Commons Bill [HL]

House of Commons

Session 2005 - 06
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Commons Bill [HL]

Commons Bill [HL]
Part 1 — Registration
13

Supplementary
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Applications etc
(1)
Regulations may make provision as to the making and determination of any
application for the amendment of a register of common land or town or village
greens under or for the purposes of this Part.
5
(2)
Regulations under subsection (1) may in particular make provision as to—
(a)
the steps to be taken by a person before making an application;
(b)
the form of an application;
(c)
the information or evidence to be supplied with an application;
(d)
the fee payable on an application (which may be a fee determined by
10
the person to whom the application is made);
(e)
the persons to be notified of an application;
(f)
the publication of an application;
(g)
the making of objections to an application;
(h)
the persons who must be consulted, or whose advice must be sought,
15
in relation to an application;
(i)
the holding of an inquiry before determination of an application;
(j)
the evidence to be taken into account in making a determination and
the weight to be given to any evidence;
(k)
the persons to be notified of any determination;
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(l)
the publication of a determination;
(m)
the amendments to be made by a commons registration authority to a
register of common land or town or village greens pursuant to a
determination;
(n)
the time at which any such amendments are to be regarded as having
25
been made.
(3)
In the case of an application made for the purposes of any of—
(a)
sections 6 to 8, 12 and 13,
(b)
paragraph 1 or 3 of Schedule 1, and
(c)
paragraph 2(5)(a) of Schedule 3,
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regulations under subsection (1) may make provision as to the persons entitled
to make the application.
(4)
Regulations under subsection (1) may include provision for the appropriate
national authority to appoint a person to discharge any or all of its functions in
relation to an application made to it under section 16.
35
(5)
Regulations may make provision as to the making and determination of any
proposal by a commons registration authority to amend a register on its own
initiative pursuant to section 19 or paragraph 2(5)(b) of Schedule 3.
(6)
Regulations under subsection (5) may in particular make provision as to—
(a)
the persons to be notified of a proposal;
40
(b)
the publication of a proposal (and the information or evidence to be
published with a proposal);
(c)
the making of objections to a proposal;
(d)
the persons who must be consulted, or whose advice must be sought,
in relation to a proposal;
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(e)
the holding of an inquiry before determination of a proposal;

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Part 2 — Management
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(f)
the evidence to be taken into account in making a determination and
the weight to be given to any evidence;
(g)
the persons to be notified of any determination;
(h)
the publication of a determination;
(i)
the amendments to be made by a commons registration authority to a
5
register of common land or town or village greens pursuant to a
determination.
(7)
Regulations under this section may include provision for—
(a)
the appropriate national authority to appoint persons as eligible to
discharge functions of a commons registration authority in relation to
10
applications made to, or proposals made by, the commons registration
authority; and
(b)
the appointment of one or more of those persons to discharge functions
of the commons registration authority in the case of any particular
application or proposal.
15
(8)
Regulations under this section may provide for the Church Commissioners to
act with respect to any land or rights belonging to an ecclesiastical benefice of
the Church of England which is vacant.
25
Electronic registers
(1)
Regulations may require or permit the whole or any part of a register kept
20
under this Part to be kept in electronic form.
(2)
Regulations under subsection (1) may include provision as to—
(a)
requirements to be complied with in relation to the recording of
information in electronic form;
(b)
the certification of information recorded in electronic form (including
25
the status of print-outs of such information).
(3)
Regulations under subsection (1) may also include provision as to the process
of converting a register, or part of a register, into electronic form.
(4)
The provision referred to in subsection (3) includes in particular provision—
(a)
as to the publicity to be given to such a conversion;
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(b)
requiring a provisional electronic version to be made available for
inspection and comment;
(c)
as to the holding of an inquiry in relation to any question arising as a
result of the conversion.
Part 2
35
Management
Commons associations
26
Establishment
(1)
The appropriate national authority may, for any area or areas of land to which
this section applies, establish a body corporate to carry out functions conferred
40
under this Part.
(2)
This section applies to any land that—

