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Commons Bill [HL]


Commons Bill [HL]
Part 3 — Protection

23

 

(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.

(3)   

Consent may be given under section 38(1)—

5

(a)   

in relation to all or part of the proposed works;

(b)   

subject to such modifications and conditions relating to the proposed

works as the appropriate national authority thinks fit.

(4)   

In considering the effect in relation to any land of proposed works under this

section, the appropriate national authority may consider that effect in

10

conjunction with the effect in relation to that land of any other works for which

consent has previously been given under section 38(1) above or section 194 of

the Law of Property Act 1925 (c. 20).

(5)   

Where the appropriate national authority imposes any modification or

condition in relation to any consent given under section 38(1), it may on the

15

application of any person carrying out or proposing to carry out works in

accordance with the consent vary or revoke that modification or condition.

(6)   

Regulations may specify a time limit for the making of applications under

subsection (5).

(7)   

Consent may be given under section 38(1) in relation to works which have been

20

commenced or completed; and any consent so given has effect from the time of

commencement of the works.

40      

Consent: procedure

(1)   

Regulations may make provision as to the procedure to be followed in the

making and determination of applications under sections 38(1) and 39(5).

25

(2)   

Regulations under this section may in particular include provision—

(a)   

as to the steps to be taken by an applicant before submitting an

application;

(b)   

as to the form and content of an application;

(c)   

as to the procedure to be followed in making an application;

30

(d)   

as to the evidence to be supplied in support of an application;

(e)   

as to the fees payable in relation to an application;

(f)   

as to the steps to be taken by the appropriate national authority upon

receipt of an application;

(g)   

for the appointment by the appropriate national authority of a person

35

to discharge any (or all) of its functions in relation to the determination

of an application;

(h)   

for the making of representations or objections in relation to an

application;

(i)   

for the holding of a hearing or local inquiry in relation to an application;

40

(j)   

for the publication of a determination of an application and the

notification of interested persons.

 
 

Commons Bill [HL]
Part 3 — Protection

24

 

41      

Enforcement

(1)   

Where any works are carried out on land to which section 38 applies in

contravention of subsection (1) of that section, any person may apply to the

county court in whose area the land is situated.

(2)   

On an application under this section the court may make an order—

5

(a)   

in any case, for removal of the works and restoration of the land to the

condition it was in before the works were carried out;

(b)   

in a case where consent has been given under section 38(1) but the

works have not been carried out in accordance with any term of that

consent, for the works to be carried out in such manner and subject to

10

such conditions as the order may specify.

42      

Schemes

(1)   

This section applies in relation to works on relevant land where, by virtue of

section 38(1), the works may not be carried out without the consent of the

appropriate national authority.

15

(2)   

In subsection (1) “relevant land” means land which is subject to—

(a)   

a scheme under the Metropolitan Commons Act 1866 (c. 122) which is

in force at the commencement of this section; or

(b)   

a scheme under the Commons Act 1899 (c. 30) which is in force at the

commencement of this section.

20

(3)   

Where—

(a)   

any provision of the scheme referred to in subsection (2) would also

prohibit the carrying out of the works, and

(b)   

the scheme does not allow for any person to consent to the works to be

carried out,

25

   

the works do not contravene that provision if they are carried out with (and in

accordance with the terms of) the consent of the appropriate national authority

under section 38(1) and of any owner of the land (if not the person carrying out

the works).

(4)   

Regulations may make provision as to the procedure to be followed in

30

obtaining the consent of an owner under subsection (3) (and may include

provision for the consent of an owner to be regarded as having been given

where he has not objected within a period of time specified in the regulations).

(5)   

Where any provision of the scheme referred to in subsection (2) would also

prohibit the carrying out of the works without the consent of the appropriate

35

national authority—

(a)   

consent given under section 38(1) is to be regarded as consent given

under the scheme; and

(b)   

consent may not be sought separately under the scheme.

43      

Power to exempt

40

(1)   

The appropriate national authority may by order provide that section 38 is not

to apply to—

(a)   

the carrying out by a specified person of specified works on specified

land; or

 
 

Commons Bill [HL]
Part 3 — Protection

25

 

(b)   

the carrying out by a specified person, or a person of a specified

description, of works of a specified description on—

(i)   

any land; or

(ii)   

land of a specified description.

(2)   

The appropriate national authority may only make an order under subsection

5

(1)(a) if it is satisfied that the works specified in the order are necessary or

expedient for any of the purposes in subsection (4).

(3)   

The appropriate national authority may only make an order under subsection

(1)(b) if it is satisfied that works of the description specified in the order are

likely to be necessary or expedient on any land, or on land of the description

10

specified in the order, for any of the purposes in subsection (4).

