Commons Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Commons Bill [HL]

Commons Bill [HL]
Part 2 — Management
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(7)
On an application under subsection (5) the court may make such an order as it
thinks fit.
35
Rules: supplementary
(1)
Any power to make rules conferred on a commons association under section
31 includes power to vary or revoke the rules made by the association.
5
(2)
An order under section 26 conferring a power to make rules may provide for
the procedure to be followed in the exercise of the power (and may in
particular require the consent of the appropriate national authority to be
obtained before rules are made).
(3)
The appropriate national authority may by direction revoke any rule made by
10
a commons association.
(4)
A direction under subsection (3) must set out the reason why the rule is being
revoked.
(5)
Before revoking any rule under subsection (3) the appropriate national
authority must consult—
15
(a)
the commons association; and
(b)
any other person it thinks appropriate.
Commons associations: supplementary
36
Consequential provision
(1)
The appropriate national authority may by order under section 26 make any
20
provision specified in subsection (2) if it appears to the authority desirable to
do so in consequence of functions conferred on a commons association in
relation to any land.
(2)
The provision referred to in subsection (1) is provision to—
(a)
vary or abolish the jurisdiction so far as relating to the land of any court
25
of a description referred to in Part 1 of Schedule 4 to the Administration
of Justice Act 1977 (c. 38) (certain ancient courts);
(b)
vary or revoke any regulations or arrangement made under the
Commons Act 1908 (c. 44);
(c)
vary or revoke any scheme made under the Commons Act 1899 (c. 30),
30
or any arrangement arising under such a scheme;
(d)
vary or revoke any Act made under the Commons Act 1876 (c. 56)
confirming a provisional order of the Inclosure Commissioners or any
arrangement arising under such an Act;
(e)
vary or revoke any local or personal Act, or any scheme or arrangement
35
under such an Act, which relates to the management or maintenance of,
or the exercise of rights of common over, the land.
(3)
The appropriate national authority may not under subsection (1) make
provision specified in subsection (2)(c) to (e) to the extent that to do so would
have the effect of abolishing or restricting a right of access of whatever nature
40
exercisable by members of the public generally or by any section of the public.

Commons Bill [HL]
Part 3 — Protection
21

37
Variation and revocation of establishment orders
(1)
The appropriate national authority may by order under section 26 revoke a
previous order under that section establishing a commons association only if it
is satisfied that—
(a)
the association has ceased to operate;
5
(b)
the association is failing to discharge its functions in an effective
manner; or
(c)
the association is, in discharging its functions, failing to have sufficient
regard to the public interest as required by section 31.
(2)
An order under section 26 revoking a previous order under that section may
10
include—
(a)
provision for the transfer of rights, property and liabilities of the
commons association;
(b)
provision amending any enactment previously amended under section
36 in relation to the association.
15
(3)
Section 27 applies to an order under section 26 varying or revoking a previous
order under that section as it applies to an order under that section establishing
a commons association (but as if the references in section 27 to land specified
in the order were to land affected by the variation or revocation).
Part 3
20
Protection
Works on common land
38
Prohibition on works without consent
(1)
A person may not, except with the consent of the appropriate national
authority, carry out any restricted works on land to which this section applies.
25
(2)
In subsection (1) “restricted works” are—
(a)
works which have the effect of preventing or impeding access to or over
any land to which this section applies;
(b)
works for the resurfacing of land.
(3)
The reference to works in subsection (2)(a) includes in particular—
30
(a)
the erection of fencing;
(b)
the construction of buildings and other structures;
(c)
the digging of ditches and trenches and the building of embankments.
(4)
For the purposes of subsection (2)(b) works are for the resurfacing of land if
they consist of the laying of concrete, tarmacadam, coated roadstone or similar
35
material on the land (but not if they consist only of the repair of an existing
surface of the land made of such material).
(5)
This section applies to—
(a)
any land registered as common land;
(b)
land not so registered which is—
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(i)
regulated by an Act made under the Commons Act 1876 (c. 56)
confirming a provisional order of the Inclosure Commissioners;
or

