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These notes refer to the Commons Bill [HL] as brought from the House of Lords on 19 January 2006 [Bill 115]
COMMONS BILL [HL]
1. These explanatory notes relate to the Commons Bill [HL] as brought from the House of Lords on 19 January 2006. They have been prepared by the Department for Environment, Food and Rural Affairs (Defra) in order to assist the reader of the Bill. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. There are around 550,000 hectares of common land in England and Wales 1. Commons were once much more extensive, and in mediaeval times covered most of the least productive lands. Even today, they range from the large hill commons of Wales and the north and south west of England, to the smaller lowland commons of south east England.
1 Further facts and figures about common land are available on the Defra website, at: www.defra.gov.uk/wildlife-countryside/issues/common/facts-figures.htm.
4. Most common land is privately owned. Owners of commons (often the lord of the manor) enjoy largely the same rights as other landowners, except that common land is subject to 'rights of common' held by other individuals over the common, and to the special statutory controls that apply under commons legislation. Rights of common have their origin in local custom and include, for example, the right to graze stock, to enable pigs to forage on beechmast and acorns (pannage), to remove peat for the hearth (turbary), to fish (piscary) and to collect bracken or firewood (estovers). A glossary of these and other technical terms used in these explanatory notes may be found at annex A. The rights are enjoyed by specific commoners, usually by virtue of the rights being attached to the property they occupy, often adjoining a common. However, many rights of common ceased to be exercised during the twentieth century, owing (among other factors) to changing agricultural practices, increased motor traffic on roads across unfenced commons, and a decline in commoners' reliance on self-sufficient sources of fuel, timber, animal bedding etc.
5. Many commons are still used for agriculture and serve the economic interest of farming communities. They are also valued for their landscape, wildlife and archaeological interests, and for public enjoyment. Over half of common land in England has been designated as Sites of Special Scientific Interest ('SSSIs'). There is a public right of access to nearly all common land, either under the Countryside and Rights of Way Act 2000 or under earlier legislation.
Historical and legislative background
6. The Norman conquest of 1066 saw the introduction of the manorial system in which common land and rights of common have their probable origins. After the harvests had been gathered in each year from the cultivated land of the manor, the open field strips and hay meadows were made available for common grazing by the animals owned by all those who lived and worked on the manor: these were known as the common fields. In addition, there was usually poorer quality land within the manor which was not cultivated by the lord or his tenants, but might be available for grazing by livestock: this was the 'waste of the manor'. There was also common entitlement to other resources, such as coal, peat or brushwood for the hearth, turf for the roof, or fish for the table.
7. Many of these entitlements owed their existence to and were attached to the homes and land (if any) of the manorial tenants, so that the entitlement passed with the occupant of the tenancy. Such rights are described as being 'attached' to land (some other sources may refer to the rights being annexed, appurtenant or appendant to land: any distinction is now for most purposes immaterial). The land to which rights are attached is known as the 'dominant tenement' (the common over which the rights may be exercised is sometimes referred to as the 'servient tenement'). Some rights were either never attached to land, or became severed from the land to which they were attached, and are known as 'rights in gross': these rights may generally be freely bought or sold as incorporeal assets.
8. As time passed, rights of common became recognised and enforceable at law, and some of the earliest case law of England concerns commoners and their rights.
9. It was and remains a general principle of common law that the owners of the soil are entitled to any surplus of grazing on their common land (that is, where the available grazing exceeds that needed to satisfy the commoners' entitlements). Indeed, where there was a permanent excess of land beyond the grazing needs of the commoners' livestock, and other commoners' entitlements, the owner could 'inclose' or 'approve' it (and so remove rights of common from land): the right to do this was confirmed in the Statute of Merton 1235 the first Commons Act.
10. During this period, some land in or close to communities became frequently used by the inhabitants of the community for the purposes of recreation, sports and fairs. Where long-standing use could be shown to have occurred, the courts began to regard the use as customary, and the land was recognised in law as a town or village green with protection from interference.
11. Increasing interest in better, more efficient and more profitable agricultural production during the eighteenth century encouraged landowners to improve the productivity of common land by inclosing it. Initially, this was achieved by agreement or more often by private Acts of Parliament, but general legislation, such as the Inclosure (Consolidation) Act 1801 and the Inclosure Act 1845, was eventually passed to facilitate inclosure and reduce the burden on Parliament.
