Commons Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

Commons Bill [HL]

Commons Bill [HL]
Part 1 — Registration
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Severance
(1)
This section applies to a right of common which—
(a)
is registered in a register of common land or town or village greens as
attached to any land; and
(b)
would, apart from this section, be capable of being severed from that
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land.
(2)
A right of common to which this section applies is not at any time on or after
the day on which this section comes into force capable of being severed from
the land to which it is attached, except—
(a)
where the severance is authorised by or under Schedule 1; or
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(b)
where the severance is authorised by or under any other Act.
(3)
Where any instrument made on or after the day on which this section comes
into force would effect a disposition in relation to a right of common to which
this section applies in contravention of subsection (2), the instrument is void to
the extent that it would effect such a disposition.
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(4)
Where by virtue of any instrument made on or after the day on which this
section comes into force—
(a)
a disposition takes effect in relation to land to which a right of common
to which this section applies is attached, and
(b)
the disposition would have the effect of contravening subsection (2),
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the disposition also has effect in relation to the right notwithstanding anything
in the instrument to the contrary.
(5)
Where by virtue of any instrument made on or after the day on which this
section comes into force a right of common to which this section applies falls to
be apportioned between different parts of the land to which it is attached, the
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instrument is void to the extent that it purports to apportion the right
otherwise than rateably.
(6)
Nothing in this section affects any instrument made before, or made pursuant
to a contract made in writing before, the day on which this section comes into
force.
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(7)
This section and Schedule 1 shall be deemed to have come into force on 28 June
2005 (and an order under paragraph 2 of that Schedule may have effect as from
that date).
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Attachment
(1)
This section applies to any right of common which is registered in a register of
35
common land or town or village greens but is not registered as attached to any
land.
(2)
The owner of the right may apply to the commons registration authority for the
right to be registered in that register as attached to any land, provided that—
(a)
he is entitled to occupy the land; or
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(b)
the person entitled to occupy the land has consented to the application.
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Re-allocation of attached rights
(1)
Where—

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Part 1 — Registration
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(a)
a right of common is registered in a register of common land or town or
village greens as attached to any land, and
(b)
subsection (2), (3) or (4) applies in relation to part of the land (“the
relevant part”),

the owner of the land may apply to the commons registration authority for the
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register to be amended so as to secure that the right does not attach to the
relevant part.
(2)
This subsection applies where the relevant part is not used for agricultural
purposes.
(3)
This subsection applies where planning permission has been granted for use of
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the relevant part for purposes which are not agricultural purposes.
(4)
This subsection applies where—
(a)
an order authorising the compulsory purchase of the relevant part by
any authority has been made in accordance with the Acquisition of
Land Act 1981 (c. 67) (and, if the order requires to be confirmed under
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Part 2 of that Act, has been so confirmed);
(b)
the relevant part has not vested in the authority; and
(c)
the relevant part is required for use other than use for agricultural
purposes.
(5)
Regulations may for the purposes of subsections (2) to (4) make provision as to
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what is or is not to be regarded as use of land for agricultural purposes.
(6)
Regulations may provide that an application under this section is not to be
granted without the consent of any person specified in the regulations.
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Transfer of rights in gross
The transfer of a right of common which is registered in a register of common
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land or town or village greens but is not registered as attached to any land—
(a)
only has effect if it complies with such requirements as to form and
content as regulations may provide; and
(b)
does not operate at law until, on an application under this section, the
transferee is registered in the register as the owner of the right.
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13
Surrender and extinguishment
(1)
The surrender to any extent of a right of common which is registered in a
register of common land or town or village greens—
(a)
only has effect if it complies with such requirements as to form and
content as regulations may provide; and
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(b)
does not operate at law until, on an application under this section, the
right is removed from the register.
(2)
The reference in subsection (1) to a surrender of a right of common does not
include a disposition having the effect referred to in section 7(1)(a).
(3)
A right of common which is registered in a register of common land or town or
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village greens cannot be extinguished by operation of common law.

