BRENDON COMMONERS ASSOCIATION
PROPOSAL TO ESTABLISH A COMMONS COUNCIL
March 2011
A Report for Natural England
Prepared by
Sally-Anne Cockerill BA (Hons) MSc MRICS
Jeremy Holtom FAAV ACIArb MRICS
Of
Landsense Professional Ltd
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BRENDON COMMONERS ASSOCIATION
PROPOSAL TO ESTABLISH A COMMONS COUNCIL
1)
Brendon Commoners Association (1) representing all the registered
commoners, and Badgworthy Land Company (2) as sole landowner of Brendon
Common, and Exmoor National Park Authority and Natural England Exmoor Team
(3) representing stakeholders (public interest) request the Secretary of State to set
up a Commons Council for Brendon Common, Brendon, Lynton, Devon.
2)
Background
2.1) Brendon Common is an agriculturally active common located in the Devon
portion of the Exmoor National Park and the eastern and southern boundaries of the
Common are also the County boundaries between Devon and Somerset, and the
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historic boundary of the former Royal Forest of Exmoor. Brendon Common is an
upland heath, principally a heather moorland incorporating the south to north running
valleys of Hoar Oak Water and Farley Water and Badgworthy Water and the side
valleys of these streams that drain into the Lyn river system and thence the Bristol
Channel. The Common, comprising a Middle and Lower Devonian geology of
‘Hangman Grits and Lynton Beds’ lies between 370 to 420 metres over datum and
extends to some 1,380 hectares of which 1,368 hectares are calculated as to be
agriculturally usable.
2.2) The Common, comprising the waste of the Manor of Brendon, is one of
Exmoor’s ‘tourism honeypot’ attractions, partly because of the links to the legendary
Doones made famous by R.D Blackmore’s novel ‘Lorna Doone’, but also because
the Simonsbath to Lynton road which bisects the Common affords some of the best
vistas of open moorland on Exmoor as well as fine views of the Exmoor coastline,
Bristol Channel and South Wales.
2.3) Brendon Common is very important for a wide range of upland mesotrophic
mires. The plant communities they support vary considerably due to different water
conditions, the majority are flushed by acidic water, however rarer forms are flushed
by base-rich aquifers.
In the north east of the Common are small areas of Upland Oak Woodland
comprising Sessile oak with Bilberry and cow wheat understorey. Recent surveys
(2002) have shown this area, Yealscombe and Badgworthy, to be extremely
important for Lichens and Briophytes (mosses).
The whole area supports important numbers of moorland birds (RSPB Surveys). The
mix of habitats particularly in the combes provide ideal breeding conditions for
Whinchat, Stonechat, Linnet, Meadow Pipit, Tree Pipit, Redstart, Wheatear and
possibly still the locally scarce Ringed Ouzel.
On higher ground the blanket bog and grassmoor especially favour Skylark and
Meadow Pipit. The wetter rush dominated flushes support Reed Bunting and Snipe
and the fast flowing streams Dipper and Grey wagtail. Skylark, Linnet and Reed
Bunting are BAP species.
Because of the number of passerines, hunting raptors such as Merlin are present all
year and Hen Harrier and Short-eared Owl are winter visitors.
The Common was home to at least three colonies of rare Heath Fritillary butterflies
but this has not been recorded for some ten years and the colonies are considered
to be extinct.
2.4) Brendon Common is particularly rich in archaeology with evidence of human
occupation from the mesolithic period onwards. There is a wealth of early pre-historic
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monuments and sites including many standing stones and settings and burial
mounds, medieval features including fossilised field systems, evidence of extensive
peat digging as well as an exceptional military landscape dating from the 1940’s
when the Common was, among other uses, utilised as a rocket range. A number of
the features are Scheduled Ancient Monuments.
2.5) The Common has many designations, and as well as its location in Exmoor
National Park it is within a Less Favoured Area (Severely Disadvantaged). The area
is also within the North Exmoor Site of Special Scientific Interest and forms part of
the Exmoor Heaths Special Area of Conservation.
2.6) Public access is very important and many people enjoy its status as Section
15 land under the CROW Act, the Common having been dedicated under Section 39
of the LPA 1925 in the early 1930’s, and in addition to providing higher access rights
there is a good network of footpaths and bridleways including routes created under
Environmental Stewardship schemes. The ‘Two Moors Way’ and ‘Tarka Trail’ long
distance paths cross the eastern part of the Common. There are 22 designated car
parking areas on the Common.
3)
Brendon Common and Substantial Support
3.1) In late 2010 Landsense Professional Ltd were instructed by Natural England
to explore the possibility of Brendon Commoners Association becoming a Statutory
Commons Council as the single common example of the three pilot project scheme
that included the two possible umbrella Councils of Cumbria and Bodmin Moor.
