Commons Bill [HL]

House of Commons

Session 2005 - 06
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Commons Bill [HL]

34
Commons Bill [HL]
Schedule 1 — Authorised severance

Schedules
Schedule 1
Section 9

Authorised severance
Severance by transfer to public bodies
1     (1)
A right of common to which section 9 applies may on or after the day on
5
which this Schedule comes into force be severed permanently from the land
to which it is attached by being transferred on its own to—
(a)
any commons association established for the land over which the
right is exercisable;
(b)
Natural England (where the land or any part of it is in England); or
10
(c)
the Countryside Council for Wales (where the land or any part of it
is in Wales).
      (2)
Where a person proposes to sever a right of common to which section 9
applies by a transfer under sub-paragraph (1)(b) or (c), Natural England or
the Countryside Council for Wales as the case may be must—
15
(a)
give notice of the proposal to the owner of the land over which the
right is exercisable unless his name and address cannot reasonably
be ascertained;
(b)
in a case where there is no commons association established for the
land, give notice of the proposal to such persons (if any) as they
20
consider represent the interests of persons exercising rights of
common over the land.
      (3)
A notice under sub-paragraph (2) must be given at least two months before
the transfer and must—
(a)
specify the name and address of the owner of the land to which the
25
right is attached;
(b)
describe the right proposed to be transferred, giving such details as
regulations may specify;
(c)
state the proposed consideration for the transfer; and
(d)
give such other information as regulations may specify.
30
      (4)
Where a right of common to which section 9 applies is exercisable over land
for which a commons association is established, the right may only be
severed by a transfer under sub-paragraph (1)(b) or (c) if that association
consents to the transfer.
      (5)
In a case where there is no commons association established for the land
35
over which a right of common to which section 9 applies is exercisable, the
appropriate national authority may by order provide that a person with
functions of management conferred by any enactment in relation to that

Commons Bill [HL]
Schedule 1 — Authorised severance
35

land is to be regarded, for any or all purposes of this paragraph, as a
commons association established for the land.
      (6)
The severance of a right of common by its transfer under sub-paragraph
(1)—
(a)
only has effect if the transfer complies with such requirements as to
5
form and content as regulations may provide; and
(b)
does not operate at law until, on an application under this Schedule,
the transferee is registered as the owner of the right in the register of
common land or of town or village greens in which the right is
registered.
10
Temporary severance by letting or leasing
2     (1)
A right of common to which section 9 applies may, on or after the day on
which this Schedule comes into force, to any extent be severed temporarily
from the land to which it is attached by virtue of the right, or all or part of
the land, being leased or licensed on its own in accordance with—
15
(a)
provision made by order by the appropriate national authority; or
(b)
rules made in relation to the land by a commons association under
section 31.
      (2)
Provision under sub-paragraph (1)(a) and rules referred to in sub-paragraph
(1)(b) may be framed by reference to—
20
(a)
particular land or descriptions of land;
(b)
descriptions of persons to whom rights of common may be leased or
licensed.
      (3)
Where—
(a)
provision under sub-paragraph (1)(a) applies in relation to any land,
25
and
(b)
rules referred to in sub-paragraph (1)(b) also apply in relation to that
land and are inconsistent with that provision,

the rules prevail over that provision, to the extent of the inconsistency, in
relation to that land.
30
      (4)
The appropriate national authority may by order provide that the leasing or
licensing of a right of common (whether authorised by provision under sub-
paragraph (1)(a) or by rules referred to in sub-paragraph (1)(b)) must
comply with such requirements as to form and content as the order may
provide.
35
Severance authorised by order
3     (1)
The appropriate national authority may by order make provision
authorising rights of common to which section 9 applies to be severed
permanently from the land to which they are attached by transfer in
accordance with that provision.
40
      (2)
Provision under sub-paragraph (1) is to be framed by reference to—
(a)
particular land over which the rights of common are exercisable, or
(b)
particular descriptions of such land,

and may authorise transfers to particular persons, particular descriptions of
persons or any person.
45

Commons Bill [HL]
Schedule 2 — Rectification of mistakes etc under the 1965 Act
36

