Royal Arms Explanatory Notes to Commons Act 2006

2006 Chapter 26

© Crown Copyright 2006

Explanatory Notes to Acts of the UK Parliament are subject to Crown Copyright protection. They may be reproduced free of charge provided that they are reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of these Explanatory Notes does not extend to the Queen's Printer imprints which should be removed from any copies of the Explanatory Notes which are issued or made available to the public. This includes reproduction of the Notes on the internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this internet version of the Explanatory Notes which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text in printed form and as published by The Stationery Office Limited as the Commons Act 2006, ISBN 0105626066. The print version may be purchased by clicking here. Braille copies of the Explanatory Notes can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

These notes refer to the Commons Act 2006 (c.26) which received Royal Assent on 19 July 2006

COMMONS ACT 2006

     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Commons Act 2006 which received Royal Assent on 19 July 2006. They have been prepared by the Department for Environment, Food and Rural Affairs (Defra) in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND AND SUMMARY

General background

3.     There are around 572,000 hectares of common land in England and Wales 1. Commons were once much more extensive, and in mediaeval times covered most of the least productive lands. Even today, they range from the large hill commons of Wales and the north and south west of England, to the smaller lowland heaths typical of south east England.

4.     Most common land is privately owned. Owners of commons (often the lord of the manor) enjoy largely the same rights as other landowners, except that common land is subject to 'rights of common' held by other individuals over the common, and to the special statutory controls that apply under commons legislation. Rights of common have their origin in local custom and include, for example, the right to graze stock, to enable pigs to forage on beechmast and acorns (pannage), to remove peat for the hearth (turbary), to fish (piscary) and to collect bracken or firewood (estovers). A glossary of these and other technical terms used in these explanatory notes may be found at annex A. The rights are enjoyed by specific commoners, usually by virtue of the rights being attached to the property they occupy, often adjoining a common. However, many rights of common ceased to be exercised during the twentieth century, owing (among other factors) to changing agricultural practices, increased motor traffic on roads across unfenced commons, and a decline in commoners' reliance on self-sufficient sources of fuel, timber, animal bedding etc.

5.     Many commons are still used for agriculture and serve the economic interest of farming communities. They are also valued for their landscape, wildlife and archaeological interests, and for public enjoyment. Over half of common land in England has been designated as Sites of Special Scientific Interest ('SSSIs'). There is a public right of access to nearly all common land, either under the Countryside and Rights of Way Act 2000 or under earlier legislation.

Historical and legislative background

6.     The Norman conquest of 1066 saw the introduction of the manorial system in which common land and rights of common have their probable origins. Typically, after the harvests had been gathered in each year from the cultivated land of the manor, the open field strips and hay meadows were made available for common grazing by the animals owned by all those who lived and worked on the manor: these were known as the common fields. In addition, there was usually poorer quality land within the manor which was not cultivated by the lord or his tenants, but might be available for grazing by livestock: this was the 'waste of the manor'. There was also common entitlement to other resources, such as coal, peat or brushwood for the hearth, turf for the roof, or fish for the table.

7.     Many of these entitlements owed their existence to and were attached to the homes and land (if any) of the manorial tenants, so that the entitlement passed with the occupant of the tenancy. Such rights are described as being 'attached' to land (some other sources may refer to the rights being annexed, appurtenant or appendant to land: any distinction is now for most purposes immaterial). The land to which rights are attached is known as the 'dominant tenement' (the common over which the rights may be exercised is sometimes referred to as the 'servient tenement'). Some rights were either never attached to land, or became severed from the land to which they were attached, and are known as 'rights in gross': these rights may generally be freely bought or sold as incorporeal assets.

8.     As time passed, rights of common became recognised and enforceable at law, and some of the earliest case law of England concerns commoners and their rights.

9.     It was and remains a general principle of common law that the owners of the soil are entitled to any surplus of grazing on their common land (that is, where the available grazing exceeds that needed to satisfy the commoners' entitlements). Indeed, where there was a permanent excess of land beyond the grazing needs of the commoners' livestock, and other commoners' entitlements, the owner could 'inclose' or 'approve' it (and so remove rights of common from land): the right to do this was confirmed in the Statute of Merton 1235 — the first Commons Act 2.