Jeremy Holtom MRICS., FAAV, ACIArb. Director of LP Ltd was agent for the owner
of Brendon Common and Secretary of the land owning company, The Badgworthy
Land Company for 13 years up to 2007 and is currently the Secretary of the Brendon
Commoners Association.
3.2) An initial meeting was held in November 2010 between the Associations
Chairman and Secretary and Landowner representatives where the Association
received the Landowners support for entering the pilot project, had this
understanding not been reached then the project could not have proceeded. Upon
award of the tender a modus operandi and nine stage work programme was then
agreed with Graham Bathe of Natural England. The agreed stages (in accordance
with Annex A Specification October 2010) were:1. Clarifying the benefits a CC might bring to Brendon Common
2. Clarifying the land to be covered by a CC
3. Identification of the stakeholders
4. Investigating and liaising with bodies capable of influencing and contributing to the
efficient establishment and running of commons council.
5. Assessing the level of support for the proposed commons council.
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6. Reviewing responses, and addressing main issues of concern.
7. Clarification of procedural matters.
8. Consultation to assess the level of support for the proposed council.
9. Compiling a formal and comprehensive case for submission to the Secretary of
State for drafting an establishment order.
4)
Report on progress and issues
4.1
Clarifying the benefits a CC might bring to Brendon Common.
The benefits of a CC to Brendon Common had been the subject of debate at
Brendon Commoners Association meetings from early in the Bill stage. The
Association has championed the idea of a ‘Single Common Statutory Council’ since
the consultation phases of the Commons Act 2006, and Jeremy Holtom spoke at the
8th National Seminar of Commonland and Village Greens on the topic. Further, the
Associations Chairman was a member of the stakeholder’s panel leading up to the
enactment of the original Commons Bill.
The Association has sent delegates to regional seminars concerning the Commons
Bill and later the Act, at which the Association lobbied for a two tier approach to
CC’s, arguing the merit of single Common Councils. The Association had also sent
representatives to the National Seminar on Commonland and Town and Village
Greens before and during the Bill stage and notably in 2006 (when Commons
Councils were discussed in an afternoon workshop session). Representations were
made to the Consultation on the implementation of Part 2 of the Commons Act in
2008. Contact has also been made through the NSCTVG with the emerging
Foundation for Commonland and through that organisation contact had been made
with the Federation of Cumbria Commoners.
A visit was organised for a delegation of Cumbrian Commoners to Brendon Common
as part of their fact finding mission to the south west and the merits of CC’s was
debated at length.
In addition, John Waldon author of ‘An introduction to Commons Councils’ and
‘Establishing Commons Councils’ was invited to attend an Association meeting and
discuss CC’s.
An invitation was also made by the Association to Morag Cuthbert of Defra and
Graham Bathe of NE to visit Brendon to meet commoners, other stakeholders and
commoners from other Exmoor commons to discuss the merits of a possible CC for
Brendon Common.
Due to the above the Owner representative, Active Graziers and non-active graziers
attending Association AGM’s and meetings had a very good knowledge of CC’s. We
were then able to build on and refresh this knowledge with a timetable of events,
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initial letter and information sheet which was sent to all possible participants (See
Appendix 1, 2 & 3 respectively). As a result of this initial letter we were able to further
explain to participants via telephone or face to face meetings.
4.2) Clarifying the land to be covered by a CC
Brendon Common is actually two registered Commons, being numbers CL 175 and
CL 168 on the Devon register. The extent of the Common is known to the
Association and was clarified.
The Brendon Commoners Association was formed in 1982 following the registration
process under the Commons Registration Act 1965 and they have managed the
vegetation of the common ever since with the agreement of the landowner. The
Association together with the Landowners, the Badgworthy Land Company, (who
have owned the Common since 1926), negotiated entry into an Exmoor
Environmentally Sensitive Area scheme in 2000 and recently, (2010), the
Association gained entry to a UELS/HLS scheme. The Association has also claimed
SPS on the area of the common on behalf of all commoners.
We have utilised the extent of the Common as defined by Commons Act 1965 and in
terms of area have relied upon current Rural Land Register areas. A plan of the area
of the Common is attached as Appendix 4.
4.3) Identification of the Stakeholders.
The Association has, through the process of setting up Environmental Stewardship
agreements and the requisite Internal Management Agreement, had a requirement
of full knowledge of the register of rights for the Common held by Devon County
Council but also for the actual position regarding rights.
