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England Coast Path: Out of Order

Coastal Margin, One of the worst features of the Coast Path framework was not consulted on publicly.  It’s not even defined in the Act itself.

As though some inherent, received wisdom, Natural England continually refers to “Coastal Margin” as automatically including the entire seaward side of the route of the England Coast Path.  But on what basis?  Questioning this led me a merry chase through legislation, documentation, obscure reaches of Google queries, and a high tolerance for repetition of the term “Coastal Margin” (which you may require to read further).

The first problem was trying to find a definition of the term “Coastal Margin” in the Marine and Coastal Access Act 2009.  The first time it is mentioned, it is not referred to with that distinct term, the first section of Part 9 Coastal Access

296 The coastal access duty
(1) Natural England and the Secretary of State must exercise the relevant functions in order to secure the following objectives.
(2) The first objective is that there is a route for the whole of the English coast which—

a) consists of one or more long-distance routes along which the public are enabled to make recreational journeys on foot or by ferry, and
(b) (except to the extent that it is completed by ferry) passes over land which is accessible to the public.

(3) The second objective is that, in association with that route (“the English coastal route”), a margin of land along the length of the English coast is accessible to the public for the purposes of its enjoyment by them in conjunction with that route or otherwise, except to the extent that the margin of land is relevant excepted land.
[….}

Here it only refers to the context of it as an objective of “Coastal Access Duty” and states the purpose of “a margin” for public enjoyment in conjunction with the route.  The act then bandies the term “Coastal Margin” about quite a bit (55 times), but mostly the references are about how to treat and what you can do with Coastal Margin.   You can as a landowner dedicate land as Coastal Margin, if it already adjoins a Coastal Margin.   When Coastal Margin access rights come into effect (only once the route stretch is fully implemented).  That Natural England may align a landward portion of Coastal Margin with a physical feature. You’ll be hard pressed to find a definition, but from context in section 296 you may glean that Coastal Margin is related to the route, and elsewhere that it may have landward and seaward sides.

Finally the search brings you to what looks like Section “55D Coastal margin” but this in turn is a shell game, 1) the section goes on to describe how Coastal Margin may be treated within the report prepared under Section 51, 2) the intrepid reader may already be wondering ‘weren’t we just in Section 296?  have we gone back in time?‘ in a way, we have, we’re actually in Section 302 Long Distance Routes which does two things, both insertions into the 1949 Act which means the National Parks and Access to the Countryside Act 1949, into which Sections 55A-J are dropped betwixt that Act’s Sections 55 and 56, and then Schedule 19 of 2009 is transported to Schedule 1 of 1949 (all without recourse to TARDIS).

Then, the to be inserted, 55J comes along, “Interpretation“, all you legislation junkies know this is where the terms get defined.  So here we finally have:

“coastal margin” has the same meaning as in Part 1 of the CROW Act

Of course, all you Hansard habitués know that this refers to the Countryside and Rights of Way Act 2000 (c. 37) (aka CRoW 2000), and like me, you’ve a rolled up copy of the original either under your pillow, or propping up that short table leg.  If you look there, you won’t even find the word “margin”.

Maybe we’re going about this from the wrong direction, we’re trying to find the source of a definition that tells us that the coastal margin is the entire seaward side of the path.  CRoW doesn’t have the word seaward in it either.  The 2009 act  mentions “seaward” 31 times, it’s used throughout relating to various definitions of limits of territorial waters.  In Part 9 Coastal Access the term in used for stipulations within Section 301 River Estuaries such as “relevant upstream waters” is partially defined as “the waters from the seaward limit of the estuarial waters of the river upstream to the first public foot crossing”.  “Seaward” is only used in conjunction with “Coastal Margin” when discussing the notion that an alternative route may have the default spread of 2 metres both landward and seaward, with discretionary additions of physical features on the landward side.  Aren’t you glad you asked?

So how is it possible for “Coastal Margin” to have meaning in the CROW Act in which it seemingly doesn’t appear?  Well you may as well shred that copy under your pillow or table leg, resign yourself to sleepless nights or a shaky table.  Even if you’ve downloaded the latest .pdf of the 2000 Act, all you’ll find is only this in Part I – Access to the countryside / Chapter I – Right of access:

3 Power to Extend to coastal access
[…]
(3) In this section “coastal land” means—

a) the foreshore, and
(b) land adjacent to the foreshore (including in particular any cliff, bank, barrier, dune, beach or flat which is adjacent to the foreshore).

So this still doesn’t answer the question, although we will return to this “coastal land” concept almost immediately.  After The Marine and Coastal Access Act 2009, finishes tinkering with the 1949 Act it also amends the CRoW Act 2000, inserting this next section which finally defines Coastal Margin:

3A Power to extend to coastal land etc: England
(1) The Secretary of State may by order specify the descriptions of land in England which are coastal margin for the purposes of this Part.
[…]

Oh, it didn’t, but it finally mentions “coastal margin” in a prescriptive manner and tells you that the Secretary of State may specify the description by order.  It’s really the legislation’s way of saying “put a pin in it.”  This means the definition of coastal margin in use was never consulted upon publicly leading to the legislation.

The amendment made by the 2009 Act only appears in the “live” version of the Act on the legislation website, but not in any printed or downloaded versions (https://www.legislation.gov.uk/ukpga/2000/37/part/I/chapter/I).  So the definition isn’t in any of these Acts, the “pin” saying they’ll get back to us on that one is.  It is then created by a subsequent statutory instrument, the “order”.

That order “The Access to the Countryside (Coastal Margin) (England) Order 2010 No. 558” was discussed by the Delegated Legislation Committee by 17 MPs on 23 February 2010 for twenty minutes, and was discussed at unspecified length by the Lords Grand Committee on 9 February 2010 during a 3 hour meeting which included five other items of legislation. Here, at long last is the definition from the Order:

Descriptions of coastal margin
3.—(1) Land in England is coastal margin for the purposes of Part 1 of the CROW Act (access to the countryside) if it falls within one or more of the following descriptions.
(2) The first description of land is—

(a) land over which the line of an approved section of the English coastal route passes,
(b) land which is adjacent to and within 2 metres either side of that line, and
(c) land which is seaward of the line of an approved section of the English coastal route and lies between land within sub-paragraph (b) in relation to that approved section and the seaward extremity of the foreshore, if the land within sub-paragraphs (a) to (c), taken as a whole, is coastal land.

