Lake District National Park Partnership
21 September 2015
Agenda Item: 6(c)
Page 1
FENCING ON OPEN ACCESS LAND
1
SUMMARY
1.1
This paper seeks support from the Partnership for the continued development and
hosting of a database that records information about instances of new fencing on open
country (i.e. land mapped as being mountain, moor, heath or down) and registered
common land in Cumbria as a whole. Given that this support is forthcoming, it
recommends that the Lake District National Park Authority be asked to host the
database, which could be managed with support from others (such as LAF Members,
Natural England, Forestry Commission).
Recommendation that
the Partnership:
a
b
Supports the establishment and maintenance of a
database that holds important information about new
fences on open country and registered common land in
Cumbria.
Asks the LDNPA to host the database
2
BACKGROUND
2.1
Since 2008 the Lake District Local Access Forum (LD LAF) has become concerned at
the increasing number of new fences appearing on Open Access Land (OAL) in the
National Park. The Cumbria LAF developed similar concerns over new fences in the rest
of Cumbria. In response, the LD LAF has asked to be consulted on a number of
applications/proposals to erect fences (mostly required to protect newly planted native
woodland, or to regenerate scrub) on OAL, much of which is common land.
2.2
The LD LAF does not consider itself competent to comment on the appropriateness or
otherwise of the proposed planting/regenerating, but confines itself to access and
recreation aspects. The LD LAF’s interest arises because:
It is usually necessary to erect new fences to exclude livestock and deer;
The fencing can impede access and adversely affect the open character of the
valued landscape and may not be removed when it is no longer required and/or
approval has expired1;
Where OAL is not common land, there is a risk that it will cease to meet criteria for
OAL and so be dropped from CROW access maps at review.
2.3
The woodland/scrub planting applications have typically been prompted by the land
owner/farmer’s or commoners’ desire to secure grants under one of two schemes:
i. Environmental Stewardship (ES) - Higher Level Stewardship (HLS): HLS aimed to
deliver significant environmental benefits in defined priority areas (which includes the
National Park). It required the agreement holder to engage in more complex
environmental management requiring support and advice from specialist advisers, to
develop a comprehensive agreement to achieve a wide range of environmental benefits
over a longer period of time. Amongst the options available were measures to plant new
native woodlands or regenerate scrub. In addition, fencing around existing woodland to
exclude stock was an option available under the Upland Entry Level Scheme (UELS).
HLS agreements lasted ten years (i.e. often less than the period for which a fence was
required/requested).
ii. The English Woodland Grant Scheme (EWGS) provided grant support for
landowners wanting to create new woodland and carry out sustainable woodland
management, particularly where it protected and enhanced the woodland’s
environmental or social value. EWGS consisted of 6 main grants; these contained
requirements that vary from 10 to 20 to 30 years. Public access is addressed in Clause
1
It should be noted that where a fence is to be erected on common land, the approval of the Secretary of State is
needed (under s38 of the Commons Act 2006) and such approvals are generally for a temporary fence, with a time
limit of 10 to 12 to 15 years (now usually towards the longer end of this range).
Lake District National Park Partnership
21 September 2015
Agenda Item: 6(c)
Page 2
11 of the Terms and Conditions: “You must protect all public rights of way over the land.
Unless we have agreed otherwise, or the land is "access land" within the meaning of the
Countryside and Rights of Way Act 2000, you need not provide any other public access.”
2.4
Successful HLS schemes were generally developed with close co-operation between
Natural England and the applicants. For common land, this is usually a commoners
association. After a slow start, the LD LAF was consulted over those applications that
involved planting on OAL and are given the opportunity to input into scheme design. As
a consequence, the planting schemes that are now being implemented are generally as
‘access-friendly’ as they can be.
2.5
In responding to these consultations, the forum has advised that various forms of words
be employed in planting / grant agreements to ensure that the fence and all associated
materials are removed after the specified time, but our concern is that fifteen or thirty
years on these arrangements will be forgotten and the term not enforced or not be
enforceable due to loss of relevant information.
2.6
Where applications have been made by (for example) United Utilities or the National
Trust the LD LAF has advised that the responsibility for removal of fencing etc. should be
with UU or the National Trust respectively. When an application to fence has been made
by a private applicant (including a commoners association), the forum has advised that
the applicant be required by the terms of the grant to add an obligation for fence removal
to bind current and any future owners/commoners. Even so, experience with fences
erected for re-hefting of flocks post-FMD suggest that there will be cases where the
expiry of the approval for a temporary fence is ignored. None of the relevant authorities
(Defra, Natural England or Forestry Commission) currently plan to ‘police’ these fence
approvals. Some approvals have already started to expire (e.g. at Dash Falls).
2.7
HLS and EWGS have now ended but there is now a new scheme (Countryside
Stewardship) which replaces the two previous schemes and will soon be open to new
entrants. In 2012, the LD LAF offered formal advice to both NE and FC, suggesting that
our concerns about fence use on and removal from OAL be borne in mind when
designing the new scheme. This too has options involving the planting of woodlands and
a requirement to provide protection in the form of tree guards and/or fencing. LD LAF is
now seeking clarification of how some of the guidance for scheme applicants will be
interpreted, especially with respect to use of fences on OAL and subsequent removal.