There are currently some 31 commoners on the Associations register, the County
register is outdated partly because the Association struggles to get commoners to
update it and partly because transactions occur in and between families that have
not always been made public. Due to this the Association maintains its own register
and tries to ensure estate agents are made aware of existing binding agreements
and of rights attached to holdings upon sale etc.
Matters are further complicated by the registers of the two Commons not reflecting
each other. In order to overcome this the Association has adopted its own
‘composite’ formula for internal management rights matters, which is based on
utilising the higher figure from either Register based on the actual Rights as shown
on the Commons Registers at Devon County Council.
A copy of the current Association register is attached as Appendix 5.
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4.4) Investigating and liaising with bodies capable of influencing and
contributing to the efficient establishment and running of commons council.
Brendon Commoners Association has a long running relationship with Exmoor
National Park Authority and officers of the ENPA regularly attend BCA meetings.
Most recently they have attended in connection with the ENPA’s work upon
landscape and its Moorland Initiative Committee, upon which, both the Chairman
and Secretary of the BCA sit. ENPA often contact BCA if there is a visitor to Exmoor
with an interest in moorland commons wishing to meet commoners.
ENPA have also been actively involved with archaeology on the Common and there
have been schemes for maintenance of standing stones and the follow-up work
concerning finds, reports of damage to sites and so on. ENPA as neighbouring
landowners have been consulted in relation to common boundaries and their
maintenance etc. The ENPA were alerted to the BCA’s aspirations regarding a
possible CC during the bill stage of the Act and have taken a particular interest since
the possibility of the Common being part of the pilot scheme became known.
Because of the established relationship and the responsibility placed upon National
Park Authorities under The Commons Act 2006, ENPA was an obvious candidate as
a possible stakeholder representative for a CC representing the public interest.
The Exmoor Team of NE was another candidate as a stakeholder, as BCA have had
a close relationship with officers from that team for very many years particularly
through negotiations prior to and during the ESA agreement 2000-2010 and the
subsequent UELS/HLS application process.
Other possible stakeholders considered during the consultation process included
local parish councils, the local district council as well as bodies such as The Heather
Trust. After much discussion it was agreed that ENPA and NE be proposed as
stakeholder members, a motion that was carried forward to proposal stage.
4.5) Assessing the level of support for the proposed commons council
As demonstrated in 4.1 above (clarifying the potential benefits) there has been an
awareness of benefit of a CC and consequently a level of support amongst active
graziers and non active graziers who attended Association meetings. However tests
were required to establish if this apparent support amounted to prima facie
substantial support for the proposal.
In order to inform and to quantify initial letters were sent (Appendices 1-3) and a
series of meetings set up.
A paper setting out a Proposal, Response form/Questionnaire, and a Stamped
Addressed Envelope were sent out to inform the initial meeting (see Appendix 6).
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4.5.1) MEETING 1 Held 17th January Brendon Village Hall - to assess the level of
support for the proposed CC – this entailed prior contact being made with all those
with a legal interest in Brendon Common and with identified stakeholders.
Those commoners who did not attend the meeting were sent a letter (see Appendix
7) and a copy of Appendix 6.
A deadline was set for 28th January for stakeholders to submit their completed
response forms. At this time all interests who had not responded were followed up by
telephone calls, and where possible, an explanatory message was left if no direct
contact was possible. If requested we arranged farmyard kitchen meetings to explain
issues and hear concerns. Late responses were not discarded and data was collated
right up to the following meeting.
The results were as follows:
Question 1 - The Proposed Council Membership would be made up of the following,
each with one vote (apart from the 2 stakeholders who would be non-voting
members):




5 Active graziers
3 Non-active graziers
The Landowners
2 Stakeholders (non-voting)
Do you think this is a suitable Membership structure?
Yes – 22*
No – 2
Question 2 - If no, what would you propose to be a suitable Membership structure?
1 person said it should include all current active graziers
1 person said yes, providing ENPA are not stakeholders
1 person said all active graziers, no need for anyone else.
*1 person said yes but subject to the electoral college
Question 3 - Other than the Landowners (Badgworthy Land Company) and all legal
rights holders, which other stakeholders do you think should be involved in the pilot
project?
ENPA & NE- 16
Exmoor National Park Authority - 2
Natural England – 3
ENPA & Other – 1 (ENPA & Heather Trust)
Other – 1 (Local District Council Officers)
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None - 1
Question 4 - At present it is proposed that stakeholders should be non-voting
Members, do you support this proposal?
Yes - 19
No – 4
1 person did not answer
Functions
Question 5 - Do you agree with the functions and powers set out above?
