An Important Notice from the Committee to Members and Friends of the Dartmoor Society

News From February 2012

DNPA Memorandum Regarding Dartmoor Mires Project - Proposed Fencing Works at Broad Down

Posted in Responses/Comments on Tuesday 28th February 2012 at 12:03am

To: Sue Goodfellow
From: Christopher Walledge
Date: 13 February 2012

I have been asked to advise in writing regarding the proposed fencing works on Broad Down relating to hydrological monitoring equipment which is to be deployed as part of the monitoring process for the Dartmoor Mires Project.

The proposed fencing of part of the commons engages the provisions of the Commons Act 2006 and the Dartmoor Commons Act 1985.

1. Commons Act 2006

Section 38 of the Commons Act 2006 enacts a general prohibition on any restricted works on common land without the consent of the Secretary of State. Fencing (permanent or temporary) is one of the restricted works:

  1. A person may not, except with the consent of the appropriate national authority, carry out any restricted works on land to which this section applies.
  2. In subsection (1) ‘restricted works’ are:
    1. works which have the effect of preventing or impeding access to or over any land to which this section applies;
    2. works for the resurfacing of land.
  3. The reference to works in subsection (2)(a) includes in particular:
  1. the erection of fencing;
  2. the construction of buildings and other structures;
  3. the digging of ditches and trenches and the building of embankments.

This makes it clear that the prior consent of the Secretary of State is required for the erection of fencing if it will have the effect of preventing or impeding access to, or over any common land.

However, there is an exception within section 38 which is relevant to the proposed fencing at Broad Down. Section 38(6) provides that the general prohibition in s.38(1) shall not apply to:

  1. works on any land where those works, or works of a description which includes those works, are carried out under a power conferred in relation to that particular land by or under any enactment;
  2. works on any land where the works are carried out under a power conferred by or under any enactment applying to common land.

This means that if there is a specific statutory power to erect fencing on the commons, it will override the general prohibition in the Commons Act 2006.

2. Dartmoor Commons Act 1985

Section 10 of the Dartmoor Commons Act 1985 makes provision concerning public access to the commons. Section 10(4) empowers the National Park Authority to regulate or prohibit for such period as may be reasonably necessary, access by all or any part of the public to any part of the commons, provided it is for one of three purposes specified in the subsection. The second exception is as follows:

  1. After consultation with the Commoners’ Council:
    1. for the protection and restoration of the natural beauty of the commons and their suitability for rough grazing or recreation;

The 1985 Act also provides that the Authority may fence and enclose parts of the commons for as long as may appear necessary for the attainment of the purposes of the regulation or prohibition of access in pursuit of the aim set out in (b)(i) above.

3. The Proposed Fencing on Broad Down

The Dartmoor Mires Project is primarily concerned with the restoration and conservation of the commons. The hydrological survey equipment is required to monitor the restoration work and evaluate its success. The fencing is a direct consequence of the deployment of the hydrological equipment. Given the intended use of the equipment and fencing, the Dartmoor Commons Act permits the Authority to deploy the equipment and fence it without the need for consent from the Secretary of State.

It should be noted that the power in section 10(4) is subject to a number of restrictions. Section 10(8) preserves the right of the owner of the commons (or any person acting on behalf of the owner) have access to every part of the commons at any time. Section 10(9) requires the Authority to serve notice by newspaper advertisement of the regulation/prohibition of access by the public, its intended duration and the reasons which it has made and inviting written representations within 28 days after the date of publication of the notice. The Authority is also required to consider all such representations so made before making its determination, save in case of an emergency.

4. Consultation & Representations

A notice was place in the Western Morning News setting out details of the proposed restriction of public access on common land at Broad Down and inviting representations by 10 February 2012.

The Dartmoor Commoners Council and Dartmoor Forest Commoners Association were individually consulted, as required by section 10(4)(b) of the 1985 Act. The Central Council of Physical Recreation were also consulted, as required by section 10(9) of the 1985 Act. In the event, three responses were received: from the Open Spaces Society, the Dartmoor Society and a Mr Paul Rendell.

  • The Dartmoor Commoners Council raise no objection
  • The Dartmoor Forest Commoners Association raise no objection
  • The Open Spaces Society express concern about the proposed use of s.10 of the Dartmoor Commons Act 1985, which they regard as inappropriate. In their view, the fencing is not in itself for the purposes of protecting and restoring the natural beauty of the commons and an application should be made to the Secretary of State under s.38 of the Commons Act 2006. However, the Society also indicate that they have no objection to the fencing per se and no objection is made to the location of the proposed fencing, the extent of the proposed fencing or the type of proposed fencing.
  • The Dartmoor Society calls for a full Public Inquiry into the Dartmoor Mires Project. It rejects as inappropriate the use of section 10(4) of the Dartmoor Commons Act 1985 and states that an application should be made to the Secretary of State under s.38 of the Commons Act 2006. However, the Society welcomes advance monitoring in principle and accepts that scientific equipment for advance monitoring will need to be fenced. No objection is made to the location of the proposed fencing, the extent of the proposed fencing or the duration of the proposed access restriction.
  • Mr Paul Rendell raises concerns about the potential disturbance of a military crash site in the vicinity of the proposed fencing.

