House of Commons - Explanatory Note
Commons Bill [HL] - continued          House of Commons

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218.     The Bill will not result in any significant increases in public service manpower.


219.     A full Regulatory Impact Assessment (RIA) of the measures in the Bill has been published alongside the Bill and is available from the Library of the House.

220.     In summary, the RIA shows that the net present value of benefits arising from the measures in this Bill significantly outweigh the costs over a twenty-year time horizon. The overall ratio of benefits to costs is in the order of 5.5 to 1.

221.     The following provisions may lead to increased costs to businesses: the prohibition on severance and prohibition on letting and leasing of rights, improving the registers, and changes to the consent procedures for works and fencing on common land.

222.     The prohibition on letting and leasing of rights of common may cause difficulties for some farmers in certain areas where leasing of rights is carried on. The impacts will be minimised through prescribing exceptions to allow temporary leasing and letting where the activity is customary practice, and allowing commons associations to adopt rules to manage the letting and leasing of rights.

223.     The process of improving registers and correcting mistakes may require land owners and rights holders to provide more or new information to commons registration authorities in order to challenge entries they believe to be wrong. This will be balanced by savings in time for those wanting to access information held in the registers and benefits arising from the improved accuracy of the information held.

224.     The new consent procedures for works and fencing on common land will add a small burden through requiring mineral developers to obtain consent for any works on common land.


225.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of the Act). The Secretary of State for Environment, Food and Rural Affairs, the Rt Hon Margaret Beckett MP has made the following statement: "In my view the provisions of the Commons Bill are compatible with the Convention rights."

226.     The Bill raises issues under Article 1 of the First Protocol to the Convention, since it contains a number of provisions which may have the effect of controlling the use of property or affecting a person's enjoyment of his or her property. These include in particular: clause 9 (prohibition on severance of rights of common attached to land), Schedule 2, paragraph 2 (provision for fresh applications for registration of common land), Schedule 3, paragraph 3 (extinguishment at the end of a transitional period of any right of common which is not at that time registered, but was capable of being registered), clause 31 (functions of commons associations) and clause 38 (prohibition on works on registered common land which would prevent or impede access, except with consent of the appropriate national authority).

227.     In all these cases the Bill is compatible with Article 1 of the First Protocol, since to the extent that its provisions interfere with rights to use or enjoy property they do so in the public interest, such interference is proportionate, and is prescribed by law.

228.     Additionally, Part 1 of the Bill raises issues under Article 6(1) of the Convention, since in determining applications for registration of land or rights of common, or for amendments to the registers, commons registration authorities will be determining civil rights and obligations within the meaning of that article. The Department intends to make regulations under the powers conferred by clause 234to ensure that commons registration authorities adopt fair procedures in dealing with applications. Further, decisions of commons registration authorities will be susceptible to judicial review by the High Court, which will ensure that the requirements in Article 6(1) for a fair and public hearing by an independent and impartial tribunal are satisfied.



     Appropriate national authority: the Secretary of State (in relation to England) or the National Assembly for Wales (in relation to Wales).

     Approvement: the right of an owner to inclose any part of the common which is not required to meet the needs of the commoners.

     Attachment (of rights): Rights of common are sometimes described as being 'attached' to land. The land to which they 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'). Such rights belong to (and may be exercised by) the owner of the dominant tenement. Historically, rights which are attached to land were known as either 'appurtenant' or 'appendant' to land, but the distinction is for most purposes obsolete. Rights which are not attached to land are 'in gross' (q.v.).

     Common land: In general terms, common land is land owned by one person over which another person is entitled to exercise rights of common (such as grazing his animals), and these rights are generally exercisable in common with others. However, in legal terms, the situation is inevitably more complex. There is no single definition of the term 'common land', or indeed of 'common' or 'common rights'. The 1965 Act introduced a statutory definition of 'common land', but this is strictly relevant only for the purpose of deciding whether land was or was not eligible for registration under that Act. The 1965 Act stated that common land was "land subject to rights of common (as defined in [the] Act) whether those rights are exercisable at all times or only during limited periods; and waste land of a manor not subject to rights of common". Definitions of 'common' can also be found in various nineteenth century Acts of Parliament, such as section 3 of the Metropolitan Commons Act 1866, section 37 of the Commons Act 1876, and section 15 of the Commons Act 1899, but each of these was drawn up with a particular purpose in mind, and the definitions must be treated with caution when applied in a different context.

     Commoners: persons with the benefit of a right of common, because they own land to which a right of common is attached, because they are the owner of a right of common held in gross, or because they have acquired entitlement to such rights through a lease or letting.