    2 Repealed by the Statute Law Revision Act 1953.

10.     During this period, some land in or close to communities became frequently used by the inhabitants of the community for the purposes of recreation, sports and fairs 3. Where long-standing use could be shown to have occurred, the courts began to regard the use as customary, and the land was recognised in law as a town or village green with protection from interference.

    3 Typically, such land was waste land of the manor. In some cases, rights of common continued to be exercised over the land concomitant with its use as a green, and provision was made under the Commons Registration Act 1965 for registration of a green as subject to rights of common.

11.     Increasing interest in better, more efficient and more profitable agricultural production during the eighteenth century encouraged landowners to improve the productivity of common land by inclosing it. Initially, this was achieved by agreement or more often by private Acts of Parliament, but general legislation, such as the Inclosure (Consolidation) Act 1801 and the Inclosure Act 1845, was eventually passed to facilitate inclosure and reduce the burden on Parliament.

12.     But the emphasis changed in the latter half of the nineteenth century away from inclosure and towards the regulation of commons, in recognition of their value as open space and for recreation. The Metropolitan Commons Act 1866 and the Commons Act 1876 saw the first general legislative measures largely intended to protect and manage — rather than inclose — common land 4. The Commons Act 1899 conferred new powers for the management of common land to be vested in local authorities. Further legislation in the Commons Act 1908 enabled commoners to apply collectively to the Minister for regulations (similar to byelaws) to be imposed to secure the more effective management of the common. But the regulations were limited in scope to restricting the turning out of entire (i.e. uncastrated) animals.

13.     Reform of property law in the early twentieth century abolished the manorial system. To further safeguard common land, provisions were included in the Law of Property Act 1922 (subsequently consolidated in sections 193 and 194 of the Law of Property Act 1925). These provisions introduced a right of public access to certain commons (chiefly those in or close to urban areas, amounting to about one fifth of all common land), and a requirement for ministerial consent to works that prevent or impede access on all commons which remained subject to rights of common at that time.

14.     The remainder of the twentieth century saw the pressure for access to common land grow but, following the Second World War, there was concern about a more insidious loss of common land and town or village greens through encroachment and abandonment of rights of common. Many commons had been ploughed up to increase agricultural production during the war, while others had fallen into disuse. The recreational needs of the public were also increasing. Growing motor traffic and demand for housing and other development were bringing different pressures to bear upon commons and greens. In 1955 a Royal Commission was established to enquire into whether any changes were needed in the law to promote and balance the needs of owners of land, commoners and the enjoyment of the public. The Royal Commission reported in 1958 5, and recommended legislation to promote:

    5 Command 462, 1957, HMSO.

  • registration of common land and town and village greens,

  • public access, and

  • improved management.

15.     It was not until the Commons Registration Act 1965 ('the 1965 Act') that some of the recommendations of the Royal Commission were implemented, and then only to deliver short-term measures to ensure the registration of common land and greens.

16.     The 1965 Act was intended to establish definitive registers of common land and town and village greens in England and Wales and to record details of rights of common. Commons registration authorities (generally county councils) were appointed to draw up the registers. Applications were invited between 2 January 1967 and 2 January 1970 6 for the provisional registration of common land, greens, and rights of common, and registration authorities were also able to register land on their own initiative. The registers remained open for objection until 31 July 1972 7. Disputed provisional registrations were referred to a Commons Commissioner (appointed under the 1965 Act) for determination, but unopposed provisional registrations became final automatically. The 1965 Act provided that, where land was eligible for registration under the Act (whether as common land or a town or village green), a failure to register it resulted in the land being deemed not to be common land or a green (as the case may be) after 31 July 1970 8. Similarly, a failure to register rights of common which were eligible for registration caused the rights to cease to be exercisable 9 after the same date.

    6 Commons Registration (Time Limits) Order 1966 (SI 1966/1470) (a later date of 31 July 1970 applied in relation to land registered on the initiative of the registration authority).

    7 Article 4(2) of the Commons Registration (Objections and Maps) Regulations 1968 (SI 1968/989), as amended by the Commons Registration (Objections and Maps) (Amendment) Regulations 1970 (SI 1970/384).

    8 Section 1(2) of the 1965 Act, as prescribed by the Commons Registration (Time Limits) Order 1966 (SI 1966/1470), as amended.

