House of Commons - Explanatory Note
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Clause 37 Variation and revocation of establishment orders

169.     Clause 37 describes the procedure to be followed where the appropriate national authority wishes to wind up a commons association because it is no longer operating effectively. Subsection (1) identifies the conditions which apply. Subsection (2) clarifies that an association may only be wound up through making an order under clause 26. This requires the same procedure to be followed by the appropriate national authority as applies to establishing an association, to ensure that there is consultation with local interests and substantial support for the order to wind up an association. Such an order must also make provision for dealing with any liabilities and assets of the association, and provision for amending enactments that may have been amended previously as a result of the establishment of the association.


Works on common land

Clause 38 Prohibition on works without consent

170.     Subsection (1) of this clause prohibits the carrying out of "restricted works" without the consent of the appropriate national authority on registered common land and on certain other land identified in subsection (5). By virtue of subsection (2), "restricted works" are works which prevent or impede access to or over the land, or involve newly surfacing the land with concrete, tarmac, roadstone or the like.

171.     Subsection (3) specifies that new fencing, buildings, structures, ditches, trenches and embankments are all treated as works for these purposes. This does not mean that such works will in every case prevent or impede access, and whether this is so in any particular case will be a matter of fact and degree.

172.     Subsection (6) specifies certain exemptions to the prohibition on restricted works. These include, in subsection (6)(a), an exemption for particular works, or works of a description, which are authorised by or under an enactment to be carried out on a particular area of common land (for example, some local Acts establish a boards of conservators for a common and give it power to carry out certain types of improvement works on the land for which it is established). Subsection (6)(b) exempts works of a description which are authorised by or under an enactment to be carried out on common land generally (for example, section 82 of the Highways Act 1980 authorises the installation of cattle grids on an area of common land adjoining a road). Subsection (6)(c) exempts works authorised under a scheme made under the Metropolitan Commons Act 1866 or the Commons Act 1899, except where the enactment or scheme requires the appropriate national authority to consent to the works 32. Subsection (6)(d) exempts works for the installation of electronic communications apparatus for the purposes of an electronic communications code network, within the meaning of the Communications Act 2003.

32 As to which, see clause 42.

173.     Subsection (7) makes it clear that neither the granting of planning permission for works, nor the conferral of particular functions on a commons association under Part 2 of this Bill in relation to any works, exempts those works from the requirement for consent under clause 38. Subsection (9) makes clear that consent under clause 38 does not exempt the applicant from the need to obtain any other necessary consent to the works — for example, consent of the landowner, or planning permission.

174.     Works connected with the taking or working of minerals do not require consent under section 194 of the 1925 Act (which clause 38 supersedes), but will require consent under clause 38 on relevant land. But paragraph 7 of Schedule 4 includes a transitional provision to prevent this requirement applying to works carried out in accordance with a planning permission granted before commencement of clause 38, so long as the works are carried out within the period allowed under the planning permission, or any extended period allowed by the planning authority.

Clause 39 Consent: general

175.     Subsections (1) and (2) set out the criteria that the appropriate national authority must take into account when determining an application for consent for works. It must have regard to the interests of those with legal rights over the land, and to the interests of the neighbourhood and the public interest. The public interest is defined in the same terms as used elsewhere in the Bill. The appropriate national authority must also have regard to any other matter it considers relevant. These criteria are not prescriptive as to which interest should take precedence.

176.     Subsection (3) gives the appropriate national authority flexibility to consent to all or part of the proposed works, and if appropriate to propose modifications or impose conditions — in which case subsection (5) enables the person to whom consent is given to apply for the conditions or modifications to be varied or revoked. Subsection (4) allows the appropriate national authority to take account of the cumulative effect of the proposed works, and of works already consented to, on the common land involved.

177.     Subsection (6) enables the appropriate national authority to consider applications where the works have already been started, or have been completed.