Yes – 21*
No – 3
1 person said yes but had concerns over D (Acquiring or disposing of land with common
rights)
1 person said No – All covered by current agreement
1 person said No – Not D,E or F
1 person said No but didn’t specify any reasons
Yes but subject to striking out ‘regulating the management of vegetation’ and adding in
‘Following the UELS/HLS - if invited by the Landowner to regulate the management of the
vegetation to carry out that function’.
Regulations
Question 6 - Do you agree with the regulations set out above?
Yes - 22
No - 2
1 person said no – not all but did not state which ones.
1 person said no.
1 person said yes but concerned about regulations they might want to introduce e.g.
regulation of temporary severance of rights, requirement to pay dues for the exercise of
rights, prevention of back grazing.
1 person said yes but subject to clause 2.1.8. of the technical guidance notes
Question 7 - How should decisions be made? By:
Simple majority - 14
75% majority - 0
80% majority - 5
Simple majority + Casting vote powers held by the Chairman - 1
Simple majority + Casting vote powers held by Chairman or Landowners if they are there – 1
75% + Casting vote powers held by the Landowners – 1
75% + Casting vote powers held by Chairman – 1
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1 person said active graziers decisions on year to year grazing matters to be decided by
simple majority all other decisions to be based on 80% of the members present with a
minimum of 6 present or holding proxy’s.
Financing
Question 8 - How should the running costs be met, (over and above any contributions
gained from stakeholders)?
A levy per legal rights holder - 2
A levy based on rights held - 12
A levy based on rights held plus a further levy on the landowners – 6
2 people said costs should be met in the same way as they are at the moment/ left as it is
1 person declined to comment
1 person said 2 tier system with a base levy on non-active graziers and an upper tier on
active graziers based on rights held.
General
Question 9 - What is your interest in the common? (Please tick).
Owner - 1
Active grazier – 10 (3 from same family)
Non-active grazier - 13
Other – ENPA - 1
Question 10 - Do you support this proposal for becoming a Commons Council?
(Please tick box).
Yes – 22 (1 person said yes on the basis of proposals they put forwards).
No – 2*
*1 Active grazier (2 family members said yes, 1 said no), 1 non active grazier (who said
leave as it).
4.5.2) MEETING 2 Held on 2nd of February at Brendon Village Hall - This meeting
reviewed the response and identified the main issues of concern as set out in a
paper (peoples comments left anonymous) see Appendix 8.
The aim of the meeting was to establish whether these concerns were
insurmountable or whether actions could be taken to overcome them in order to
decide whether sufficient support existed for continuing the process.
In response to the first questionnaire we received a total of 24 written responses
being the Owner, 9 from active graziers (3 from same family), 13 non-active graziers
and ENPA.
The main issues were:
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Membership - Questions 1& 2 - The results showed the vast majority of people
were in favour of the structure as set out, however the issues which arose were:
How do we vote the members in? Should all commoners vote for all members, or the
active graziers vote for the active members & the non-active for the non active etc?
As there are only 7 active graziers, would it not be better to have all 7 as members
and then increase the non-active members pro-rata to say 5.
Secondly - How should the vote be done? By simple majority of one vote per rights
holder, or by weighted voting on rights held.
Thirdly - Should the membership structure be changed to 7 active graziers, 5 nonactive, the landowners, and 2 non-voting stakeholders?
Issues discussed – Some active graziers felt that it would be very difficult for 2
graziers to stand down and let the 5 others represent them. Graziers were reminded
that they would have their own sub-committee for year to year grazing decisions and
they would all be entitled to vote, then the vote taken to the Council would be as of
the result of the previous vote – Graziers were reminded that they would be in a
position of responsibility and individual interests could only be made at the subcommittee meetings and not at Council level. Secondly, if a grazier was to lease
his/her rights to another grazier, sell their farm and rights etc, or die or be
incapacitated there would be no-one to fill the position and the voting structure could
be jeopardised. Graziers were reminded that a position on the Council would be for 2
years at which point they could choose to stay, be voted off, decide to pass onto
another grazier etc.
Questions 3 & 4 – Stakeholders - Issues – ENPA responded and stated that they
were very willing to assist as non-voting stakeholders and may be able to assist with
the website etc. Natural England were undergoing reorganisation but did state that
as and when the positions were secured they too would be very willing to sit as nonvoting stakeholders in accordance with section 2.9 of the Technical Guidance. As
this was a non-contentious issue it was proposed that the 2 stakeholders (ENPA &
Natural England) would be non-voting.
Functions – Question 5 - Issues - At the landowners request it was proposed that
the function ‘To regulate management of vegetation’ was struck out and in its place
something along the lines of ‘Following the UELS/HLS - if invited by the Landowner
to regulate the management of the vegetation to carry out that function’ is used. This
was on the basis that it is the landowners right to manage the vegetation with
graziers rights to simply graze the common. It was noted that this would only be
relevant at the end of the UELS/HLS if there was no further management agreement
to take its place.