(4)   

The purposes referred to in subsections (2) and (3) are—

(a)   

use of land by members of the public for the purposes of open-air

recreation pursuant to any right of access;

(b)   

the exercise of rights of common;

15

(c)   

nature conservation;

(d)   

the protection of archaeological remains or features of historic interest;

(e)   

the use of the land for sporting or recreational purposes.

(5)   

Where any land is the subject of a resolution under section 194(3)(b) of the Law

of Property Act 1925 (c. 20) immediately before the commencement of this

20

section, the appropriate national authority may by order provide that section

38 is not to apply to the carrying out of works, or works of a description

specified in the order, on that land.

(6)   

An order under subsection (1) or (5) may provide that section 38 is not to apply

only if the works to which the order relates are carried out in accordance with

25

the terms of the order.

(7)   

In subsection (1) “specified” means specified in an order under that subsection.

44      

Supplementary

(1)   

Schedule 4 (which makes supplementary provision relating to works on

common land) has effect.

30

(2)   

The appropriate national authority may by order amend any local or personal

Act passed before this Act for the purpose of making provision about works on

common land to which that Act relates.

(3)   

In subsection (2), “common land” means—

(a)   

any land registered as common land; and

35

(b)   

any land not so registered which is subject to a scheme under the

Metropolitan Commons Act 1866 (c. 122) or the Commons Act 1899

(c. 30).

(4)   

The appropriate national authority may by order amend any Act made under

the Commons Act 1876 (c. 56) confirming a provisional order of the Inclosure

40

Commissioners for the purpose of making provision about works on land to

which that Act relates.

(5)   

The amendments which may be made under subsection (2) or (4) include

amendments supplementary to or consequential on the provisions of this Part.

 
 

Commons Bill [HL]
Part 3 — Protection

26

 

Intervention powers

45      

Powers of local authorities over unclaimed land

(1)   

This section applies where—

(a)   

land is registered as common land or a town or village green;

(b)   

no person is registered in the register of title as the owner of the land;

5

and

(c)   

it appears to a local authority in whose area the land or any part of it is

situated that the owner cannot be identified.

(2)   

The local authority may—

(a)   

take any steps to protect the land against unlawful interference that

10

could be taken by an owner in possession of the land; and

(b)   

institute proceedings against any person for any offence committed in

respect of the land (but without prejudice to any power exercisable

apart from this section).

(3)   

In this section “local authority” means—

15

(a)   

a county, district or parish council in England;

(b)   

a London borough council; and

(c)   

a county, county borough or community council in Wales.

46      

Powers relating to unauthorised agricultural activities

(1)   

This section applies where it appears to the appropriate national authority

20

that—

(a)   

a person is carrying out, or causing to be carried out by virtue of any

arrangements, an agricultural activity on land which—

(i)   

is registered as common land; or

(ii)   

is registered as a town or village green and is subject to rights of

25

common;

(b)   

the activity is unauthorised; and

(c)   

the activity is detrimental to—

(i)   

the interests of persons having rights in relation to, or

occupying, the land; or

30

(ii)   

the public interest.

(2)   

The appropriate national authority may, subject to the following provisions of

this section, serve a notice on the person requiring him to do any one or more

of the following—

(a)   

within such reasonable period as may be specified in the notice to stop

35

carrying out the activity, or stop causing it to be carried out, to the

extent that it is unauthorised;

(b)   

not to carry out, or cause to be carried out, any other unauthorised

agricultural activity on the land which would be detrimental to the

matters specified in subsection (1)(c)(i) and (ii);

40

(c)   

to supply the authority with such information relating to agricultural

activities on the land carried out, or caused to be carried out, by him as

it may reasonably require.

 
 

Commons Bill [HL]
Part 3 — Protection

27

 

(3)   

Before serving a notice under this section the appropriate national authority

must, to the extent that it is appropriate and practicable in all the circumstances

to do so—

(a)   

notify the persons specified in subsection (4) of its intention to serve the

notice; and

5

(b)   

publicise its intention to do so (in such manner as it thinks fit).

(4)   

The persons referred to in subsection (3)(a) are—

(a)   

any commons association for the land;

(b)   

any other person with functions under any enactment which relate to

the maintenance or management of the land; and

10

(c)   

any person appearing to the authority to own or occupy the land.

(5)   

Any notification or publication under subsection (3) may specify a period

within which representations about the proposed notice may be made.

(6)   

In deciding whether to serve a notice under this section the appropriate

national authority must have regard to—

15

(a)   

any criminal or civil proceedings that have been or may be commenced

in relation to the activity; and

(b)   

any steps taken by a commons association in relation to the activity.

(7)   

If a person on whom a notice is served under this section fails to comply with

it—

20

(a)   

the appropriate national authority may apply to a county court for an

order requiring him to do so; and

(b)   

the court may make such an order for the purpose of securing

compliance with the notice as it thinks fit.

