Two Waters deregistration update.

Disappointing news for the Box Moor Trust and the community as Two Waters deregistration and exchange of Common Land is refused.

Being such an important local issue, we make no apologies for the level of detail we provide in this document.

We believe this decision by a Government Department, effectively denying The Box Moor Trust the opportunity to generate much needed income has ramifications for many residents, charities and sports clubs of Hemel Hempstead and Bovingdon.

The affect may be small individually but it will certainly reduce opportunities for young and old to attend outdoor environmental education and events at a key time when concerns on Climate Change and Nature Conservation are growing. It will also make it extremely difficult for the Trust to support local charities and sports clubs with capital grants for years to come.

1. The journey to the application – what and why

Those who have followed the consultation and the application may wish to go straight to section 3 below but first, and most importantly, we wish to thank all those who took the time to support the consultation and to make representations in favour of the application to the Ministry. This support will not be in vain as it gives the Board the evidence we need as we seek alternative ways to achieve this objective.

For the last 5 years the Trustees have been exploring ways to protect the Trust against the impact of possible changes at the end (in 2020) of a 35 year lease for our land occupied by B&Q. This lease brought in over 60% of the Trust’s net income and much of our work depends on it. A large reserve to protect the Trust against losses has been prudently set aside over many years but this cannot cope with a long term reduction. In these very uncertain times, even back in 2015, it was realised there was a high risk that from 2020 the annual level of income would not be sustained if the tenant were to vacate the land or seek a reduction in the annual rent. This would have had severe implications for much of the good work the Trust was doing for the Community. This included our ability to continue with acquiring fast reducing local wildlife friendly land for use by everyone, provision of Environmental Education, Grants to charities and sports clubs and our popular annual events.

Earlier concerns were justified. The lease has just been renewed for a considerably shorter period and income will reduce by an average of 20% over the next 5 years. The huge shift to on-line shopping and the demise of large retail companies has impacted local retail rents and this will now be a major factor in future renewal negotiations. Furthermore, the new shorter term lease increases the risk of losing our tenant at regular intervals and this will now be an ongoing concern. The need to find sustainable income to maintain many of our community services is now even more pressing.

In 2015 there were no clear opportunities for new investment because all Trust open space is either Common Land or protected by Green belt status. In 2017, however, a single opportunity arose following the Two Waters Masterplan Guidance issued by Dacorum Borough Council. This Masterplan, which followed considerable local consultation by the Council, was approved. Among many other recommendations, it included our small 1.5 acre site at Two Waters, known as Two Waters East, as a possibility for future development. This is the field immediately south of the current affordable home development between Two Waters Rd and the A414. This small field has been cut off from the main moors since the link to the A41 By-pass was built.

Two Waters East is Common Land protected by the Commons Act 2006 (The Act). Understandably, Common Land, with ancient rights, is very precious, but if exchanged with important unprotected land elsewhere locally, the overall benefit can be positive. An application for the exchange had to be made to the national Planning Inspectorate for a deregistration of the site as common land and provision of an appropriate site elsewhere in exchange. Before making a start it was the right thing to consult local residents about the proposal to assess opinion and be sure that everyone could clearly see the need for it. This was carried out in 2019 and the leaflet is shown here:

The result was an overwhelming approval to the Trust’s proposal with an overall 86% in favour.

2. The Exchange Application to DEFRA

The Release Land

It is a lengthy task preparing a submission to the Planning Inspectorate at the Department for Environment Food and Rural Affairs (DEFRA). The application process is also expensive so we included 3 other small plots at Two Waters and our field known as Box Hill in the application. The 5 plots chosen are known as Release Land. Doing so would make them easier to manage, giving advantages for the public, without the restrictions of Common Land status. These additional plots were a straightforward request to transfer status of difficult and disjointed sites to one large very special site elsewhere.

The Exchange Land

The single site chosen to become Common Land, Dellfield, is known as Exchange Land. Dellfield, in Westbrook Hay is a beautiful wildflower meadow but being next to an A41 Bypass junction it was considered wise to protect it for the long term with Common Land Status as it might be vulnerable to future development.

The Official Consultation

Local residents were consulted again as part of the official application in November 2019 and invited to make representations to the Inspector at DEFRA for clarification or to support or oppose the application. Unfortunately and, perhaps unfairly, the initial very supportive consultation is not acceptable as part of the application.

Mitigation for known difficulties

The Act is extremely strict on the criteria for the piece of land chosen for exchange and rightly so. The problem in Hemel Hempstead is the lack of land remaining that meets all of those criteria. There were two initial concerns:

  1. There must be a right of way to the site to ensure access at all times

Dellfield offered most of the criteria, including a car park, but was not connected to a Right of Way (ROW). This was understood to be a necessity so the Trust liaised with the Herts County Council Commons and Rights of Way officers, who were extremely supportive, and agreed a proposed ROW extension from our Moors into Dellfield and the rest of Westbrook Hay. This would provide an improved link to Bovingdon, Berkhamsted and beyond. With this change, Dellfield would now be appropriate land for an exchange and it would actually increase the total local Common Land by 2 acres.

