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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Status and constitution of commons associations
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Status
(1)
A commons association is not to be regarded as the servant or agent of the
Crown or as enjoying any status, immunity or privilege of the Crown.
(2)
The property of a commons association is not to be regarded as the property of,
5
or as property held on behalf of, the Crown.
(3)
A commons association is not to be regarded as an authority to which section
28G of the Wildlife and Countryside Act 1981 (c. 69) applies.
29
Constitution
(1)
The appropriate national authority must by regulations prescribe standard
10
terms as to the constitution and administration of commons associations (in
this Part, the “standard constitution”).
(2)
The terms of the standard constitution apply to every commons association,
subject as follows.
(3)
An order under section 26 may also make provision as to the constitution and
15
administration of a commons association.
(4)
Provision which may be made under subsection (3) includes in particular—
(a)
provision supplementary to any term of the standard constitution;
(b)
provision disapplying any such term;
(c)
provision replacing any such term.
20
(5)
Where in relation to a commons association—
(a)
provision is made under subsection (3) that is inconsistent with any
term of the standard constitution, and
(b)
any such term has not been expressly disapplied under that subsection,

the provision made under subsection (3) prevails, to the extent of the
25
inconsistency, over the term of the standard constitution.
(6)
Terms of the standard constitution prescribed by regulations under subsection
(1) may be amended by further regulations under that subsection; and this
section applies in relation to such terms as amended as it applies in relation to
the terms as first prescribed.
30
30
Constitution: supplementary
(1)
This section applies in relation to terms as to the constitution and
administration of a commons association contained in—
(a)
the standard constitution; or
(b)
an order under section 26.
35
(2)
The terms may in particular include terms as to—
(a)
the membership of the association;
(b)
participation in the association by persons other than members;
(c)
the proceedings of the association;
(d)
the keeping and publication of accounts, annual reports and other
40
information relating to the association.

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Part 2 — Management
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(3)
The terms referred to in subsection (2)(a) include in particular terms as to—
(a)
the appointment of members (by election or otherwise);
(b)
the term for which members are appointed;
(c)
co-option of members;
(d)
the conduct of members;
5
(e)
resignation and disqualification of members;
(f)
termination and renewal of membership;
(g)
payment of allowances to members.
(4)
The terms referred to in subsection (2)(b) include in particular terms as to—
(a)
entitlement to elect members;
10
(b)
entitlement to attend meetings.
(5)
The terms referred to in subsection (2)(c) include in particular terms as to—
(a)
the frequency of meetings;
(b)
voting procedures at meetings;
(c)
committees and sub-committees.
15
(6)
The terms referred to in subsection (2)(d) include in particular terms as to—
(a)
the appointment of auditors;
(b)
the preparation and publication of accounts;
(c)
the preparation and publication of annual reports.
(7)
Subject to any terms made of the kind referred to in subsection (2)(c), a
20
commons association may regulate its own proceedings.
Functions of commons associations
31
Functions
(1)
An order under section 26 is to confer on a commons association functions
relating to any one or more of the following—
25
(a)
the management of agricultural activities on the land for which the
association is established;
(b)
the management of vegetation on the land;
(c)
the management of rights of common on the land.
(2)
The functions conferred on an association under subsection (1) must be those
30
the appropriate national authority considers appropriate in the case of that
association.
(3)
The functions which may be conferred on a commons association under
subsection (1) include in particular functions of—
(a)
making rules relating to agricultural activities, the management of
35
vegetation and the exercise of rights of common on the land for which
the association is established;
(b)
making rules relating to the leasing or licensing of rights of common;
(c)
preparing and maintaining a register of grazing;
(d)
establishing and maintaining boundaries;
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(e)
removing unlawful boundaries and other encroachments;
(f)
removing animals unlawfully permitted to graze.
(4)
Rules made by virtue of subsection (3)(a) may have the effect of—

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Part 2 — Management
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(a)
limiting or imposing conditions on the exercise of rights of common
over, or the exercise of rights to use the surplus of, the land for which
the association is established;
(b)
requiring the provision of information to the commons association in
relation to the exercise of those rights.
5
(5)
In exercising a function conferred under subsection (3)(f), a commons
association may—
(a)
dispose of any animal it removes; and
(b)
recover from the owner of the animal the costs that it may reasonably
incur in removing and disposing of it.
10
(6)
A commons association must discharge its functions having regard to—
(a)
any guidance given by the appropriate national authority; and
(b)
the public interest in relation to the land for which it is established.
(7)
The reference in subsection (6)(b) to the public interest includes the public
interest in—
15
(a)
nature conservation;
(b)
the conservation of the landscape;
(c)
the protection of public rights of access to any area of land; and
(d)
the protection of archaeological remains and features of historic
interest.
20
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Ancillary powers
(1)
A commons association has the power to do anything which it considers will
facilitate, or is conducive or incidental to, the carrying out of its functions.
(2)
The power conferred by subsection (1) includes power to—
(a)
enter into agreements;
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(b)
prepare and adopt management plans;
(c)
raise money (including by applying for funds from any source);
(d)
acquire or dispose of land;
(e)
employ staff.
(3)
The power of a commons association to raise money as specified in subsection
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(2)(c) includes power to require the payment of fees in connection with—
(a)
the exercise of rights of common over, or the exercise of rights to use the
surplus of, the land for which the association is established, and
(b)
participation in the association,

and any such fees owed to the association may be recovered as a debt due to it.
35
33
Consent
(1)
Subject to subsections (2) and (3), nothing in this Part authorises a commons
association to do anything on the land for which it is established without the
consent of a person with an interest in the land, where that person’s consent
would otherwise be required.
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(2)
A commons association does not need the consent of a person who has a right
of common over the land for which it is established in order to do anything on
the land.