3
CONTEXT FOR THE PARTNERSHIP
3.1
Common land is a characteristic feature of the Lake District National Park. Its openness
and freedom of access that this openness affords is highly valued by visitors and needs
to be safeguarded. In its technical evaluation of the LD’s UNESCO bid for World
Heritage Site status2, the World Heritage Project Partnership says: “The intangible
attributes of Lake District farming culture are also a key part of its outstanding value and
include the pattern of family farm tenure with relatively high owner-occupancy; a ‘hefted’
grazing system which allows communal shepherding without fences (our emphasis)
and walls on the largest area of common grazing in Europe.”
3.2
Encroachment of fencing is insidious and cumulatively erodes this sense of openness.
So, while the planting of new native woodlands is desirable for reasons such as
landscape, biodiversity and water quality, these benefits must be balanced against the
amenity, access and recreation values. It is for this reason that mechanisms are in place
for the Secretary of State to be able to vet proposals for anything which will impede
public access on common land, such as fencing, and to set time limits to their retention.
2
See: http://www.lakedistrict.gov.uk/__data/assets/pdf_file/0012/399684/2013-10-18-Lake-District-TechnicalEvaluation.pdf
Lake District National Park Partnership
21 September 2015
Agenda Item: 6(c)
Page 3
3.3
There is a high likelihood that, without a procedure for logging the existence of these
new fences and associated expiry dates, then the fences will either come to be viewed
as permanent or be allowed to deteriorate to a point where they are unsightly and a trip
hazard to walkers. Further, with such a recording mechanism in place, those responsible
for removing fencing will be made more aware of their responsibility and, aware that the
fence’s existence is being monitored, be more likely to fulfil their obligations to remove it
when the woodland is properly established.
4
PROPOSALS
4.1
Most of the HLS/EWGS applications which involve woodland planting on OAL include
the installation of 'temporary' fencing to protect the woodland and other areas under
'stewardship' from damage from grazing animals (e.g. sheep, deer, rabbits) until the
trees have reached a level of maturity that enables them to be self-sustaining without
protection. However, the terms under which grants are administered do not include
provisions for the eventual removal of temporary fencing from around planted areas or
for keeping progress with establishment under review (so that earlier intervention could
help speed/guarantee establishment and thus obviate the need for extension to the
fence’s life).
4.3
It is clear that there is no adequate mechanism to track the location of ‘temporary’
fencing or to enforce its removal at the end of the term or when protection is no longer
necessary.
4.4
The time period during which protection of trees and habitat is needed is variable, and
can be up to a ‘generation’ in human time-scales. Without specific provision being made
for the removal of 'temporary' fencing it is likely that after that time the then owners or
occupiers of the land in question will regard the fencing as being permanent and not be
inclined to remove the fencing to restore the open-access nature of the territory.
Alternatively, the chances are that by the end of the ‘contract’ period much of the fencing
will have fallen into disrepair and will be littering the ground. Further, on OAL which is
not common or where the plantation has not been dedicated as OAL, there is a strong
possibility of the woodland losing this status and the right of access being lost as and
when the mapping is updated.
4.5
Because it is unlikely that DEFRA or NE will have the resources or inclination to 'police'
the removal of fencing installed via these grant schemes, arrangements should be put in
place to enable the general public and other interested parties to track the expiry dates
of fencing so that arrangements for removal may be followed-up.
4.6
The LD LAF recommends that DEFRA and / or Natural England should provide the
means for all temporary fencing on OAL and all access points through temporary fencing
to be mapped in a similar way that other exclusions and restriction to access on OAL is
recorded. Also, that each map entry should be afforded a series of ‘attributes’ which
details the date by which the fencing will be removed and who is responsible for the
removal. Ideally and ultimately, this information could be made available on the MAGIC
website, if it were to be taken up nationally.
4.7
With small but significant funding from NE, and support from a range of bodies (NE, FC,
LDNPA, LD and Cumbria LAFs, CCC, OSS, FoLD) who have engaged in dialogue over
this issue, a pilot database was created in 2014. This holds information on 105 sites of
woodland planting with fences on OAL (28 of them on commons) for just HLS
agreements which, if all the agreements have gone ahead, amounts to about 285km of
new fence. NE staff are currently updating some of the information on HLS agreements
(and have identified another 7 planting schemes). However:
the data provided by FC about EWGS is in a different format and much work is
needed to bring this to a point where it can be added to the pilot database
Lake District National Park Partnership
21 September 2015
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Agenda Item: 6(c)
Page 4
changes may be needed to accommodate the new Countryside Stewardship
Scheme
it is becoming clear that fences could be erected for other reasons (e.g. in
catchments used for water supply).
5
NEXT STEPS
5.1
The LD LAF and other partners on the working group want to identify a suitable host for
the GIS-based database contained relevant information about fences on OAL (including
common land) in the Lake District National Park and wider Cumbria.
5.2
The information sitting behind the database should ideally be available to the public and
partner organisations via a website (and ultimately on MAGIC) to be used as determined
to monitor the cumulative effects of new and encourage landowners into removing
fences on the expiration of grant agreements and/or SoS approvals.
6
FINANCE CONSIDERATIONS
6.1
It is believed that there are no significant financial implications for the Partnership other
than staff time.
Author/Post
Date Written
Ken Taylor, Geoff Wilson. Lake District Local Access Forum
14th September 2015