GeneralPosted by Hugh Craddock Tue, July 05, 2016 10:11:03
Debbie and I acquired a
horsebox about eight years ago. It opened up many new opportunities
to explore the Surrey countryside on horseback, riding our two
horses. One of the
hacks which quickly became a favourite circuit is based on the rough
parking area at Albury green (actually part of Albury Heath). Most
riders who come here, whether from local stables or, like us, in a
horsebox, then head west down Sandy Lane and up to the many sandy
paths on Blackheath, which is indeed rewarding.
But we soon 'discovered' a more diverse ride to the east. It takes us over Shere Heath, down the deeply incised Dark Lane, over two fords on Chantry
Lane and the delightfully narrow Rectory Lane, through the heart of
Shere village (teeming with visitors on bright weekends), east
towards Gomshall, then up Tower Hill Lane — another sunken lane
doubtless of great vintage — and down Jesses Lane before heading
west again along cross-field bridleways, descending down an
enclosed path to Hound House Road, up to Parklands, across the bridle crossing over the railway at Shere Heath, and back to Albury Heath.
We come this way perhaps once every month or two: the land is well
drained, and the paths a pleasure in every season.
Dark Lane Copyright Stefan Czapski and licensed for reuse under this Creative Commons Licence.
Or at least, we did.
Yesterday's ride demonstrated the long term impact of successive
years of cuts to the county's rights of way budget. Whereas, when we
first came this way, paths might have got cut three times a year, now
there are funds sufficient for only one — and that's true of most
paths in the county. Tackling vegetation just once a year is always
going to be far from sufficient: if the contractors arrive late in
the summer, that leaves users to press through the entire growth of
the spring. While if a vernal cut is done, much will regrow during
the summer, and passage may well remain restricted even through the
following winter. Horse riders are particularly disadvantaged by
- horse and rider are taller than walkers, up to about 2.75m, but contractors may not be paid, bother, think, or notice, to clear above head height,
- whereas walkers might use a stick or secateurs to deal with overhanging vegetation, it's not so easy to do that on horseback, and could set off the horse where careful progress is most required,
- horses are as susceptible to, and averse to, nettle stings and bramble scratches as humans, but have no means to insulate themselves (such as thick trousers or an unfurled map!) — see this posting on Facebook for what can happen [Facebook login likely to be required],
- low branches or projecting brambles are hazardous: the horse has little sense of any obstruction above its own height, and the rider must watch out for him or herself — else the rider may be injured or knocked off.
Over the last ten or
fifteen years, the bridleways, lanes and indeed many roads we have
been riding have been getting narrower and more hemmed in. This is
because the use of contractors on diminishing budgets has established a cycle of decline.
period, firms bid for the cutting contract on price. Once the
contract is awarded, they have no incentive to perform on
specification, and will do the minimum that is necessary to permit
passage (at least, on foot). The contract will provide for a minimum
width, but will not take account of the character of the path, so
each year, the vegetation on the outer edges of the path becomes
better established and closes in. After a few years, saplings
growing in the margins become trees, and can only be removed with a
saw, which would add time and cost to the performance of the
contract, so they are left. Those trees project branches over the
path, or lean into the path to draw light, which narrows what is left for the user (and creates more work for contractors in future years:
but that will be some other contractor's job). The council has no
wish to demand compliance with even the limited contract
specification, because to do so would push up bid prices in future —
and the council cannot afford to pay more. So each party turns a
blind eye to the specification. Ways which were once broad lanes
become narrow paths, and even if cut to specification, allow for
little more than the profile of a horse rider in the days immediately
after the work has been done. Three months later, however, or after
heavy rain weighs down all the branches, it is very different.
And so it was
yesterday. We are familiar with Tower Hill Lane, an old sunken
bridleway heading south out of Gomshall, as a steady uphill trot for
the horses, but no more. Nettles infest the first thirty metres,
while endless low branches on the lower section make it unwise to
pick up any speed. The top part has always been a bit narrow, but
now, the combination of brambles, bracken and holly made it all but
impassable: had it been physically possible to turn round, we would
have done. I had brought a pair of secateurs with me, but it is hard
to do more than remove the most threatening strands which are
suspended provocatively across the path when you're mounted. The
outcome was a left arm covered in scratches, horses' flanks covered
in nettle stings, and an £80 new pair of breeches looking like
they're fit only for mucking out.