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Part 2 — Management
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(3)
A commons association does not need the consent of any other person with an
interest in the land for which it is established in order to do anything on the
land where what is proposed to be done could be done without that person’s
consent by any person who has a right of common over the land.
(4)
Where a commons association wishes to obtain the consent of any person with
5
an interest in the land for which the association is established in respect of
anything it proposes to do on the land, it may serve a notice on him.
(5)
A notice under subsection (4) must specify—
(a)
what the commons association proposes to do;
(b)
the time within which the person on whom it is served may object
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(which may not be less than 28 days after service of the notice); and
(c)
the manner in which he may object.
(6)
If the person on whom a notice under subsection (4) is served does not object
within the time and in the manner specified in the notice, he is to be regarded
as having given his consent in relation to the proposal specified in the notice.
15
(7)
Where a commons association proposes to serve a notice on a person under
subsection (4) but is unable after reasonable enquiry to ascertain his name or
proper address—
(a)
the association may post the notice on the land; and
(b)
the notice is to be treated as having been served on the person at the
20
time the notice is posted.
(8)
An order under section 26 may make further provision as to the form and
service of notices under subsection (4).
(9)
For the purposes of this section, a person with an interest in any land is a
person who—
25
(a)
owns the land; or
(b)
is entitled to exercise any right over the land.
34
Enforcement of rules
(1)
A person who breaches a rule to which subsection (2) applies is guilty of an
offence.
30
(2)
This subsection applies to a rule which—
(a)
is made with the consent of the appropriate national authority
pursuant to a function of making rules conferred on a commons
association under section 31; and
(b)
specifies that a person who contravenes it is guilty of an offence under
35
this section.
(3)
A person guilty of an offence under subsection (1) is liable on summary
conviction to—
(a)
a fine not exceeding level 4 on the standard scale; and
(b)
in the case of a continuing offence, to a further fine not exceeding one
40
half of level 1 on the standard scale for each day during which the
offence continues after conviction.
(4)
A commons association may bring proceedings in relation to an offence under
subsection (1) in respect of breach of any rule made by it to which subsection
(2) applies.
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Part 2 — Management
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(5)
A commons association may apply to a county court for an order to secure
compliance with any rule that it has made pursuant to a function of making
rules conferred on it under section 31.
(6)
But a commons association may only make an application under subsection (5)
for the purpose of securing compliance with a rule to which subsection (2)
5
applies if it is of the opinion that proceedings for an offence under subsection
(1) would provide an ineffectual remedy against the person who has failed to
comply with the rule.
(7)
On an application under subsection (5) the court may make such an order as it
thinks fit.
10
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.
(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
15
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
a commons association.
(4)
A direction under subsection (3) must set out the reason why the rule is being
20
revoked.
(5)
Before revoking any rule under subsection (3) the appropriate national
authority must consult—
(a)
the commons association; and
(b)
any other person it thinks appropriate.
25
Commons associations: supplementary
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Consequential provision
(1)
The appropriate national authority may by order under section 26 make any
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
30
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
of a description referred to in Part 1 of Schedule 4 to the Administration
of Justice Act 1977 (c. 38) (certain ancient courts);
35
(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),
or any arrangement arising under such a scheme;
(d)
vary or revoke any Act made under the Commons Act 1876 (c. 56)
40
confirming a provisional order of the Inclosure Commissioners or any
arrangement arising under such an Act;

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Part 3 — Protection
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(e)
vary or revoke any local or personal Act, or any scheme or arrangement
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
5
have the effect of abolishing or restricting a right of access of whatever nature
exercisable by members of the public generally or by any section of the public.
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
10
is satisfied that—
(a)
the association has ceased to operate;
(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
15
regard to the public interest as required by section 31.
(2)
An order under section 26 revoking a previous order under that section may
include—
(a)
provision for the transfer of rights, property and liabilities of the
commons association;
20
(b)
provision amending any enactment previously amended under section
36 in relation to the association.
(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
25
in the order were to land affected by the variation or revocation).
Part 3
Protection
Works on common land
38
Prohibition on works without consent
30
(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.
(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;
35
(b)
works for the resurfacing of land.
(3)
The reference to works in subsection (2)(a) includes in particular—
(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.
40
(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

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Part 3 — Protection
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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—
5
(i)
regulated by an Act made under the Commons Act 1876 (c. 56)
confirming a provisional order of the Inclosure Commissioners;
or
(ii)
subject to a scheme under the Metropolitan Commons Act 1866
(c. 122) or the Commons Act 1899 (c. 30);
10
(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—
(a)
works on any land where those works, or works of a description which
includes those works, are carried out under a power conferred in
15
relation to that particular land by or under any enactment;
(b)
works on any land where the works are carried out under a power
conferred by or under any enactment applying to common land;
(c)
works authorised under a scheme under the Metropolitan Commons
Act 1866 or the Commons Act 1899 without any requirement for any
20
person to consent to the works;
(d)
works for the installation of electronic communications apparatus for
the purposes of an electronic communications code network.
(7)
In subsection (6)(a) the reference to an enactment does not include Part 2 of this
Act.
25
(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;
(b)
common land; or
(c)
any common or commons, commonable land, land subject to inclosure
30
under any enactment or other land of a similar description.
(9)
Subject to the following provisions of this Part, consent given to works under
subsection (1) of this section constitutes consent for the purposes of that
subsection only.
39
Consent: general
35
(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—
(a)
the interests of persons having rights in relation to, or occupying, the
land (and in particular persons exercising rights of common over it);
40
(b)
the interests of the neighbourhood;
(c)
the public interest;
(d)
any other matter considered to be relevant.
(2)
The reference in subsection (1)(c) to the public interest includes the public
interest in—
45
(a)
nature conservation;