5. Conclusions

The Authority has given public notice of its intention to rely on powers conferred under s.10 of the Dartmoor Commons Act 1985. It has also consulted with the Dartmoor Commoners Council, the Dartmoor Forest Commoners Association and the Central Council of Physical Recreation as required.

No objection has been received to the need, location, extent, type or duration of the proposed fencing.

Some questions have been raised whether the proposed works constitute an appropriate use of the Dartmoor Commons Act 1985, but no case law or legal opinion has been produced to show that the Authority is not entitled to rely on the powers under s.10 of the 1985 Act in conjunction with the exemption under s.38(6) of the Commons Act 2006.

In all the circumstances, it is my opinion that the Authority has engaged in an appropriate public consultation process which has not resulted in any significant objection in law or principle to the proposed works.

I do not believe that there is any legal impediment in proceeding with the erection of fencing and siting of hydrological monitoring equipment on Broad Down as proposed.

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Slideshow - "Dartmoor Mires Project - Interfering With Nature"

Posted in Responses/Comments on Monday 20th February 2012 at 11:02pm

The Dartmoor Society has put together a slideshow of images and issues surrounding the Dartmoor Mires Project which you can watch below or on our YouTube channel.

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Representations on the Proposed Restriction of Public Access at Broad Down

Posted in Responses/Comments on Friday 10th February 2012 at 8:39am

Dartmoor Mires Project – Proposed Restriction of Public Access on Common Land at Broad Down – Dartmoor Commons Act 1985 Section 10(4)

Representations of The Dartmoor Society

1.    The Dartmoor Society (hereafter ‘The Society’) was established in 1998 to be ‘an independent voice and a forum for debate for those who find Dartmoor a source of livelihood or inspiration’. It is a registered charity (no. 1111066) with broadly educational aims, and has more than 500 members.

2.    The Society has consistently questioned the purpose, efficacy and management of the Mires Project – see Newsletters 34 (February 2009) pp 5-7; 35 (June 2009), p.13; 37 (February 2010) pp 3-5; 38 (June 2010) p.3; 42 (October 2011), pp. 27-32. We have also held a relevant public Debate (September 2008), two relevant public Research Lectures (in 2007 by Dr Ralph Fyfe and in 2010 by Lauren Parry), and had site visits to both Blackabrook and Winneys Down. The Society also argued (in a letter to Dr Kevin Bishop dated 30 April 2010) that the works at each site required consent from the Secretary of State under the Commons Act 2006, and that  there should be a Public Inquiry.

3.    The Society welcomes this opportunity to make representations as it is the first time since work began on Dartmoor mires in 2007 (at Amicombe Hill) that the public have been given an opportunity to comment. However, it is surprising that, two years into the Dartmoor Mires Project (2010–2015), this proposal is only now being made.

4.    The Society has always argued that research and scientific monitoring (re hydrology, etc) should be part of any ‘rewetting’ project, especially in advance of any physical work on site creating dams etc. Regrettably and, in our opinion, inexcusably, no hydrological monitoring has yet happened at any of the ‘pilot’ sites (since 2007) nor in connection with the specific Dartmoor Mires Project which is already 40% through its time schedule of 5 years (2010–2015), and the results of any other monitoring (erosion/ photographic/vegetation/birds/invertebrates/historic environment/peat cutting), if it has taken place, are not in the public domain.

5.    The proposal before us has an element of advance monitoring, which we welcome in principle, and we accept that scientific equipment for advance monitoring will need to be fenced.

6.    However, we do not support the proposed works due to take place after the advance monitoring phase, at ‘Broad Down’ itself, for the following reasons:

6.1.    The location is wrongly named ‘Broad Down’ being approximately one mile north-west of Broad Down.  The location of the project is properly known as Flat Tor Pan and should be referred to by that name. That the managers of the project call it ‘Broad Down’ does not reassure us regarding their knowledge of Dartmoor.

6.2.    The Society is concerned that, on information it has received, there has been no plenary session of the Dartmoor Commoners’ Council to assess and discuss the proposal at length, and so members of that Council have been denied an opportunity to discuss it collectively, which is surely the very purpose of that Council.

