Clause 23 and Schedule 3 Transitional

118.     Clause 23 enables the appropriate national authority to make transitional provisions and savings in connection with the coming into force of Part 1, and introduces Schedule 3, which makes transitional provision for updating the commons registers.

119.     The 1965 Act did not require the commons registers prepared under that Act to be kept up-to-date. Provision was made (in section 13) to register certain events, but compliance was optional. Many instruments, and other events affecting entries in the registers (or calling for new entries in the registers), have had effect since the registers were compiled under section 4 of the 1965 Act, but many of these have not been captured in consequential amendments to the registers.

120.     Schedule 3 makes provision for updating the registers during a transitional period to capture these events. Clause 56(1) enables the transitional period to be commenced in relation to different commons registration authorities at different times.

121.     Paragraph 2 enables the appropriate national authority to make regulations regarding the updating of registers by commons registration authorities during the transitional period in consequence of 'qualifying events'. 'Qualifying events' are defined in sub-paragraph (2).

122.     Sub-paragraph (2) provides that qualifying events comprise:

• the creation by any means of rights of common after 2 January 1970 (the latest date on which rights of common eligible for registration under section 4 of the 1965 Act could be registered, failing which they were extinguished under section 1(2)(b) of that Act) but before the commencement of this paragraph;

• any relevant disposition (as defined in sub-paragraph (3)) of a right of common occurring after the date of registration of the right but before the commencement of paragraph 2;

• the deregistration of registered land under a relevant instrument, defined in sub-paragraph (4), and the giving of other land in exchange.

123.     Regulations may provide for the amendment of the register both on application and on the initiative of the commons registration authority (sub-paragraph (5)). Sub-paragraph (6) states that regulations may require commons registration authorities to take steps to discover information concerning qualifying events. This may include undertaking and publicising a formal review of their registers.

124.     Paragraph 3 provides for the extinguishment of rights of common which remain unregistered at the conclusion of the transitional period.

125.     Paragraph 4 provides that regulations may enable a commons registration authority to entertain applications for amendment of the registers in consequence of a qualifying event, even though the application is made after the end of the transitional period. Where such an amendment is made, any extinguishment of rights by virtue of paragraph 3 is deemed not to have occurred. It is expected that such regulations will require registration authorities to consider whether confirming such an amendment would be fair having regard to the extent to which other persons may have placed reliance on the registers without the amendment having been made.

126.     Paragraph 5 enables regulations under paragraph 2 or 4 to include provision as to what is or is not to be regarded as severance for the purposes of registering qualifying events during the transitional period. It is expected that regulations will, for example, provide that a right is not to be treated as having been severed unless it can be shown that the parties to the severance expressed a clear intention in writing that the right should be severed, or the right has subsequently been treated as severed.

127.     Paragraphs 6 to 9 make certain transitional provision as a consequence of the repeal of the 1965 Act.

128.     Paragraphs 6 preserves the effect of section 1(2)(b) of the 1965 Act, which extinguished rights of common which could have been, but were not, registered at the conclusion of the initial registration period.

129.     Paragraph 7 preserves the effect of section 21(1) of the 1965 Act, which in turn preserves the right of access under section 193 of the Law of Property Act 1925. Section 193 of the 1925 Act confers a right of access to certain 'urban' commons, particularly those formerly in urban districts or boroughs prior to local government reform, and to commons in respect of which a deed of dedication applying the provisions of section 193 had been executed by the owner. The right of access to 'urban' commons ceased to apply under section 193(1)(d)(i) where the rights of common over such commons were extinguished under any statutory provision. Where such a common was registered under section 4 of the 1965 Act, but any rights remained unregistered and were therefore extinguished by section 1(2)(b) of that Act, section 21(1) provided (and paragraph 7 ensures the continuing effect) that the right of access was not to be treated as ceasing to apply by virtue of section 193(1)(d)(i) of the 1925 Act.

130.     Paragraph 8 retains the ownership section of the commons registers prepared under the 1965 Act until such time as regulations may provide for their removal and archiving (sub-paragraph (3)). This provision takes account of the gradual migration of ownership information from the ownership section of the commons registers to the register of title held by the Land Registry. Sub-paragraph (2), which reproduces the effect of section 12(b) of the 1965 Act, requires a commons registration authority which receives notice from the Land Registry that the ownership of common land or a town or village green has been registered in the register of title, to delete any entry as to ownership of the land in the ownership section of the commons register.

131.     Paragraph 9 preserves the effect of any vesting of unclaimed registered land in a local authority under section 8 of the 1965 Act, and sub-paragraph (2) preserves, where appropriate, the application of sections 10 and 15 of the Open Spaces Act 1906 to such land. These sections place certain obligations on the local authority to maintain the land, and confer powers to make byelaws for the better regulation of the land.