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Part 2 — Management
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(a)
is registered as common land; or
(b)
is registered as a town or village green and is subject to rights of
common.
(3)
A body corporate established under this section is to be known as a “commons
association”.
5
(4)
A commons association is to be established by order.
(5)
An order establishing a commons association must specify—
(a)
the name of the association;
(b)
the area or areas of land for which the association is established.
27
Procedure for establishment
10
(1)
This section applies where the appropriate national authority proposes to
make an order under section 26 establishing a commons association.
(2)
The appropriate national authority must—
(a)
publish a draft of the proposed order in such manner as it thinks fit; and
(b)
invite representations about it.
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(3)
The appropriate national authority may cause a local inquiry to be held.
(4)
The appropriate national authority may not make the proposed order unless,
having regard to—
(a)
any representations received pursuant to subsection (2)(b), and
(b)
the result of any local inquiry held under subsection (3),
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it is satisfied that there is substantial support for the making of the order.
(5)
For the purposes of subsection (4) the appropriate national authority must
have particular regard to representations received pursuant to subsection
(2)(b) from—
(a)
persons having rights (other than rights of common) in relation to, or
25
occupying, land specified in the draft order;
(b)
persons who are entitled to exercise rights of common over any such
land; and
(c)
persons with functions under an enactment which relate to the
maintenance or management of any such land.
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Status and constitution of commons associations
28
Status
(1)
A commons association is not to be regarded as the servant or agent of the
Crown or as enjoying any status, immunity or privilege of the Crown.
(2)
The property of a commons association is not to be regarded as the property of,
35
or as property held on behalf of, the Crown.
(3)
A commons association is not to be regarded as an authority to which section
28G of the Wildlife and Countryside Act 1981 (c. 69) applies.

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29
Constitution
(1)
The appropriate national authority must by regulations prescribe standard
terms as to the constitution and administration of commons associations (in
this Part, the “standard constitution”).
(2)
The terms of the standard constitution apply to every commons association,
5
subject as follows.
(3)
An order under section 26 may also make provision as to the constitution and
administration of a commons association.
(4)
Provision which may be made under subsection (3) includes in particular—
(a)
provision supplementary to any term of the standard constitution;
10
(b)
provision disapplying any such term;
(c)
provision replacing any such term.
(5)
Where in relation to a commons association—
(a)
provision is made under subsection (3) that is inconsistent with any
term of the standard constitution, and
15
(b)
any such term has not been expressly disapplied under that subsection,

the provision made under subsection (3) prevails, to the extent of the
inconsistency, over the term of the standard constitution.
(6)
Terms of the standard constitution prescribed by regulations under subsection
(1) may be amended by further regulations under that subsection; and this
20
section applies in relation to such terms as amended as it applies in relation to
the terms as first prescribed.
30
Constitution: supplementary
(1)
This section applies in relation to terms as to the constitution and
administration of a commons association contained in—
25
(a)
the standard constitution; or
(b)
an order under section 26.
(2)
The terms may in particular include terms as to—
(a)
the membership of the association;
(b)
participation in the association by persons other than members;
30
(c)
the proceedings of the association;
(d)
the keeping and publication of accounts, annual reports and other
information relating to the association.
(3)
The terms referred to in subsection (2)(a) include in particular terms as to—
(a)
the appointment of members (by election or otherwise);
35
(b)
the term for which members are appointed;
(c)
co-option of members;
(d)
the conduct of members;
(e)
resignation and disqualification of members;
(f)
termination and renewal of membership;
40
(g)
payment of allowances to members.
(4)
The terms referred to in subsection (2)(b) include in particular terms as to—
(a)
entitlement to elect members;

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(b)
entitlement to attend meetings.
(5)
The terms referred to in subsection (2)(c) include in particular terms as to—
(a)
the frequency of meetings;
(b)
voting procedures at meetings;
(c)
committees and sub-committees.
5
(6)
The terms referred to in subsection (2)(d) include in particular terms as to—
(a)
the appointment of auditors;
(b)
the preparation and publication of accounts;
(c)
the preparation and publication of annual reports.
(7)
Subject to any terms made of the kind referred to in subsection (2)(c), a
10
commons association may regulate its own proceedings.
Functions of commons associations
31
Functions
(1)
An order under section 26 is to confer on a commons association functions
relating to any one or more of the following—
15
(a)
the management of agricultural activities on the land for which the
association is established;
(b)
the management of vegetation on the land;
(c)
the management of rights of common on the land.
(2)
The functions conferred on an association under subsection (1) must be those
20
the appropriate national authority considers appropriate in the case of that
association.
(3)
The functions which may be conferred on a commons association under
subsection (1) include in particular functions of—
(a)
making rules relating to agricultural activities, the management of
25
vegetation and the exercise of rights of common on the land for which
the association is established;
(b)
making rules relating to the leasing or licensing of rights of common;
(c)
preparing and maintaining a register of grazing;
(d)
establishing and maintaining boundaries;
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(e)
removing unlawful boundaries and other encroachments;
(f)
removing animals unlawfully permitted to graze.
(4)
Rules made by virtue of subsection (3)(a) may have the effect of—
(a)
limiting or imposing conditions on the exercise of rights of common
over, or the exercise of rights to use the surplus of, the land for which
35
the association is established;
(b)
requiring the provision of information to the commons association in
relation to the exercise of those rights.
(5)
In exercising a function conferred under subsection (3)(f), a commons
association may—
40
(a)
dispose of any animal it removes; and
(b)
recover from the owner of the animal the costs that it may reasonably
incur in removing and disposing of it.