    9 Section 1(2)(b) of the 1965 Act states that such rights are rendered not 'exercisable'. In Central Electricity Generating Board v. Clwyd County Council [1976] 1 WLR 151, Goff J. concluded that the fact that rights of common were no longer exercisable meant that they were extinguished, and this finding is now generally accepted.

17.     In practice the task of establishing registers was complex and the 1965 Act proved to have deficiencies. For example, some land provisionally registered under the Act was wrongly struck out, and other common land was overlooked and never registered. Many greens became registered as common land. Some grazing rights were registered far in excess of the carrying capacity of the common. The scope for correcting errors was limited. Furthermore, regulations made under the Act did not provide for sufficient notification of applications made for provisional registration of common land and rights of common, so that many provisional registrations became final without any objections and thus without independent appraisal of the claim made in the application. The Court of Appeal held that even where land had clearly been wrongly registered as common land, the Act provided no mechanism to enable such land to be removed from the register once the registration had become final 10.

    10 Corpus Christi College, Oxford v. Gloucestershire County Council [1982] 3 All ER 995

18.     Moreover, although the 1965 Act made provision for amendments to be made to the registers consequent on events which occurred after 1970, there was no obligation on persons interested in any entry in the register to seek such an amendment. Many events which in principle affected entries in the registers have not been registered, and the registers have become significantly out-of-date since 1970.

19.     The 1965 Act also explicitly postponed action on the Royal Commission's recommendations to improve management of common land and introduce public access in the wake of registration.

20.     Several initiatives were promoted over the intervening period in support of further legislation. An inter-Departmental working party reported in 1977 with recommendations for reform to commons legislation 11. The (then) Countryside Commission set up the Common Land Forum which reported in 1986 12, reflecting a broad consensus between landowning, farming, nature conservation and recreational interests as the basis for legislation. Comprehensive legislation was later ruled out by the 1995 White Paper 'Rural England', and instead research was proposed to develop guidance for the management of common land (the conclusions of the research were subsequently published in 1998 13). However, the Rural White Paper in 2000 14 included a commitment to legislate on common land as soon as parliamentary time allowed. Part I of the Countryside and Rights of Way Act 2000 provided for a public right of access (on foot) to all registered common land, which was fully implemented across England and Wales by October 2005.

21.     The Government published a consultation paper in February 2000 15, to coincide with the introduction of the Countryside and Rights of Way Bill, on proposed reforms to legislation relating to common land and town and village greens. Two years later, building on responses to the consultation, the Common Land Policy Statement 2002 16 set out in broad terms the Government's intentions for future legislation relating to common land and town and village greens. A Stakeholder Working Group was set up in 2002 to seek a consensus on more detailed proposals on agricultural use and management of common land 17, on which there was further public consultation in 2003 18.

22.     The Commons Act gives effect to the recommendations set out in the Common Land Policy Statement with respect to the registration of common land and town or village greens, works and fencing on common land, and the agricultural use and management of common land (sections 2, 3 and 5 of the Policy Statement). It also makes more limited changes to the law with regard to town or village greens (section 4), principally in relation to the registration of greens, and the criteria for registering new greens.

TERRITORIAL EXTENT

23.     The Act extends only to England and Wales. Common land in Scotland and Northern Ireland is of a different character and subject to different legislation.

TERRITORIAL APPLICATION: WALES

24.     Generally, all Parts of the Act apply equally to Wales and England, but where powers are conferred on the 'appropriate national authority', those powers are exercisable by the Secretary of State in England, and the National Assembly in Wales (see the definition of 'appropriate national authority' in section 61(1)).

25.     Where provisions of the Act relating to Wales are commenced by order, it falls to the National Assembly for Wales to commence them — see section 56(1).

OVERVIEW

26.     The Act is arranged in five Parts:

  • Registration

  • Management

  • Works

  • Miscellaneous

  • Supplementary and General.

Part 1: Registration

27.     Part 1 of the Act provides for commons registration authorities to continue to keep registers of common land and town or village greens ('the commons registers'), and to permit amendments to be made to the registers in accordance with the provisions in that Part. This replaces and improves the registration system under the 1965 Act, but using the same registers prepared under that Act.