We can, and will,
report the overgrowth to the council. The rights of way team has
recently lost three officers and has a huge backlog of unfulfilled
reports. Even if there is someone to act on the report, there
probably won't be any budget to deal with spot problems, and these
paths will have to await their annual cut. We don't know when the
cut will take place: it could be this week, or it might not be until
the end of the summer — or it might have already taken place, and
that's it for this year. I'm not sure even the council officers
know, individually, which path is cut when: that may be a matter of
considerable discretion for the contractors (which will also save
money). So we have no idea when it might be sensible to return,
although a visit during the winter might be more realistic. Instead, perhaps we will head west in the future, along with all the other riders, and ride over the unenclosed tracks on Blackheath instead.
Some will say that a
few overgrown paths impassable to horse riders is no big deal at a
time of searing cuts to public services. Yet these are paths in one
of the most popular areas for rural recreation in England: about 40km from central London, easily accessible to millions, hugely popular
for walking, cycling and horse riding. If paths in the Surrey Hills
are becoming difficult to use, what can we expect in the more remote
parts of England (to find out, try reading Catriona Cook's day
8 blog of the Journey
for Access from Dartmoor to the New Forest)?
|After the ride
And if motorists think
that they're immune from such trials, don't be so sure. Just the
same cuts are being made to road maintenance budgets, and in the same way, many roads have their vegetation cut just once a year. Trees
have become well established in the verges and hedges, many roads
have become enveloped in walls (and often ceilings — try a double
deck bus route in the countryside) of greenery, and we have greatly
increased the costs of future maintenance by reducing expenditure in
the short term. Try taking a delivery van down some of those minor
roads which we road last weekend, such as Chantry Lane, and you'll
find it's not just horses and riders that end up with scratches. On some roads,
even motorists struggle to avoid the overhanging brambles and
branches, and this will continue to deteriorate.
A concluding thought:
last year, Chantry Lane, which apart from being a useful road for
walkers, riders and cyclists, also serves two cottages, was
resurfaced. There was nothing particularly bad about the state of
the road before, but the highways authority, like many others,
ring-fenced funding (Surrey receives nearly £1m in 2016–17, now virtually the
only grant paid for specific purposes) for resurfacing roads. So it
is that the council can afford to resurface a truly minor road to
some cottages — but it cannot find the funds to keep the high,
roadside banks from closing in over the smart new blacktop.
Common landPosted by Hugh Craddock Tue, May 10, 2016 16:38:13
The judgment of the Court of Appeal in Littlejohns and Littlejohns v Devon County Council and the Duchy of Cornwall,
handed down on 6 May 2016, tries to settle the vexed question
of whether rights of common can be acquired by prescription after
1970, over land which was already registered common land. It's best
to start with the background in my previous blog, where you may, if
you wish, also read about the judgment in the High Court.
The appellants, Mr and Mrs Littlejohns, were
fortunate, in both this court and below, to have Nicholas Le Poidevin
QC acting for them: Mr Le Poidevin is the former deputy Commons
Commissioner with considerable experience in this area. But in the
event, by a two-to-one majority, the Court of Appeal has upheld the
judgment of the High Court, and found against the appellants.
Accordingly, subject to any appeal to the Supreme Court (and the
brief report on the Landmark
Chambers website states that permission to appeal was refused by
the Court of Appeal: it could still be granted on an application to
the Supreme Court), the law is that no rights of common can have been
acquired by prescription over registered common land since 1970, and
any commoner who (as did the appellants) continued grazing after 1970
without having registered any rights of common, cannot point to any
legal authority for doing so.
The appellants' circumstances are not unique: this case was taken as far as the Court
of Appeal not least because there
are others who are seeking to resolve precisely the same point of law
applicable to their own circumstances. Some of them may have pending
applications with the defendant authority, or another pioneer commons
registration authority, to register other rights of common said to
have been acquired by prescription in the same way. There are surely
a good number of commoners who exercise 'rights of common' which are
founded in long-standing practice originating with previous
generations, but, for some reason or other, the rights were not
properly registered under the Commons Registration Act 1965 ('the
1965 Act'). And there will be others who do not seek to justify
their grazing in long-standing practice, but nevertheless have
increased their grazing activity beyond what was registered under the
1965 Act, and now hope to acquire permanent recognition for it
through prescription. Last week's judgment ensures that they will be
disappointed: indeed, in some cases, the judgment could threaten the
viability of upland holdings where the farmer has come to rely on the
use of those rights.
The Chancellor of the High Court, an ex officio
judge of the Court of Appeal, Rt Hon Sir Terence Etherton, gave the
dissenting judgment, and in my view, gets it right, so we will start
with the Chancellor. Much of the Chancellor's judgment includes a
summary of the background and statutory provisions (paras.1 to 34)
and the judgment of Lang J in the High Court (paras.35 to 48). In
his overview of the appeal (paras.51 to 72), the Chancellor gives
considerable attention to the recommendations of the Royal Commission
on Common Land, reporting in 1958, and how the 1965 Act followed, but
also departed from, its recommendations.