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Part 1 — Registration
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Registration, deregistration and exchange of land
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Statutory dispositions
(1)
Regulations may make provision as to the amendment of a register of common
land or town or village greens where by virtue of any relevant instrument—
(a)
a disposition is made in relation to land registered in it as common land
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or as a town or village green; or
(b)
a disposition is made in relation to a right of common registered in it.
(2)
Regulations may provide that, where—
(a)
by virtue of any relevant instrument a disposition is made in relation to
land registered as common land or as a town or village green,
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(b)
by virtue of regulations under subsection (1) the land ceases to be so
registered, and
(c)
in connection with the disposition other land is given in exchange,

the land given in exchange is to be registered as common land or as a town or
village green.
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(3)
In this section, “relevant instrument” means—
(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);
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(c)
any other instrument made under or pursuant to any enactment.
(4)
Regulations under this section may require the making of an application to a
commons registration authority for amendment of a register of common land
or town or village greens.
(5)
Regulations under this section may provide that a relevant instrument, so far
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as relating to land registered as common land or as a town or village green or
to any right of common, is not to operate at law until any requirement for
which they provide is complied with.
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Registration of greens
(1)
Any person may apply to the commons registration authority to register land
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as a town or village green in a case where subsection (2), (3) or (4) applies.
(2)
This subsection applies where—
(a)
a significant number of local inhabitants have indulged as of right in
lawful sports and pastimes on the land for a period of at least 20 years;
and
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(b)
they continue to do so at the time of the application.
(3)
This subsection applies where—
(a)
a significant number of local inhabitants indulged as of right in lawful
sports and pastimes on the land for a period of at least 20 years;
(b)
they ceased to do so before the time of the application but after the
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commencement of this section; and
(c)
the application is made within the period of two years beginning with
the cessation referred to in paragraph (b).
(4)
This subsection applies where—

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(a)
a significant number of local inhabitants indulged as of right in lawful
sports and pastimes on the land for a period of at least 20 years;
(b)
they ceased to do so before the commencement of this section;
(c)
the application is made within the period of five years beginning with
the cessation referred to in paragraph (b); and
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(d)
the land was neither covered by a building nor within the curtilage of a
building on 18 April 2006.
(5)
In determining the period of 20 years referred to in subsections (2)(a), (3)(a) and
(4)(a), there is to be disregarded any period during which access to the land
was prohibited to members of the public by reason of any enactment.
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(6)
For the purposes of subsection (2)(b) in a case where the condition in
subsection (2)(a) is satisfied—
(a)
where persons indulge as of right in lawful sports and pastimes
immediately before access to the land is prohibited as specified in
subsection (5), those persons are to be regarded as continuing so to
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indulge; and
(b)
where permission is granted in respect of use of the land for the
purposes of lawful sports and pastimes, the permission is to be
disregarded in determining whether persons continue to indulge in
lawful sports and pastimes on the land “as of right”.
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(7)
The owner of any land may apply to the commons registration authority to
register the land as a town or village green.
(8)
An application under subsection (7) may only be made with the consent of any
relevant leaseholder of, and the proprietor of any relevant charge over, the
land.
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(9)
In subsection (8)—
“relevant charge” means—
(a)
in relation to land which is registered in the register of title, a
registered charge within the meaning of the Land Registration
Act 2002 (c. 9);
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(b)
in relation to land which is not so registered—
(i)
a charge registered under the Land Charges Act 1972
(c. 61); or
(ii)
a legal mortgage, within the meaning of the Law of
Property Act 1925 (c. 20), which is not registered under
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the Land Charges Act 1972;
“relevant leaseholder” means a leaseholder under a lease for a term of
more than seven years from the date on which the lease was granted.
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Deregistration and exchange: applications
(1)
The owner of any land registered as common land or as a town or village green
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may apply to the appropriate national authority for the land (“the release
land”) to cease to be so registered.
(2)
If the release land is more than 200 square metres in area, the application must
include a proposal under subsection (3).

