We are now seeing an increase in BPS claimants, who have handled their own claims to date, asking us to help them with the RPA over their still unresolved 2015 claims. The fear is that once another year’s payment is made it will become increasingly difficult to “unpick” errors in the RPA computer systems. Now however some farmers are facing pressure from their banks, with large sums outstanding from their 2015 claim, and shortly maybe again from their 2016 claim, with no certainty as to exactly what they will be paid and when. We are now being asked by banks to confirm how much these payments are likely to be, as they are so long overdue. Not easy, especially when common land is involved. Indeed probably most of the outstanding 2015 queries relate to common land claims. Therefore it is worth trying to understand exactly what is involved with these types of claims. This is clearly becoming one of the biggest ongoing problems for the RPA which will potentially still take many years to sort out.
Common Land is land legally owned collectively by a number of persons, or by one person, but over which other people have certain traditional rights. A person who has a right in, or over, common land is called a commoner.
Common land rights date back to the medieval ages when Lords of the Manor would hold large areas of land, divided into smaller plots. A commoner would be the person who occupied a particular plot or area for the purpose of grazing, fishing, the removal of soil for fuel, extraction of minerals, and collection of firewood.
To this day these rights continue to exist, with the rights held by commoners ordinarily defined by number (of stock etc.), type and time of year the rights can be exercised. There are around 572,000 hectares of common land in England and Wales, ranging from large hill commons to smaller lowland heaths. Some commons, such as the New Forest, do not limit rights by number, but make use of marking fees, which serve as receipts for the amount of stock grazing the forest. In this case there are no limits to the amount of stock that can be turned out, although over grazing can result in the imposition of a stinting period whereby access is limited to prevent damage.
COMMON LAND REGISTRATION ACT 1965
To this day most commons are based on the ancient rights that apply to the land, also known as common law, which predate statute law laid down by Parliament. Often these rights are not documented as they were based on long held traditions, meaning a written record of these rights was absent.
In the late 1960s the Registration Act was passed to provide a registration system within England and Wales for common land and town and country greens. The following information was included within the register at the time:
- Land – This was a description of the land, a plan of the land, the details of the person(s) who registered the land and the date land became registered.
- Rights – This included a description of the rights of common, the name of the holder(s) of the right(s) and whether the right(s) were attached to the land in the ownership of the right holder(s), or whether it was a right in gross (a right not dependent on ownership of tangible property).
- Ownership – This included the details of the owner(s) of the common land.
Those with common land rights had a three year period within which details of the common land rights could be registered. In some cases rights were not registered under the Act and have subsequently ceased to be recognised. In other cases some areas of land had clearly been wrongly registered as common land, but the Act provided no mechanism to enable such land to be removed from the register.
Commons Act 2006
In 2006 the Commons Act was passed to assist in the regulation of common land and to update, and continue to update, the commons register. The 2006 Act is made up of five parts:
Part 1 – Registration
This provides for the continuation of the registers, and permits amendments to be made to the register originally introduced in 1995, although the original registration system was replaced.
Part 2 – Management
This enables the appropriate national authority to establish commons councils to manage the agricultural activities, vegetation and the exercise of rights of common on common land (or on town or village greens where rights of common exist over such land).
Part 3 – Works
This contains provision to prohibit the carrying out of works on certain common land without the consent of the appropriate national authority
Part 4 – Miscellaneous
This contains provisions conferring powers of intervention on the appropriate national authority to deal with situations where unauthorised agricultural activities are taking place and damaging the common.
Part 5 – General
This contains powers to amend the application of enactments to common land and village greens.
COMMON LAND UNDER THE SPS
Allocation of Entitlements
Commoners were notionally allocated part of the area of the common. This was based on the number of registered grazing rights they had as a proportion of the total number of grazing rights on that common. The notional area was not increased to take account of any rights which were unclaimed by other commoners. Grazing rights were then converted into livestock units (LUs) in order to take account of different types of animals with rights to graze.
Establishment of Entitlements
To establish an entitlement on common land, a claimant must have had a legal right to use that land. The right will normally have been a right of grazing registered under the Commons Registration Act 1965 (i.e common rights), but it may have been possible to show other rights (such as an owner’s right to surplus grazing). You must have also been a farmer, as defined in paragraph 7 of the Act.
To claim on common land in 2005 at the start of the Single Payment Scheme, Annex 5C was used to declare these rights. The name of the common and the common land number, as well as the type and number of rights, had to be noted. Sections E, F and G required confirmation of whether entitlements were to be established and activated on these commons, and whether the common was owned by the claimant.
SPS COMMON LAND JUDICIAL REVIEW
In 2014 the Committees for the Minchinhampton and Rodborough Commons instigated a judicial review of the method by which the Single Payment Scheme was implemented on commons.
Minchinhampton and Rodborough Commons have a very high number of registered rights in the common land register, under the Common Registration Act 1965. These rights are largely held by non-farming landowners who have not exercised their rights on the commons. (The number of rights held on these commons surpasses the commons capacity in any case.) The system applied by the RPA as of 2005 meant that those who were exercising their rights on the commons were receiving a payment for a small fraction of the total eligible area of the commons.
On the 16th March 2016 the RPA admitted that the implementation of the Single Payment Scheme in 2005 on common land in England was flawed.
“We have concluded that the basis adopted in 2005 for allocating the eligible agricultural area of the common amongst Single Payment Scheme (SPS) claimants does not comply with European regulations. That decision has been taken in light of a legal challenge by those with rights over Minchinhampton and Rodborough commons.”