….
[other descriptions:
(3) including selective landward features
(4) alternative routes that revert to CROW 2 metres either side without any additional spread
(5) temporary routes repeating alternative routes, but with landowner agreement as specified in 1949 Act)]

In suggesting that Coastal Margin automatically includes everything on the seaward side, unless it is in the excepted category or directed by Natural England exclusions, Natural England have been overly inclusive in their interpretation,

  • the Order has no explicit scenario to reflect what to do with the coastal margin should the “coastal land” the foreshore etc., be excluded for habitat or safety reasons, it should not follow that the margin leading up to excluded areas should be included.
  • The definition states that coastal margin exists “if the land in a) the route b) the 2 metre spreading room c) seaward to the seaward extremity of the foreshore (mean low tide), TAKEN AS A WHOLE, is coastal land. (recall CRoW Act definition of “coastal land” is just the foreshore and adjacent features such as cliffs or beaches) This either means:
    • if the margin is not coastal land or coastal in character it isn’t automatically included OR
    • if exclusions are indicated then it can’t be “taken as a whole” and therefore not automatically included
  • this becomes even murkier where the path must travel away from the coast up an estuary to the first foot crossing, particularly one so protected as the Beaulieu –
    • Natural England have the option to terminate the path either side of an estuary, but avoid this to keep the route contiguous and not create demands for honey pot infrastructure and the terminal points.
    • If you look at the inland habitats woodland etc that are included in coastal margin, woodland etc, despite the foreshore of the entire estuary being excluded under S25a Salt Marsh and Flats, the absurdity becomes more apparent.

Thank you to all of you who made it this far.  I should probably ask if you know which shell the pea is under, or if you followed the lady.  We are left with two problems, the impenetrability of the act helped hide a vital detail until after it was passed, and the interpretation of this detail is open to question.

At the start of this piece I told you that the precise definition hadn’t been consulted on publicly, but there was private discussion of the more general notion of some sort of Coastal Margin, as an equivalent to spreading room, often referred to as the “Right to Roam”, from the CRoW Act 2000.  We’ll examine some of that discussion, and how the definition of the Coastal Margin in use is undermining the path in our next article:

Margin of Error : When is something inland somehow part of the Coast? (coming soon)

Also coming soon, more on how estuaries fare when Natural England gets to decide that they’re the sea.

Up An Estuary, Without a Paddle : No one really knows what to do about an Estuary. (coming soon)

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England Coast Path: What you need to know

The consultation on the Highcliffe to Calshot stretch of the England Coast Path closes on Wednesday 9th May.  We’ve been discussing the possible negative impacts of the proposed route since 2016 when it was mooted that this Consultation would happen in March 2017.  We’ve shared some aspects here through presentments to the Verderers, statements to the National Park Authority, and our letter to the Access Forum.  However, it’s worth putting the project into perspective, what it is and why we’re concerned.  We’ll start with this overview of the bare basics.

Marine and Coastal Access Act 2009

The Marine and Coastal Access Act 2009 mandated the The England Coast Path (ECP).  The Act’s other aims created a new Marine Management Organisation, made alterations to marine licensing and fisheries management, and provided the set up for marine conservation zones.  In addition to the establishment of an English coastal walking route, it also included rights of access to land near the English coast.

So far, so benign.  There are existing Coastal Routes, the South West Coast Path, Norfolk Coast Path, Wales, etc. and here the Solent Way.  To a certain extent it hardly seems necessary.  The key problem comes from the creation of requirement known as “Coastal Access Duty”,  including not just providing the route, but also the creation of new access land called “Coastal Margin”.  Coastal Margin was left undefined in the 2009 legislation, but since has come to be broadly defined as the entire seaward side of the route (with certain exceptions, and possible discretionary landward additions).  That definition encourages land owners to allow the path placed as close to the coast as is practical.

This becomes problematic as our coast includes a nearly uninterrupted series of highly designated and protected habitats of international importance alongside which the route will necessarily skew inland.  Sending the route inland to avoid habitat, has the simultaneous effect of designating that habitat, seaward of the route, as access land, which defeats the purpose of avoidance.  Some land, such as arable, private buildings and their curtilage, are considered “Excepted Land”, and Natural England have the discretion of creating “directions to Exclude” on the basis of habitat or public safety, together these are the slim protections from Coastal Margin access.

Increased use and disturbance

Creation new non-historically based Rights of Way and joining up of existing routes, increasing their use will impact on tranquility and habitat disturbance.  There is funding for path upgrades, signs and rudimentary barriers, but no funding for parking, other infrastructure, or any other mitigation measures (as a developer creating the same access would be required to provide).  Some stretches, near or on small country lanes in the most remote parts of our coast would exacerbate the verge parking problem.

Signs explaining exclusions will not make up for the Ordnance Survey’s decision (with the alleged fiat of a “stakeholder group”) to show all potential Coastal Margin as Access Land, disregarding whatever Excepted Land, or Exclusions may be in place.  A conservative estimate of the current proposal would have 75% of our Coastal Margin fall under these prohibitions, but the Ordnance Survey will show them as access anyway, despite their standing as providers of a definitive map.

Sensitive Features

In the current proposal Natural England have not sufficient excluded our designated habitats and have created new Rights of Way adjacent and through SSSI designated land.  They have not made directions for dogs on lead aside or through habitats, or land used for livestock including back-up land vital to commoning.  They have not provided maps that show the vital spatial relationships of the route to protected, vulnerable or excepted land.