(8)   

For the purposes of this section, activity is unauthorised if the person carrying

25

it out or causing it to be carried out—

(a)   

has no right or entitlement by virtue of his ownership or occupation of

the land, or pursuant to any right of common, to do so; or

(b)   

is not doing so with the authority of the person or persons entitled to

give such authority.

30

(9)   

The reference in subsection (1)(c)(ii) to the public interest includes the public

interest in—

(a)   

nature conservation;

(b)   

the conservation of the landscape;

(c)   

the protection of public rights of access to any area of land; and

35

(d)   

the protection of archaeological remains and features of historic

interest.

(10)   

Section 123(1) to (5) of the Environment Act 1995 (c. 25) applies in relation to

the service of a notice under this section as it applies in relation to the service

of a notice under that Act.

40

Abolition of powers of approvement and inclosure etc

47      

Approvement

(1)   

The Commons Act 1285 (13 Edw 1 c. 46) (power of approvement) shall cease to

have effect.

 
 

Commons Bill [HL]
Part 4 — Supplementary and general

28

 

(2)   

Any power of approvement of a common which subsists at common law is

abolished.

48      

Inclosure

(1)   

Section 147 of the Inclosure Act 1845 (c. 118) (power to exchange common land

for other land) shall cease to have effect.

5

(2)   

The following shall cease to have effect—

(a)   

section 2 of the Gifts for Churches Act 1811 (c. 115);

(b)   

in section 2 of the School Sites Act 1841 (c. 38), the words from

“Provided also, that where any portion” to “such conveyance;”;

(c)   

in section 1 of the Literary and Scientific Institutions Act 1854 (c. 112),

10

the words from “Provided also” to the end.

49      

Notice of inclosure

(1)   

Section 31 of the Commons Act 1876 (c. 56) (three months’ notice of claim to

inclose to be given in local papers) shall cease to have effect.

(2)   

In section 3 of the Metropolitan Commons Act 1878 (c. 71), for “Sections thirty

15

and thirty-one” substitute “Section 30”.

Part 4

Supplementary and general

Miscellaneous

50      

Schemes under the Commons Act 1899

20

(1)   

The Commons Act 1899 (c. 30) is amended as follows.

(2)   

In section 1 (power of councils to make schemes for the regulation of

commons)—

(a)   

in subsection (1), for the words from “their district” to the end

substitute “in the public interest”;

25

(b)   

after that subsection insert—

“(1A)   

In subsection (1), the reference to the public interest includes the

public interest in—

(a)   

nature conservation;

(b)   

the conservation of the landscape;

30

(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.”

(3)   

In that section, in subsection (3), omit the words from “, and for” to the end.

35

(4)   

In that section, after subsection (3) insert—

“(4)   

Regulations under subsection (3) may—

(a)   

prescribe alternative forms;

 
 

Commons Bill [HL]
Part 4 — Supplementary and general

29

 

(b)   

permit exceptions or modifications to be made to any

prescribed form.”

(5)   

In section 2 (procedure for making scheme)—

(a)   

for subsections (1) to (3) and the first paragraph of subsection (4)

substitute—

5

“(1)   

A council is to make and approve a scheme under this Part of

this Act in the prescribed manner.”;

(b)   

renumber the second paragraph of subsection (4) as subsection (2).

(6)   

For section 9 (power to amend scheme) substitute—

“9      

Power to amend or revoke scheme

10

(1)   

A scheme under this Part of this Act for any common may, in

prescribed circumstances, be amended in the prescribed manner.

(2)   

A scheme under this Part of this Act for any common may, where a new

scheme is made under this Part of this Act for the whole of that

common, be revoked in the prescribed manner.”

15

(7)   

For section 10 (byelaws) substitute—

“10     

Byelaws

(1)   

A council which has made a scheme under this Part of this Act in

relation to any common may make byelaws for the prevention of

nuisances and the preservation of order on the common.

20

(2)   

Sections 236 to 238 of the Local Government Act 1972 (which relate to

the procedure for making byelaws, authorise byelaws to impose fines

not exceeding level 2 on the standard scale, and provide for the proof

of byelaws in legal proceedings) apply to all byelaws under this

section.”

25

Amendments and repeals

51      

Minor and consequential amendments

Schedule 5 (minor and consequential amendments) has effect.

52      

Repeals

Schedule 6 (repeals, including consequential repeals and repeals of spent and

30

obsolete enactments) has effect.

53      

Power to amend enactments relating to common land or greens

(1)   

The appropriate national authority may by order amend any relevant Act so as

to secure that—

(a)   

a provision of that Act applying to common land does not apply to land

35

to which Part 1 applies and which is not registered as common land;

(b)   

such a provision applies to either or both of the following—

(i)   

land registered as common land, or particular descriptions or

areas of such land;

 
 

 
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