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(6)
A commons association must discharge its functions having regard to—
(a)
any guidance given by the appropriate national authority; and
(b)
the public interest in relation to the land for which it is established.
(7)
The reference in subsection (6)(b) to the public interest includes the public
interest in—
5
(a)
nature conservation;
(b)
the conservation of the landscape;
(c)
the protection of public rights of access to any area of land; and
(d)
the protection of archaeological remains and features of historic
interest.
10
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Ancillary powers
(1)
A commons association has the power to do anything which it considers will
facilitate, or is conducive or incidental to, the carrying out of its functions.
(2)
The power conferred by subsection (1) includes power to—
(a)
enter into agreements;
15
(b)
prepare and adopt management plans;
(c)
raise money (including by applying for funds from any source);
(d)
acquire or dispose of land;
(e)
employ staff.
(3)
The power of a commons association to raise money as specified in subsection
20
(2)(c) includes power to require the payment of fees in connection with—
(a)
the exercise of rights of common over, or the exercise of rights to use the
surplus of, the land for which the association is established, and
(b)
participation in the association,

and any such fees owed to the association may be recovered as a debt due to it.
25
33
Consent
(1)
Subject to subsections (2) and (3), nothing in this Part authorises a commons
association to do anything on the land for which it is established without the
consent of a person with an interest in the land, where that person’s consent
would otherwise be required.
30
(2)
A commons association does not need the consent of a person who has a right
of common over the land for which it is established in order to do anything on
the land.
(3)
A commons association does not need the consent of any other person with an
interest in the land for which it is established in order to do anything on the
35
land where what is proposed to be done could be done without that person’s
consent by any person who has a right of common over the land.
(4)
Where a commons association wishes to obtain the consent of any person with
an interest in the land for which the association is established in respect of
anything it proposes to do on the land, it may serve a notice on him.
40
(5)
A notice under subsection (4) must specify—
(a)
what the commons association proposes to do;

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(b)
the time within which the person on whom it is served may object
(which may not be less than 28 days after service of the notice); and
(c)
the manner in which he may object.
(6)
If the person on whom a notice under subsection (4) is served does not object
within the time and in the manner specified in the notice, he is to be regarded
5
as having given his consent in relation to the proposal specified in the notice.
(7)
Where a commons association proposes to serve a notice on a person under
subsection (4) but is unable after reasonable enquiry to ascertain his name or
proper address—
(a)
the association may post the notice on the land; and
10
(b)
the notice is to be treated as having been served on the person at the
time the notice is posted.
(8)
An order under section 26 may make further provision as to the form and
service of notices under subsection (4).
(9)
For the purposes of this section, a person with an interest in any land is a
15
person who—
(a)
owns the land; or
(b)
is entitled to exercise any right over the land.
34
Enforcement of rules
(1)
A person who breaches a rule to which subsection (2) applies is guilty of an
20
offence.
(2)
This subsection applies to a rule which—
(a)
is made with the consent of the appropriate national authority
pursuant to a function of making rules conferred on a commons
association under section 31; and
25
(b)
specifies that a person who contravenes it is guilty of an offence under
this section.
(3)
A person guilty of an offence under subsection (1) is liable on summary
conviction to—
(a)
a fine not exceeding level 4 on the standard scale; and
30
(b)
in the case of a continuing offence, to a further fine not exceeding one
half of level 1 on the standard scale for each day during which the
offence continues after conviction.
(4)
A commons association may bring proceedings in relation to an offence under
subsection (1) in respect of breach of any rule made by it to which subsection
35
(2) applies.
(5)
A commons association may apply to a county court for an order to secure
compliance with any rule that it has made pursuant to a function of making
rules conferred on it under section 31.
(6)
But a commons association may only make an application under subsection (5)
40
for the purpose of securing compliance with a rule to which subsection (2)
applies if it is of the opinion that proceedings for an offence under subsection
(1) would provide an ineffectual remedy against the person who has failed to
comply with the rule.