CLAIMING ON COMMON LAND FOR BPS
As a result of the Common Land Judicial Review, for the commencement of the Basic Payment Scheme common land claimants were able to claim on a proportion of the total eligible area which is calculated according to the ratio of the rights held to the total number of rights held by claimants who make a BPS claim in that year. This change meant that the full eligible agricultural area of each common would be available to claiming farmers.
BPS Commoner Definition
A farmer is ‘using’ a common if they exercise their grazing rights by turning out stock on it. If so, they must declare all of their rights in their BPS application form, even if they choose not to claim for payment on all of the eligible area. A farmer is also ‘using’ a common if they do either of the following:
- Participate in an Environmental Stewardship agreement on the common.
- Contribute to the appropriate management of the common by keeping some of it in a state suitable for grazing or cultivation by keeping it clear of any scrub that can’t be grazed, or by some other beneficial activity, for example clearing bracken or maintaining boundary walls or fences SPS Common Land Claim.
SPS Common Land Claim Form
As the method adopted in 2005 was found to be ‘not in accordance with the regulations,’ some claimants may be entitled to claim additional amounts under the SPS for previous years. To do so the RPA have made a claim form available for those who believe that they should be entitled additional entitlements backdated to the start of SPS in 2005.
In order to submit this form the farmer must have:
- claimed SPS in 2005 on commons where the full area was not allocated to claimants; and
- have claimed in each subsequent year to date.
Others who had a consistent claim history from 2005 until they ceased claiming in a subsequent year may also be entitled to claim additional amounts.
The method of calculating backdated entitlements and payments owed to common land claimants has now been finalised. The RPA has sought legal guidance and is compensating on the basis that “commoners will be put in the correct position”. In order to do this the RPA has confirmed that it will be using 2015 mapping data (referred to later) to assign eligible areas from 2005 onwards. This of course raises questions about whether the eligible areas in 2015 are the same as when the scheme was initially implemented in 2005. The RPA is therefore in a difficult position as this exposes it to complaints from commoners who believe the eligible area was larger in 2005 that in 2015, whilst potentially overpaying those whose commons have increased in size during this period.
If the RPA did not use the 2015 mapping data it would have to make use of the mapping data used in 2005. This was a combination of plans submitted during the registration period of the Common Registration Act 1965, and plans produced by Aberystwyth University, as no CAP-specific plans had been created. It is therefore hard to conclude that the processing of SPS common land claim forms will result in all common land claimants being left in “the correct position”, as the RPA has no means to determine the eligible areas in the period between 2005 and 2015.
Furthermore claims made using this form are limited to being backdated just six years as set out in the Limitation Act, although it is unclear as to how the Act of Limitations has been applied in this case.
This is the RPA’s stated position, but it is believed there may be other circumstances in which compensation or a further allocation of entitlements is appropriate. Particularly in scenarios where claimants in 2005 chose not to register their common rights with the RPA, as they had been incorrectly informed about the method of entitlement allocation. Recourse may also be possible further back than six years by not using the RPA form, i.e. claiming through the courts.
Mapping of Common Land under BPS
In addition to the introduction of a new method for the calculation of Eligible Areas, the RPA has also undertaken a new remapping process of the commons. This commenced in 2013 on the basis that the new plans would be finalised for the introduction of the BPS in 2015. This has proved not to be the case, with the RPA failing to produce a significant number of plans before claims had to be submitted in 2015 and 2016. Although the physical mapping of these commons has now been completed, the method by which this information is digitised to determine an eligible area has been slow. Some commoners have now been sent plans of their commons, providing them with an opportunity to check, and then dispute plans should they be seen to be incorrect. A number of commons are still awaiting copies of these plans, particularly where it has been found that the eligible area is significantly smaller than that established in 2005.
Under Section 11 of the Commons Registration Act 1965, the New Forest is excluded from the registration provisions of the Act. The present boundary or perambulation of the New Forest was laid down by Section 1 of the New Forest Act 1964. In the subsequent 52 years the forest has changed with this border now somewhat expanded from when it was last set out in the Act, and there are significant differences between the area now within the Forest and its extent before 1964.
There has been no judicial interpretation of Section 11 of the Commons Registration Act 1965, but it is believed that the registration authority refused to accept registration of any common rights exercisable over the New Forest.
As a result there is no definitive register of the rights held within the New Forest, and therefore demonstrating these rights has been an area of concern for commoners submitting their claims. Although the RPA does not require confirmation of these rights when processing claims, should an inspection take place, it is vital that claimants have sufficient documentation as evidence of these rights. The RPA does however require the submission of Marking Fee Receipts; these are receipts produced by Agisters (officials of the New Forest) when stock is put out to pasture, and confirms the number of stock de-pastured, and the money which has been paid for this.
In 2005 New Forest commoners were allocated one eligible hectare of common land for each livestock unit grazed in the Forest in the 12 month period immediately preceding the announcement of the treatment of New Forest Commoners under the SPS. This allocation method was subsequently changed in 2007 to a notional area of 3.03 ha per livestock unit, based on the total eligible area of the common established for SPS. This change led to a recalculation and distribution of entitlements and payments for those who had been under allocated entitlements in 2005.
Following the remapping process discussed above, the RPA have found that the eligible area of the New Forest is somewhat smaller than was established in 2007. As a result of the RPA finding the eligible area to be 15,251.41 ha, the eligible area per livestock unit was calculated to be 2.392. This reduction from the figure used in 2007 has resulted in a number of claimants losing a significant number of entitlements and receiving a reduced 2015 payment. It is accepted by the RPA that this mapping is likely to change following challenges from the commoners.