28.     In particular, Part 1 includes provisions for:

  • the amendment of the registers upon the occurrence of registrable events, such as the disposition of rights of common, statutory dispositions of common land (e.g. under compulsory purchase legislation) and the creation of new town or village greens;

  • the prohibition of the severance of a registered right of common from any land to which it is attached, subject to certain exceptions;

  • the deregistration of common land and registration of other land as common land in exchange, subject to the consent of the appropriate national authority;

  • the correction of errors in the registers by commons registration authorities;

  • the establishment of electronic registers;

  • transitional powers to rectify mistakes made in registers under the 1965 Act, and to register events which occurred while the 1965 Act was in force; and

  • ensuring that only registered rights of common may be exercised over land to which Part 1 applies.

Part 2: Management

29.     Part 2 enables the appropriate national authority to establish commons councils with functions related to the management of agricultural activities, vegetation and the exercise of rights of common on common land (or on town or village greens where rights of common exist over such land).

30.     There has been a lack of effective mechanisms for managing agricultural activity, in particular grazing, on common land. This resulted in poor management of agricultural activity on many commons leading to deterioration of the resource base and, in some cases, to severe over-grazing and consequent damage to the soil and vegetation. This was exacerbated in the past by production subsidies under the Common Agricultural Policy, which increased over-grazing pressures. Over-grazing is undesirable from a nature conservation perspective, affecting the Government's ability to meet its international obligations (e.g. under the European Habitats Directive) and its national objectives (e.g. improving the condition of SSSIs).

31.     Previously, the establishment of a body with powers to manage and regulate common land has required an Act of Parliament. In the late nineteenth and early twentieth centuries, a number of boards of conservators were established by provisional order confirmed by Acts made under the Commons Act 1876 19 or by local Act 20. More recently, the Dartmoor Commoners' Council was established by the Dartmoor Commons Act 1985, and the Greenham and Crookham Common Commission by the Greenham and Crookham Commons Act 2002.

32.     Part 2 of the Act will enable the appropriate national authority to establish commons councils without the requirement for primary legislation. By establishing commons councils, commoners, owners of common land and other interests will be able to work together to manage agricultural activities and the vegetation to meet the varied demands made on common land across the country. Commons councils will also be able to enter into agri-environment agreements — that is, government-funded schemes under which farmers sign long-term agreements to manage the land in particular ways in order to protect, enhance or restore biodiversity and particular features of the landscape, or to protect the environment (e.g. through decreased use of agricultural chemicals) in return for annual payments which help to offset the additional costs of changed farming practices. They will also be able to secure compliance with the conditions of such agreements through their rule-making function. This enables a commons council to make legally binding rules on all those using a common for agricultural purposes, which may be enforced through the courts where non-compliance occurs.

33.     Part 2 also provides power for the appropriate national authority to modify or remove existing statutory schemes of management where they might conflict with functions given to a new commons council. This enables a commons council to be established where there are existing management bodies that no longer operate effectively, or where there are bodies that may wish to take advantage of the range of functions which can be given to councils.

Part 3: Works

34.     Part 3 contains provision to prohibit the carrying out of works on certain common land without the consent of the appropriate national authority and makes provision about how consent may be obtained. It replaces section 194 of the Law of Property Act 1925, the main existing statutory control on works on common land (see paragraph 13), which is repealed.

35.     The controls on works in section 194 apply to common land subject to rights of common on 1 January 1926. This gives rise to some considerable problems of application, since, as that date recedes into the past, it has become increasingly unclear whether the controls apply to particular common land. The problem is especially acute in relation to common land not subject to any rights of common at the date of registration, and in relation to town or village greens. Part 3 instead provides that the controls apply to all registered common land.

36.     Certain enactments which make specific provision about works on particular classes of common land are amended to ensure consistency with the new regime.

Part 4: Miscellaneous

37.     Part 4 contains provisions conferring powers of intervention on the appropriate national authority to deal with situations where unauthorised agricultural activities are taking place and damaging the common (for example, through over-grazing where grazing is occurring by those without rights of common or by those grazing more livestock than their rights allow), and no person is otherwise able to act to control it. The powers can be used to stop activities that are detrimental either those with rights in the common or to the public interest.

38.     Part 4 also preserves powers to enable local authorities to step in to protect unclaimed common land and town or village greens from unlawful interference. And it includes amendments to the Commons Act 1899, which confers power on local authorities to make schemes for the regulation of commons.



continue

To the Act
Other Explanatory Notes |  Home |  Her Majesty's Stationery Office
We welcome your comments on this site
 © Crown Copyright 2006
Prepared: 26 July 2006