Supplementary

Clause 24 Applications etc

132.     Clause 24 enables the appropriate national authority to make regulations regarding the making and determination of applications for the amendment of the registers under Part 1. Regulations may, among other things, make provision as to any of the matters set out in subsections (2) to (8). In particular, subsection (2)(d) permits regulations to require a fee to be paid in connection with any application, and enables regulations to provide (if required) that the fee is to be determined by the person to whom the application is made. Subsection (4) enables regulations to provide for a person to be appointed to discharge any or all of the functions of the appropriate national authority in relation to an application under clause 16.

133.     Subsection (7) enables regulations to provide for the appropriate national authority to make appointments to a panel of persons who will be eligible to discharge the functions of a commons registration authority, and for a person to be selected from the panel in relation to any particular application or proposal. Such a person may be appointed to inquire into an application or proposal and make recommendations to the commons registration authority, leaving the authority to make the determination, or they may be appointed to determine the matter instead of the authority.

134.     Subsection (8) permits regulations to enable the Church Commissioners to act with respect to land or rights vested in an ecclesiastical benefice of the Church of England (i.e. generally, parsonage land or rights belonging to the parsonage): this is because, where there is no incumbent appointed to a benefice, no person would be able to act on behalf of that benefice without special provision.

Clause 25 Electronic registers

135.     Clause 25 enables the appropriate national authority to make regulations permitting or requiring commons registration authorities to maintain commons registers in an electronic form. Subsection (1) provides that the regulations may relate to part of a register: for example, regulations may provide only for maps contained in a register to be kept in an electronic form. Subsection (3) enables regulations to make provision as to the process of conversion of a register to an electronic form: regulations may require authorities to consult on a provisional version of the register, which will enable persons to comment in particular on the accuracy of the authority's digitisation of maps contained in the registers.

PART 2: MANAGEMENT

Commons associations

Clause 26 Establishment

136.     Clause 26 provides a power for the appropriate national authority, by order, to establish commons associations in relation to land registered as common land. The power can also be exercised in relation to land registered as a town or village green where the land is subject to rights of common.

Clause 27 Procedure for establishment

137.     Clause 27 sets out the procedural requirements to be followed by the appropriate national authority when seeking to establish a commons association. Subsection (2) provides that the appropriate national authority must publish a draft of the proposed order under clause 26 and invite representations on it, which must be taken into consideration in deciding whether to establish the association and, if so, whether to amend the draft order. The appropriate national authority may not make an order establishing a commons association unless it is satisfied, after having regard to any representations made to it, that there is substantial support for the making of the order.

138.     Subsection (3) enables a local inquiry to be held if, for example, there is particular controversy over whether an association should be established and what form it should take.

139.     Subsection (5) requires the appropriate national authority to pay particular attention to representations made by those persons described in the subsection.

Status and constitution of commons associations

Clause 28 Status

140.     Clause 28 contains provision about the status of commons associations. Subsection (3) provides that a commons association is not to be regarded as an authority to which section 28G of the Wildlife and Countryside Act 1981 applies. Section 28G bodies have a duty to further the conservation and enhancement of particular features of land by reason of which the land is designated as a Site of Special Scientific Interest. Imposing such a duty on a commons association could discourage their establishment. However, subsections (6) and (7) of clause 31 require commons associations to have regard to the public interest, including nature conservation, in discharging their functions. In addition, paragraph 3 of Schedule 5 amends the Wildlife and Countryside Act 1981 so that for the purposes of that Act a commons association falls within the definition of an occupier of land which is designated as an SSSI.

141.     As the functions of a commons association will include functions of a public nature, it is the opinion of Defra that a commons association will be a public authority within the meaning of section 6 of the Human Rights Act 1998, and will therefore be subject to the duty in section 6(1) of that Act not to act in a way which is incompatible with the rights conferred under the European Convention on Human Rights.

Clause 29 Constitution

142.     Clause 29 requires the appropriate national authority to prescribe by regulations a standard constitution for commons associations. The standard constitution will apply to all commons associations, and will prescribe terms about the constitution of an association and the way it is administered.

143.     Under subsections (3) and (4) the appropriate national authority may also specify individual constitutional terms for that association and, if necessary, disapply any of the terms of the standard constitution, or replace them with alternatives more suited to local circumstances. It is expected that certain elements of the standard constitution will vary between individual commons associations, in particular those relating to representation of various interests and voting arrangements. This ensures that the standard constitutions reflect the differences in the local circumstances where associations are established, for example, in terms of number of commons in the association, number of active commoners and number of rights held per commoner.