  1. Dellfield has recent permissible public access

Dellfield did not meet one criteria in that the public already had permissive rights to access it. This was because the land was purchased by the Trust in 2003 along with the rest of Westbrook Hay – more on that later. Although a concern, both the Trust and our professional advisor, believed that the many other key aspects of the Trust’s work, including regular addition and protection of special land for the community to enjoy and important proposed access work at Durrants Lakes , would convince the Government Inspector to approve the application. It should be stressed that any landowner seeking such permission anywhere will find it very difficult to meet every requirement of the Act.

The comparison with a similar case and eventual application

The application took many weeks to prepare and was absolutely thorough. Every aspect of the Act was covered and then linked to elements of the proposal. It also closely followed the refusal, after a public enquiry, to accept a very similar application by the Conservators of Therfield Heath, Hertfordshire recently. Every aspect of that refusal was considered and addressed. There were far fewer difficulties for the Trust proposal compared with Therfield decision. It did compare on the subject of previously permissible rights to access on the Exchange Land but it was felt very strongly that the Trust’s case for the importance to the community and to nature conservation generally was overwhelming.

The Trust’s application was sent to the Planning Inspectorate in October 2019.The Inspector visited the sites on 7th July 2020 and the decision has now been received.

3. The Inspectors decision

The application was refused and the full text on the Inspectors report can be found here.

For the large part there did not appear to be any concerns. The key point to prompt the decision is that although the application offers an extra 2 acres of Common Land there is a reduction in overall access land of 1.5 Acres. This was also emphasised by the Open Spaces Society (OSS), the only significant objector on a national basis, who claimed that the ‘case for support was not strong’.

  1. The most fundamental concern is that the Inspector, in paragraph 48 says Durrants Lakes ‘already has public access’. This is not the case and that was explained in the application and again on the site visit. The loss of 1.5 acres of poor cut off hardly used land, at TWE was to be adequately compensated by giving local residents a new opportunity to enjoy viewing some 5 acres of special water and wooded landscape on the opposite side of the river including plans to include water education services and a bird hide for the local residents. There was also commitment to work with the Environment Agency to improve badly neglected river system in that immediate area, again to bring it into view for the residents. This is a proven expertise of the Trust which was emphasised in the application. Two Waters is named after the confluence of the Rivers Bulbourne and Gade. Unfortunately residents cannot, currently see this or much of the river in this area. These rivers should be the focal point of the area and the link to Durrants lake was a key element of the application. All of this was committed in the consultation and more. The Inspector does not consider this adequate compensation for the loss of TWE. We believe this is a particularly harsh judgement given that the lakes are NOT currently accessible. The possibilities to bring real contact with nature in the area for young and old are substantial and far outweigh the possibilities at TWE.

  2. There is an increase in protected Common Land of 2 acres overall and the Inspector recognised this. Yes, the total of open land, not Common Land, is reduced by 1.5 acres but the report fails to mention that the Trust has doubled its accessible countryside land base over the last 20 years to nearly 500 acres. It is also a main focus of the modern Trust to acquire and protect fast reducing open space. Without sustainable income it will be impossible to purchase any more without selling off other land first. We consider it inappropriate to omit this from consideration. In our view it merits consideration under ‘other relevant matters’.

  3. The exchange land is of a far better quality in terms of habitat and nature conservation and, whilst it is ‘not under threat of development’ (to quote the OSS) it certainly will come under threat in future years as it is right next to an A41 by-pass roundabout. Our 420 year old Trust considers policy over decades and centuries not just the current day.

  4. To compensate the small number of dog walkers who use Two Waters East, the Trust has opened a footpath under the busy A414 to give safe and easy access to the main Moors. Footfall across the Moors at that point has been significant and that is clearly now an improvement for local people. Furthermore, it was mentioned that the proposed and committed access through Durrants Lakes would link residents to the Moors exactly as suggested in every consultation leading up to the production of the Masterplan.

  5. The other key concern from the Inspector was the current permissive right over Dellfield and that this debarred it as replacement land under the Act. He did not mention that this right is withdrawn at times for lambing purposes and that Common Land Status would prevent the Trust from doing so and guarantee access. Nor was it mentioned that the field is not currently linked to a ROW. That would have counted against the application and the Trust has worked hard with the County Council to provide that link for the future as part of the application process.

  6. The Trust had liaised with the Scout Group and the Fishing Club at Durrants Lakes throughout and had committed to work with them to achieve long needed improvements. This would have been a benefit to a wide section on the Community, young and old.

  7. The Trust committed to see affordable housing on the TWE site. This is a key priority in the area and this is considered a matter of public interest.

  8. Finally, there was opportunity under ‘the neighbourhood’, ‘public interest’, ’nature conservation’ and ‘other relevant matters’ to emphasise the importance of income from TWE to all that the Trust does. It is summarised by the Inspector in just one sentence as follows: ‘I acknowledge that the income stream generated could enable the Trust to continue with its existing programme of management of the land and its other charitable objectives.’ The application was specific that the economic situation would jeopardise all that the Trust does apart from basic management of the land and managing the charity. Those who supported the application set this out in no uncertain terms but there was no emphasis on this in the inspectors report.