The Sensitive Features Assessment for our coast is the largest of the 31 stretches published to date.  At 222 pages it is twice the size of the next largest, and five times larger than the average (excluding itself).  The report is fraught with inaccuracies and errors, including misquotes from some of our ecologists.  Natural England have not performed a full Habitats Regulation Assessment to judge the impacts, they use a get out from their own guidance which allows them to conclude that their own mitigation proposals (signage, willow screens) are sufficient. That self determining logic was just slammed in the European Court in April (the judgement required that full HRA be performed).

The guidance creates a principle, not based in the legislation of “least restrictive option” for conflicts between Coastal Access Duty and other interests, including habitat, favouring recreation, where in a National Park, the Sandford Principle, enshrined in the legislation would indicate the opposite.  The over interpretation of Coastal Access Duty, particularly the Margin, by Natural England shows no regard for the National Park Purposes or Special Qualities.  It also fall far short of subsequent policies, including the Government’s flagship 25 Year Environment Plan.

Conclusion

The particularly large size and sensitivity of the New Forest Coast was clearly not foreseen by those framing the legislation, which is ill suited to application of its subsequent all encompassing Coastal Margin definition.  Natural England have not provided adequate proposal for consultation, including poor mapping, inaccurate and incomplete Assessments. The poor decision by the Ordnance Survey to serve up protected areas as accessible is a gross misrepresentation.  Taken together, and in some cases separately, this will lead to unacceptable damage to habitats.  All the worse, as it should be avoidable, not intentionally planned.

Coming Soon:

We will be fleshing out many of the points made above, for those who may doubt any of our claims, or if you just want to dig deeper to see what should have been a harmless, if unnecessary project, put through the legislative and government grinder to become a fiasco, warning, some of this will illicit anger.  (Links will go live as each article is posted, watch this space and/or our facebook page)

England Coast Path:
What’s At Stake : Our Coastal Habitat, how precious it is, how you might not have known that.
Consultation and Complexity : How is our stretch more difficult?
MisGuidance : Natural England’s Playbook for Coastal Access has problems.  LIVE
Out of Order : One of the worst features of this was not consulted on publicly.  Ever.  LIVE
Margin of Error : When is something inland somehow part of the Coast?
Not A Whitewash (Magenta, Actually) : The Ordnance Survey’s Rubberstamping of a Bad Idea  LIVE
Up An Estuary, Without a Paddle : No one really knows what to do about an Estuary.
Sense and Insensitivity : What happens when Sensitive Features Appraisal doesn’t live up to its title?
Do we need it? : In which we might have to argue with a Rambler (no one wants to do that).
What can I do about it? : We suggest some representations you might wish to make. LIVE

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Presentment April: England Coast Path

England Coast Path proposal shows new Rights of Way on one map (middle right), Habitat Exclusions on another in a different document (top), and both maps do not show the relevant Site of Special Scientific Interest (bottom), a small fraction of which is in the Exclusion.

I’d hoped that my previous presentment on the England Coast Path would be the last, and thank the court yet again for its inclusion in unusual circumstances.

The complexity of the proposal demands a bit more, the longest of the 31 (of 66) published to date, including a Sensitive Features Appraisal running 222 pages, nearly 5 times larger than the average (excluding itself), and twice the size of the next largest (Burnham-on-Crouch to Maldon). The maps Natural England provide are misleading as they do not adequately reflect the key spatial relationships between the path, protected habitats and coastal margin. At a minimum Natural England should provide useable maps for comment, and extend the consultation proportionately to reflect the scale of the proposal. They should also be at pains to perform a complete Habitat Regulation Assessment and resolve the rife inaccuracies in the features appraisal.

As for issues under the Verderer’s remit: fields that may come into or out of management as backup grazing are not excepted land (as it is not arable), but Natural England have not required dogs on leads on the route adjacent or through potential backup land. They have not followed their own guidance from the Coastal Access Scheme [*]:

Guidance 2.4.6 As on other land with access rights under Part 1 of CROW, a person with a dog must keep it on a short lead in the vicinity of livestock. The purpose of this provision is to prevent dogs from approaching livestock.

We hope the Verderers, in their statutory role on behalf of commoning, will request that this is applied in all possible instances. The NFA, for our part, will go further asking that dogs be kept on leads for any portion of the route that is adjacent to protected habitat, grazing which may be used by livestock, or spreading room leading to either habitat or grazing.


[*] The Coastal Access Scheme 2013, page 14 – this guidance document was mandated under the Marine and Coastal Access Act 2009 Section 298 The coastal access scheme. The first version of the Scheme (NE268) was approved on 23rd March 2010, under section 298(2) of the 2009 Act. Section 299(2) of the Act required Natural England to complete an initial review of the Scheme within three years, which they did, publishing that result 11th July 2013. However, by that time they had only had three stretches published, and one of those approved.


ADDENDUM:

We have secured an agreement with one of the statutory consultees that we will request that the Ordnance Survey not depict “coastal margin” the spreading room associated with the route at all for our stretch of the coast. As noted previously, the OS policy would be to show the entirety of the area seaward of the route, which is potentially coastal margin, under a “magenta wash”.

A conservative estimate of the proposal shows that at least 75% of the potential margin will fall either under excepted land (arable, buildings and their curtilage, etc) or excluded land designated by Natural England for either Public Safety reasons (S25) or Habitat Protection (S26). This would make the OS default depiction grossly inaccurate.

Consultation Map Issues

The maps provided do not adequately reflect the key spatial relationships between the path, protected habitats and coastal margin, and make it exceedingly difficult to make judgements. There is only one map that depicts the entire route (index map), within each chapter separate maps show sections numbered for comment, no map showing the route for each entire chapter is provided, and only landward spreading room is depicted, no excepted or excluded areas are shown. Maps of exclusions appear in the separate Overview document and don’t show path or even other exclusions that overlap the map area depicted. None of the maps of paths or exclusions show the relevant areas of habitat designation (SSSI, Nature Reserves, SAC, SPA, Areas of Special Protection and Ramsar Wetlands).