12. But the emphasis changed in the latter half of the nineteenth century away from inclosure and towards the regulation of commons, in recognition of their value as open space and for recreation. The Metropolitan Commons Act 1866 and the Commons Act 1876 saw the first general legislative measures largely intended to protect and manage rather than inclose common land 2. The Commons Act 1899 conferred new powers for the management of common land to be vested in local authorities. Further legislation in the Commons Act 1908 enabled commoners to apply collectively to the Minister for regulations (similar to byelaws) to be imposed to secure the more effective management of the common. But the regulations were limited in scope to restricting the turning out of entire (i.e. uncastrated) animals.
2 However, the last inclosure order, made under the Commons Act 1876, was not confirmed by Parliament until 1914, in relation to Elmstone Hardwicke (Cheltenham). An analysis of orders made under the 1876 Act can be found on the Defra website at: www.defra.gov.uk/wildlife-countryside/issues/common/management/index.htm
13. Reform of property law in the early twentieth century abolished the manorial system. To further safeguard common land, provisions were included in the Law of Property Act 1922 (subsequently consolidated in sections 193 and 194 of the Law of Property Act 1925). These provisions introduced a right of public access to certain commons (chiefly those in or close to urban areas, amounting to about one fifth of all common land), and a requirement for ministerial consent to works that prevent or impede access on all commons which remained subject to rights of common at that time.
14. The remainder of the twentieth century saw the pressure for access to common land grow but, following the Second World War, there was concern about a more insidious loss of common land and town or village greens through encroachment and abandonment of rights of common. Many commons had been ploughed up to increase agricultural production during the war, while others had fallen into disuse. The recreational needs of the public were also increasing. Growing ownership of motor cars and demand for housing and other development were bringing different pressures to bear upon greens. In 1955 a Royal Commission was established to enquire into whether any changes were needed in the law to promote and balance the needs of owners of land, commoners and the enjoyment of the public. The Royal Commission reported in 1958 3, and recommended legislation to promote:
3 Command 462, 1957, HMSO.
15. It was not until the Commons Registration Act 1965 ('the 1965 Act') that some of the recommendations of the Royal Commission were implemented, and then only to deliver short-term measures to ensure the registration of common land and greens.
16. The 1965 Act was intended to establish definitive registers of common land and town and village greens in England and Wales and to record details of rights of common. Commons registration authorities (generally county councils) were appointed to draw up the registers. Applications were invited between 1967 and 1970 for the provisional registration of common land, greens, and rights of common, and registration authorities were also able to register land on their own initiative. Disputed provisional registrations were referred to a Commons Commissioner (appointed under the 1965 Act) for determination, but unopposed provisional registrations became final automatically. The 1965 Act provided that, where land was eligible for registration under the Act (whether as common land or a town or village green), a failure to register it resulted in the land being deemed not to be common land or a green (as the case may be) after 31 July 1970 4. Similarly, a failure to register rights of common which were eligible for registration caused the rights to cease to be exercisable 5 after the same date.
4 Section 1(2) of the 1965 Act, as prescribed by the Commons Registration (Time Limits) Order 1966 (SI 1966/1470), as amended.
5 Section 1(2)(b) of the 1965 Act states that such rights are rendered not 'exercisable'. In Central Electricity Generating Board v. Clwyd County Council  1 WLR 151, Goff J. concluded that the fact that rights of common were no longer exercisable meant that they were extinguished, and this finding is now generally accepted.
17. In practice the task of establishing registers was complex and the 1965 Act proved to have deficiencies. For example, some land provisionally registered under the Act was wrongly struck out, and other common land was overlooked and never registered. Many greens became registered as common land. Some grazing rights were registered far in excess of the carrying capacity of the common. The scope for correcting errors was limited. Furthermore, regulations made under the Act did not provide for sufficient notification of applications made for provisional registration of common land and rights of common, so that many provisional registrations became final without any objections and thus without independent appraisal of the claim made in the application. The Court of Appeal held that even where land had clearly been wrongly registered as common land, the Act provided no mechanism to enable such land to be removed from the register once the registration had become final 6.
6 Corpus Christi College, Oxford v Gloucestershire County Council  3 All ER 995
18. Moreover, although the 1965 Act made provision for amendments to be made to the registers consequent on events which occurred after 1970, there was no obligation on persons interested in any entry in the register to seek such an amendment. Many events which in principle affected entries in the registers have not been registered, and the registers have become significantly out-of-date since 1970.
19. The 1965 Act also explicitly postponed action on the Royal Commission's recommendations to improve management of common land and introduce public access in the wake of registration.
