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SUMMARY
THE COMMONS BILL
HOUSE OF COMMONS SECOND-READING DEBATE
TUESDAY 18 APRIL 2006
BRIEFING FROM THE OPEN SPACES SOCIETY
1. The Open Spaces Society (formally the Commons, Open
Spaces and Footpaths Preservation Society) was founded in 1865 and is
Britain’s oldest national conservation body. The society is the leading
organisation concerned with the protection, management and public enjoyment
of common land.
2. Our principal concerns about the Commons Bill are set out below, and a
more detailed briefing is attached.
Creation of rights of common
3. Clause 6. We oppose the removal of the opportunity to acquire
common rights by prescription (ie long usage).
Severance
4. Clause 9. We support the prohibition of severance of rights of
common.
Registration of greens
5. Clause 15. We strongly support the provisions in the Bill which
clarify the law enabling land to be registered as a town or village green.
If local people have been using a defined piece of land for 20 years for
informal recreation, without receiving permission, without being secretive
and without using force, they can apply to the commons registration
authority to register the land as a village green. Once registered, the land
is protected from encroachment by nineteenth-century legislation which makes
it an offence to damage or encroach on the green.
6. A recent Court of Appeal judgment (which is being challenged in the House
of Lords) on the registration of land at the Trap Grounds in Oxford has left
the law in turmoil. The judges ruled that the use for recreation must
continue up to the date of registration of the land. This makes it almost
impossible to register land as a green since, once the application is
advertised and the landowner becomes aware of it, he can challenge the use
and the application must fail because use then ceases to be ‘as of right’.
7. The Bill clarifies that use must continue only until the date of
application. It also specifies on the face of the bill that when use is
challenged after 20 years use has occurred this will not defeat the
application, and defines the period within which applications must be made.
They are a welcome clarification of the law for registering land as a town
or village green.
Deregistration and exchange: applications
8. Clause 16. We do not support this clause as drafted. It is
essential that any application for exchange of common land is publicly
advertised. We are concerned that Bill does not require the exchange land to
be ‘no less in area’ and ‘equally advantageous to the public’. This is the
wording in the Acquisition of Land Act 1981 currently used for exchange land
where compulsory powers are used. We believe the same standard should be
required for exchange land, whether the process is voluntary or compulsory.
Works on common land
9. In general we support the measures which clarify situations where an
application needs to be made for consent for works on common land.
10. Clause 38(3) includes examples of such works but needs to be
amended to encompass ploughing and tree planting.
11. Clause 39(6) needs to be amended so that where retrospective
consent is sought for works, those works must first be removed.
12. Clause 41. We support the introduction of a right for any person
to apply for the removal of works. However there are no sanctions if an
order for removal is obtained and then not carried out. This provision needs
strengthening to ensure it is effective. We are also concerned that the
public may only act against works erected after 28 June 2005.
13. There should be a duty for local authorities to take action to remove
unlawful works, just as the Highways Act section 130 gives highway
authorities a duty to take action against illegal obstructions and section
137 gives the public a power to do so.
14. Clause 42. We oppose this clause, which provides that consent may
be granted for works on common land which is subject to schemes of
management where currently such works are prohibited. This will weaken the
schemes and may prejudice public access under the schemes.
Powers of local authorities over unclaimed land
15. The bill does not vest unclaimed common land in local authorities.
Without such a provision local authorities will only have limited powers to
protect common land and this will lead to a continued ineffective mechanism
for dealing with encroachment. Local authorities should be given powers to
manage commons in the interests of the wider community.
Schedule 4
16. The transitional arrangements for enforcement against unlawful works in
schedule 3 will result in clause 38 only allowing the public to take action
against those unlawful works which were erected after 28 June 2005 when the
Bill was published. This is grossly inadequate.
17. Combined with (a) the lack of a duty on local authorities to act against
unlawful works and (b) the lack of a power for local authorities to assume
ownership of unclaimed land, this will mean that the many unlawful works on
commons, and the many neglected and overgrown commons, will persist to the
detriment of the commoners, the public, the wildlife and the biodiversity of
the land.