      (3)
The appropriate national authority must, before making any provision
under sub-paragraph (1) in relation to any land, consult such persons (if any)
as it considers represent the interests of—
(a)
persons who own the land;
(b)
persons who exercise rights of common over the land.
5
      (4)
Provision under sub-paragraph (1) must include provision securing that the
owner of any land over which a right of common is exercisable is to be
notified, and his consent obtained, before the right may be transferred.
      (5)
Provision referred to in sub-paragraph (4) may include provision as to the
circumstances in which notification may be regarded as having been given
10
or consent obtained.
      (6)
The severance of a right of common by its transfer under provision under
sub-paragraph (1)—
(a)
only has effect if the transfer complies with such requirements as to
form and content as regulations may provide; and
15
(b)
does not operate at law until, on an application under this Schedule,
the transferee is registered as the owner of the right in the register of
common land or of town or village greens in which the right is
registered.
      (7)
Provision under sub-paragraph (1) may include provision to secure the
20
result that where—
(a)
the person to whom the right of common is transferred is the owner
of land to which rights of common are attached, and
(b)
those rights are exercisable over the same land, or substantially the
same land, as the right of common being transferred,
25

the transferee must, when making an application as specified in sub-
paragraph (6)(b), apply to the commons registration authority for the right
to be registered as attached to the land referred to in paragraph (a).
Schedule 2
Section 22

Rectification of mistakes etc under the 1965 Act
30
Introductory
1
In this Schedule “the 1965 Act” means the Commons Registration Act 1965
(c. 64).
Waste land of a manor not registered as common land
2     (1)
In the case of any land which—
35
(a)
is land to which this paragraph applies, and
(b)
is not registered as common land or as a town or village green,

any person may, before such date as may be specified in regulations, apply
to the commons registration authority to register the land in the authority’s
register of common land.
40

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Schedule 2 — Rectification of mistakes etc under the 1965 Act
37

      (2)
This paragraph applies to land which at the time of the application under
sub-paragraph (1) is waste land of a manor and where, before the
commencement of this paragraph—
(a)
the land was provisionally registered as common land under section
4 of the 1965 Act;
5
(b)
an objection was made in relation to the provisional registration; and
(c)
the provisional registration was cancelled in the circumstances
specified in sub-paragraph (3), (4) or (5).
      (3)
The circumstances in this sub-paragraph are that—
(a)
the provisional registration was referred to a Commons
10
Commissioner under section 5 of the 1965 Act;
(b)
the Commissioner determined that, although the land had been
waste land of a manor at some earlier time, it was not such land at
the time of the determination because it had ceased to be connected
with the manor; and
15
(c)
for that reason only the Commissioner refused to confirm the
provisional registration.
      (4)
The circumstances in this sub-paragraph are that—
(a)
the provisional registration was referred to a Commons
Commissioner under section 5 of the 1965 Act;
20
(b)
the Commissioner determined that the land was not subject to rights
of common and for that reason refused to confirm the provisional
registration; and
(c)
the Commissioner did not consider whether the land was waste land
of a manor.
25
      (5)
The circumstances in this sub-paragraph are that the person on whose
application the provisional registration was made requested or agreed to its
cancellation (whether before or after its referral to a Commons
Commissioner).
      (6)
Where on an application under this paragraph a commons registration
30
authority is satisfied that this paragraph applies in relation to any land
which is the subject of the application, it must grant the application so far as
relating to that land.
Town or village green wrongly registered as common land
3     (1)
In the case of any land which—
35
(a)
is registered as common land, and
(b)
is land to which this paragraph applies,

any person may, before such date as may be specified in regulations, apply
to the commons registration authority to remove the land from its register of
common land and to register it in the authority’s register of town or village
40
greens.
      (2)
This paragraph applies to land where—
(a)
the land was provisionally registered as common land under section
4 of the 1965 Act;
(b)
the provisional registration became final; but
45
(c)
immediately before its provisional registration, the land was a town
or village green within the meaning of that Act as originally enacted.

Commons Bill [HL]
Schedule 2 — Rectification of mistakes etc under the 1965 Act
38

      (3)
Where on an application under this paragraph a commons registration
authority is satisfied that this paragraph applies in relation to any land
which is the subject of the application, it must grant the application so far as
relating to that land.
Other land wrongly registered as common land
5
4     (1)
In the case of any land which—
(a)
is registered as common land, and
(b)
is land to which this paragraph applies,

any person may, before such date as may be specified in regulations, apply
to the commons registration authority to remove the land from its register of
10
common land.
      (2)
This paragraph applies to land where—
(a)
the land was, pursuant to an application made under section 4 of the
1965 Act, provisionally registered as common land under that
section on the basis of information supplied in the application;
15
(b)
the provisional registration of the land as common land was not
referred to a Commons Commissioner under section 5 of the 1965
Act;
(c)
the provisional registration became final; and
(d)
immediately before its provisional registration the land was not any
20
of the following—
(i)
land subject to rights of common;
(ii)
waste land of a manor;
(iii)
a town or village green within the meaning of the 1965 Act as
originally enacted; or
25
(iv)
land of a description specified in section 11 of the Inclosure
Act 1845 (c. 118).
      (3)
Where on an application under this paragraph a commons registration
authority is satisfied that this paragraph applies in relation to any land
which is the subject of the application, it must grant the application so far as
30
relating to that land.
Land wrongly registered as town or village green
5     (1)
In the case of any land which—
(a)
is registered as a town or village green, and
(b)
is land to which this paragraph applies,
35

any person may, before such date as may be specified in regulations, apply
to the commons registration authority to remove the land from its register of
town or village greens.
      (2)
This paragraph applies to land where—
(a)
the land was, pursuant to an application made under section 4 of the
40
1965 Act, provisionally registered as a town or village green under
that section on the basis of information supplied in the application;
(b)
the provisional registration of the land as a town or village green was
not referred to a Commons Commissioner under section 5 of the 1965
Act;
45
(c)
the provisional registration became final; and