20. Several initiatives were promoted over the intervening period in support of further legislation. An inter-Departmental working party reported in 1977 with recommendations for reform to commons legislation 7. The (then) Countryside Commission set up the Common Land Forum which reported in 1986 8, reflecting a broad consensus between landowning, farming, nature conservation and recreational interests as the basis for legislation. Comprehensive legislation was later ruled out by the 1995 White Paper 'Rural England', and instead research was proposed to develop guidance for the management of common land (the conclusions of the research were subsequently published in 1998 9). However, the Rural White Paper in 2000 10 included a commitment to legislate on common land as soon as parliamentary time allowed. Part I of the Countryside and Rights of Way Act 2000 provided for a public right of access (on foot) to all registered common land, which was fully implemented across England and Wales by October 2005.
7 Common Land: preparations for comprehensive legislation report of an inter-departmental working party, Department of the Environment (1975/77), unpublished.
8 Report of the Common Land Forum, Countryside Commission (now the Countryside Agency), 1986, CCP215. Available on the internet at: www.countryside.gov.uk/WiderWelcome/open_access/clf.asp.
9 Good Practice Guide on Managing the Use of Common Land, DETR, June 1998. Available from Defra: see www.defra.gov.uk/wildlife-countryside/issues/common/management/guide.htm for how to obtain a copy.
10 Rural White Paper, Defra, November 2000. Available on the internet at: www.defra.gov.uk/rural/ruralwp/.
21. The Government published a consultation paper in February 2000 11, to coincide with the introduction of the Countryside and Rights of Way Bill, on proposed reforms to legislation relating to common land and town and village greens. Two years later, building on responses to the consultation, the Common Land Policy Statement 2002 12 set out in broad terms the Government's intentions for future legislation relating to common land and town and village greens. A Stakeholder Working Group was set up in 2002 to seek a consensus on more detailed proposals on agricultural use and management of common land 13, on which there was further public consultation in 2003 14.
11 Greater Protection and Better Management of Common Land in England and Wales. DETR, February 2000. Available on the internet at: www.defra.gov.uk/wildlife-countryside/consult/common/index.htm.
12 Defra, July 2002. Available on the internet at: www.defra.gov.uk/wildlife-countryside/issues/common/legislation/proposed/policy.htm.
13 The report and proceedings of the Stakeholder Working Group are available on the internet at: www.defra.gov.uk/wildlife-countryside/issues/common/management/stakeholder.htm.
14 Consultation on agricultural use and management of common land. Defra, August 2003. Available on the internet at: www.defra.gov.uk/corporate/consult/common-land/.
22. The Commons Bill seeks to give effect to the recommendations set out in the Common Land Policy Statement with respect to the registration of common land and town or village greens, works and fencing on common land, and the agricultural use and management of common land (sections 2, 3 and 5 of the Policy Statement). It also makes more limited changes to the law with regard to town or village greens (section 4), principally in relation to the registration of greens, and the criteria for registering new greens.
23. The Bill extends only to England and Wales. Common land in Scotland and Northern Ireland is of a different character and subject to different legislation.
TERRITORIAL APPLICATION: WALES
24. Generally, all Parts of the Bill apply equally to Wales and England, but where powers are conferred on the 'appropriate national authority', those powers are exercisable by the Secretary of State in England, and the National Assembly in Wales (see clause 58(1)).
25. Where provisions of the Bill relating to Wales are commenced by order, it falls to the National Assembly for Wales to commence them see clause 53(1).
26. The Bill is arranged in four Parts:
Part 1: Registration
27. Part 1 of the Bill provides for commons registration authorities to continue to keep registers of common land and town or village greens ('the commons registers'), and to permit amendments to be made to the registers in accordance with the provisions in that Part. This replaces and improves the registration system under the 1965 Act, but using the same registers prepared under that Act.
28. In particular, Part 1 includes provisions for:
Part 2: Management
29. The objective of Part 2 is to enable the appropriate national authority to establish commons associations with functions related to the management of agricultural activities, vegetation and the exercise of rights of common on common land (or on town and village greens where rights of common exist over such land).