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It was proposed that all other functions remained the same with this one
amendment.
Regulations – Question 6 - Issues – The landowner wished guidance note 2.1.8
being ‘Where the consent of a person with an interest in the land is required for a
Commons Council to do anything on the land for which it is established, a commons
council cannot do anything without that consent (Section 33 of the CA 2006). A
commons council therefore cannot over-ride the rights of the landowners’ to be
incorporated.
It was proposed that the regulations went through with this one amendment.
Question 7 - Issues – The landlord proposed that on year to year grazing matters,
decisions could be made by a simple majority, but all other decisions should have
substantive support and therefore there should be 80% support on all other
matters/decisions. Furthermore they suggested that with the current proposed
membership structure decisions could be made with 6 of the 9 vote holders present
or holding proxy’s.
Financing – Question 8 – Issues Since Jeremy Holtom became Secretary the
Association accrued £4500 + VAT in secretarial costs – it is believed this was an
exceptional year with almost monthly meetings held during much of the year and
registers and registration documents etc to sort out. It was suggested this figure
would be towards the upper limit in any one year.
It was proposed at the meeting that in support of the proposal of a levy based on
rights held, that following on from the HLS, if a further scheme was not entered
into/is unavailable etc then a levy would be taken from all rights holders. At present
there are 1403.5 rights so as a guide based on the last year’s expenditure, this
would amount to approximately £3.85 per unit held. It was further proposed that
exceptional costs such as entering into a new scheme should be met by the active
graziers with a contribution requested from the landowners.
There was concern about funding after the UELS/HLS agreement especially if there
was no further management agreement offered. Whilst it is not possible to anticipate
the situation in 2020 it could be assumed that designated uplands (SSSI/SAC etc)
will be managed because of their special status. However if there are no
Environmental schemes the need for a CC will be greater to maintain its functions
and ensure good management. The CC would be funded by a levy (as was the
Association before the ESA etc – being a single tier levy on all rights held).
General – Question 10 – Issues Concerns were raised about committing the BCA
into something that would affect sons/daughters and future generations etc. The
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issue of revoking the order i.e. going back to being an Association was discussed
and concerns were raised that people may lose their rights. Despite assurance from
Jeremy Holtom and the technical guidance, Landsense were asked to contact
Natural England for a more definitive answer.
Despite the above the meeting suggested that there was sufficient interest in
determining how the CC might operate and drafting proposals for operation.
On the 4th February a further paper reporting the results of the first questionnaire and
refining the draft proposals was circulated, requesting a second questionnaire
response. In this package was included NE guidance on substantive issues and a
further SAE for responses.
The revised draft proposals covered the areas of: Constitutional arrangements for the Council
 Proposed functions
 Membership representation of different interests (e.g. active commoners, non
active rights holders, landowners and stakeholders).
 Geographical areas
 Voting arrangements
 Financing – financial issues including subscriptions, contributions permitted
use of income and accounting arrangements
Again a deadline for responses was given (11th February) but it was pointed out
particularly to those who had not responded that continued silence on issues would
be considered to represent acquiescence.
Again discussion was held with concerned parties, queries were answered and
guidance sought upon issues of main concern. 21 response forms were collated and
data assessed right up to meeting 3.
The results were as follows:
Question 1 - following discussion it is proposed that voting should be segregated by interest
i.e. Only active graziers will vote for their active grazier representative and non-active for
their non-active graziers in line with the ‘Nomination of committee members’ guidance in the
technical guidance note section 4.2.6 – 4.3.13.
Question 1 - Do you agree with this proposal?
Yes - 16
No - 3
2 people did not answer
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1 person said ‘If all active graziers are on the committee then we all only have to vote for
non-active which can be by rights holders. We do not need to increase the amount of nonactive grazier representatives as it is unlikely we will be able to get 3 let alone 5’.
1 person said ‘every voter should be able to vote on all matters equally weighted – no split.’
1 person said yes but ‘if say 3 more graziers became active, graziers would have complete
control of the proposed council – is this a good thing?’ – Think this may be a
misunderstanding as it is proposed to have 5 + 3.
1 person said no –‘all commoners vote for all members.’
Question 2 - Following discussion and advice sought from Natural England (technical
guidance note 4.3.9) it is proposed that in order for everyone’s vote to be equal as becoming
a Commons Council will affect everyone’s interest, it should be done on a one vote per rights
holder basis.
Question 2 - Do you support this proposal?