4. The Representations against the Application

The Inspectors report refers to 2 objections out of 35 replies.

The Open Spaces Society (OSS) objection has clearly influenced the rejection.

The OSS does excellent work preventing unscrupulous and even illegal encroachment of Common land and Village Greens. The problem is that they paint all applications with the same brush out of principal. Their website says local people up and down the land are bullied by developers. The Box Moor Trust and, indeed other charities who apply to fence Common Land for wildlife conservation purposes are not Bullies! The General Secretary visited all the sites prior to the application and witnessed the sad isolation of TWE. The whole area has been blighted over the last century by new roads and traffic lights. It is also now dominated by an emerging new development. The Trust fiercely protects its Common Land and has fought over the centuries to do so. TWE is not a popular place for recreation or walking. The main Moors are now within easy access via a footpath under the A414 just a few yards away and they are the magnet.

The OSS objected as the ‘case was not strong’. The application points out many issues that render it very strong, including our work on nature conservation which the OSS support strongly. In their response to the Defra consultation on 25 year environmental plan they say – ‘It is vital that everyone has access to high quality natural green space to contribute to their wellbeing as well as mental and physical health’. The OSS Charitable strategic objective number 4 is ‘to protect the beauty of the countryside and promote its fullest enjoyment by the public’. The OSS had access to the complete text of the application so this judgement is disappointing because the strong message throughout accords with those objectives. In particular:-

  1. They advocated that Common Land Status for Dellfield would not secure new or additional public access. We reject this assertion because the addition of a Right of Way that would have shown a continuous link from Boxmoor through Westbrook Hay to Bovingdon beyond on Ordnance Survey maps will add more visitors. Common land status will also prevent the Trust’s closures of Dellfield during lambing time so will be an advantage. The OSS say Dellfield is ‘not very convenient for neighbourhood recreation’. There is a car park right next to it on the North Side and a car park 160 metres away on the South Side. As mentioned, there would have been a new ROW and there is a regular bus service with a bus stop within yards of Dellfield. Yes, Dellfield is 1.5 miles from TWE but it is just yards from the Common Land that begins at TWE and there is evidence that this distance has been acceptable in other applications.

  2. They say TWE is ‘worthwhile open space’ but it’s strange that such a huge majority agreed to the exchange. The Inspector is not able to take an earlier consultation into account but the results were known to the OSS and should surely have convinced them that the vast majority of the respondents did not consider this land worthwhile against the backdrop of the inability of the Trust to sustain its income and all the other good work the Trust does.

The only other objection was from a local resident. His view that the Trust should simply cut its costs and concentrate on its prime objectives of managing the land and administering the Trust would be unlikely to attract much support locally. The Trust has always provided community support. Without it there would not be a Boxmoor Hall, an Old Town Hall or a Memorial Hall in Bovingdon, all of which were either fully or substantially funded by the Trust. There are countless other examples of distribution of surplus over the centuries. The need to reconnect young and old to nature is now more crucial than ever and much benefit is gained from the Trust’s array of annual grants.

The services and grants that are now under threat as a result of this decision are considerable. That is why there were so many representations in favour. It is disappointing that the Inspector devoted twice as much text to a single objection in his report than to the views of the 29 strong supporters and the subsequent acceptance by 4 key national bodies including Natural England and the Chiltern Society after clarification. These really supportive and sometimes impassioned views by Politicians, Charities, National Organisations and local residents were surely worth more emphasis. It is very disappointing that all the highly valued support to emphasise the importance to the community did not outweigh the loss of 1.5 acres of small undervalued open space.

5. What Next

This decision was not expected and is a huge setback. Unfortunately there is no right to appeal. We will respond on the fundamental point about Durrants Lakes mentioned in 3(a) above. This apparent misconception would appear to have had a key effect on the decision.

We will also ask if there is any way that the exchange of the 4 parcels that did not draw any opposition could go ahead because there are many improvements that are going to be held up. The Trust are considering legal advice and the case for a judicial review but this is a long and expensive process at a time when funds are short.

In the meantime we are now undergoing a full review of our running costs to bring expenditure down in the short to medium term. Many of these changes will be unpopular. With increased costs imminent to keep dying Horse Chestnut and Ash trees safe, or, sadly, removed, this will be a huge burden.

We will also be forced to consider other investments that could improve our income but Two Waters East will continue to be the focus for an exchange. The income potential from this site would provide so much stability for the uncertain times which the Trust imminently faces. The search for an acceptable piece of Exchange land in excess of 1.5 acres for TWE will continue so that we can put in a second application.

It’s a big ask when land values are so astronomically high but if anyone out there knows an affordable piece of land that does not have public access and that is close to Two Waters East or to our other Common Land which might be accepted as a replacement then do please let us know.