sporting rights holders and graziers in the CS agreement are consulted and briefed, the potential participants in the CS agreement can be consulted individually, or in small groups, or at a general meeting.

A general meeting can also serve to brief individuals and organisations that have an interest in the land, for example Natural England if the land or part of it is a site of special scientific interest (SSSI), or members of the community. Notices may be placed in local newspapers and at access points to the common.

Where the group will have 5 or more members, officers must be appointed to manage the association – a chairman, secretary and a treasurer are essential. These must not all be from one family or enterprise, (for example, they must have separate single business identifiers (SBIs)), and they must reflect the breadth of beneficiaries in the agreement. The written constitution must authorise these officers and the applicant to conduct certain specified business on behalf of the association, to open and operate a bank account, for example.

A formula must be agreed to allocate payments to members of the association or group, this formula can apportion payments according to their contribution and levels of responsibility.

A written constitution must be agreed. A draft or template constitution may be obtainable from the bodies or individuals able to provide assistance mentioned above, but the applicant must make sure that the constitution meets the needs of the particular circumstances of the group. The constitution must:

• define membership requirements and list the members
• identify responsibilities and officers
• set out governance for decision making and meetings
• identify group commitments
• set out how the CS agreement payments will be disbursed
• define how the multi-annual options and requirements for capital items will be complied with on the common or shared grazing
• define a management mechanism for decision making and the resolution of disputes
• set out how changes in membership will be accommodated

The internal agreement must make provision for increases in grazing livestock numbers by those not involved in the CS agreement. Where there is a maximum level of stocking prescribed in the CS agreement, a clause must be inserted in the internal agreement to state that the graziers already involved in the CS agreement will, if necessary, reduce their stock numbers in order for the overall level of stocking to stay within this maximum.

Full records must be kept of all the meetings at which the decisions set out above were agreed.

Negotiation of the internal agreement can provide the opportunity to agree husbandry practices that help participants work together to manage the common or shared grazing.

Establishment of an effective internal agreement will be a condition of a CS agreement offer and a copy of the signed agreement, including the financial information, must be submitted to Natural England before the CS agreement can commence. Natural England or the RPA cannot be involved in drafting the document or in any dispute about its operation.

Compliance with the CS agreement will be the shared responsibility of those who are party to the internal agreement, but day to day administration will be the particular responsibility of the applicant.

Step 4: open a bank account

Create a bank account on behalf of the association. A bank will need to see evidence that the association has authorised the opening of an account and the signing of instructions to the bank (such as cheques), so the applicant will need to produce a record of the meeting which gave instructions for an account to be opened and operated.

Step 5: contact Natural England and complete an expression of interest form

Natural England will contact potential applicants in good time to discuss a CS application. If the common or shared grazing is in an existing agri-environment agreement, applicants will need to check this supplement to ensure that they are able to meet scheme requirements.

If you are not an existing HLS agreement holder, make yourself know to Natural England to discuss your proposed application. If you decide to proceed, you must submit an expression of interest form by 30 June in the year preceding the 1 January start date.

Step 6: register a Single Business Identifier (SBI) and check the Rural Land Register

There must be a separate SBI for the association (even if members of the association already have their own SBIs). The individual beneficiaries who are part of the association will also need to be registered.

The person, who applies to register the commoners’ or graziers’ association with the RPA, should be the main business contact for all communication between the RPA, Natural England and the association, in other words, the applicant.

The applicant will need to check that the common is registered correctly on the Rural Land Register (RLR), liaising with the other participants to agree how to enter the land into a CS agreement. The applicant should also resolve any boundary issues with neighbouring commons and farms before applying.

Step 7: negotiate an application with Natural England

It is recommended that potential applicants read the CS manual so that they can consider their options and begin discussions within their association at an early stage. The CS manual can be obtained from GOV.UK.

A common land and shared grazing supplementary application form must be completed and the applicant must be able to declare on the supplementary form that:

• the landowner of the common or shared grazing consents to the CS agreement,
• the RPA customer registration (SBI) for the common or shared grazing includes the names and SBIs of all people who will benefit from or contribute to the delivery of the CS agreement

Step 8: site of special scientific interest (SSSI) consent

The CS agreement offer will be subject to a formal notice and consent process.

Where the common or shared grazing includes SSSI land, if new members wish to join the association during the CS agreement period, to deliver management as part of the CS agreement, the association must refer the matter to Natural England, since the changes may need to be covered by a consent.