Clause 30 Constitution: supplementary

144.     Clause 30 provides an illustrative list of matters which may appear in either the standard constitution or the order establishing the association. Subsections (2) to (6) identify some of the terms which may be included in the constitution of a commons association, such as the procedures for the appointment of members and voting, and requirements for meetings and financial accounting.

145.     Under subsection (2), the terms of the constitution will determine both membership of the association and participation in the association by persons who are not members. A commons association will constitute a body of persons appointed or elected to form the membership of the association. It is the members who constitute the association and represent the different interests in a common: the members are, in effect, the governing body of the association. The size and form of the association will vary depending on the number or size of the commons covered by the association and the number and range of different interests represented. A small association made up of just one or two commons may have fewer than ten members to represent the different interests. A larger association comprising several commons with active and inactive graziers, landowners and sporting interests may require a membership body of twenty to thirty appointed persons in order to represent all the interests in a fair and equitable manner. The appropriate national authority will consider what representation and voting arrangements would be appropriate for commons associations on a case by case basis, following representations from the commoners and other interested parties.

146.     In many cases, therefore, the majority of persons with interests in a common will not be members of the association but will be eligible to participate in the association. In particular they will appoint or elect persons to membership of the association to represent their interests, and be eligible to vote at general meetings of the association. The form and nature of participation will vary depending on local circumstances. The order establishing the association will determine the functions of both members and participants. It will identify which participants are entitled to appoint or elect members, and who is entitled to attend meetings.

147.     Subsection (7) ensures that a commons association may regulate its own proceedings, subject to anything in the standard constitution or the order establishing the association.

Functions of commons associations

Clause 31 Functions

148.     Clause 31 sets outs the functions that may be conferred on a commons association in an order made under clause 26. Subsection (1) limits the functions to those which relate to the management of agricultural activities, the management of vegetation and the management of rights of common. Subsection (2) requires the appropriate national authority to confer only those functions which it considers appropriate for each association.

149.      Subsection (3) contains an illustrative list of the specific functions which may be conferred. It is envisaged that the principal function of a commons association will be to make rules relating to the agricultural use of the land, the management of the vegetation, and the management of rights of common. An association might make rules, for example, regarding the numbers of animals and the times when animals may be turned out on a common, the marking of animals grazing on the common, letting of rights of common, and requirements for managing animals while they are on the common (e.g. hefting requirements).

150.     There is no requirement for a commons association to be given functions relating to all the matters referred to in subsection (1) or all of the functions set out in subsection (3). Equally, the list of functions in subsection (3) is not exhaustive and other functions may be conferred where appropriate. For example, on an upland common where agricultural activity is taking place, it may be appropriate to confer

functions on the association relating to management of grazing which are wider in scope than the specific matters referred to in subsection (3).

151.     It is envisaged that an order establishing a commons association will normally either permit or, where appropriate, require it to prepare and maintain a register to record which commoners are exercising their rights of common. Similar registers of the exercise of grazing rights already operate on some commons and have been found to be useful in managing the numbers and movements of animals. For example, the Dartmoor Commons Act 1985 requires the maintenance of such a register, with requirements for commoners to provide up to date information on a continuing basis.

152.     An association might be given the function of making rules relating to the leasing and licensing of rights of common. This would permit the association to control the use of rights of common by persons other than the commoner entitled to the rights. For example, controls might be imposed where holders of common rights wished to lease out their rights to others on the common, or, if they are active graziers, to take on more rights for significant periods of time. Any local rules made by an association would take precedence over any regulations made under paragraph 2 of Schedule 1 to regulate the leasing or licensing of rights of common generally, but could not apply to any arrangements undertaken by the owner of a common to lease or licence any part of the surplus grazing to a third party, since the owner's right to use the surplus grazing is not a right of common.

153.     Subsection (4) enables a commons association to make rules which have the effect of limiting or imposing conditions on the exercise of rights of common or on the exercise of the rights of an owner to use the surplus of a common. The intention is that all those exercising rights, whether through rights of common or to the surplus, should be subject to the same rules. For example, a commons association might enter into an agri-environment agreement that might require a period where no grazing takes place on the common. In such a case all those grazing animals on the common would be required to remove them for the specified period.

154.     Subsection (6) requires a commons association in discharging its functions to have regard to the public interest (as defined in subsection (7)), as well as to any guidance issued by the appropriate national authority.