Commons Bill [HL]
Part 3 — Protection
22

(ii)
subject to a scheme under the Metropolitan Commons Act 1866
(c. 122) or the Commons Act 1899 (c. 30);
(c)
land not falling within paragraph (a) or (b) which is in the New Forest
and is subject to rights of common.
(6)
The prohibition in subsection (1) does not apply to—
5
(a)
works on any land where those works, or works of a description which
includes those works, are authorised in relation to that particular land
by or in pursuance of an enactment;
(b)
works on any land where works of a description which includes those
works are authorised by or in pursuance of an enactment applying to
10
common land;
(c)
works authorised under a scheme under the Metropolitan Commons
Act 1866 or the Commons Act 1899 without any requirement for the
appropriate national authority to consent to the works;
(d)
works for the installation of electronic communications apparatus for
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the purposes of an electronic communications code network.
(7)
For the purposes of subsection (6)(a)—
(a)
the grant of planning permission under an enactment does not
constitute authorisation by or in pursuance of that enactment;
(b)
the conferral of functions on a commons association under Part 2 in
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relation to any works does not constitute authorisation to carry out
those works.
(8)
For the purposes of subsection (6)(b), an enactment applies to common land if
it is expressed to apply (generally) to—
(a)
registered common land;
25
(b)
common land; or
(c)
any common or commons, commonable land, land subject to inclosure
under any enactment or other land of a similar description.
(9)
Subject to the following provisions of this Part, consent given to works under
this section does not affect any requirement apart from this section to obtain
30
the consent of any person to those works.
39
Consent: general
(1)
In determining an application for consent under subsection (1) of section 38 in
relation to works on land to which that section applies, the appropriate
national authority shall have regard to—
35
(a)
the interests of persons having rights in relation to, or occupying, the
land (and in particular persons exercising rights of common over it);
(b)
the interests of the neighbourhood;
(c)
the public interest;
(d)
any other matter considered to be relevant.
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(2)
The reference in subsection (1)(c) to the public interest includes the public
interest in—
(a)
nature conservation;
(b)
the conservation of the landscape;
(c)
the protection of public rights of access to any area of land; and
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(d)
the protection of archaeological remains and features of historic
interest.

Commons Bill [HL]
Part 3 — Protection
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(3)
Consent may be given under section 38(1)—
(a)
in relation to all or part of the proposed works;
(b)
subject to such modifications and conditions relating to the proposed
works as the appropriate national authority thinks fit.
(4)
In considering the effect in relation to any land of proposed works under this
5
section, the appropriate national authority may consider that effect in
conjunction with the effect in relation to that land of any other works for which
consent has previously been given under section 38(1) above or section 194 of
the Law of Property Act 1925 (c. 20).
(5)
Where the appropriate national authority imposes any modification or
10
condition in relation to any consent given under section 38(1), it may on the
application of the person to whom the consent is given vary or revoke that
modification or condition.
(6)
Consent may be given under section 38(1) in relation to works which have been
commenced or completed; and any consent so given has effect from the time of
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commencement of the works.
40
Consent: procedure
(1)
Regulations may make provision as to the procedure to be followed in the
making and determination of applications under sections 38(1) and 39(5).
(2)
Regulations under this section may in particular include provision—
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(a)
as to the steps to be taken by an applicant before submitting an
application;
(b)
as to the form and content of an application;
(c)
as to the procedure to be followed in making an application;
(d)
as to the evidence to be supplied in support of an application;
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(e)
as to the fees payable in relation to an application;
(f)
as to the steps to be taken by the appropriate national authority upon
receipt of an application;
(g)
for the appointment by the appropriate national authority of a person
to discharge any (or all) of its functions in relation to the determination
30
of an application;
(h)
for the making of representations or objections in relation to an
application;
(i)
for the holding of a hearing or local inquiry in relation to an application;
(j)
for the publication of a determination of an application and the
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notification of interested persons.
41
Enforcement
(1)
Where any works are carried out on land to which section 38 applies in
contravention of subsection (1) of that section, any person may apply to the
county court in whose area the land is situated.
40
(2)
On an application under this section the court may make an order requiring the
person carrying out the works—
(a)
in any case, to remove the works and restore the land to the condition
it was in before the works were carried out;

Commons Bill [HL]
Part 3 — Protection
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(b)
in a case where consent has been given under section 38(1) but the
works have not been carried out in accordance with any term of that
consent, to carry out the works in such manner and subject to such
conditions as the order may specify.
42
Schemes
5
(1)
This section applies in relation to works on relevant land where, by virtue of
section 38(1), the works may not be carried out without the consent of the
appropriate national authority.
(2)
In subsection (1) “relevant land” means land which at the commencement of
this section is subject to—
10
(a)
a scheme under the Metropolitan Commons Act 1866 (c. 122); or
(b)
a scheme under the Commons Act 1899 (c. 30).
(3)
Where—
(a)
any provision of the scheme referred to in subsection (2) would also
prohibit the carrying out of the works, and
15
(b)
the scheme does not allow for any person to consent to the works to be
carried out,