ECP with Exclusions, SSSI, SAC
As an example of what would be useful, you’ll find attached my approximate overlay map of the route shown in orange (part of Chapter 3, and all of Chapters 4 and 5 of the proposal, the Orange diamonds showing the chapter divisions). The North Solent Site of Special Scientific Interest is outlined in magenta pink with diagonal hatch, and the Solent & Southampton Water SPA is shown in orange with vertical pinstripe. Areas wholly excluded from Coastal Margin year round under Section 26 Nature Conservation are depicted with a grey overlay. Section 25a Exclusions under Public Safety are not depicted, but to the Salt Marsh and Flats portion of the SSSI along the Beaulieu estuary (but not its terra firma), and similar areas from the mouth of the Lymington river and including Keyhaven (not on the map) and Solent shore. It would also be useful to have maps in each chapter clearly delineating which sections are “new” as opposed to those that are part of existing Rights of Way, Highways etc.

Coastal Margin

Throughout the documentation and guidance Natural England refers to coastal margin including the entire seaward side of the route, however this definition does not exist in the primary legislation, but is created by a subsequent statutory instrument. This means the definition of coastal margin was never consulted upon leading to the legislation. The Countryside and Rights of Way Act 2000 Section 3(3) defines “coastal land” as “the foreshore, and land adjacent to the foreshore (including in particular any cliff, bank, barrier, dune, beach or flat which is adjacent to the foreshore).” Section 3A(1) (inserted by the 2009 Act) specifies “The Secretary of State may by order specify the descriptions of land in England which are coastal margin for the purposes of this Part.”

That order “The Access to the Countryside (Coastal Margin) (England) Order 2010 No. 558” was discussed by the Delegated Legislation Committee by 17 MPs on 23 February 2010 for twenty minutes, and was discussed at unspecified length by the Lords Grand Committee on 9 February 2010 during a 3 hour meeting which included five other items of legislation. Here’s the definition from the Order:

Descriptions of coastal margin
3.—(1) Land in England is coastal margin for the purposes of Part 1 of the CROW Act (access to the countryside) if it falls within one or more of the following descriptions.
(2) The first description of land is—

(a) land over which the line of an approved section of the English coastal route passes,
(b) land which is adjacent to and within 2 metres either side of that line, and
(c) land which is seaward of the line of an approved section of the English coastal route and lies between land within sub-paragraph (b) in relation to that approved section and the seaward extremity of the foreshore, if the land within sub-paragraphs (a) to (c), taken as a whole, is coastal land.

(3) The second description of land is land which—

(a) is landward of the line of an approved section of the English coastal route,
(b) is—

(i) foreshore, cliff, bank, barrier, dune, beach or flat, or
(ii) land of any other kind, which is treated by section 15(1) as being accessible to the public apart from the CROW Act, and

(c) when taken together with land within the first description in relation to the approved section, is coastal land.

(4) The third description of land is—

(a) land over which the line of an official alternative route which is for the time being in operation passes, and
(b) land which is adjacent to and within 2 metres either side of that line.

(5) The fourth description of land is—

(a) land over which the line of a temporary route passes, and
(b) land which is adjacent to and within 2 metres either side of that line, to the extent that the land is within section 55I(4)(d) of the 1949 Act(b) (land over which the owner has agreed the temporary route may pass).

We believe that Natural England have been overly inclusive in their interpretation, 1) the order has no scenario to reflect what to do with the coastal margin should the “coastal land” the foreshore etc., be excluded for habitat or safety reasons, it should not follow that the margin leading up to excluded areas should be included 2) this becomes even murkier where the path must travel away from the coast up an estuary to the first foot crossing, particularly one so protected as the Beaulieu – Natural England have the option to terminate the path either side, but avoid this to keep the route contiguous and not create demands for honey pot infrastructure and the terminal points.

The Natural England consultation on this stretch runs until 9 May 2018, more information, criticism and analysis may be found on our website newforestassociation.org.

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NFA Habitat and Landscape 2017-18

RSPB Franchises Lodge - credit Terry Bagley

Habitat and Landscape Chair, Brian Tarnoff reviews with uncharacteristic brevity the past year on the Forest Design Plan, Recreation Management Strategy and the England Coast Path.  Part of our series of Annual Reports relevant to our AGM on Saturday 21st April 2018.  Updates since original publication, reflecting these ever changing issues, are provided below each section.

Once again I am full of gratitude and amazement at the generous contributions of our committee members this year. This included countless hours volunteered to pour over one of the most vital consultations we’ve seen in some time, and days spent trudging the Forest in all weathers on site visits for works proposed by the Forestry Commission on the open Forest.

The Forest Design Plan

Consultation continued this year. Our ecologists took part in round table discussions on this year’s draft, a palpable improvement over the March 2016 version. The detail, which had concerned us previously, now was much more in line with the commitment from the 1999 Minister’s Mandate (strongly supported by subsequent policy) to restore pasture woodlands, heathlands, valley mires and Ancient and Semi-Natural native woodland, and favour broadleaves over conifer. In these meetings, Forestry Commission staff expressed sound underlying principles that would serve this plan, both in its current form, and going forward, to manage towards these goals.

Our main quibble is that the documentation of the plan does not adequately express those principles. This may seem a small thing, given how close the detail plan is to delivering many of our Association’s goals, but without them in place the plan may not be able to show its logic adequately to stand on its own against Habitats Regulations Assessment, or possible changes in future management of the Forest which could veer away from the promise this plan holds.

After the public consultation on the plan, the Forest Services review determined that consent under EIA regulations is required for the deforestation proposals (some areas being returned to open Forest habitats). Forest Enterprise has been tasked with producing an Environmental Statement for consideration, and we are amongst the stakeholders invited to a scoping exercise in January 2018. DEFRA have agreed to roll forward some elements of the FC’s expired felling license, which was dependent on the now unknown date for approval of the plan by the Inspectorate for renewal.