For further information contact:
Telephone: 01491 573535
Nicola Hodgson - nicola@oss.org.uk (email)
Kate Ashbrook - kate@oss.org.uk (email)
top of page
THE COMMONS BILL
HOUSE OF COMMONS SECOND-READING DEBATE
TUESDAY 18 APRIL 2006
BRIEFING FROM THE OPEN SPACES SOCIETY
1. The Open Spaces Society (formally the Commons, Open
Spaces and Footpaths Preservation Society) was founded in 1865 and is
Britain’s oldest national conservation body. It campaigns to protect common
land, village greens, open spaces and public paths, and people’s right to
enjoy them. The society is the leading organisation concerned with the
protection, management and public enjoyment of common land. The society was
a member of the Department for Environment, Food and Rural Affairs’
stakeholder working group on common land.
2. There are 1.3 million acres of common land in England and Wales. It is
(a) land subject to the rights of others (usually owners of nearby
properties) to graze animals, collect wood and turf, etc, or (b) waste land
of the manor with no rights. Under the Commons Registration Act 1965 all
commons and the rights over them had to be registered with the county
councils. Any commons not registered by August 1970 ceased to be common land
in law. The Countryside and Rights of Way Act 2000 gives the public the
right to walk on those commons which were not already subject to a legal
right of access. Commons are unique areas, often wild, often very beautiful.
They are vital for their natural beauty, wildlife value, cultural heritage,
their use for low-key agricultural activities and for public enjoyment.
3. The Commons Bill will, among many other things, enable the establishment
of statutory commons associations with powers to manage agricultural
activities on commons in a more sustainable manner, ‘modernise’ registration
of common land and common rights, and reinforce existing protection against
abuse, encroachment and unauthorised development.
PART 1
REGISTRATION
Introductory
Content of registers, commons registration authorities and land to which
Part 1 applies
4. Clauses 1,2,3,4 and 5. We support these, which are mainly about
administrative/procedural issues.
Registration of rights of common
Creation
5. Clause 6. This clause removes the possibility of rights being
acquired by prescription (ie by long usage) and, although this may be a rare
occurrence, we believe this process should be preserved. Once the
transitional period has ended it will no longer be possible to create rights
by long usage. An express deed can be made to create rights, but this
depends on there being a sympathetic landowner and is unlikely to occur.
6. The reason given in the explanatory notes is that this is to prevent
overgrazing and for certainty. This is in spite of the fact that there is a
growing evidence of problems arising due to undergrazing.
7. The creation of a right of common over land will result in the land being
registerable as common land, so it is important that this opportunity of
creating rights by prescription is retained.
Variation
8. Clause 7. We support this. It deals with instances where variation
of a right of common can take place.
Apportionment
9. Clause 8. We support this. Apportionment occurs where land to
which rights of common are attached is divided into two or more parcels in
separate ownership.
Severance
10. Clause 9. We strongly support the general prohibition of
severance of rights of common as this has caused management problems over
common land. Where grazing rights have been severed from the land, the owner
of the rights can sell them to anyone, including someone who lives far from
the common. Thus the link between the commoners and the land may be lost.
11. We are pleased that, in limited circumstances, severed rights may
be transferred to statutory commons associations. However it is essential to
ensure that the management regime of the common is not altered to the
detriment of other commoners, particularly where there is an existing
countryside or environmental stewardship scheme.
Attachment, re-allocation of attached rights and transfer of rights in
gross
12. Clause 10. We support this as it enables rights of common held in
gross
(ie held by an individual rather than attached to a property) to be attached
to land. Otherwise the existence of rights in gross can make management of
common land more difficult.
13. Clause 11. We support this as it will enable land which remains
undeveloped to enjoy all the rights which were previously attached to the
whole of the area of land.
14. Clause 12. We support this mainly administrative process to deal
with transfers of rights of common held in gross.