Clause 40 Consent: procedure

178.     Clause 40 enables regulations to be made setting out the procedures for making and determining applications under clauses 38 and 39(5). The illustrative list of potential subject matter for these regulations, at subsection (2), includes scope for the appropriate national authority to appoint a third party to determine an application.

Clause 41 Enforcement

179.     Contravention of the controls on works in clause 38 leaves the person undertaking the works open to civil enforcement action, as set out in clause 41, but not to criminal prosecution. Subsection (1) enables any person to apply to a county court for an order in respect of such works. This includes local authorities, which may at present bring enforcement action under section 194 of the Law of Property Act 1925.

180.     Subsection (2) specifies the orders which a county court may make. Where no consent has been given by the appropriate national authority, the court may order the removal of works and restoration of the land to its previous condition. Where consent has been given but the works have not been carried out in accordance with its terms, the court may either order that the works should be modified to conform to the consent, or that the works be removed and the land restored to its previous condition.

Clause 42 Schemes

181.     Some commons are subject to schemes of regulation and management under the Commons Act 1899 or the Metropolitan Commons Act 1866. Such schemes contain controls on works, but under current law it is unclear how the controls contained in the scheme and those in section 194 of the Law of Property Act 1925 work together. For example, it is often a grey area whether applicants should apply to

the Secretary of State (or, in Wales, the National Assembly) for consent under the scheme or under section 194.

182.     This clause is intended to clarify the situation. Works allowed under the scheme without the requirement for the consent of the appropriate national authority are exempted from the provisions of the Bill (see clause 38(6)(c)). Where the scheme does not allow for works at all, subsection (3) allows the works to be carried out if consent is obtained under clause 38. Where the scheme allows for works to be carried out with the consent of the appropriate national authority, subsection (4) provides that consent must instead be obtained under clause 38.

Clause 43 Power to exempt

183.     This clause gives the appropriate national authority the power to make an order exempting certain works from the controls in clause 38. Any exemption order made by the Secretary of State will, by virtue of clause 56(4), be subject to the negative resolution procedure.

184.     Under subsection (1), an order may exempt a particular person in respect of specified works on land identified in the order. Alternatively, an order may exempt such a person, or a class of persons, in respect of works of a particular type on any land, or on any specified category of land. 'Person' includes a body such as a local authority. Subsection (2) provides that the appropriate national authority may issue an exemption for specific works only if it is satisfied that the exempted works are necessary or expedient for any of the purposes in subsection (4), and subsection (3) provides that it may issue a generic exemption only if it is satisfied that the works are likely to be necessary or expedient for any of these purposes on any land, or on land of the type in question.

185.     In addition, under subsection (5) an order may provide for an exemption in a case where immediately before commencement, land was exempted from the operation of section 194 of the 1925 Act by a resolution made by the local authority under subsection (3)(b) of that section. An exemption for this purpose would ensure that common land to which the controls in section 194 had already been disapplied by resolution, would not again become subject to the controls in clause 38. Subsection (6) enables the appropriate national authority to provide in the order that any exemption will apply only to works carried out in accordance with the terms of the order.

Clause 44 and Schedule 4 — Supplementary

186.     Clause 44 enables the appropriate national authority to amend, by order, local or personal Acts enacted before commencement, in order to modify provision about works on registered common land, or on unregistered land that is subject to a scheme made under the Metropolitan Commons Act 1866 or the Commons Act 1899. Such an order may also, for the same broad purpose, amend a provisional order confirmation Act made under the Commons Act 1876. The objective in taking this power is to help ensure that controls on works on commons are consistent with the new regime.

187.     Clause 44 also introduces Schedule 4, which contains supplementary provisions about works on common land.

188.     Paragraph 1 of Schedule 4 amends section 5 of the Metropolitan Commons Act 1866 (which prevents inclosure of metropolitan commons), to restrict its scope to commons which are under the control and management of a London borough council. On these commons, the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 overrides the prohibition on inclosure for certain specified purposes. Article 7 of the Schedule to the 1967 Act enables a local authority to provide and maintain certain recreational facilities on any common under the control and management of that local authority. Article 12 provides that in exercising that power the local authority may not erect buildings or inclose any part of the common without the consent of the Minister. Article 17 provides that the local authority may utilise, alienate or exchange such common land for the purposes of street improvements with the consent of the Minister.