Yes - 17
No - 3
1 person did not answer
1 person said should be according to units held
1 person said ‘the structure should always be according to rights held.’
1 person said ‘some form of weighting.’
Question 3 - It is proposed that the structure remains as is with 5 active graziers, 3 nonactive, the landowners and 2 non voting stakeholders.
Question 3 - Do you support this proposal?
Yes - 18
No - 3
1 person said no – all current active graziers + the 3 non-active + only NE
1 person said ‘all active graziers + 3 non-active + owner.’
1 person said ‘7 & 5’.
Question 4 - It is proposed that both ENPA and NE will sit as non-voting stakeholders.
Question 4 – Do you support this proposal?
Yes - 19
No - 2
1 person said only NE not ENPA
1 person said ‘Exmoor National Park should not vote as they are already involved with BLC
and would have too much influence as a whole.’ – (I think the answer should then read yes
as the proposal is for ENPA to sit as non-voting members).
Original Question 4 – Stakeholders – non contentious so carried forward from previous
response.
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Original Question 5 – Functions – accepted with the one amendment from the Landowner).
Original Question 6 – Regulations – accepted with one amendment from the Landowner).
Question 5 - The landlord proposed that on year to year grazing matters, decisions could be
made by a simple majority, but all other decisions should have substantive support and
therefore there should be 80% support on all other matters/decisions. Furthermore they
suggested that with the current proposed membership structure decisions could be made
with 6 of the 9 vote holders present or holding proxy’s.
Question 5 - Do you support this amended proposal?
Yes - 17
No - 4
1 person said agree with graziers having a simple majority for grazing issues only and 80%
for all other decisions – disagree with paragraph 2 as only 66% at worst not 80% agreed.
1 person said ‘simple majority with casting vote by landowner or chairman’.
1 person said ‘To protect all voters rights all the time we should adopt at least 75% +
Chairman of voters – if it is fair it will work.’
Question 6 - The SCC would be funded by a levy (as was the Association before the ESA
etc – being a single tier levy on all rights held).
Question 6 - Do you support this proposal?
Yes - 19
No - 2
1 person said with regard to ‘It is further proposed that exceptional costs such as entering
into a new scheme will be met by the active graziers with a contribution requested from the
landowners’. – No way it is to be paid by everybody’ – but yes to ‘The SCC would be funded
by a levy (as was the Association before the ESA etc – being a single tier levy on all rights
held).’
1 person said yes to ‘The SCC would be funded by a levy (as was the Association before the
ESA etc – being a single tier levy on all rights held) but felt that the rest of the proposal had
not been discussed sufficiently.
1 person said ‘if grant schemes closed non-active graziers would not be able/willing to pay,
therefore, if that happened, the CC should be wound up or run by active graziers’.
1 person said ‘this goes back to question 2 – if voting is on one then levy should be the
same – or otherwise for both.’
Question 7 - In light of these discussions and proposals/amended proposals do you support
the above proposal to become a Commons Council?
Question 7 - Do you support this proposal?
Yes – 17*
No – 3 (of which 2 were AG’s).
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1 person said ‘leave it as it is.’
1 person said ‘costs are too much – no more than £1500 per year’.
1 person said – ‘I don’t know any longer, the make up of the Council and the costs are
proving insurmountable obstacles.’
1* person said yes as long as active graziers want it.
1 person said ‘no exit clause’.
Despite there being seemingly substantive support on the second proposal voting,
during the process of collating responses it became apparent there was still concern
on some key issues amongst active graziers. It was apparent that this concern could
amount to non-substantive support which would have meant the pilot scheme
coming to an end. It was therefore decided a phone call would be made to all the
active graziers to air their views and these concerns would be taken to NE. Jeremy
Holtom spoke to Graham Bathe and his answers were taken to the following
meeting.
4.5.3) MEETING 3 on the 16th February at Brendon Village Hall – Presentation of
results of questionnaire 2 (See Appendix 9) and structured debate around issues of
principle concern. These issues included voting procedures, funding, longevity of the
proposed CC and exit from it. A secret poll, in the room, to assess support for
revised proposals was declined but it was agreed, following a show of hands that
parties confirm their position by telephone with a given deadline. This gave families
the opportunity to consider issues to consult their neighbours or advisers, and if they
wished to change their minds anonymously.
The deadline for telephoned votes was set for noon on the 18 th February.
We are pleased to report that we received unanimous support for an application to
be made from the 7 active graziers and have continued landowner support, and that
both potential stakeholders remain in favour.
Of the non-active graziers 19 out of 25 actively engaged in the consultation process
with only two parties declared themselves to be against an application.