The Forestry Commission have opened up the next stage of consultation which runs for eight weeks from 11 Apr 2016 to 6 Jun 2016. This will produce the version of the plan which will be submitted for the inspectorate, and final consultation later this year. The NFA will argue that the planned eight weeks may not be sufficient for less nimble organizations (those that meet less frequently, such as Parish Councils, or those larger whose relevant knowledge is spread across expert and consequentially busy staff); we would prefer ten to twelve weeks. When the timeframe was sprung upon the great breadth of Forest organizations in attendance at a special launch day on March 22nd, the FC suggested that they may be “flexible” about the length of the consultation. We will be making our case later this month.

Wetland Restoration Strategy

In a similar spirit of openness the Forestry Commission proposed a Wetland Restoration Strategy at a well-attended December workshop including representatives across the spectrum of the debate. In addition to more constructive engagement with all stakeholders, we hope this will lead to a monitoring program that is apt, affordable and will adequately support future efforts.

The FC have just updated us (12/04/2018) with a view of present and future monitoring plans. We believe these will be robust and adequately adapt and augment standard river monitoring techniques to the unique challenges of the New Forest’s streams and wetlands.  We hope sufficient funding will be allowed to cover a range of catchments including both restored and untouched.

England Coast Path

Understandably our section of Coast, with a nearly uninterrupted series of very protected habitats (some garnering between four and five layers of designation, nationally and internationally), has been a very thorny problem for Natural England, who have nudged the consultation forward throughout the year. Once mooted for March 2017, now February 2018 (the original target date for implementation was March 2018).

Although a habitat adjacent inland route may be viable, the coastal margin created by the default spreading room designated in the Marine and Coastal Access Act 2009 would potentially create up to 3,500 acres of new access land on these easily disturbed habitats, where it would cause irreparable damage. We hope that Natural England will exclude these, but even if they do, the Ordnance Survey will not show those exclusions. Our main role currently seems to be to remind one and all of the immense importance of our Coast with greater fragility and importance than the precious habitats of the Crown Lands that typically draw our focus.

The eight week consultation on the Highcliffe-Calshot stretch finally began on 14th March 2018 and is due to run until 9th of May 2018. The route itself (barring some quibbles) is reasonable, however the exclusions for spreading room are either incomplete or lacking classification for habitat protection.  The consultation documents themselves are of greater scale and complexity (the sensitive features appraisal alone, at 215 pages is three times larger than the equivalent document for any of the other published stretches), and yet we’re expected to comment on them within the standard 8 week consultation window.  The Sensitive Features Appraisal is rife with error and stops short of a full Habitats Regulation Assessment (relying on flimsy mitigation measures which have failed elsewhere).  We could go on (and we will elsewhere….), but in short, the needs of our habitat point up severe flaws in the legislation, specification and consultation processes.

Recreation Management Strategy

The welcome review of the NPA’s Recreation Management Strategy has been mentioned above in this annual report. Unfortunately the public survey reiterated paragraphs from the current strategy alongside each potential subject heading, leaving some confused as to whether to respond to these remarks or implicitly approve them? For our response we asked that the next RMS should feature priority projects with clear objectives and timeframes. We proposed a comprehensive review of recreation infrastructure within the park, including surveys of habitats, campsites and parking, with actions leading to a provision that is ‘Fit for Purpose’. We proposed initiatives to raise the profile of the National Park so the decision makers of adjacent Authorities and communities become more aware of their impacts on the Forest and ‘Section 62 Duties’, create adequate, proportional mitigation, and petition Central Government for more strategic targets to take pressure off the Forest. We also asked for clearer messages in Education that would easily highlight the Forest’s need for protection as a National Nature Reserve, Working Farm and Working Forest.

Our full response to the RMS survey is here. Subsequent remarks on the Park Authority’s flawed draft interpretation here.

Going Forward — Other areas of concern to address in 2018:

Dibden Bay (ABP) / Fawley Power Station (Fawley Waterside Ltd)

Along with Associated British Ports revisiting their goal of a deep-water container port at Dibden Bay, our Association and the whole of the Forest will be facing many challenges for renewed development of the already heavily urbanised Waterside. This includes the proposal by Fawley Waterside Ltd for the development of a new town, with an estimated population of 3,500 on the site of the Fawley Power Station. The development on the brownfield portion of the site, originally exempted from the National Park, might be hard to resist, but the current proposal includes a ‘village’ built out into the National Park on Tom Tiddler’s Ground*, which is a young coastal grazing marsh and forms a rough habitat that is prime for rehabilitation.

— excerpted with updates and links from the NFA Habitat and Landscape Committee Annual report, by Committee Chair, Brian Tarnoff

* Tom Tiddler’s Ground is considered over several pages in committee member Clive Chatter’s tome Flowers of the Forest.

Finally, we should note that many of our committee members were involved in steering the process which led to the purchase by the RSPB of a major landholding in the Forest, now to be known as RSPB Franchises Lodge.  We’ve been embargoed from discussing this effort as it has unfolded over the years (and at long last announced on 23 Mar 2018).  I wish to thank the RSPB for the purchase, and the members of our committee who identified and shepherded this opportunity to fruition.

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Presentment: England Coast Path Consultation

ECP with Exclusions, SSSI, SACWe are now one week into the consultation on the Highcliffe to Calshot stretch of the England Coast Path. This well meaning but unnecessary project will create non-historic rights of way with new access rights to the seaward side of the route. This will bring disturbance to the most remote areas of the National Park, will exacerbate the verge parking problem, and potentially threatens to convert over 3500 acres of protected habitats into coastal access.

Natural England has the power to exclude sensitive habitat from automatic inclusion in coastal margin access, but their proposed exclusions are incomplete. There are gaps such as one through National Nature Reserve at Simm’s Wood and Steerley’s Copse where walkers emerging suddenly onto the Beaulieu estuary from the woodland screen would cause a widespread startle response, serious disturbance to the wintering birds on the eastern shore, where surveys have shown nearly double the population of the west side, likely due to less disturbance. Salt Marshes and Flats are excluded under Section 25 Public Safety where Section 26 Nature Conservation exclusions should have priority and permanence. Elsewhere, vulnerable wader roosts on vegetated shingle beaches, including one of the most provably undisturbed, have not been excluded. In the context of the Government’s 25 Year Environment Plan which promises stronger conservation of both designated and undesignated habitats, not enough has been excluded to fully protect these fragile areas.