Anyone carrying out activities on an SSSI without consent may be acting in breach of the Wildlife and Countryside Act 1981.

Part-commons

In principle, an application to enter a common into CS must cover the whole common or shared area of grazing. Normally commons coincide with habitat and management boundaries, but exceptionally a single common may be managed in different ways. In such circumstances, it may be more appropriate to progress applications representing ‘part-commons’.

Part-commons agreements will be permitted only if they meet all of the following criteria:

• they must cover a defined area of land with its own RLR parcel number or a different set of RLR parcel numbers
• each agreement area must either be visibly distinct or be bounded by a physical barrier to mark it out from the non-agreement area
• they must be managed as a separate and single grazing unit, where land management practices on the remaining part of the common will not jeopardise the delivery of the agreement. Agreements may consist of one or more whole or part commons which form a single grazing unit
• they must be subject to a separate and binding association and group internal agreement
• each CS agreement must have an audit trail justifying splitting the common, and a clear explanation as to how the CS agreement works that also covers any non-participation by any rights holders

Areas of common cannot be left out of a CS agreement to create ‘sacrifice places’ for unsuitable supplementary feeding (which can be within the limits of cross-compliance tolerances), or to provide grazing areas for non-signing commoners which may then not be compliant with the CS agreement whilst the rest of the common is compliant.

Natural England will keep a central register of all part-common agreements.

Annex A: public engagement

The extent of public engagement required will depend upon the management change which is being considered within the CS agreement and the impacts that the changes may have on features of interest on the common and on local and national stakeholders.

Almost all commons have features of public interest. These include but are not limited to: public access rights, historic features, landscape and nature conservation.

Where works are proposed that need consent from the Planning Inspectorate then applicants need to follow the principles set out in the guide called ‘A common purpose: a guide to agreeing management on common land (CP1)’.

Where management changes do not require consent from the Planning Inspectorate, public consultation should still be undertaken. In these circumstances you are not obliged to follow the principles in ‘A common purpose’ but where there is considerable public interest in your site, particularly if there are significant numbers of visitors, then it is likely to be helpful to follow ‘A common purpose’.

Public engagement where works that need consent are not proposed should still include relevant stakeholders. The applicant should identify relevant stakeholders, contact them, supply information about the proposed scheme, what the intended outcomes will be (for example for biodiversity), and opportunity should be provided for stakeholders to give feedback, especially if the proposals would impact upon them. It may be helpful to prepare a summary of the scheme proposals, including maps and pictures that can be sent to stakeholders, posted on relevant websites and handed out at public meetings.

The applicant should consult:

• the owners of the land
• the commons council or association (if there is one)
• others with a legal interest, for example tenants, anyone who has an easements or other rights and covenants over the land
• all known commoners (whether they’re actively using their rights or not)
• any parish, district, city or county council in the same area as the land
• Natural England
• English Heritage
• the National Park Authority if the area you want to work on is in a National Park
• Area of Outstanding Natural Beauty (AONB) Conservation Board Joint Advisory Committee (if the area of land you want to work on is in an AONB)
• the Open Spaces Society

The applicant may also need to talk to:

• Wildlife Trusts
• Local Access Forums
• Campaign to Protect Rural England
• Ramblers’ Association
• local amenity societies if there are any in the area where the land is
• anyone living on the land or on neighbouring land who could be affected by your planned works

The applicant should hold public meetings in local venues and invite stakeholders to hear more about the proposals and comment upon them.

The applicant should keep a record of feedback and comments received about the proposals. The applicant should consider how concerns from stakeholders about the proposals could be addressed by alterations to the scheme and implement these if they do not significantly compromise the outcomes sought. The applicant should be able to demonstrate how they have adapted the scheme proposals where this is appropriate.

These are some examples of changes to scheme proposals which could be made in response to feedback:

• agreement on limitation of use of existing tracks in bad weather to reduce potential damage to track surfaces so as not to inconvenience other users
• agreement to retain certain trees (for example on heathland) where these are of significance to the local community
• alteration of grazing calendar to reduce conflict with public recreation
• avoidance of operations on non-protected historic features
• provision of new or improved access points where a common is already fenced
• provision of seating at a viewpoint
• alteration of felling proposals to retain screening of buildings, roads or industry adjacent to the common
• alteration of the location of tree planting proposals to provide screening of buildings, roads or industry
• agreement to tie back gates when these are not required to secure livestock