Guidance

Annex 6: Common land and shared grazing: additional requirements

Published 25 February 2021

Applies to England

You must read and meet the requirements detailed in this section as these are mandatory for all Higher Tier Agreement Holders.

1. Introduction

This annex contains important additional requirements relevant to a Higher Tier Countryside Stewardship application on common land and shared grazing.

If you want to apply for Countryside Stewardship on common land or shared grazing you must read this annex along with the relevant sections of the Higher Tier Manual. Where the common land or shared grazing application process requires a different approach, you must follow the requirements set out in this annex.

1.1 Definitions

In the context of this manual ‘common land’ means either:

• land registered as common land in a register of common land kept under Part 1 of the Commons Act 2006, or
• 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 taken 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.

2. Main points

• Common land and shared grazing agreements are only available through Higher Tier Countryside Stewardship and for a term of 10 years.
• Agreements can only include land that is part of the common. Any non-common land parcels must be applied for as part of a separate Mid or Higher Tier application.
• Agreements may consist of one or more whole or part commons, provided they form a single grazing unit.
• An internal agreement must be set up, signed by all the parties to the Countryside Stewardship application, listing each person’s responsibilities and the payments they may expect to receive (read more about this below).
• The parties to the Countryside Stewardship application must appoint a representative to be the main business contact for the Countryside Stewardship application and subsequent Countryside Stewardship agreement. Throughout the remainder of this annex this person will be referred to as ‘the applicant or you’.
• You must download copies of the Common land and shared grazing supplementary application form from GOV.UK.
• You need to fill in the form and send it with your final Countryside Stewardship Higher Tier application unless you are the owner of the whole common and have sole use and rights to the land. If you do, then you can enter the common as your holding or include it with your holding in your own Countryside Stewardship application.
• A Natural England adviser will work with you to build a suitable application.
• Organic maintenance and conversion options in Countryside Stewardship are not available for common land or shared grazing.
• We now accept applications that include land where invisible fencing is used or will be used during the period of the Agreement, however we do not pay for invisible fencing.

2.1 Commons Association and/or Internal Agreement

Setting up an effective internal agreement between applicants is a requirement of a Countryside Stewardship agreement offer. You must have a signed copy of the agreement, including financial information, before the Countryside Stewardship agreement can begin. You must send a signed copy of the internal agreement to us before the Higher Tier agreement’s start on 1 January 2022.

Natural England or RPA cannot be involved in drafting the document or in any dispute about its operation.

The internal agreement must be fit for purpose, fair and reflect the respective parties’ contribution to the scheme. If it is not and parties cannot agree on amendments, then we may not offer a Countryside Stewardship agreement. During the agreement term, we may ask to see formal evidence that the internal agreement operates effectively, for example, minutes of recent meetings and distribution of funds.

In all cases where there are 5 or more parties benefiting from or contributing to the delivery of the Countryside Stewardship agreement, a more formal Commons Association must be set up with officers to manage the association. You must keep evidence that shows that this formal Commons Association has been set up. We may ask to see this evidence.

If there is already an association in place, it can continue as long as it meets the minimum requirements set out in this annex. If an existing commons association covers a number of commons, a separate group of members must be set up (under the umbrella of the association) to create an internal agreement for the common that is the subject of the Countryside Stewardship application.

2.2 Requirements of an internal agreement or Commons 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
• the people who may have a legal or active interest in managing the common or shared grazing, for example the owner of the shooting rights.

You must consult with them when preparing the Countryside Stewardship application. Some landowners may not wish to be involved, but prefer to be represented by their agents or their tenants who are permitted to graze or utilise rights. You should always consider the landowners’ surplus in any negotiations.

The internal agreement must involve all the active rights holders but you must also consider inactive rights holders, especially those who can use their rights, as they may wish to do so during the period of the agreement. You must also consider that some rights holders may lease their rights. 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). An RPA inspector or other inspector or auditor may ask to see evidence of any lease.

You must also contact anyone who does not want to participate in the Countryside Stewardship agreement or anyone who has a grievance. You must consider their existing management practices and proposals for changes in case they put the objectives and requirements of the internal agreement and Countryside Stewardship application at risk. It may be possible to address their concerns and make them a party to the internal agreement and Countryside Stewardship application. Or, as they can legally exercise their rights on the common, it may be necessary to negotiate ways to fulfil their aims without risking the internal agreement and Countryside Stewardship application. You must keep a record of any decisions so you can deal with any disputes that occur at a later date.

To make sure all potential participants, landowner, sporting rights holders and graziers in the Countryside Stewardship agreement are consulted and briefed, you can consult the potential participants in the Countryside Stewardship agreement individually, 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. You can place notices in local newspapers and at access points to the common.

Where the group will have 5 or more members, you must appoint officers 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 range of beneficiaries in the agreement. The written constitution must authorise these officers and the applicant to carry out certain specified business on behalf of the association, for example to open and operate a bank account.

You must agree a formula to allocate payments to members of the association or group. This formula can make payments according to their contribution and levels of responsibility.

You must have a written constitution. Whilst any bodies or individuals providing assistance may be able to provide a draft or template constitution, you must make sure that the constitution meets the needs of the particular circumstances of the group. The constitution must:

• describe membership requirements and list the members
• list responsibilities and officers
• set out governance for decision making and meetings
• identify group commitments
• set out how the Countryside Stewardship agreement payments will be paid
• describe how the multi-annual options and requirements for capital items will be complied (met) with on the common or shared grazing
• describe a management mechanism for decision making and the resolution of disputes, and
• set out how changes in membership will be dealt with.

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

You must keep full records of all the meetings at which the decisions set out above were agreed.

Compliance with the Countryside Stewardship 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.