Surrender and extinguishment
15. Clause 13. At common law, a right of common could cease to exist
by being surrendered by its owner or by being extinguished by operation of
the law. This clause requires surrender to be effected in a prescribed form
and abolishes any other common-law mechanism, including unity of ownership,
abandonment, implied release, alteration to the common and alteration to the
dominant tenement. In general we support this change. However we
understand this will be dealt with by means of an application to the
registration authority as an administrative process and we urge that
clear guidelines are issued.
16. At present such applications are also publicly advertised and objections
are considered, and we believe these elements should be retained.
Registration, deregistration and exchange of land
Statutory dispositions
17. Clause 14. In general we support the principle of
statutory dispositions being required to be registered as this will ensure
that the register is up to date and clarifies the legal position. However,
we would want to be consulted on any regulations.
Registration of greens
18. Clause 15. We strongly support the provisions to continue to
allow land to be registered as a town or village green.
19. The principle is that, if local people have been using a defined piece
of land for 20 years for lawful sports and pastimes (ie any sort of informal
recreation), ‘as of right’ (ie without receiving permission, without being
secretive and without using force), they can apply to the commons
registration authority to register the land as a village green.
20. Registration is a public process, often involving a non-statutory public
inquiry. Once registered, the land is protected from encroachment and is
preserved for future generations to use, because section 12 of the Inclosure
Act 1845 and section 29 of the Commons Act 1876 make it an offence to damage
or encroach on the green.
21. Clause 15 (2)(b). This amendment to the current definition of
greens is essential as it clarifies the law and increases the opportunity
for people to register land as a green.
22. When the 1965 Commons Registration Act, which at section 22 deals with
provisions to register land as a town or village green, was amended by
section 98 of the Countryside and Rights of Way Act 2000, the government
indicated it would introduce regulations to define the phrase ‘continue to
do so’ with regard to recreational use, and prescribe a period within which
an application must be made after the recreational use has been challenged.
But it has not done so, and as a result applications to register have
failed.
23. The recent Court of Appeal judgment on the registration of land at the
Trap Grounds in Oxford has left the law in turmoil. The judges ruled that
the words ‘continue to do so’ mean that the use for lawful sports and
pastimes must continue up to the date of registration of the land. This
makes it almost impossible to register land as a green since, once the
application is advertised and the landowner becomes aware of it, he can
challenge the use and the application must fail because use then ceases to
be ‘as of right’. This is unjust because applicants may well have satisfied
all the criteria to have the land registered. (This case has been challenged
in the House of Lords and the judgment is awaited.)
24. These clauses clarify that use must continue until the date of
application. They also specify on the face of the bill that, when use is
challenged after 20 years’ use has occurred, this will not defeat the
application, and they define the period within which applications must be
made. They are a welcome clarification of the law for registering land as a
town or village green.
25. Clause 15 (4). During the foot-and-mouth crisis, people were
unable to exercise their customary access to land for some months. This sad
event was exploited by some landowners opposing applications to register
land as greens, because the 20 years’ use was thus not continuous.
26. This amendment to the current definition of greens ensures that when
land is temporarily closed under statutory powers, it shall not prevent land
from being registered as a green, because the closure period is discounted
for the purpose of determining whether there has been 20 years of
interrupted use.
27. Clause 15 (7). This enables an owner of land to direct that the
land should be registered as a green, without having to go through the
application process. This will assist many local councils and also will
allow millennium and doorstep greens to be registered and to obtain
statutory protection.
Deregistration and exchange: applications
28. Clause 16. In principle we support this process which
replaces the previous section 147 exchange land process under the Inclosure
Act 1845 and takes into account the public interest.
29. Under section 147, land can be exchanged where it is beneficial to the
owners and ‘just and reasonable’. The new process will enable consideration
of the public interest, nature conservation, the conservation of the
landscape and archaeological features, and the protection of public rights
of access, (under the Countryside and Rights of Way Act 2000 and other
legislation). We believe it is essential that these criteria are stated on
the face of the bill for clarification.