The Chancellor observes that the defendant authority's case relies on the abolition
of prescription by the 1965 Act. He says (para.76) that such a
significant change to property rights ought to be effected by
specific words, and focuses on s.1(2) of that Act, which is
the only provision to which such consequences could be attributed,
but he finds no such words present (para.77). Nor were there any
words of comfort in the Parliamentary proceedings on the Bill in
Hansard (para.78). Even the
Registration (New Land) Regulations 1969, which provide for the
registration of new rights of common under s.13 of the 1965 Act, fail
to explain why an application cannot be made to register rights over
existing common (para.79).
If s.1(2) does not abolish prescription, the Chancellor considers whether s.1(2) has
the effect that a right acquired by prescription is abolished at the very moment when
prescription matures into a right? This would be after 20 years
prescription, based on a 'lost modern grant' — the legal fiction
that the prescriptive practice can be attributed to a former grant
made by the person prescribed against (in this case, the owner of the
common) which has since been lost. But he finds that s.1(2)(b),
which extinguished unregistered rights of common, applies only to
rights already in existence in 1970 (para.81) — were it otherwise,
here too the effect would otherwise be to abolish prescription
without clear words to that effect (para.82).
The Chancellor derives (para.83) some comfort from
the date set by order at 31 July 1970, as the date on which
unregistered rights of common were extinguished under s.1(2)(b). If
the intention was that s.1(2)(b) should apply to all rights, whenever
created, rather than those capable of being registered by the closing
date for applications for registration under s.4 of 2 January 1970,
it should have had effect on any right created after it became too
late to register it, on 2 January 1970, and not on 31 July 1970
[though in my view, this may pay too much respect to those who
drafted the SIs].
The Chancellor notes the argument (para.84, also
expressed in my previous blog) that there is a circularity between
s.1(2) and s.13. If we think of s.13 in relation to new rights of
common acquired over previously unregistered land (an unlikely
scenario these days, but let us suspend scepticism), the new rights
become registrable under s.13 after 20 years use as of right (on the
basis of a presumed lost grant). [He does not say, but it might be
put like this: if s.1(2) has continuing effect, those rights,
supposedly maturing on the last day of the 20th year, are immediately
extinguished "unless they are registered". Is the commoner
to register them at the stroke of midnight on that last day of the
20th year, before s.1(2) does its worst an instant later?]
Accordingly, the Chancellor finds (para.86) that s.1(2)(b)
extinguishes only rights which existed and were capable of
registration on or before 2 January 1970, and inevitably, that
s.1(2)(a) (which deems unregistered land to be neither common land
nor town or village green) has similar effect (para.85). In other
words, the Chancellor thinks that s.1(2) has a 'big bang' effect,
wipes the slate clean of anything which could have been
registered prior to 2 January 1970 but was not registered
(commons and greens could however be registered by the registration
authority on its own protective initiative up until 31 July 1970),
but has no further continuing or prospective impact. He notes
(para.85) an oddity if s.1(2)(b) has continuing effect: s.1(2)(a)
cannot have the same continuing effect, else no land could ever
become common land, and s.13 would be largely redundant.
The Chancellor recognises (para.87) that the 1965
Act was, at least so far as common land and rights of common are
concerned, a staging post to comprehensive legislation, and it is not
necessary to ascribe to the 1965 Act an intention of establishing a
'conclusive and comprehensive register' which had to await further
legislation under the Commons Act 2006 ('the 2006 Act').
Interestingly, the Chancellor identifies a now oft-forgotten
objective of the Royal Commission: to provide for improvement and
agricultural intensification of common land where appropriate. That
is not to say that the Commission wanted to resurrect the inclosures,
but it did not view all commons with a dewy-eyed perspective of
preservation. The Chancellor quotes (para.57) the Commission's
report: "…we assume that, given the right circumstances,
commoners who have pasture rights will generally endeavour by the
better stocking of their common to attain the same level of economic
production that has been achieved by the rest of the agricultural
industry…". The Chancellor is convinced (para.88) that the
1965 Act was not intended to fly in the face of the Commission's
perspective, by removing the mechanism of granting new rights
(whether by prescription or express grant) over a registered common.
And he finds nothing in the 1965 Act nor the 2006 Act which
interferes with his conclusions.
The Chancellor also observes that s.13 did enable
amendment of the registers to take account of a variation in a
registered right of common, and considers that such a variation could embrace an enlargement of the right (para.89): there was "quite simply no discernible reason" why the 1965 Act should have
allowed this, but turned its face against the grant of new rights.