189.     Sub-paragraphs (1) to (4) of paragraph 2 amend the Schedule to the 1967 Act to provide that the procedures and decision-making criteria in clauses 39 and 40 should apply to applications for consent made under article 12 of the Schedule to that Act. Metropolitan commons which are not subject to the 1967 Act, namely Epsom, Banstead and Staines, will be subject to the regime under clause 38 of the Bill. Sub-paragraphs (5) and (6) clarify the circumstances in which article 17 of the Schedule will apply to proposed works, and apply the clause 40 procedures to applications made under that article in respect of common land.

190.     Paragraphs 3, 4 and 5 provide for the procedures and decision-making criteria in clauses 39 and 40, and the enforcement regime in clause 41, to apply to applications for consent made in relation to common land belonging to the National Trust, and in relation to land granted under the New Parishes Measure 1943.

191.     Paragraph 6 is a transitional provision providing the same scope for any person to apply to the county court under section 194(2) of the Law of Property Act 1925, whilst that provision remains in force, for enforcement action against unlawful works. This wider enforcement power will only be available in relation to works carried out on or after the date of introduction of the Bill into the House of Lords (28 June 2005) and before section 194(2) is repealed. It is expected that the commencement order that gives effect in due course to the repeal of section 194 will preserve the scope for enforcement under the section against works undertaken unlawfully before its repeal.

192.     The effect of paragraph 7 is addressed in the notes on clause 38.

Intervention powers

Clause 45 Powers of local authorities over unclaimed land

193.     Clause 45 substantially re-enacts section 9 of the 1965 Act. It confers powers on a local authority (as defined in subsection (3)) to protect land registered as common land or a town or village green where the land has no owner recorded in the register of title at the Land Registry, and the local authority cannot identify the owner of the land. In some cases these powers may be exercisable even though an owner is noted in the ownership section of the commons register, because the ownership section of the commons register is not usually updated when ownership of the land changes, and may be out of date. Subsection (2) enables a local authority to take any steps to protect the land against unlawful interference that could be taken by the owner of the land, and to institute proceedings for any offence committed by a person in respect of the land. The powers in clause 45 are exercisable by National Park authorities by virtue of paragraph 1(2)(d) of Schedule 9 to the Environment Act 1995 (and consequential amendment is made to that provision by paragraph 6(a) of Schedule 5).

Clause 46 Powers relating to unauthorised agricultural activities

194.     Clause 46 enables the appropriate national authority to stop unauthorised agricultural activity on registered common land or certain greens, which is detrimental to the interests of persons with rights over the land or those who own or occupy the land, or to the public interest (as defined in subsection (9)).

195.     The power may be exercised in relation to any common land, or on a town or village green where there are registered rights of common - even where a commons association exists, if that association is failing to prevent such activity from occurring. The intention is to enable the appropriate national authority to deal with problems where other persons who could have taken action (such as the owner or the commoners) have not done so. The power may be used, for example, where one or more persons has been grazing livestock on the common without any right to do so, the owner or the commoners have failed to take action, and the public interest in the common is threatened (for example, by over-grazing leading to deterioration of the nature conservation interest, or because animals unlawfully present on the common present a threat to lawful recreational activity).

196.     Subsection (2) enables the appropriate national authority to serve a notice either on the person actually carrying out the unauthorised activity or on a person who has caused him to do so (for example, on a person who has hired a contractor). The notice may require that person to stop carrying out the activity, not to carry out any other unauthorised agricultural activities, and to provide any information requested.

197.     Subsections (3) to (5) require that before using this power, the appropriate national authority must, where appropriate and practicable, notify certain persons with interests in the common of its intention to act.