30. We do not support this clause as drafted. It is essential that
any application is publicly advertised. We consider that the bill should
require the exchange land to be ‘no less in area’ and ‘equally advantageous
to the public’. This is the wording in the Acquisition of Land Act 1981,
which is currently used for exchange land where compulsory powers are used.
31. We believe the same standard should be required for exchange land,
whether the process is voluntary or compulsory.
Deregistration and exchange: orders
32. Clause 17. We believe it is essential that guidance is issued to
commons registration authorities about the process and we would want to
be consulted on any regulations.
Conclusiveness and correction of the registers
Conclusiveness
33. Clause 18. We support this. It is essential to have certainty as
to the matters contained in the register.
Correction
34. Clause 19. We support this. It will allow rectification of
certain mistakes by enabling the register of common land or town or village
greens to be amended.
35. However it is essential that we are consulted on any regulations
and that the process is publicly advertised.
36. Clause 19 (7). We oppose this clause which is unnecessary as the
High Court is already able to review judicially the actions of a common
registration authority. This clause could result in people deciding not to
make applications for amendments in view of the potential cost of court
proceedings. There should be guidance or criteria in respect of (b) ‘it
would be just to amend the register’, otherwise there could be an increase
in court applications which would prejudice the lay applicant.
Information etc
Inspection
37. Clause 20. In principle we support the public being
allowed access to the registers. We are concerned that regulations may
provide exceptions and impose conditions and we would want to be
consulted on any regulations.
Official copies
38. Clause 21. We support this which concerns the issue of official
copies of the register and associated documents.
Transitory and transitional provision
Rectification of mistakes etc under the 1965 Act
39. Clause 22. We strongly support the introduction of Schedule 2. It
will allow the registration of waste land of a manor as common land enabling
it to benefit from statutory protection. Many provisional registrations of
common land between 1978 and 1990 were cancelled by the commons
commissioners solely on the grounds of a Court of Appeal case in 1978. This
case was overruled in 1990 by the House of Lords. This clause will allow
fresh applications to be made.
40. We would wish to be consulted on any regulations.
Transitional
41. Clause 23. This clause enables transitional provisions to be made
in connection with the coming into force of Part 1, and schedule 3 provides
more detail.
42. Again, we would want to be consulted on any regulations.
Supplementary
Applications etc
43. Clause 24. We would want to be consulted on any regulations
concerning the amendment of the register of common land or town or village
greens. We would also wish to be consulted on regulations in
connection with subsections 2-8.
44. Guidance should also be issued to registration authorities.
Electronic registers
45. Clause 25. We support in principle the updating of the registers
to an electronic version. However guidance should be issued and a clear
consultation process should also be introduced.
46. The implication here is that a new mapping process would have to be
carried out. The Countryside Agency experienced difficulties during the
mapping process under the Countryside and Rights of Way Act 2000 and we
trust that the lessons learnt from this will be used to inform any mapping
for the electronic registers.
PART 2
MANAGEMENT
Commons associations
Establishment and procedure for establishment
47. Clauses 26 and 27. We support the provisions for the creation of
a statutory management association for commons at a local level. However
the interests of commoners with few rights must be protected.
48. We are concerned that there may be difficulties with the
requirement for there to be ‘substantial support’ unless further
clarification is given as to what this means.
Status and constitution of commons associations
Status, constitution: supplementary
49. Clauses 28 – 30. We support these clauses which give
detail on the face of the bill of the status of a commons association.
50. We support the general principle that the constitution will allow
commoners to regulate themselves through majority decision-making. However
we would want to be consulted on any regulations.
51. We consider that meetings of the commons associations should be held in
public.
Functions of commons associations
Functions
52. Clause 31. We welcome the clarification of the functions
of a commons association on the face of the bill, to include taking action
about unlawful boundaries and other encroachments.
53. Clause 31 (6(7)). We support the principle that the
commons association must have regard to the public interest as defined in
subsection (7) in relation to the land for which it is established. We do
not believe it is appropriate for commons associations to manage access, and
urge that any attempts to include this clause be resisted.
Ancillary powers
54. Clause 32. We welcome clarification of the powers which
facilitate the carrying out of the functions of the commons association.