2.3 No known landowner

Where there is no known landowner, and ownership is recorded as unknown on the commons register, you should contact us to discuss the circumstances. Where there is no known landowner, ownership will almost always be with the local authority.

In addition, responsibility for management of some commons is with 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 these cases, you will need agreement for your application from the local authority.

Where the landowner cannot be identified or contacted, you will need to give us a full explanation for the application to progress.

2.4 Part-commons

Part-common agreements are only allowed under exceptional circumstances, on a case-by-case basis, as agreed with us.

Normally commons coincide with habitat and management boundaries, but exceptionally parts of 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 must satisfy all the requirements for commons agreements:

• they must cover a defined area of land with its own Rural Payments service land parcel number(s)
• the 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 subject to a separate and binding association and group internal agreement.

In addition, part-commons agreements must also:

• be managed as a separate and single grazing unit, where land management practices on the remaining part of the common will not put delivery of the agreement at risk
• have an audit trail justifying splitting the common, and a clear explanation as to how the Countryside Stewardship agreement works that also covers any non-participation by any rights holders.

Areas of common cannot be left out of a Countryside Stewardship 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 Countryside Stewardship agreement whilst the rest of the common is compliant.

We keep a central register of all part-common agreements.

3. Before making an application

In addition to the requirements outlined elsewhere in this manual, to make an application in respect of common land or shared grazing you must carry out each of the steps set out below.

3.1 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), rights-holders 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 you can make a Countryside Stewardship application. The extent of public engagement required will depend upon the level of management change which is being considered within the Countryside Stewardship agreement.

You can find more guidance on this in Note A at the end of this annex.

3.2 Step 2: select a representative or agreement signatory

Once potential applicants have read this guidance, and have decided to pursue a Countryside Stewardship application, they will need to agree on the person who will make the application on their behalf. We need a letter of authority signed by all potential participants in the Countryside Stewardship agreement: landowner, sporting rights holders and graziers. This person (who can be an agent) will be the main business contact for the Countryside Stewardship application and subsequent Countryside Stewardship agreement. This person will sign the Countryside Stewardship agreement on behalf of the group or association, act on behalf of the association and receive the payments.

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

Establish a Commons Association or internal agreement, in line with the requirements set out above. If there is already an association in place, you can continue with it, as long as it can fulfil the minimum requirements set out in this annex.

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. Associations may be able to apply for the Administration of group managed agreements supplement’ (SP10) on GOV.UK to cover some of these administrative costs in establishing and managing a Countryside Stewardship agreement where there are 2 or more parties involved.

3.4 Step 4: open a bank account

Open a bank account on behalf of the association.

3.5 Step 5: contact us and complete an application form

Contact either RPA and/or Natural England in good time to discuss your Countryside Stewardship application. If the common or shared grazing is in an existing agri-environment agreement, you will need to check this annex to make sure that you are able to meet the new agreement requirements.

If you are not an existing Higher Level Stewardship Agreement Holder, contact us to discuss your proposed application. The application would then follow the same timetable as any other Higher Tier application.

Potential applicants should read the Higher Tier Countryside Stewardship Manual so that they can consider their options and begin discussions within their association at an early stage.

If you decide to proceed, you must submit an application form by 30 April 2021. If the application is successful and you subsequently accept an agreement offer your Countryside Stewardship agreement will start on 1 January 2022.

3.6 Step 6: register a Single Business Identifier and check the Land Management System

There must be a separate Single Business Identifier (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 with us in the Rural Payments service.

You should make the application to register the commoners’ or graziers’ association with us. You will need to check that the common is registered correctly in the Rural Payments service, liaising with the other participants to agree how to enter the land into a Countryside Stewardship agreement. You will have to resolve any boundary issues with neighbouring commons and farms before you apply.

3.7 Step 7: negotiate an application with Natural England and RPA

We will work with you and Natural England to develop the details of the proposed agreement. In doing so, we will need to see the details of the internal agreement, as this may affect the options for inclusion in the agreement.

You must fill in the Common land and shared grazing supplementary application form from GOV.UK and send it with your final application. On this form you must be able to declare on the supplementary form that:

• the landowner of the common or shared grazing consents to the Countryside Stewardship agreement, and
• 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 Countryside Stewardship agreement.

You must send us this final application (and accompanying documentation) by 31 August. As with any successful Higher Tier application, we will issue an agreement offer, with a declaration for you to sign and return.

You must send a signed copy of the internal agreement to us before the Higher Tier agreement starts on 1 January 2022.

3.8 Step 8: Site of Special Scientific Interest consent

Where the land includes an area of SSSI, the Countryside Stewardship agreement offer will be subject to a formal notice and consent process.

If new members wish to join the association during the Countryside Stewardship agreement period, to deliver management as part of the Countryside Stewardship 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.

4. Note A: public engagement

The extent of public engagement required will depend upon the management change which is being considered within the Countryside Stewardship 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
• nature conservation

Guidance Carrying out works on common land is available on GOV.UK. This sets out the type of work that requires consent from the Planning Inspectorate, exemptions and how to apply.

Where work is proposed that needs consent from the Planning Inspectorate you must follow the principles set out in the guide called ‘A common purpose: a guide to agreeing management on common land (CP1)’ on Historic England’s website.

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

You should identify relevant stakeholders, contact them, supply information about the proposed scheme, what the intended outcomes will be (for example for biodiversity), and give them the opportunity to give feedback, especially if the proposals would affect them. It may be helpful to prepare a summary of the scheme proposals, including maps and pictures that you can send to stakeholders, posted on relevant websites and handed out at public meetings.

You 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 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
• Historic England
• 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 Local Authority Historic Environment Record (HER)

You 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.

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

You should keep a record of feedback and comments received about the proposals. You 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. You should be able to demonstrate how you 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/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.