198.     Subsection (6) requires the appropriate national authority first to have regard to any actions a commons association might have taken to deal with the unauthorised activity, and any current court proceedings that have been initiated, before deciding to exercise the power available to it under this clause.

199.     Where a person fails to comply with a notice served under subsection (2), the appropriate national authority may apply to a county court for an order requiring the person to comply with the notice (subsection (7)).

Abolition of powers of approvement and inclosure

Clause 47 Approvement

200.     The Commons Act 1285 conferred statutory powers on landowners to inclose land surplus to the needs of commoners (a process known as approvement). This power is thought to be obsolete and subsection (1) repeals the Act. Subsection (2) abolishes any power of approvement at common law which may subsist alongside the 1285 Act.

Clause 48 Inclosure

201.     Clause 48 repeals various powers to inclose land. There are sufficient modern powers, including clauses 16 and 17, to enable the inclosure of land to render these old provisions unnecessary. The provisions repealed in subsection (2) were formerly generally exercisable only with the consent of the appropriate national authority under section 22 of, and Schedule 1 to, the Commons Act 1899.


Amendments and repeals

Clause 49 Minor and consequential amendments

202.     Clause 49 gives effect to the minor and consequential amendments set out in Schedule 5. These change specific existing references to the 1965 Act, or expressions defined in that Act, contained in other enactments so that they relate correctly to the position once the Bill becomes law and the 1965 Act is repealed.

203.     In paragraph 7 of Schedule 5, sub-paragraphs (2) and (3) repeal section 1(3)(b) and 1(4) of the Countryside and Rights of Way Act 2000. Part 1 of that Act confers public rights of access to land shown on a conclusive map as registered common land. Section 1(3)(b) and 1(4) ensure that in some cases where land is removed from a register of common land, the statutory public rights of access over that land would nevertheless continue. Given the circumstances in which land may be deregistered under the Bill (see clause 16) this provision is no longer thought to be necessary.

Clause 50 Repeals

204.     Clause 50 gives effect to the repeals set out in Schedule 6. Many of the provisions repealed by Schedule 6 have become obsolete because of the provisions in this Bill.

205.     Section 46(1) of the Countryside and Rights of Way Act 2000, which is repealed by Part 1 of the Schedule, included a provision repealing section 193(2) of the Law of Property Act 1925, which confers power on an owner of common land to establish a public right of access to that land by a deed of dedication. That provision (and therefore the repeal) has already been brought into force in Wales, but not in England. The repeal of section 46(1) of the 2000 Act does not revive the effect of section 193(2) of the 1925 Act in Wales, so section 193(2) will therefore remain in force in England only.

206.     Part 2 of Schedule 6 repeals section 21 of the Commons Act 1899 and section 21 of the Metropolitan Commons Act 1866. The effect is to abolish the duty on the Secretary of State to include in an annual report to Parliament a statement of proceedings under Part 1 of the 1899 Act and under the Metropolitan Commons Acts 1866 to 1898. This duty is now obsolete as the Secretary of State no longer has any involvement in proceedings under the 1899 Act, and no scheme has been made under the Metropolitan Commons Acts since 1909.

207.     The repeal of part of section 30 of the Commons Act 1876 abolishes certain procedural requirements in relation to applications to the county court for orders to deal with unlawful inclosures and encroachments on common land. These matters are now dealt with in rules of court.

Clause 51 Power to amend enactments relating to common land or greens

208.     Clause 51 enables the appropriate national authority to amend by order public Acts enacted before the Commons Bill for the purposes of modifying their application to common land or town or village greens. In particular, an order may provide that an Act is no longer to apply to certain types of land, and is instead to apply to other land defined in the order. By way of illustration, some Acts are expressed to apply to any 'common land' (for example, section 82(4) of the Highways Act 1980 enables a highway authority to construct cattle-grids on "common or waste land..adjoining the highway"). An order might provide that the Act is instead to apply to registered common land, together with land excluded from registration under section 11 of the 1965 Act. The power may not be used to amend a local or personal Act. The clause must be read with clause 56(3), which provides that the Secretary of State may not make an order under clause 51 unless a draft has been laid before and approved by a resolution of each House of Parliament.

