Following a recent legal challenge on Minchinhampton and Rodborough commons in Gloucestershire, DEFRA have amended the mechanism by which SPS/BPS payments on common land are calculated.  This means that some commons’ claimants are eligible for additional payments on previously unclaimed areas of common, going back to 2009 as it has been determined that the previous method for calculating commons payments has not been in line with EU legislation.  For some this could equate to a payment of approximately £1,200 per hectare of unclaimed common, and additional entitlements for this previously unclaimed area as well. 

There are effectively four components required when calculating a claim on a common and it is important to understand each in order to consider how the system has changed.  These are; the total area of the common; the total eligible area; the number of commoner’s rights allocated to individuals for the common; and the number of commoner’s rights declared by commoners on that common.

The old system enabled an individual with commoner’s rights to claim on a proportion of the total eligible area of a common, depending on the number of grazing rights they held.  The number of rights held was the figure used to calculate the notional eligible area each commoner could claim on.  This has been found to be incorrect because it takes into account the total number of commoner’s rights allocated to all individuals; some of these individuals may not have been farmers, or may not have declared their rights.  On some commons this has resulted in part of the available eligible area not being allocated to anyone.

The new system in contrast uses the number of declared rights, rather than the number of allocated rights, to assign a notional eligible area to individuals claiming on a common.  This excludes from the calculation any rights that have been allocated to individuals (perhaps due to their ownership of a property) who are not declaring (using) them.  This new system ensures that the whole eligible area of the common is claimed on.

In order to be eligible to claim on a common, rights holders must now also be seen to be ‘using’ the common.  This can simply be by exercising their grazing rights on the common, or participating in an Environmental Stewardship scheme.  However this definition of ‘use’ also extends to someone carrying out appropriate management benefiting the common, which could extend to maintaining an area suitable for grazing by keeping it clear of dense scrub etc.

The first question to ask, if you claim on a common, is whether the total eligible area of the common was allocated in 2005.  DEFRA are providing a list of commons in this situation.  If not, then those farmers who used their common rights on those commons in 2005, and have claimed SPS every year since, should receive additional entitlements from the RPA, and back-payments for the period between 2009 and 2015, for the extra eligible area not previously declared.  There is a form to complete to initiate a claim that will be available from the RPA shortly.

There will of course be those in other situations, whereby for example their entitlements were confiscated due to a lack of eligible area, or were claiming Hill Farm Allowance or UTP on a notional eligible area of common.  There will also be those who purchased or rented in land since 2005 who will be similarly disadvantaged, and these farmers may also be able to seek recompense from the RPA for a notional area of common they should have been able to claim on.  Farmers in these types of situation are also advised to seek advice in respect to their situation, and their ability to have their entitlements returned and/or additional payments made.

Hugh Townsend

Hugh Townsend

01392 823935