Clause 32 Ancillary powers

155.      Clause 32 gives a commons association ancillary powers to enable it to carry out its functions. Subsection (2) provides a non-exhaustive list of such powers, which include powers to enter into agreements and to raise money. The power to enter into agreements will enable commons associations to enter into funding arrangements such as agri-environment agreements which would be binding on all those using the common for agricultural purposes. An association will also be able to raise money by applying for funds from any other source, for example Heritage Lottery funding, or European Union funding programmes. Funding schemes and programmes change

over time and these ancillary powers will allow an association to apply for funding from a wide range of sources to assist it in carrying out its functions.

156.     Subsection (3) makes it clear that the power to raise money includes the power for a commons association to require the payment of fees in connection with the exercise of rights of common or rights to use the surplus of a common. It is expected that such fees will relate in most cases to the exercise of grazing rights.

Clause 33 Consent

157.     Subsection (1) of this clause makes it clear that where the consent of a person with an interest in the land is required for the commons association to do anything on the land for which it is established, nothing in Part 2 authorises a commons association to do anything on the land without that consent. For example, if commoners acting collectively would require the consent of the landowner to undertake works to improve the drainage on a common, then a commons association would also require the landowner's consent to undertake the same activity. However, by virtue of subsection (2), an association does not need the consent of a person with a right of common.

158.     Subsection (3) provides that an association would not need to obtain consent for an activity where commoners could themselves undertake that activity without consent. For example, if commoners could provide supplementary feeding for their stock during exceptional weather conditions without requiring the consent of the landowner, then an association could also do this without the landowner's consent.

159.     Subsections (4) to (6) make provision about how a commons association can obtain consent.

160.     Where a person whose consent is required cannot be identified, subsection (7) enables an association to serve notice by posting a notice on the land.

Clause 34 Enforcement of rules

161.     Clause 34 sets out the consequences of not complying with rules made by a commons association. Rules made by an association will be similar in effect to bye-laws made by a local authority. Breach of a rule can constitute a criminal offence if the appropriate national authority has approved the rule and if the rule itself specifies that breach of the rule is to constitute an offence. A commons association has a discretion to decide whether the breach of a particular rule will constitute a criminal offence. Breach of the rule renders the offender liable on summary conviction to a fine (or daily fine) as specified in subsection (3).

162.     Under subsection (5), a commons association may apply to a county court for an order requiring any person to comply with any of its rules. This provides an alternative approach to enforcement of rules where it is likely that imposition of a fine is unlikely to have the desired effect. Under subsection (6), an association may only apply to the county court to ensure compliance with a rule the breach of which constitutes a criminal offence if, in its opinion, proceedings against the person in the criminal court would not provide an effective remedy.

Clause 35 Rules: supplementary

163.     Clause 35 makes further provision in relation to the making of rules by a commons association. Subsection (2) enables an order under clause 26 establishing a commons association to make provision for the procedure to be adopted in the exercise of the power to make rules. It is expected that orders under clause 26 which confer a power to make rules will require draft rules to be confirmed by the appropriate national authority before coming into force, and will also include requirements about the publication by commons associations of draft rules for consultation, publicising rules which have been made and ensuring they are available for inspection.

164.     The power given to the appropriate national authority in subsection (3) to revoke any rule made by a commons association is subject to subsections (4) and (5), which require the appropriate national authority to give reasons for revoking a rule, and to consult with the commons association (and other persons as appropriate) before doing so.

Commons associations: supplementary

Clause 36 Consequential provision

165.     Clause 36 addresses potential problems where the functions given to an association might overlap with those of some other body. One example might be a manorial court (e.g. a court leet) which still exist in relation to some commons. If, for example, an association were to be established encompassing several commons and one of those commons was governed by a manorial court, the clause enables the appropriate national authority to alter or abolish that court's jurisdiction in order to remove any conflict of powers.

166.     The power enables the appropriate national body to vary or revoke specific legislation, including any scheme or arrangement in or under a local or personal Act, which relates to the management or maintenance of common land or the exercise of rights over common land.

167.     The fact that provision under this clause is by order under clause 26 means that the procedures in clause 27 will apply (and so the appropriate national authority must be satisfied that there is substantial support for the making of the order).

168.     Subsection (3) ensures that the powers in subsections (2)(c) to (e) may not be exercised where their exercise would have the effect of prohibiting or restricting any sort of public right of access. For example, schemes of management under Part 1 of the Commons Act 1899 (see subsection (2)(c)) generally confer rights of access in accordance with the prescribed scheme ³¹, but an order in pursuance of clause 36 could not revoke that part of the scheme relating to such rights.

³¹ For the current prescribed schemes, see the Commons (Schemes) Regulations 1982 (SI 1982/209) and the Commons (Schemes) (Welsh Forms) Regulations 1982 (SI 1982/667).