What happened to balance?

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When the Commons Bill was published in 2005 we were concerned, among other things, about part 1, which allows for correction and updating of the common-land registers. We feared that in the process we might lose more than we gained. However, ministers continually assured us, and parliament, that the bill was balanced and affected landowners and the public equally: ‘We believe that the bill presents a balance in carefully defining limited criteria, both for the deregistration of registered land and for the registration of new land’ (Lord Bach, parliamentary under-secretary of state for the environment at the second reading in the House of Lords on 20 July 2005).

Now all that has gone out of the window.  On 9 January environment ministers Lord de Mauley and Dan Rogerson announced plans whereby in most of England landowners will gain and the public will lose out, by the partial implementation of part 1.

The 1965 act
The problem dates back to the Commons Registration Act 1965.  This provided for the first time for the registration of commons, but only allowed three years in which to do this, after which it was too late.  So inevitably eligible land was excluded and other land was registered by mistake.  Disputes were heard by commons commissioners and a number of court cases resulted which prevented some land from being registered.  These judgments were later reversed but by then it was too late to register land which ought to have been registered.

The purpose of part 1 of the 2006 act is to enable landowners to apply to deregister commons if they can prove that the land was wrongly registered.  The public can apply to register land which was wrongly omitted, in particular land which was omitted because of the court cases.

Since October 2007 part 1 of the act has been in force in seven English ‘pioneer’ authorities* and we have helped members  in these areas to apply to register land and have seen commons restored to the register, with rights of public access.

As part of the Common Land Coalition, we have been pressing for part 1 to be implemented throughout England—it is now more than seven years since royal assent.

We renewed this call in our evidence to the House of Commons Environment, Food and Rural Affairs Committee last year and were delighted when the committee endorsed our submission, concluding:

The government must update the commons registers or implement part 1 of the Commons Act 2006 to ensure accurate registers of common land are available for the purposes of mapping and payment.  We acknowledge the benefit in the Rural Payments Agency (RPA) mapping common land ahead of the implementation of the new deal but we are concerned that it may be doing so based on registers known to be inaccurate.  In response to this report we expect the RPA to set out how it will deal with this potential problem.

Then on 9 January, came the statement from environment minister Dan Rogerson.  He announced that from 1 October 2014 part 1 would be implemented fully in Cumbria and North Yorkshire.  This is good news, these are the two counties with the greatest area of commons (totalling 367,372 hectares or 4 per cent of England).  But the bad news is that throughout the rest of England Defra plans to implement only those bits of part 1 that benefit landowners, ie which enable them to remove common from the register, without implementing the bits that allow the public to add commons.

Of course this is grossly unfair.

It is also contrary to what Defra said it would do.  The notes of the June meeting of its National Common Land Stakeholder Group, which advises on commons and consists of representatives of all the interests in commons (landowners, graziers, wildlife, landscape and recreation bodies), state that officials

explained that several options [for implementing part 1] had been put to ministers for a decision and these were: implement in all authorities in England, which would require new funds; working within our existing budget to implement in as many authorities as affordable, ie starting in the authority with the largest area of commons and greens (Cumbria) and working down the list; or do nothing. The option of implementing on a clause by clause basis has been ruled out on cost grounds [our underlining].  

So the government said it had ruled out implementing the sections of the act bit by bit on cost grounds.  But this is

Land at Carn Kenidjack reclaimed as common land in Cornwall, a 'pioneer' area for implementation of Part 1 of the Commons Act 2006. Photo: Ian McNeil Cooke

Land at Carn Kenidjack reclaimed as common land in Cornwall, a ‘pioneer’ area for implementation of Part 1 of the Commons Act 2006. Photo: Ian McNeil Cooke

exactly what ministers—contrary to the advice of their officials and the stakeholder group—have now decided to do. Across the country two different procedures will be followed.  In Cumbria and North Yorkshire part 1 will be fully implemented.  In the rest of the country only those sections of the act that enable landowners to correct alleged mistakes in registration will be implemented.  The other sections—the ones enabling the public to register commons mistakenly omitted and those lost through court actions now reversed—will continue in limbo, apparently indefinitely.  The minister’s statement that ‘further implementation of part 1 will be considered again as soon as resources permit, which I expect to be within the life of the next parliament at the earliest’ gives little comfort.

Red-Tape Challenge
Furthermore, this partial implementation flies in the face of the government’s Red Tape Challenge, an initiative designed to save costs by getting rid of superfluous secondary legislation.  One of Defra’s commitments is, by 2016, ‘fully [to] implement part 1 of the Commons Act 2006 to introduce modern provisions throughout England, improve consistency and accessibility, and improve the protection and management of commons.  By implementing part 1 of the Commons Act 2006, we will revoke all the regulations made under the 1965 Act’—a significant number.  And, as officials said, it will cost more to spin out the implementation by doing it in bits.  We hope the Cabinet Office will require Defra to explain itself.

Of course Lord de Mauley and Dan Rogerson are quite new in post and probably haven’t had a lot of involvement in commons.  So we shall take up with them the implementation of part 1 and hope to persuade them to change their minds.  It would be cheaper and fairer to implement in full in a few authorities at a time, rather than the biased implementation which he proposes.

*The pioneer authorities are Blackburn with Darwen, Cornwall, Devon, Herefordshire, Hertfordshire, Kent and Lancashire.


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