Commons Bill [HL]
Schedule 3 — Registration: transitional provision
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(d)
immediately before its provisional registration the land was not—
(i)
common land within the meaning of that Act; or
(ii)
a town or village green.
      (3)
For the purposes of sub-paragraph (2)(d)(ii), land is to be taken not to have
been a town or village green immediately before its provisional registration
5
if (and only if)—
(a)
throughout the period of 20 years preceding the date of its
provisional registration—
(i)
the land was covered by a building or was within the
curtilage of a building; or
10
(ii)
the land was, by reason of its physical nature, unusable by
members of the public for the purposes of lawful sports and
pastimes; and
(b)
immediately before its provisional registration the land was not, and
at the time of the application under this paragraph still is not, allotted
15
by or under any Act for the exercise or recreation of the inhabitants
of any locality.
      (4)
Where on an application under this paragraph a commons registration
authority is satisfied that this paragraph applies in relation to any land
which is the subject of the application, it must grant the application so far as
20
relating to that land.
Costs
6     (1)
Regulations may make provision as to the payment of costs which pursuant
to an application under this Schedule are incurred by the applicant, an
objector or the person determining the application.
25
      (2)
That provision may in particular include provision—
(a)
for the payment of costs by the applicant, an objector or a commons
registration authority;
(b)
for the person determining an application or the appropriate
national authority to determine who is liable to pay costs and how
30
much they are liable to pay.
Schedule 3
Section 23

Registration: transitional provision
Interpretation
1
In this Schedule “the 1965 Act” means the Commons Registration Act 1965
35
(c. 64).
Transitional period for updating registers
2     (1)
Regulations may make provision for commons registration authorities,
during a period specified in the regulations (“the transitional period”), to
amend their registers of common land and town or village greens in
40
consequence of qualifying events which were not registered under the 1965
Act.

Commons Bill [HL]
Schedule 3 — Registration: transitional provision
40

      (2)
The following are qualifying events for the purposes of this Schedule—
(a)
the creation of a right of common (by any means, including
prescription), where occurring in relation to land to which this Part
applies at any time—
(i)
after 2 January 1970; and
5
(ii)
before the commencement of this paragraph;
(b)
any relevant disposition in relation to a right of common registered
under the 1965 Act, or any extinguishment of such a right, where
occurring at any time—
(i)
after the date of the registration of the right under that Act;
10
and
(ii)
before the commencement of this paragraph;
(c)
a disposition occurring before the commencement of this paragraph
by virtue of any relevant instrument in relation to land which at the
time of the disposition was registered as common land or a town or
15
village green under the 1965 Act;
(d)
the giving of land in exchange for any land subject to a disposition
referred to in paragraph (c).
      (3)
In sub-paragraph (2)(b) “relevant disposition” means—
(a)
the surrender of a right of common;
20
(b)
the variation of a right of common;
(c)
in the case of a right of common attached to land, the apportionment
or severance of the right;
(d)
in the case of a right not attached to land, the transfer of the right.
      (4)
In sub-paragraph (2)(c) “relevant instrument” means—
25
(a)
any order, deed or other instrument made under or pursuant to the
Acquisition of Land Act 1981 (c. 67);
(b)
a conveyance made for the purposes of section 13 of the New
Parishes Measure 1943 (No. 1);
(c)
any other instrument made under or pursuant to any enactment.
30
      (5)
Regulations under this paragraph may include provision for commons
registration authorities to amend their registers as specified in sub-
paragraph (1)—
(a)
on the application of a person specified in the regulations; or
(b)
on their own initiative.
35
      (6)
Regulations under sub-paragraph (5)(b) may include provision requiring a
commons registration authority to take steps to discover information
relating to qualifying events, including in particular requiring an authority
to—
(a)
carry out a review of information already contained in a register of
40
common land or town or village greens;
(b)
publicise the review;
(c)
invite persons to supply information for, or to apply for amendment
of, the register.
3
At the end of the transitional period, any right of common which—
45
(a)
is not registered in a register of common land or town or village
greens, but
(b)
was capable of being so registered under paragraph 2,