Of the remaining non-active graziers, it is perhaps worth reiterating that they were,
like all commoners, and stakeholders written to three times with stamped addressed
envelopes being supplied for their responses, and with notification of meeting times
and invitations to call us if they had queries. In addition we attempted to telephone or
speak personally to these non-active graziers who did not respond to the first
questionnaire. We had received notification from some that they were either away
from the country or uninterested, but it was made clear to them all in the later
correspondence, that continued silence on the matter would be taken to indicate
acquiescence.
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We therefore believe there to be clear substantial support from the first two classes
of persons (the Common does not have any persons with responsibilities held under
an enactment – Class 3) identified at paragraph 3.3.3 of the Technical guidance
notes (Part 2 of the Commons Act 2006: Commons Councils, Technical guidance on
setting up a commons council February 2010). Furthermore, whilst there are no
bodies with powers under any enactment, all further bodies (such as Natural
England and ENPA) were also been supportive.
6) Reviewing responses, and addressing main issues of concern.
6.1) The series of three meetings, described above, were well attended by the
Active Graziers and the Landowner representative, stakeholders and non active
grazier interests were represented, including a non-active grazier who travelled a
great distance to attend the second meeting. Written questionnaire responses were
collated and the results reported to the subsequent meetings.
6.2) As the process proceeded from first to second proposal it was clear that there
were three principle issues that commoners found difficult and a general observation
on the guidance notes was made.
6.3) The general observation was that the guidance appeared to be catering
primarily for an umbrella organisation and it was sometimes difficult to translate the
guidance for our own situation as a single common. There were occasions that the
guidance was not immediately clear and we are very grateful for further guidance
supplied by Graham Bathe and others at NE. We have been in regular contact with
other pilot projects and are grateful for the sharing of experience and knowledge
particularly with Viv Lewis and Julia Anglionby in Cumbria.
6.4) The three main issues were: Costs, Voting procedures and Disengagement
there were other concerns voiced about the need for publicity, stakeholders etc.
6.5) On costs it was agreed that the costs of a single common CC should be very
similar to that of a single common Association, the additional cost of publicity had
been offset by offers from the National Park Authority. Concern at auditing costs
were offset by the realisation that a prudent Association with the requisite level of
turnover would probably carry out an auditing exercise in any event, and that it was
likely that a suitably qualified auditor could probably be found in the neighbourhood,
and seeking a retired person was suggested.
6.6) It was considered that costs would arise as a result of being part of the pilot
project, and that there would be a form of ‘ambassadorial role’ to other commons
and interested parties. It was agreed that this role should be recognised by NE and
a request for subsidy be made to cover these costs. It was agreed that should agrienvironment schemes end, then funding of the CC would be by levy on registered
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rights as had been the case before ESA. It was suggested that the costs would also
be lower if there was no formal management structure (UELS/HLS Internal
Management Agreement), but that statutory powers would be useful.
6.7) On voting it was agreed that the voting procedure mirror as far as possible the
current association voting structure (see Association constitution and UELS/HLS IMA
voting clauses at Appendix 10 & 11) but to this structure would be added a proper
proportion of non-active representatives and an owner representative. Essentially
this would mean agreeing a committee annually to include all active graziers,
currently 7 (should they all wish to participate) as well as 3 Non-Active
representatives, an owner representative and 2 non-voting stakeholders
(representing the public interest). It was suggested that in the event of a dispute that
reliance upon the number of units held or represented by delegates would become a
factor.
6.8) There had been a long debate upon who the stakeholders should be, but
agreement was reached that the National Park Authority and local office of NE be
asked to nominate a representative. Meetings indicated that the ENPA Landscape
Officer might be an appropriate delegate as would a team leader or the project
officer dealing with the commons agri-environmental scheme would be welcome.
6.9) On disengagement it was agreed that if commoners remained happy with a
CC it would carry on from generation to generation, but if for some reason
commoners agreed that it was no longer appropriate, disengagement by
demonstration of lack of functionality together with a plebiscite would end the
proposed arrangement. It was noted with relief that commoners registered rights
would not be effected.
6.10) On publicity delegates recognised that much information was already
available, and publishing would reflect the ambassadorial role and would show the
general public the benefits of agri-environmental schemes etc. The younger
members of active grazing families were particularly keen upon the publicity aspect
of a CC and the benefits that might flow from it.
6.11) In considering the benefits of a CC over that of an Association, the hope was
that an CC could be less personal and enhance neighbourly relations and that the
statutory powers would discourage breaches of rules and remove to some extent the
worry of Landowner or Association having to resort to costly legal action. The raising
of the profile of the Association if it became a CC and the ‘clout’ it would have was
an important factor.
7)
Clarification of procedural matters.