Clause 52 Power to amend enactments conferring functions on national authorities

209.     This clause confers a power to amend local or personal Acts, and Provisional Order Confirmation Acts, where they confer functions on the "national authority" in relation to common land, or require consultation of, or the consent of, the national authority in respect of activities relating to common land. The "national authority" is the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales. Sometimes these functions or requirements prove an unnecessary burden on the national authority. Clause 52 enables the Acts to be amended so that a function can be removed or transferred to another person, and a requirement for the consultation or consent of the national authority can be repealed or converted into a requirement for the consultation or consent of some other person. An order under this clause will be subject to the affirmative resolution procedure (clause 56(3)).

Commencement and transitional provision

Clause 53 Commencement

210.     Clause 53 governs commencement of the various elements of the Bill. Most provisions are to be brought into force by order made by the Secretary of State in relation to England, or by the National Assembly for Wales in relation to Wales. Clauses 51 and 52 will commence automatically two months after the Act is passed. Clause 9 and Schedule 1 (severance) will be deemed to have come into force on 28 June 2005.

211.     Provisions which are to be commenced by order may, by virtue of clause 56(1)(b), be commenced at different times for different areas. The requirements to update and improve the commons registers are expected to be phased in, so that not all local authorities will be required to update and improve their registers at the same time. A prioritisation process will identify those authorities in respect of which the clauses will be commenced first, focusing initially on those with the largest areas of common land.

Clause 54 Severance: transitional

212.     Clause 54 makes transitional provision in relation to the commencement of clause 9 (severance) and Schedule 1 from 28 June 2005. This is because clause 9 is intended to have retrospective effect before other provisions in the Bill are brought into force. In particular, it provides that the commons registers, which are otherwise defined in clause 58(2), are taken to be the registers kept under the 1965 Act until clause 1 is brought into force; and that a right of common severed and transferred to a commons association, Natural England or the Countryside Council for Wales under paragraph 1 of Schedule 1 is also not required to be registered in accordance with paragraph 1(5) until clause 1 is brought into force.


213.     The Bill will entail additional public expenditure by Defra, the National Assembly for Wales and local authorities.

214.     Additional costs that will fall to Defra and the National Assembly for Wales will be met within existing budgets. The main additional activity in Defra will be the implementation of the Bill which will include providing detailed guidance on the Bill's provisions and facilitating the establishment of commons associations. This will be largely undertaken by the Natural Resources and Rural Affairs Directorate within Defra. The National Assembly for Wales will also need to develop guidance and facilitate the establishment of commons associations in Wales.

215.     Most of the additional costs that will fall to local authorities, as commons registration authorities, will arise from the duty in Part 1 to update and maintain the registers of common land and town and village greens. These costs will vary greatly across local authorities. The overall costs are not expected to be high (in the range £5.0-£9.5 million net present value) and will be spread over a substantial period of time. Costs are expected to be highest in the first three of four years of the programme of improvement for any local authority and to decline after that. They will be met in part through a provision that will allow commons registration authorities to charge fees for amendments to the registers, in part through cost savings from improvements to the registration system, and with support for the initial registration update phase from Defra.

216.     Costs of updating and improving the commons registers are likely in general to be higher for those authorities with the greatest amount of common land, but this will not necessarily always be the case as some authorities with large amounts of common land have already partially improved their registers, or maintain them in a better condition, compared to authorities for areas with less common land. Common land is unequally distributed across England and Wales with, for example, 50% of all common land by area in England occurring in Cumbria and North Yorkshire, and Powys accounting for 40% of all common land by area in Wales.

217.     The financial effects of the Bill are discussed in more detail in the full Regulatory Impact Assessment of the Bill, which has been published alongside the Bill and is available from the Library of the House.

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Prepared: 20 January 2006