55. The power to enter into agreements will enable the association to enter
into much needed funding arrangements, for instance agri-environment
agreements.
Consent
56. Clause 33. We welcome clarification on the face of the bill about
obtaining consent and the notice procedure.
Enforcement of rules
57. Clause 34. In principle we support the enforcement powers
in this clause as commons associations have often suffered difficulties
because they had no ‘teeth’. However making breaches of rules a criminal
offence per se must be considered very carefully. There is also a power to
bring proceedings in the county court and this could lead to confusion and
potential abuse of court process.
Rules: supplementary
58. Clause 35. We welcome the requirement for the appropriate
national authority to consult before revoking any rule made by the commons
associations. Otherwise the powers of the commons associations could be
undermined.
Commons
associations: supplementary
Consequential provision
59. Clause 36. We are concerned that the appropriate national
authority may by order revoke or vary any scheme of management under the
Commons Act 1899 or the Commons Act 1876. We believe that this will
prejudice the protection of the common, even though consideration will be
given to the effects of abolishing or restricting access. Without prejudice
to that view, even though this provision is by order under clause 26 and the
appropriate national authority must be satisfied that there is substantial
support for the making of the order, it is essential that any proposed
order is publicly advertised after full consultation.
Variation and revocation of establishment orders
60. Clause 37. We welcome clarification of the revocation procedure.
PART 3
PROTECTION
Works on common land
Protection on works without consent
61. Clause 38. In general we support the proposed measures
which clarify situations where an application needs to be made for consent
for ‘works’ on common land.
62. Clause 38(2). We welcome the clarification that works for
the resurfacing of land will require consent, irrespective of whether there
is any impediment to access.
63. Clause 38(3). This clause includes examples of works but does not
include, for instance, ploughing or other agricultural operations affecting
the surface which might include tree planting. This is covered in clause 46
but only in relation to the relevant authority taking action. We wish this
clause to be amended to include ploughing or tree planting.
64. Clause 38(5). We are pleased that these powers will apply
to any registered common land.
65. Clause 38(7). We are pleased that there is clarification on the
face of the bill that neither the granting of planning permission nor the
conferring of functions on a commons association negates the requirement for
councils to be more vigilant about the need for consent for works on common
land.
Consent: general
66. Clause 39. We welcome clarity on the face of the bill as to the
matters to which the appropriate national authority will have regard when
considering an application for works. However, although no order of
precedence is given, we are concerned that 39(1)(d) could, for instance,
allow consideration of the government’s policy on wind turbines to the
detriment of other considerations. Common land, particularly in upland
areas, is vulnerable to applications for wind turbines and we oppose
any weakening of the statutory protection of the land.
67. Clause 39(4). We are concerned that it is proposed that
the previous consents on the land may encourage the granting of a subsequent
application. We would want the cumulative effect of applications to
discourage rather than encourage a further application.
68. Clause 39(5). We believe that the application to vary or revoke
any consent or condition must be subject to the same procedure as the
original application. A fresh application must be made and must be
publicly advertised.
69. Clause 39(6). It is accepted that applications have been
considered where works are already in place. However we are concerned
that this clause will encourage people to erect unlawful works by allowing
retrospective consent to be given without the works first being removed. It
is analogous to allowing the diversion of an obstructed highway. We
consider that there should be a requirement to remove the works first, with
a saving for exceptional circumstances.
Consent: procedure
70. Clause 40. The society would want to be consulted on
regulations concerning procedure. We support in principle this clause
which is similar to the current process under section 194 of the Law of
Property Act 1925.
Enforcement
71. Clause 41. We support the introduction of a right for any person
to apply for the removal of works. However it may be more appropriate for
such an application to be made to the magistrates’ court as occurs for
rights-of-way issues, and as under the enforcement of rules relating to
commons associations at clause 34. In clause 34 there is also a power to
make an application to the county court.
72. Clause 41(2). There are no sanctions if an order for removal is
obtained and then not carried out. This provision needs strengthening to
ensure it is effective.