Worse, any exclusions are made a nonsense by the Ordnance Survey decision to show all potential spreading room in coastal margin as access land [under a purple “wash”]. Estimate of the current proposal excludes at least 75% of this area. As many online and smartphone apps license the OS data, this grotesque misrepresentation will mislead visitors into those areas we most need to protect. It is vitally important that all interested parties deter the Ordnance Survey from inaccurately depicting our coastal protected habitats as access land on the allegedly definitive map.

Whilst many of its problems do not directly fall under the Verderer’s remit, So far, one commoner has noted the Path route cuts through fields used both for back up grazing and seasonal running of stallions with mares. This finds the route and seaward coastal margin access unwelcome and unsafe. We hope the Verderers, not just through their direct responsibilities on the Crown Lands, but as supporters of commoning and as a member of the National Park’s Recreation Management Strategy Steering Group, will call for resolution of these problems before the route is approved and implemented.

The Natural England consultation on this stretch runs until 9 May 2018, more information, criticism and analysis may be found on our website newforestassociation.org.

On the above map the approximate ECP consultation route is shown in orange (part of Chapter 3, and all of Chapters 4 and 5 of the proposal, the Orange diamonds showing the chapter divisions).  The North Solent Site of Special Scientific Interest is outlined in magenta pink with diagonal hatch, and the Solent & Southampton Water SPA is shown in orange with vertical pinstripe.  Areas wholly excluded from Coastal Margin year round under Section 26 Nature Conservation are depicted with a grey overlay.  Section 25a Exclusions under Public Safety  are not depicted, but apply only to the Salt Marsh and Flats portion of the SSSI along the Beaulieu estuary (but not its terra firma), and the similar area from the mouth of the Lymington river and including Keyhaven (not on this map).

This presentment was given unusual consideration by the Verderers, as the Court had opened with no announcements, the brief report on animal accidents, and no other presentments, and was closed in record time, just as our presenter appeared.  It was suggested that perhaps the Court had started early (before the 10 am chimes from the  Church of St Michael and All Angels, Lyndhurst), so the Official Verderer allowed the late entry.

We thank the Court once again for that kind indulgence, and wish to convey our suitable mortification to all those present in the court who bore with the ensuing delay as one of the Elected Verderers was then recalled from his hasty exit to the Queen’s House Library.  A similar, but less dramatically sited, statement about the England Coast Path was given the following day at the New Forest National Park’s Authority Meeting under its Public Questions agenda item.

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Recreation Management Strategy and Solent Recreation Mitigation Partnership Strategy

Our representation to Public Questions from the January meeting of the New Forest National Park Authority. We point out flaws in the draft interpretation of last years Recreation Management Strategy Survey (which goes too far in over egging the results), and the undercooked Solent Recreation Mitigation Partnership Strategy (which doesn’t go nearly far enough).

Solent Recreation Mitigation Partnership Strategy

… is an important initiative, however it currently falls short by only considering SPA planning designations and not the full range of important coastal and international designations. As with much mitigation work, little has been done to scale the mitigation to the level of protected features (Thames Basin Heaths is a decent baseline, but has much fewer protected features than our coastline).[*] The Government’s new 25 Year Environment Plan seeks to boost conservation of both designated and undesignated habitats. With these shortcomings, and the new considerations of the recently minted 25 year plan, it would be premature to adopt. We hope you will seek a review and have the strategy amended accordingly.

Recreation Management Strategy

I have previously noted problems with the survey. It made far too much reference to the previous RMS, including out-of-context headings (not even explained as “Summary of 2010 actions”), which constrained much debate to those topics, and were seen as manipulative leading statements. The responses are from an unscientific self-selecting sample, and although the Findings Report admits this[†], it then characterizes some results as authoritative, an unwarranted exaggeration. I’ll give one example:

“Implement and promote the England Coast Path and associated access rights” was the survey summary for Coastal Access. This provided no explanation that the “Associated rights” included coastal margin / spreading room which would potentially turn 3500 acres of our most sensitive breeding and wintering bird habitats (with up to five overlapping layers of national and international designations including an Area of Special Protection) into access land. 23 respondents thought ”the route will attract people away from more sensitive inland areas” (a polar opposite of the truth). It is more than likely that few had heard of the ECP outside of the survey, or would have nominated it, if it hadn’t been mentioned. Yet the concluding report states “The consultation responses suggest that there is wide public support for the England Coast Path,”[‡] which is a very strong extrapolation of 22% of 1500 respondents[§]. If less than a quarter support a proposal, is that wide? If mooted, absent its implications, is that even valid?

Although I do not doubt the hard work, enthusiasm, and sincerity of those conducting this opinion poll. Please do not take as a referendum what has been a success of public engagement, but falls very short of providing anything more than the vaguest bellwether. The Recreation Management Strategy should be driven primarily by the need to fulfill the purposes and protect the special qualities of the National Park. It should focus on specific and practical steps for Management of Recreation not another list of aspirations promising delivery of recreation.

Unfortunately the format of Public Questions at NFNPA meetings limits each speaker to 3 minutes, even when speaking on multiple subjects. This requires a terse approach and presumption of knowledge of underlying reports (which NPA members ought to, but are not guaranteed to have read or digested). Further reading for the curious is noted below:

[*] NFNPA 538/18 – Solent Recreation Mitigation Partnership Strategy Adoption Annex 1 page 19 6.15 “The methodology used to calculate the figures is based on that developed by LPA’s within the Thames Basin Heaths mitigation scheme.”

[†] NFNPA 539/18 Recreation Management Strategy Annex 1 Findings Report “No attempt was made to limit participation in the consultation to a balanced and representative sample survey approach of the local (or wider) population.” page 3 para 8

[‡] NFNPA 539/18 – Recreation Management Strategy Annex 2 page 8, 3.7

[§] 528 (34%) responded to the “Coastal Access” heading, 343 (22%) supported the summary of the topic actions.