6.3.    The Society believes that application for the works (monitoring and other) should be made to the Secretary of State under Section 38 of the Commons Act 2006 rather than by using Section 10 (4) of the Dartmoor Commons Act 1985. The latter has a key criterion of ‘protection and restoration of the natural beauty of the commons’, which the fence will not in itself do, and Section 10(4) is intended to keep people off small areas of eroded land for short periods, not the nine years asked for in this instance. The proposed works at ‘Broad Down’, after initial monitoring, include the disturbance of ground and the creation of scores of peat dams or embankments (some with timber) over some 10 hectares of ground [Source: Fig. 2 in Arnott, S. (2011) Dartmoor Mires Project Hydrological Monitoring Plan; email from Frances Cooper, Dartmoor Mires Project Officer 18 Jan 2012]. Among restricted works which require consent under Section 38 of the Commons Act  are ‘fencing…ditches, trenches, embankments’ and ‘works which might have the effect of preventing or impeding access to or over the land’, and the Society believes the proposed works fall under these categories. In a letter to Dr Tom Greeves dated 4 May 2010 Dr Kevin Bishop, Chief Executive of Dartmoor National Park, argued that the reason Section 38 (Commons Act 2006) consent was not then being sought on rewetting projects was that the works ‘do not have the effect of preventing, or impeding, access to, or over, the land’. This is clearly not the case with the proposed fence. Therefore, on their own criteria, Dartmoor National Park Authority should now apply under Section 38 of the Commons Act 2006.

6.4.    Furthermore, the Society is concerned that a decision on the representations for the proposed works is, at the moment, in the hands of Dartmoor National Park Authority which has a financial interest (£1.1 million) in the project and so cannot be considered an unbiased and impartial party. The Secretary of State should therefore be the arbiter, through use of Section 38 of the Commons Act 2006.

6.5.    Three so-called ‘pilot’ schemes have already been initiated on Dartmoor since 2007 – Amicombe Hill, Blackabrook and Winneys Down. Despite it now being almost five years since the start of the first of them, there is no detailed information in the public domain giving results and assessments of these projects. The Society would argue that no further project should be initiated and that there should be no further expenditure of money and public resources until the results of the previous ‘pilot’ schemes have been properly and rigorously assessed, and data published with accurate maps and plans.

6.6.    Fundamentally, the Society is not persuaded that the need for rewetting has been proven, nor that any evidence has been presented to show that there is any recent erosion of the Dartmoor peat which is different to that which has occurred naturally over several hundred if not thousand years. We challenge the claim of South West Water that the works associated with the Dartmoor Mires Project at Winneys Down and elsewhere will cause cleaner run-off into reservoirs (and thus save them money otherwise spent on treating ‘turbid and discoloured water’), as none of the sites drains into a reservoir from which water is abstracted, and we also challenge their claim that ‘downstream flooding risks’ will be reduced (including, it was implied, in Torquay, to which no Dartmoor rivers flow).

6.7.    The work already undertaken at Winneys Down is a major cause for concern, especially relating to the tracks made by vehicles, the interference with a previously undisturbed and healthy bog, potential hazards to livestock and walkers due to the depth of the ponds (1–2 ft deep with soft peat at the bottom), and the unstable nature of those dams/embankments which have become waterlogged (the ponds fill with water then overflow), besides the lack of any hydrological monitoring etc.

6.8.    Graziers claim they have lost grazing ground at Blackabrook due to the water-filled dams/embankments, and that the ponds are a potentially fatal hazard to livestock. One grazier lost a sheep in 2010 and another lost a calf in 2011.

6.9.    No mention is made of the aircraft crash site at Flat Tor Pan which is of historic/archaeological interest, with debris from a Sea Vixen from Yeovilton which crashed on 31 May 1965, the pilots ejecting safely. The site is in the vicinity of a pond (which may have been created by the impact of the crash) in the heart of the project area, and should not be disturbed. The pond itself deserves study and monitoring.

6.10.    The Society is concerned about the increasing costs of the monitoring proposals which were initially said to be £90,000 (DNPA website Briefing Note June 2011), but which Dr Sean Arnott has assessed as an average of £102,280 (Arnott, 2011, op.cit., p.26).

7.    The Society therefore requests that there should be a full Public Inquiry into the Dartmoor Mires Project before any further ‘pilot’ project or monitoring is started, or money spent, as we believe there are many grounds for concern and issues of public interest regarding the justification, purpose, efficacy, costs, consultation process and management of the current project and previous related works, all of which deserve a full hearing and public scrutiny by a neutral party or parties. We consider that any delay and costs that might be caused or incurred by a Public Inquiry will be beneficial in the long-term as the matter reaches to the heart of hill farming on Dartmoor and the proper management of the commons, and is of major interest for graziers, scientists, land managers and the general public.

Yours faithfully,

Tom Greeves MA, PhD
Chairman, The Dartmoor Society

Copies to:

  • Caroline Spelman MP, Secretary of State, Dept of Environment, Food & Rural Affairs (DEFRA)
  • Planning Inspectorate, Bristol
  • Dr Helen Phillips, Chief Executive, Natural England
  • Geoffrey Cox MP
  • Anne Marie Morris MP
  • Mel Stride MP
  • Roger Halliday, Duchy of Cornwall
  • Christopher Loughlin, Chief Executive, South West Water
  • Kate Ashbrook, Open Spaces Society
  • Prof. Ian Mercer, Dartmoor Commoners Council

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