73. There should be a duty for local authorities to take action to remove
unlawful works, just as the Highways Act section 130 gives highway
authorities a duty to take action against illegal obstructions and section
137 gives the public a power to do so.
74. The Government at Third Reading said (col 708–710 Hansard for 18 January
2006) that local authorities may use section 9 of the Open Spaces Act 1906
to manage common land. The fact is that local authorities do not use these
powers, and the Open Spaces Act 1906 only confers powers not duties. Most
authorities do not believe they have any responsibilities to deal with
encroachments and unlawful activities on common land. For instance Cumbria
County Council started to survey its common land but, due to shortage of
funding and this being given a low priority, the project has been shelved.
The Open Spaces Society is involved in an ongoing survey of local
authorities and there are very few who even have information about
encroachments and enclosures of common land, Cheshire being a notable
example of good practice.
75. It is true that schemes of management can be made under the Commons Act
1899, but again these are only powers not duties. Alarmingly, under clause
42 the government is trying to weaken the application of these schemes by
introducing powers to amend or revoke such schemes.
Schemes
76. Clause 42. We are concerned that subsection (3) will weaken the
effect of schemes for the management of commons and may prejudice public
access granted by the schemes. We oppose this clause which would allow the
appropriate national authority to override schemes of management, where the
schemes themselves prohibit works on the common and contain no provision for
consent. This would undermine the scheme.
Power to exempt
77. Clause 43. We are concerned that the power to exempt specified
works may be possible without public advertisement of the proposed works.
There must be a public element to this exemption. Guidance and/or
regulations, on which we would wish to be consulted, must be provided, as at
present it appears to be so ambiguous as to undermine the previous clauses
for consent for works.
Supplementary
78. Clause 44. Please see our notes on schedule 4 below.
79. We are concerned that this clause will allow wholesale amendment
of acts relating to common land and works on common land. It is unclear what
effect this may have.
Intervention powers
80. We are concerned that there is no provision, as proposed by
Department for the Environment, Food and Rural Affairs in the Common Land
Policy Statement 2002 at paragraph 42, for councils to have simple
enforcement powers, to issue notices in respect of unlawful works on commons
and greens.
Powers of local authorities over unclaimed land
81. Clause 45. We are concerned that this clause does not
place a duty on a local authority to take any steps to protect common land
which has no known owner. While it is appreciated that there is a resource
element to giving councils a new duty, this discretionary power will not
assist the protection of common land. Such a duty is necessary to bring
designated sites of special scientific interest into favourable condition
and ensure commons can be enjoyed by the public.
82. There is a vacuum here and a need to empower local authorities, who are
often reluctant to take action, to protect common land and the public’s
interest in commons. The power here is no different to that under section 9
of the Commons Registration Act 1965 and it is rare for action to be taken.
83. Furthermore, it is a serious omission and a missed opportunity that
the bill does not vest common land in local authorities or some other
appropriate body.
84. The government has suggested that section 9 of the Open Spaces Act 1906
can be used to acquire unclaimed land. The difficulty is that section 9 only
allows purchase by agreement and clearly this is not possible if the owner
is unknown.
85. There are other statutes that give compulsory powers, for instance
section 89 of the National Parks and Access to the Countryside Act 1949.
These attract Schedule 2 of the Compulsory Purchase Act 1965 which has a
procedure for untraceable owners that requires obtaining a valuation, paying
it into court and then obtaining a vesting order.
86. Defra’s Common Land Policy Statement 2002 at paragraph 12 proposed
‘vesting unclaimed common land in a suitable body who will be empowered to
deliver effective management’.
87. It is difficult to see why common land has been treated differently to
registered greens which, under section 8 of the Commons Registration Act
1965, were vested in local authorities.
88. As it stands, the bill will lead to a continued ineffective mechanism
for dealing with encroachment on commons with no known owner.
Powers relating to unauthorised agricultural activities
89. Clause 46. We support the powers relating to unauthorised
agricultural activities in this clause. However the measures should be
extended to other unlawful activities to strengthen the protection of common
land.