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Presentment: Recreation Events at Night


Last month the Commoners Defence Association noted problems with the planned 2nd December, Hampshire Maverick Silva Dark Series trail running event.  It is in early evening, but in hours of full darkness (starts an hour after sundown, and a quarter hour after end of twilight). It is sponsored by a headlamp manufacturer promoting a range of LED headlamps that emit 250 lumens over 65 metres [1] (The top of their current range outputs 1500-2000 lumens over 175 metres! [2]).

The nocturnal disturbance of both livestock (as noted by the CDA) and wildlife by a mass event on the Forest, alone, is of concern, but use of high powered LEDs will greatly compound that disturbance. The NFA object to the event as an inappropriate precedent for both reasons. This is, as well, a fundamental conflict with all aspirations to maintain tranquility within the Forest and night-time dark skies above it.

Research on light disturbance has shown bats, amphibians and plants affected by relatively low levels of light. The route comes as close to the A337 as 1500 metres, which could prove fatal to motorists if easily spooked deer bolt towards the road.

This event, if held in daytime, or more appropriately off the SSSI, would be relatively benign [3]. The Forestry Commission have clearly worked hard to mitigate a bad situation created by the event’s organizers, and their permission [4] explicitly states that this is a one-off and that “any future night time events would need to be run at other venues off the New Forest” suggesting Moors Valley as an alternative. Head torches are restricted to Max 250 lumens, max beam length 50m, and must be angled downwards.

A FC spokesperson informed me that the permission would not have been granted if the event were a later time in the evening, or if it was outside the short window of hibernation for many local species. Unfortunately, nature isn’t that simple. At least 11 bat species have been recorded in the route area, including some of the most light-averse. All these bats move in and out of hibernation November to March, rousing to feed when the weather is mild, with early evening as their peak time in winter [5].

The media have lost all the nuances: the route restricted to the gravel tracks in Inclosures (from original plan on open forest), limitations on lighting, and that the FC regard this as a one-off.  The reporting has oversimplified the FC assessment to suggest it “poses no negative impact on the SSSI”. A hard to support statement, which without the context of the prescribed restrictions, sends an erroneous, dangerous message.

This official FC permission will beget the expectation for more large scale after dark events, from the public unaware of even minimal limitations which should be observed, and encourage greater after dark usage both organized and unorganized, at even more damaging times of the year. Creating new unprecedented levels of disturbance on protected habitat at a time where there would be little or none is simply unacceptable.

The NFA hope the Verderers will join us in asking the Forestry Commission, and those who would sensibly enjoy the Forest, to let it, in the name of tranquillity, the livestock, and the wildlife, have a well deserved rest.

Annotations below refer to the bracketed numbers in bold above [n]….

[1] The event offers participants free test use of their previous slightly weaker range (170 lumens over 50 metres), which they no longer produce. The route starts and ends at Foxlease, goes through Clayhill and deep into Denny Wood, Parkhill and Standing Hat inclosures.
[2] That’s roughly the same as a single standard H1 Car head lamp on main beam. 12 Runners with the highest permitted beams will emit approximately as much light as a single car.
[3] …presuming it is well run, safe and considerate to other Forest users, and tidies up after itself.
[4] The Permission includes the following non-boiler plate requirements:

  • “Competitors will be restricted to using head torches with Led bulbs, Max lumens 250, max beam length 50m. All torches must be angled down. Marshals must keep lighting to a minimum as well as per runners.”
  •  “The permit is for this event only please note any future night time events would need to be run at other venues off the New Forest – we will look to offer Moors Valley as an alternative.”
  • “The route as agreed…. It is vital to keep to the tracks and paths as details on the maps provided.”
  • “All gates must be manned to prevent ponies and cattle going through and to ensure that there is no access by vehicles. Gate must be closed after use.”
  • “All litter must be cleared up and signs removed by the following day at the latest.”

[5] from nearby Busketts Lawn there have been records of at least 5 species in late December.

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Public Pressure on the Forest : Presentment from the New Forest Young Commoners Group

Here we welcome a guest post from Oliver Cook, Chair of the New Forest Forest Young Commoners Committee, who gave this Presentment in this month’s Verderers Court.

As Young Commoners, we recognise the vital contribution that tourism plays in the local economy and through the very definition of “Commoning” we very much understand the concept of sharing this remarkable area that we are fortunate enough to live and work in with others.

Despite this we too are genuinely concerned by the effect that ever increasing public pressure is having on the Forest’s Landscape, ecology and traditional practices (particularly commoning). Greater visitor numbers is not something that is going to change, nor should it, however we believe that actions must be taken now to help manage the associated impact.

This is not the responsibility of any one body. We believe that it is the responsibility of all individuals and organisations that have a management role or other interest in the Forest. The commoning community is currently looking into how social media can help educate visitors of the Forest to ensure that they are better informed on how the commoning system works and how they can come and see our livestock without inadvertently putting themselves or our animals in danger. We are here today to call for support from the key Forest Authorities to assist us in our challenge, and we make the following four requests and recommendations:

  1. We believe that the quality of the experience for all users should be prioritised over the quantity of visitors that we can get to the Forest. Whereas other National Parks may struggle to attract visitors to support the tourism industry, our problem is how to manage the large volume of visitors that we already receive. Our first request therefore is that there is a shift in policy away from the Forest’s Authorities proactively marketing the New Forest as a tourist destination, which includes promoting arranged events/attractions.
  2. We echo the CDA’s concerns with the increasing number of organised events in the Forest and their impact on commoning activities. The difficulties of trying to navigate the Forest roads with a livestock trailer when there is yet another organised cycle event on or being prevented from “drifting” a particular area due to concerns that there is another organised event on or that there are simply too many people, are specific examples of activities which are collectively beginning to reduce the enthusiasm of the next generation of commoners to get involved. Clearly the implications of this do not need to be explained.We suggest that an effort is made to encourage organised events to take place on Private land which is not as environmentally sensitive and where events are not going to provide obstacles to commoning activities.
  3. We are very concerned by the lack of understanding that our visitors (from both nearby and afar) have about the New Forest. We feel there needs to be a greater effort to inform and educate people on the “do and donts” of our “working Forest”. We urge all Forest Authorities to be more proactive in this regard, whether it be at the Forest Campsites, carparks or on various social media platforms.
  4. The enforcement of the Forestry Commission’s bylaws should be a method of last resort, however, we believe that their profile should be raised and their messages promoted. Also, their enforcement must be one of the tools in the toolbox to be deployed in certain circumstances when there is a clear repeated breach due to a lack of respect for the Forest. We believe that there is currently an impression given that there is no will for them to be enforced, surely this is not a healthy impression to give.