7.1) These procedures were first explained at the initial meeting after which a
proposal paper was circulated (see Appendix 6) the proposals therefore were
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amended by agreement following informed debate and the final proposal is therefore
somewhat different from the original draft.
7.2) With regard to how the CC will operate it was suggested that a single
common council would by necessity be required to minimise its operational activity in
order to avoid cost. It was suggested by the Landowner representative that after the
first meeting of the council full membership might only meet annually at the AGM and
that the day to day functions could be delegated to a sub-committee of active
graziers. This would mirror the status quo in the Association.
7.3) Membership was the subject of long discussion and it was again suggested
that the membership should resemble the existing Association structure namely that
membership be decided annually and would include all active graziers if they wished
to have membership. It was noted that there needed to be governance to avoid
abuse of the system and it was agreed that this might include rules that only one
member of a joint ownership (such as a farming partnership) could be a member and
that holdings could not be nominally divided to obtain two council memberships and
any changes or sub-divisions had to be the result of a legal transaction. If active
grazier numbers created an even number of votes then a casting vote by the
chairman would be required to avoid a split decision.
7.4) Apart from active membership it was agreed that different interests
membership be as per the original proposal non-active representation would remain
at 3, Landowner 1 and 2 non-voting stakeholders. The non-active graziers to be
voted for by non-active graziers or co-opted if required.
7.5) Voting arrangements would be by simple majority but with a fallback position,
in the event of a dispute, that the number of rights held or represented by members
would be taken into account. Proxy voting would be allowed subject to conditions as
set out in the UELS/HLS IMA.
7.6) The draft budget for transfer from Association to CC was considered to be
minimal for a single common council because of desk top publishing. Some time
allowance was required in renaming accounts and informing government agencies it
was suggested that legal costs would be negligible because of the ‘standard
constitution’ and amount of written guidance.
7.7) A major potential cost of the requisite publicity required of a CC was
potentially covered by an offer of support by the ENPA, who suggested that they
could set up and update a page linked to the ENPA website.
7.8) Please see Appendix 12 for the final proposals to take forward to submission
to the Secretary of State.
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8)
Consultation to assess the level of support for the proposed council.
8.1) The series of Questionnaires covering the areas specified, with formally
recorded written responses with the scale of support and dissent assessed and
recorded. Following the third meeting a secret telephone ballot was carried out to
ensure confidentiality of responses. All commoners have been sent a letter (See
Appendix 13) setting out the finally agreed proposals and result of that telephone
ballot and previous written questionnaires.
9)
Stage 8 was the creation of this draft submission to allow the final stage being
Consideration by the Secretary of State.
Suggested elements for inclusion in establishment order
Based upon the series of meetings and the views of participants we identify all
relevant matters, given in the formal guidance, specifying the objectives and
requirements to assist DEFRA lawyers.
5)
5.1 Suggested citation: Brendon Common Commons Council Establishment Order
5.2 Interpretation (b) “active grazier” could be defined as ‘a commoner who the
officer appointed under paragraph 1 determines has grazed animals [in accordance
with the requirements of the Environmental Stewardship Agreement (UELS/HLS)
and the allied Internal Management Agreement] on the common in the period of 12
months.
5.3 Areas of registered common land registered in the register of common land kept
by Devon County Council as registered units CL168 and CL175.
5.4 Suggested (initial) Membership of Council
a. All active graziers on Brendon Common (initially 7)
b. Three members elected by non-active graziers from amongst themselves
c. One member representing the Landowner
d. Two co-opted (non-voting) stakeholder members representing Exmoor
National Park Authority and Natural England.
5.5 Elections etc between 1st July and 30th September annually
5.6 Office period 1 year
5.7 Functions of Council requires amendment at 5(f) where an addition after the
management of vegetation on the Common be made at the request of the
Landowner as follows:- ‘under the terms of the existing UELS/HLS agreement and
following the UELS/HLS - if invited by the Landowner to regulate the management of
the vegetation, to carry out this function.’
5.8 Rules: Further provision is suggested to include rules relating to conduct of
Environmental Stewardship schemes and allied Internal Management Agreements.
5.9 Rule making procedure guidance as to deposition of copies, to:- Devon County
Council, ENPA, North Devon Council and Chairman of Brendon Parish Council.
5.10 Election and appointment clause 14, a notification of active graziers intention to
take up membership within a given period may be required together with regulations
relating to representation from holding (see Clarification of procedural matters
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above) and with regard to General provisions please note that it is proposed that all
active graziers be allowed to become members of council.
Working Draft as at 15th March 2011
Jeremy Holtom & Sally-Anne Cockerill
Appendices index and Appendices E mailed separately
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