     Dominant tenement: the land to which rights of common may be attached (q.v.). The owner of the dominant tenement is the commoner and is entitled to exercise the rights.

     Estovers (right of): to cut wood, gorse or furze for domestic fuel. Also to collect bracken and other plants for use as animal bedding, or to collect (or sometimes lop) wood for use in repairing fences etc.

     Inclose (inclosure): the act of removing rights of common from land. In the case of land registered as common land, the removal of rights of common from the land will not cause the land to cease to be registered common land.

     In gross: a right which is held personally and is not attached (q.v.) to land.

     Pannage/Mast (right of): to graze pigs on beech mast or acorns, generally in the autumn. Pannage is an ancient practice to fatten pigs before slaughter and salting for the winter. It can also be useful to others — the pigs turned out eat green acorns and beech mast that are poisonous to cattle and ponies.

     Pasture (right of): to graze, generally cattle, sheep, goats or horses.

     Piscary (right of): to fish. Rights of piscary are invariably for domestic rather than commercial profit.

     Prescription: the acquisition of a right to use land or take the produce of land by reason of long use. Prescription may be attributed to the common law, the Prescription Act 1832, or lost modern grant.

     Provisional Order Confirmation Act: an Act which confirms a provisional order, which is generally submitted to Parliament for confirmation after scrutiny by a Government department. The powers to prepare a provisional order, and the procedure for its scrutiny by the relevant department, are contained in specific enabling legislation. A Bill confirming a provisional order is usually subject to a shorter Parliamentary process than Bills in general. In relation to common land, the Commons Act 1876 enabled orders to be submitted to Parliament by the Inclosure Commissioners for the regulation or inclosure of common land. It is believed that 36 such orders were confirmed by Parliament 33.

33 Details of orders confirmed under the Commons Act 1876 are available on the Defra website, at:

     Register of title: the register held by the Land Registry (and under the custody of the Chief Land Registrar), which shows the proprietorship of land. Generally, an entry in the register as to the owner of land is guaranteed by the Land Registry. Provision as to the register of title is contained in the Land Registration Act 2002, and the rules made under that Act.

     Right of common: a right usually shared with an owner of land to take certain produce of the land. There are many such rights of which pasturage (the right to put animals onto the land to graze) is the most important today. Other rights include pannage (right to put pigs onto the land to eat acorns and beechmast), turbary (the right to cut peat or turf for fuel), estovers (the right to take wood or bracken for fuel, animal bedding and so on) and piscary (the right to fish). Most rights are attached (q.v.) to land but see 'in gross'.

     Soil (right of common in the): to take sand, gravel, stone & minerals. For example, marl is a lime-rich clay used to fertilise land; it was also be used for building. The right was to dig marl from common pits. It is not now exercised: modern fertilisers have made the practice unnecessary and exercise of the right generally died out in the last century.

     Turbary (right of): to cut turf or peat for fuel. The turf must be burned in the hearth of the dwelling to which the right is attached (not sold for profit).

     Waste land of the manor: In the case of Attorney General v. Hanmer (1858) 2 LJ Ch 837, waste land of the manor was defined as "the open, uncultivated and unoccupied lands parcel of the manor..other than the demesne lands of the manor". 'Of the manor' was held by the court in the Hazeley Heath case (see footnote 24) to mean land which is or was formerly connected to the manor.



     Area (Ha)
     West End Road Recreation Ground (Southampton)     0.6
     Cassiobury Common (Watford)     0.7
     Victoria Gardens (Portland)     1.7
     Cippenham Village Green Common (Slough)     3.9
     Otterbourne Hill Common (Hampshire)     8.5
     The Links Common (Whitley Bay)     13.4
     Shenfield Common (Brentwood)     13.4
     Thorpe Green (Egham)     14.6
     West Wickham Common, Spring Park (Bromley)     31.2
     Downside Common, Old Common, Little Heath Common, Upper and Lower Tilt Commons, Brooks Hill Common, Leigh Hill Common (Esher)     35.8
     Ley Hill Common, Coleshill Common, Austenwood Common, Gold Hill Common, Hyde Heath (Amersham)     67.0
     The Stray (Harrogate)     87.0
     Oxshott Heath (Esher)     92.3
     Whitley Common, Hearsall Common, Keresley Common, Stoke Commons, Top Green, Greyfriars Green (Coventry)     144.5
     Kenley Common, Coulsdon Common, Farthing Downs Common, Riddlesdown Common (Croydon)     161.5
     Micklegate Stray (York)     170.0
     Mitcham Common (Merton)     174.0
     Total     1,019.9
     Source: Gadsden, G D, The Law of Commons, 1988     
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Prepared: 20 January 2006