Let me be clear, we are not asking to have the Forest to ourselves, we are simply asking for help with mitigating the impacts of a problem, which if not addressed, we believe will see a decline in the enthusiasm of the next generation of commoners to get involved.

Oliver Cook. a practicing Commoner, is Chair of the New Forest Forest Young Commoners Committee. This has been shared with his express permission, and represents the view of the New Forest Young Commoners Group.

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Recreational Harm : Presentment from the Commoners Defence Association

Here we welcome a guest post from Dr Tony Hockley, Chairman of the New Forest Commoners Defence Association, who gave this Presentment in this month’s Verderers Court.

The September court heard several presentments on pressures and abuse of the New Forest. The CDA supports such concerns.

Commoners have long been involved in educational efforts. But education alone will not suffice for companies that see the Forest as a profit opportunity, or for those who care only for their own entertainment.

Enforcement action is a sad necessity. In 2005 the Forestry Commission prosecuted one of the kite-buggy riders using Wilverley Plain*.  That sent a warning to others.  Similar resolve is needed on other routine breaches of the byelaws.

I would highlight two current issues that typify the challenges that can only be resolved by the Forestry Commission:

  • The Ordnance Survey, another public body, has started to facilitate mountain-bike trespass; allowing subscribers to its online mapping service to upload their routes for others to follow. The Forest is now covered with these unlawful routes.
  • On 2nd December the Forest will face its first commercial event in the hours of darkness. It is sponsored by a headtorch company, and hosted by Foxlease. For £30 entrants are offered the thrill of a night-time incursion into Forest. The company says that the racer will have: “a wealth of wildlife to keep your mind occupied”.  **

Both of these are abuses of the Forest that the Forestry Commission could and should stop. It seems that the tranquility of the Forest is being sold to anyone capable of making money from it whilst we all stand by. Our livestock and this special place deserve much better and we would urge to Court to do whatever it can to make this case.

Dr Tony Hockley is a Practicing Commoner and Chairman of the New Forest Commoners Defence Association.  This has been shared with his express permission, and represents the view of the CDA.

* Verderers Court minutes, January 2006 (item 2006/2082).
** This event is promoted by Maverick Race as part of their Silva Dark Series of night time trail running events, Silva is the headtorch sponsor.  http://www.maverick-race.com/races/silva-dark-hampshire-2017

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Saving the Future of the Forest: a Verderers Court Presentment

Here we welcome a guest post from one of our Members, Ian Thew of Burley, who gave this Presentment in this month’s Verderers Court.

Official Verderer, members of the Verderers Court, good morning and thank you for this opportunity to speak to you..My name is Ian Thew and I live deep within a New Forest Inclosure and for many years I have been an active New Forest Sporting Licencee; in consequence of which, I’m probably more aware of what is happening on the Forest than most people.

I am here today to express my fears for the future of this unique place that we call the New Forest. The New Forest National park is the smallest and in many ways the most fragile of all the National parks but contains more special designations protecting fauna and flora than any other. During the past few months, I have witnessed enumerable off-road and night-time cyclists; many, so called, wild campers; overnight camper vans in Forest car parks; several incidents of fly-tipping and on two occasions my wife and I have been subjected to, all night long, heavy base music bouncing across the Forest and, on another occasion, we had to deal with a party of rowdy scouts at 1.30 in the morning. I could go on but I do not wish to waste the time of this court; I am merely trying to demonstrate the enormity and the variety of the abuse that this Forest is being subjected to.

It is obvious, from the overflowing car parks and the masses of gazebos and tents that sprout-up like small villages across the Forest during the summer, that there are just too many visitors for this fragile environment to cope with. At the moment, recreation is taking precedence over conservation and protection of the environment which is in direct contradiction of the Sandford Principle.

There is no doubt that visitors are here to stay and, as one who makes part of his living from tourism, their business is welcome. But, for the sake of the future of the New Forest, their numbers must be limited to a sustainable level and their activities must be restricted to those that do not inflict harm on this very special environment. The ground rules should be clearly apparent to all who come here so that ignorance cannot be used as an excuse by those who offend and, similarly, it should be policed and there should be provision to enable those who are protecting the interests of the Forest to penalize or prosecute those who choose to ignore these rules.

Enforcement of the by-laws on the New Forest Crown Lands is the responsibility of the Forestry Commission who seem to be reluctant to prosecute offenders. Furthermore, we have been told that budgetary restrictions have reduced the numbers of front-line people on the ground. But this cannot be used as an excuse for the ruination of the New Forest and the necessary funds must be made available to enable sufficient policing and prosecution when necessary.

This budgetary shortfall is now common knowledge and I am often rendered speechless and helpless when informed by offending, anarchistic visitors that there is nothing I, or anyone else, can do about them. Surely it’s time that something is done, before it is too late, to stop these people, who are hell bent on destroying that which we all love and cherish and that which the majority of people come here to enjoy.

That his Forest is under threat is obvious to all; so what are we going to tell our grandchildren or our great grandchildren when they ask us why we didn’t do something to save it before it was too late?

I request that the Verderers use the authority of this court to urge the Forestry Commission to police the New Forest and enforce its by-laws and, similarly, to urge the New Forest National Park Authority to exercise their duties in accordance with the Sandford Principle.

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