Abolition of powers of approvement and inclosure
90. Clause 47. This abolishes the obsolete power of a landlord to
enclose land which is surplus to the need of commoners. The powers of
approvement was confirmed by the Commons Act 1285 which is repealed. We
support this clause.
Inclosure
91. Clause 48(1). We support the repeal of section 147 which gave
consideration, mainly, to private interests rather than any public element,
where an exchange of land was voluntary undertaken.
92. Clause 48(2). We support this clause. These acts are listed in
schedule 1 of the Commons Act 1899 under section 22 and were only
exercisable with the consent of the appropriate national authority.
PART 4
SUPPLEMENTARY AND GENERAL
Amendments and repeals
Minor and consequential amendments
93. Clause 49. Gives effect to the amendments set out in schedule 5.
Repeals
94. Clause 50. This gives effect to schedule 6
Power to amend enactments relating to common land or greens
95. Clause 51. The power to amend enactments at clause 51 could be
damaging if prohibitions or controls contained in those acts relating to
activities on common land are lost. However we accept that this may be
intended to enable there to be consistency with the new act. The safeguard
is that the Secretary of State may not make an order unless a draft has been
laid before and approved by a resolution of both Houses of Parliament.
SCHEDULE 1
Authorised severance
96. This schedule contains provisions for dealing with exceptions to the
prohibition on severance in clause 9.
SCHEDULE 2
Rectification of mistakes etc under the 1965 Act
97. We support the reopening of the registers, particularly where
this will enable waste land of a manor not registered as common land to be
registered. However we are concerned that common land can be removed
from the registers as a result of the reopening. If registration authorities
are expected to make decisions on these applications, guidance must be
produced and we would wish to be consulted. At present any
applications to deregister common land have to be advertised publicly with
the opportunity for objections and it is essential that there is a public
element to this process.
Costs
98. Paragraph 6(1). We are alarmed that this paragraph confers the
power to make regulations in respect of the payment of costs pursuant to any
such application. While we accept that there will be an onerous
responsibility on, and additional work for, the registration authority,
genuine applications and/or objections will be discouraged if there is a
possibility that costs will be awarded. We would want to be consulted on
any such regulations. We note that there is provision for fees to be
incurred for an application and perhaps a fee scale could be considered.
SCHEDULE 3
Registration: Transitional provision
99. We appreciate that there must be a procedure during a transitional
period. However there must be sufficient guidance and publicity to ensure
that there is not a loss of common land as a result of dispositions, and
particularly as a result of exchange land not having been registered within
the required time.
SCHEDULE 4
Works: Supplementary
Transitional provision
100. Paragraph 6. We oppose this. The transitional arrangements for
enforcement against unlawful works in schedule 3 will result in clause 38
only allowing the public to take action against those unlawful works which
were erected after 28 June 2005 when the Bill was published. This is grossly
inadequate.
101. Combined with (a) the lack of a duty on local authorities to act
against unlawful works and (b) the lack of a power for local authorities to
assume ownership of unclaimed land, this will mean that the many unlawful
works on commons, and the many neglected and overgrown commons, will
persist, to the detriment of the commoners, the public, the wildlife and the
biodiversity of the land.
102. On a procedural point, it is essential that the commencement order that
gives effect to the repeal of section 194 does preserve the scope for
enforcement under the section against works undertaken unlawfully before its
repeal.
SCHEDULE 5
Minor and consequential amendments
103. Sections 1(3)(b) and 1(4) of the Countryside and Rights of Way (CROW)
Act 2000 ensure that in some cases, where land is removed from the register
of common land, the statutory public rights of access over that land would
nevertheless continue. The Commons Bill removes this safeguard. In spite of
the exchange land provisions for deregistered land, in the Commons Bill,
we believe that, for clarity, the CROW Act provision should be retained.
SCHEDULE 6
Repeals
PART 1
Repeals relating to registration
Commons Registration Act 1965
104. We need to be alert to any gaps left as a result of the repeal of the
whole of this act if sections are not transferred into the new act.