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Part 1 — Registration
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(3)
A proposal under this subsection is a proposal that land specified in the
application (“replacement land”) be registered as common land or as a town or
village green in place of the release land.
(4)
If the release land is not more than 200 square metres in area, the application
may include a proposal under subsection (3).
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(5)
Where the application includes a proposal under subsection (3)—
(a)
the replacement land must not already be registered as common land
or as a town or village green; and
(b)
if the owner of the release land does not own the replacement land, the
owner of the replacement land must join in the application.
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(6)
In determining the application, the appropriate national authority shall have
regard to—
(a)
the interests of persons having rights in relation to, or occupying, the
release land (and in particular persons exercising rights of common
over it);
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(b)
the interests of the neighbourhood;
(c)
the public interest;
(d)
any other matter considered to be relevant.
(7)
The appropriate national authority shall in a case where—
(a)
the release land is not more than 200 square metres in area, and
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(b)
the application does not include a proposal under subsection (3),

have particular regard under subsection (6) to the extent to which the absence
of such a proposal is prejudicial to the interests specified in paragraphs (a) to
(c) of that subsection.
(8)
The reference in subsection (6)(c) to the public interest includes the public
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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
(d)
the protection of archaeological remains and features of historic
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interest.
(9)
An application under this section may only be made with the consent of any
relevant leaseholder of, and the proprietor of any relevant charge over—
(a)
the release land;
(b)
any replacement land.
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(10)
In subsection (9) “relevant charge” and “relevant leaseholder” have the
meanings given by section 15(9).
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Deregistration and exchange: orders
(1)
Where the appropriate national authority grants an application under section
16 it must make an order requiring the commons registration authority to
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remove the release land from its register of common land or town or village
greens.
(2)
Where the application included a proposal to register replacement land, the
order shall also require the commons registration authority—

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Part 1 — Registration
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(a)
to register the replacement land as common land or as a town or village
green in place of the release land; and
(b)
to register as exercisable over the replacement land any rights of
common which, immediately before the relevant date, are registered as
exercisable over the release land.
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(3)
A commons registration authority must take such other steps on receiving an
order under this section as regulations may require.
(4)
Where immediately before the relevant date any rights of common are
registered as exercisable over the release land, those rights are on that date
extinguished in relation to that land.
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(5)
Where immediately before the relevant date any rights are exercisable over the
release land by virtue of its being, or being part of, a town or village green—
(a)
those rights are extinguished on that date in respect of the release land;
and
(b)
where any replacement land is registered in its place, those rights shall
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become exercisable as from that date over the replacement land instead.
(6)
Where immediately before the relevant date the release land was registered as
common land and any relevant provision applied in relation to it—
(a)
the provision shall on that date cease to apply to the release land; and
(b)
where any replacement land is registered in its place, the provision
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shall on that date apply to the replacement land instead.
(7)
An order under this section may contain—
(a)
provision disapplying the effect of subsection (5)(b) or (6)(b) in relation
to any replacement land;
(b)
supplementary provision as to the effect in relation to any replacement
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land of—
(i)
any rights exercisable over the release land by virtue of its
being, or being part of, a town or village green;
(ii)
any relevant provision;
(c)
supplementary provision as to the effect in relation to the release land
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or any replacement land of any local or personal Act.
(8)
In subsections (6) and (7) “relevant provision” means a provision contained in,
or made under—
(a)
section 193 of the Law of Property Act 1925 (c. 20);
(b)
a scheme under the Metropolitan Commons Act 1866 (c. 122);
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(c)
an Act under the Commons Act 1876 (c. 56) confirming a provisional
order of the Inclosure Commissioners;
(d)
a scheme under Part 1 of the Commons Act 1899 (c. 30);
(e)
section 1 of the Commons Act 1908 (c. 44).
(9)
In this section, “relevant date” means the date on which the commons
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registration authority amends its register as required under subsections (1) and
(2).
(10)
Regulations may make provision for the publication of an order under this
section.