the works do not contravene that provision if they are carried out with (and in
accordance with the terms of) the consent of the appropriate national authority
under section 38(1).
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(4)
Where any provision of the scheme referred to in subsection (2) would also
prohibit the carrying out of the works without the consent of the appropriate
national authority—
(a)
consent given under section 38(1) is to be regarded as consent given
under the scheme; and
25
(b)
consent may not be sought separately under the scheme.
43
Power to exempt
(1)
The appropriate national authority may by order provide that section 38 is not
to apply to—
(a)
the carrying out by a specified person of specified works on specified
30
land; or
(b)
the carrying out by a specified person, or a person of a specified
description, of works of a specified description on—
(i)
any land; or
(ii)
land of a specified description.
35
(2)
The appropriate national authority may only make an order under subsection
(1)(a) if it is satisfied that the works specified in the order are necessary or
expedient for any of the purposes in subsection (4).
(3)
The appropriate national authority may only make an order under subsection
(1)(b) if it is satisfied that works of the description specified in the order are
40
likely to be necessary or expedient on any land, or on land of the description
specified in the order, for any of the purposes in subsection (4).
(4)
The purposes referred to in subsections (2) and (3) are—
(a)
use of land by members of the public for the purposes of open-air
recreation pursuant to any right of access;
45

Commons Bill [HL]
Part 3 — Protection
25

(b)
the exercise of rights of common;
(c)
nature conservation;
(d)
the protection of archaeological remains or features of historic interest;
(e)
the use of the land for sporting or recreational purposes.
(5)
Where any land is the subject of a resolution under section 194(3)(b) of the Law
5
of Property Act 1925 (c. 20) immediately before the commencement of this
section, the appropriate national authority may by order provide that section
38 is not to apply to the carrying out of works, or works of a description
specified in the order, on that land.
(6)
An order under subsection (1) or (5) may provide that section 38 is not to apply
10
only if the works to which the order relates are carried out in accordance with
the terms of the order.
(7)
In subsection (1) “specified” means specified in an order under that subsection.
44
Supplementary
(1)
Schedule 4 (which makes supplementary provision relating to works on
15
common land) has effect.
(2)
The appropriate national authority may by order amend any local or personal
Act passed before this Act for the purpose of making provision about works on
common land to which that Act relates.
(3)
In subsection (2), “common land” means—
20
(a)
any land registered as common land; and
(b)
any land not so registered which is subject to a scheme under the
Metropolitan Commons Act 1866 (c. 122) or the Commons Act 1899
(c. 30).
(4)
The appropriate national authority may by order amend any Act made under
25
the Commons Act 1876 (c. 56) confirming a provisional order of the Inclosure
Commissioners for the purpose of making provision about works on land to
which that Act relates.
(5)
The amendments which may be made under subsection (2) or (4) include
amendments supplementary to or consequential on the provisions of this Part.
30
Intervention powers
45
Powers of local authorities over unclaimed land
(1)
This section applies where—
(a)
land is registered as common land or a town or village green;
(b)
no person is registered in the register of title as the owner of the land;
35
and
(c)
it appears to a local authority in whose area the land or any part of it is
situated that the owner cannot be identified.
(2)
The local authority may—
(a)
take any steps to protect the land against unlawful interference that
40
could be taken by an owner in possession of the land; and

Commons Bill [HL]
Part 3 — Protection
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(b)
institute proceedings against any person for any offence committed in
respect of the land (but without prejudice to any power exercisable
apart from this section).
(3)
In this section “local authority” means—
(a)
a county, district or parish council in England;
5
(b)
a London borough council; and
(c)
a county, county borough or community council in Wales.
46
Powers relating to unauthorised agricultural activities
(1)
This section applies where it appears to the appropriate national authority
that—
10
(a)
a person is carrying out, or causing to be carried out by virtue of any
arrangements, an agricultural activity on land which—
(i)
is registered as common land; or
(ii)
is registered as a town or village green and is subject to rights of
common;
15
(b)
the activity is unauthorised; and
(c)
the activity is detrimental to—
(i)
the interests of persons having rights in relation to, or
occupying, the land; or
(ii)
the public interest.
20
(2)
The appropriate national authority may, subject to the following provisions of
this section, serve a notice on the person requiring him to do any one or more
of the following—
(a)
within such reasonable period as may be specified in the notice to stop
carrying out the activity, or stop causing it to be carried out, to the
25
extent that it is unauthorised;
(b)
not to carry out, or cause to be carried out, any other unauthorised
agricultural activity on the land which would be detrimental to the
matters specified in subsection (1)(c)(i) and (ii);
(c)
to supply the authority with such information relating to agricultural
30
activities on the land carried out, or caused to be carried out, by him as
it may reasonably require.
(3)
Before serving a notice under this section the appropriate national authority
must, to the extent that it is appropriate and practicable in all the circumstances
to do so—
35
(a)
notify the persons specified in subsection (4) of its intention to serve the
notice; and
(b)
publicise its intention to do so (in such manner as it thinks fit).
(4)
The persons referred to in subsection (3)(a) are—
(a)
any commons association for the land;
40
(b)
any other person with functions under any enactment which relate to
the maintenance or management of the land; and
(c)
any person appearing to the authority to own or occupy the land.
(5)
Any notification or publication under subsection (3) may specify a period
within which representations about the proposed notice may be made.
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