Commoners are able to claim BPS on a common if their right is:
- a right to graze which is registered under the Commons Registration Act 1965 or Part 1 of the Commons Act 2006 (ask the relevant local authority to see the registers).
- a right to graze shared grazing (these rights are often set out in an ‘inclosure award’).
- a right to any surplus grazing on common land because they are the owner of the common, or the owner has granted that right to them.
- a long-standing tenant’s right to graze common land (sometimes known as a ‘quasi right’), where there is no notional surplus, but the commoners’ association and owner for that common land has previously recognised the existence of their right. Farmers can’t claim against a right of common which is not a right to graze animals (for example, a right to collect firewood or dig for peat).
To be eligible to claim on the common rights, they must be using the common on which they own the rights. A commoner is using their rights if they undertake one of the following:
- exercise their grazing rights by turning out stock on it, including grazing for conservation purposes; or
- participate in a relevant Environmental Stewardship or Countryside Stewardship agreement on it; or
- contribute to managing the common.
The claim is paid based on the eligible area of the common and the number of rights that are declared in each claim year. The eligible area of the common can change on a yearly basis depending on the number of commoners that claim on their common rights. This therefore affects the number of entitlements each claimant needs for a claim year.
New Forest “Common” Rules
The previous BPS system for the New Forest based payment values on the number of grazing stock registered with the Forest’s administrators (known as Verderers) through payment of “marking fees”. Allegations reached the High Court that this system amounted to a headage payment, which would be illegal, and has led to overgrazing. DEFRA’s replacement method of assessing claims in the New Forest will be:
- To allocate to each commoner who has claimed BPS in the New Forest a reference amount based on the maximum number of marking fees they declared in any year of their choice between 2015 and 2020.
- This will be taken as an expression of their grazing rights and used annually to perform the area allocation calculation for BPS, entirely divorced from the number of animals each commoner chooses to turn out to graze in the New Forest that year.
- There will also no longer be a requirement for New Forest commoners to provide copies of Marking Fee receipts to support their BPS claims.
- New farmers in the New Forest who started commoning in 2020 and will claim BPS on the New Forest for the first time in 2021, will be allocated a reference amount based on their marking fees paid for 2020. If you claim BPS on the New Forest for the first time in 2021, you should use your BPS application to declare an interest in the common rights you have in the New Forest
Following the successful legal challenge in March 2015 on the way the RPA historically calculated the claims made on Minchinhampton and Rodborough Commons in Gloucestershire, common claimants can and have submitted claims to the RPA for an allocation of extra entitlements and retrospective extra payment for these entitlements. This affects all common land claimants in England except (currently) for those in the New Forest.
Following the case, people who claimed on their common rights in 2005, and have claimed SPS/BPS every year since, should receive additional entitlements from the RPA, and back-payments for the period between 2009 and 2015 (if they submitted a successful claim in 2015), and it is found there is additional common area to be allocated. Depending on the results from the RPA who are now including commons in their re-mapping program, it should be noted that the eligible area of the common can be reduced as well as increased.
We have submitted a number of claims on behalf of clients and the RPA are still accepting claims subject to a limitation on back payment of six years from the date the claim is received by the RPA.
January 2018 – Western Morning News – Commons update – click here
December 2016 – Western Morning News – Common land rights and BPS claims – click here
March 2016 – Western Morning News – BPS 2016 – Opportunities for commoners – click here
September 2015 – Western Morning News – Back payments on common land – click here