Commons Act 2006 - the practical implications

The Act was given Royal Assent in July 2006 but it is not fully in force. There is currently a lull while we are waiting further consultation documents from Defra, writes H&H Bowe's Julia Aglionby.

Recent news is that a pilot project was undertaken on Bampton Common to see how easy it would be to work out who owns common rights by using the Land Registry and the Common Registers. This showed, as we anticipated, that it was difficult because most of the land to which rights are attached is not registered with the Land Registry.

Implementation was predicted to take approximately eight years throughout England; as the pilot showed Commons are complicated and therefore it maybe longer!

Here is an outline of how the Act impacts on the management and sale of common rights.

NB This information is of a very general nature; do not rely on it for making decisions on specific matters.

Two clauses came into force from 28th June 2005:

• Severance of rights from the land to which they are attached is prohibited (with exceptions)

• Anyone can take a civil case to the courts against works on common land that does not have consent from Defra

A. Buying and Selling Rights

a. If you sell rights attached to land they must be sold with that land. If that land is sold in lots the rights must be apportioned on a pro-rata basis.

b. If land is sold for development then non-pro rata apportionment may be allowed.

c. If you have bought or sold rights in the past on a non-pro rata basis then these transfers must be noted in the Commons Register otherwise they will be void at the end of the transitional period.

d. If you buy rights make sure the numbers of rights correlates with the area of land bought.

e. You will be able to apply for an order to allow severance of rights on your common.

B. Leasing Rights

a. At present if you wish to lease common rights separate from the land to which they are attached then the lease can only be for a maximum of two years but we are hoping this will be extended to ten years.

b. If the rights are to be leased together with the land to which they are attached there are no time limits.

C. Updating the Registers

a. The Registers are not intended to be kept up to date as to who owns rights which are attached to land. Rather they are a record of the existence, type and quantity of common rights on each common

b. Changes in ownership are likely to be noted through declarations of entitlement to the rights. While these will not be compulsory it may be that if you do not make them you will forfeit the right to be consulted on management decisions.

c. If someone does not make a declaration then it is likely they will not have to be consulted with regard to agri-environment schemes, commons
councils and works on commons.

d. Cumbria County Council intends to create e-registers which will eventually be web-based.

e. During the transitional period commoners and owners will be able to
apply to update the register. This does not though allow rights to be registered that were not registered following the 1965 Act.

D. Land wrongly registered

a. In many cases the line on the map was incorrectly drawn, there will be an opportunity to apply to correct these errors during the transitional period. This is likely to be a priority and it is thought there are several hundred cases in Cumbria alone.

E. Management including Stewardship

a. Commons Councils can be established by the Secretary of State and will be allowed to make decisions that bind a minority e.g. for entering agri-environment schemes.

b. Councils will only be formed if those who have a legal interest in the land and especially active graziers are in favour.

c. Defra may fund the establishment of Councils on commons that are SSSIs and in unfavourable condition.

d. Commons Councils will be able to buy rights without land and create rules regarding leasing arrangements.

F. Fencing and other works on Commons

a. Fencing and other works on Common Land will still require approval from Defra, the processes should be streamlined but may cost more.

b. The old procedures apply till the new regulations are announced; these have been out for consultation and are expected in October 2007.

c. Having planning permission is not a substitute for permission from Defra nor is permission from Defra a substitute for planning permission.

d. Road construction including upgrading the surface will require consent

What happens next?

Study the consultation papers as they are released, this is an area where Defra are listening carefully to farmers and land owners.

Do look at the Defra website for more information.

http://www.defra.gov.uk/wildlife-countryside/issues/common/index .htm

<<back