Common Land (Rectification of Registers) Act 1989
105. All the deadlines have passed in respect of any action that could have
been taken and this is acceptable.
Countryside and Rights of Way Act 2000 (CROW Act)
106. Section 1(3)(b) and (4) of the CROW Act conferred public rights of
access even where land was removed from the register. We oppose its
repeal (see paragraph 103 above).
107. Section 46(1). Section 193(2) of the Law of Property Act 1925 will
remain in force in England only as this section has already been brought
into force in Wales.
Greenham and Crookham Commons Act 2002
108. Section 33. This deals with vehicular access over common land.
PART 2
Repeals relating to works
Metropolitan Commons Act 1866
109. Section 21. This act applied to any common in the Metropolitan Police
district and prevented the enclosure of any common and provided for the
making of management schemes.
Commons Act 1876
110. Section 30 gives the country court jurisdiction to hear any case about
illegal enclosure or encroachment on common land. The words to be removed
relate to the appeal procedure.
111. Section 36. The common regulated under the act shall not be enclosed
without the sanction of Parliament. This appeared to relate to provisional
orders.
Commons Act 1899
112. Section 21. This abolishes the duty on the Secretary of State to
include, in an annual report to Parliament, the statement of the proceedings
under Part 1 of the 1899 Act and under the Metropolitan Commons Act 1866.
This is on the basis that the Secretary of State has no involvement in such
proceedings now.
Law of Property Act 1925
113. Section 194. In the new act, section 38 deals with removal of works
which take place after the act comes into force. If a section 194 is
repealed it seems that there will be no means of removing those works which
never received consent and which were therefore contrary to section 194
before the new act comes into force?
Administration of Justice (Appeals) Act 1934
114. This is just a reference to section 194(2).
Compulsory Purchase Act 1965
115. This is an entry relating to the Commons Act 1899 where the Secretary
of State’s consent was required.
Ministry of Housing and Local Government Provisional Order Confirmation
(Greater London Parks and Open Spaces) Act 1967
116. Article 12, schedule 1. This removes the process for a minister to give
consent for works or enclosure of common land. Paragraph 3, which is
removed, permitted a local inquiry to be held. Clauses 39 and 40 of the Bill
apply to applications for consent made under article 12 of the 1967 act.
National Trust Act 1971
117. Section 23(2). This refers to what the Secretary of State has to
consider ie ‘if necessary hold inquiries under the Commons Act 1876
particularly when dealing with applications under the Inclosure Act
1845-1882.’
PART 3
Repeals relating to approvement and inclosure
Commons Act 1285
118. The act conferred statutory powers on landowners to enclose land
surplus to the needs of commoners. This power is now obsolete.
Gifts for Churches Act 1811
119. Section 2. A form of approvement is allowed under this section.
School Sites Act 1841
120. Section 2. The owner of a common may grant land for a number of public
purposes. This clause says ‘the rights and interests of all persons in the
said land shall be barred and divested by such conveyance’. The words in
quotations are to be removed.
Inclosure Act 1845
121. Section 147. Exchange land process previously only in the private
interests of the parties and where just and reasonable (no real public
interest element).
Inclosure Act 1847
122. Section 4. An exchange under section 147 of the 1845 Act may be made
with mines and minerals and/or easements over the land, except if they are
not intended to pass through to the land.
Literary and Scientific Institutions Act 1854
123. Section 1. Same as 1811 and 1841.
Inclosure Act 1857
124. Section 4 and 5. The act allowed Inclosure Commissioners to make an
award without requiring allotments to be fenced on the boundary or otherwise
and to direct that they should be known by meters and bounds, particularly
regulated pastures.
Law of Commons Amendment Act 1893
125. Under this act an improvement or enclosure was unlawful without the
Secretary of State’s consent and also referred to an inquiry being held
subject to the Commons Act 1876 requirements.
Commons Act 1899
126. Schedule 1. References all relating to form of approvement as being
allowed under the other acts as above. These were restricted by the 1899
Act.
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