30. At present there is a lack of effective mechanisms for managing agricultural activity, in particular grazing, on common land. The result has been poor management of agricultural activity on many commons leading to deterioration of the resource base and, in some cases, to severe over-grazing and consequent damage to the soil and vegetation. This has been exacerbated in the past as a result of production subsidies under the Common Agricultural Policy, which increased over-grazing pressures. Over-grazing is undesirable from a nature conservation perspective, affecting the Government's ability to meet its international obligations (e.g. under the European Habitats Directive) and its national objectives (e.g. improving the condition of SSSIs). By establishing commons associations, commoners, owners of common land and other interests will be able to work together to manage agricultural activities and the vegetation to meet the varied demands made on common land across the country. Commons associations will also be able to enter into agri-environment agreements that is, government-funded schemes under which farmers sign long-term agreements to manage the land in particular ways in order to protect, enhance or restore biodiversity and particular features of the landscape, or to protect the environment (e.g. through decreased use of agricultural chemicals) in return for annual payments which help to offset the additional costs of changed farming practices. They will also be able to secure compliance with the conditions of such agreements through their rule-making function. This enables a commons association to make legally binding rules on all those using a common for agricultural purposes, which may be enforced through the courts where non-compliance occurs.
Part 3: Protection
31. Part 3 contains provision to prohibit the carrying out of works on certain common land without the consent of the appropriate national authority and makes provision about how consent may be obtained. It replaces section 194 of the Law of Property Act 1925, the main existing statutory control on works on common land, which is repealed. Certain enactments which make specific provision about works on particular classes of common land are amended to ensure consistency with the new regime.
32. This Part also contains provisions conferring powers of intervention on the appropriate national authority to deal with situations where unauthorised agricultural activities are taking place and damaging the common (for example, through over-grazing where grazing is occurring by those without rights of common or by those grazing more livestock than their rights allow), and no person is otherwise able to act
to control it. It also preserves powers to enable local authorities to step in to protect unclaimed common land and town or village greens from unlawful interference.
Part 4: Supplementary and General
33. This Part contains powers to amend the application of other enactments to common land and town or village greens, and to amend local enactments which confer functions on the Secretary of State or the National Assembly for Wales in relation to common land and greens.
34. It also contains Schedules of minor and consequential amendments and repeals, and general provisions about commencement, orders and regulations, Crown application, interpretation, the title of the Bill and its extent.
COMMENTARY ON CLAUSES
PART 1: REGISTRATION
Clause 1 Registers of common land and greens
35. Clause 1 requires commons registration authorities to continue to keep the commons registers first established under the 1965 Act.
Clause 2 Purpose of registers
36. Subsection (1) explains that the purpose of the register of common land is to register land as common land and rights of common exercisable over such land. Similarly, subsection (2) applies the same principles in relation to the register of town or village greens. In practice, the form of the register of common land and the form of the register of town or village greens prepared under the 1965 Act were identical in all material respects.
Clause 3 Content of registers
37. Subsection (1) provides that the land registered under clause 2(1) is to be the same land as was registered as common land under the 1965 Act, together with any other land registered under Part 1 of the Bill. In other words, the register of common land will contain all the entries that were previously registered in it under the 1965 Act, together with further entries that may be registered in the future in accordance with the new provisions in the Bill. Similar principles are applied to land registered under clause 2(2) in the register of town or village greens (subsection (2)).
38. Subsection (3) provides that the rights of common registered are to be the same rights as were registered under the 1965 Act, together with any other rights registered under Part 1. Subsection (4) identifies the information about a right of common which must appear in the commons registers, and subsection (5) enables regulations to be made requiring or permitting other information to be included in the registers, including matters to be noted in the registers. For example, regulations made under the 1965 Act enabled applications to be made to the commons registration authority to note in the register a claim to certain private rights and interests in respect of registered land (such as easements and mineral rights), and enabled the commons registration authority itself to note the existence of certain matters affecting the public interest in common land (such as limitations on a right of public access imposed under section 193(1)(b) of the Law of Property Act 1925).
39. Subsection (6) states that neither land, nor any right of common, that has been registered is to be removed from the commons registers, except as provided by or under Part 1 of the Bill or any other enactment. There is provision for land to be removed from the registers in clause 16 (deregistration and exchange) and Schedule 2 (rectification of mistakes etc under the 1965 Act), for corrections to the registers under clause 19 which may in certain circumstances result in land being removed from the registers, and power to make provision for land to be removed from the registers in consequence of some other statutory instrument by means of regulations under clause 14 (statutory dispositions).
40. Under subsection (7), rights of common registered or eligible for registration under Part 1 are not to be registered in the register of title to land kept by the Land Registry. The register of title is maintained under the Land Registration Act 2002, and the rules made under that Act. This provision does not affect the small number of rights of common which are believed to have been registered in the register of title before the commencement of the 1965 Act.
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