The Chancellor accepts the widely-held belief that the 1965 Act was poorly drafted, and concludes: "the 1965 Act should be interpreted so far as possible to give effect to a coherent policy, consistent with the objectives of the Royal Commission".
But the Chancellor is in a minority. Lewison and Tomlinson LJs do not agree, and as
a majority, they find for the defendant authority.
Lewison LJ opines that the 1965 Act was intended to establish definitive and conclusive
registers. He refers (paras.113 to 114) to the report of the Royal Commission in
pursuance of that objective [which undoubtedly is what the Commission
intended], and (para.115) to the explanatory notes to the 2006 Act,
which says, "The 1965 Act was intended to establish
definitive registers" [my italicisation: it is in any case quite
worrying if judges are going to pray in aid quotations from
Explanatory Notes to Acts, given the minimal effort put into writing
them nowadays]. But the judge admits (para.117) that, "the Act
did not precisely implement all the Commission’s recommendations",
and quotes Mr Le Poidevin describing it as 'half-baked' (para.124).
Lewison LJ finds (para.132) that s.1(2)(b) simply extinguishes any
unregistered right of common which would otherwise be exercisable
over registered common land. He thinks (para.137) that, were it
otherwise, the system of registration established by the 1965 Act
would be "all but pointless". He relies for support on
Lord Hoffmann in The
[I would say that the 1965 Act was not intended to be the last word in registration —
it took another 40 years to achieve that. As for the Trap
Grounds, the courts accepted that the provision in the 1965 Act for the registration
of greens was somehow different, and final: there was no need for further
legislation (were it otherwise, we would still be waiting for a legal
right of use of new greens registered under section 13): Lord
Hoffmann said (para.48, Trap Grounds): "It is by no means clear that Parliament
contemplated further legislation about rights over village greens." He did not
suggest for a moment that the same conclusion would be justified in
relation to common land, and rights of common.
Lewison LJ accepts that the 1965 Act did not compel amendments to the registers to
keep them up-to-date, so undermining the argument that the registers were
intended to be conclusive. So he takes comfort from concluding
(para.139) that, "at least the register will reflect the maximum
burden to which the registered common is subjected" [but not if
the Chancellor is correct that a variation under s.13 might increase
the burden]. He refers to the anomaly that a farmer who has an
express right granted in 1955, but fails to register the right, would
have lost it for want of registration in 1970, and by 1975 would have
nothing to show for his 20 years grazing. But a neighbouring farmer
who started grazing in 1955 as of right would have acquired a
(non-registrable) prescriptive right in 1975, and would be better off
than his neighbour who relied on the express grant. Apart from the
odd discrimination between these two farmers, it gives rise to a
legal anomaly: the neighbour's claim to a prescriptive right relies
on a lost grant made on or before 1955. If such a lost grant really
did exist, then it was indeed registrable in 1970, and must have been
extinguished for want of registration. The Chancellor, in his
judgment (para.96), got round this by asserting that a claim on the
basis of prescription could therefore not rely on any use prior to
1970 (it would have to be 1970 onwards to at least 1990); Lewison LJ,
not unreasonably, criticises that approach as putting a gloss on the
legislation which is not there.
[This is valid criticism: but the lost grant is indeed a legal fiction, and legal
fictions regularly lead to legal anomalies. In Bakewell Management Ltd v Brandwood, cited by Lewison LJ,
the House of Lords decided that a lost grant of
a right of way across common land could be inferred from 20 years'
use despite use of the right of way being illegal without the
landowner's consent. This leads to the very odd anomaly that for 20
years, the user is committing a criminal offence, but on the last day
of the twentieth year, not only does the user become lawful, but
apparently, the previous criminality is erased, for the law now
assumed that the user was done with the benefit of a 'lost grant'
made at the start of the 20 year term. Can the user get a pardon for
Lewison LJ is not impressed with arguments that his finding allows for interference
with property rights without clear words in the legislation. He says
that the 1965 Act clearly did interfere with property rights [i.e.
in general terms, those of commoners and landowners]; prescription
itself interferes with the landowner's property rights; landowners
may, if they wish to expressly grant rights in the face of the
court's finding, do so by granting a leasehold term which is not
registrable and therefore not affected by s.1(2)(b) [but would such a
right be exercisable competitively alongside other commoners with
'real' rights?]; there is no interference with the landowner's other
interests, such as to grant easements [this hardly seems relevant];
in promoting the Commons Bill in Parliament, the Minister accepted
that there was controversy over whether prescriptive rights could
still be created [indeed — but this is, as I commented in my
previous blog, agnostic evidence: Parliament was leaving it to the
courts to decide]; and the Royal Commission wanted no further claims
in respect of registered commons [leaving aside whether the
Commission's recommendations were given proper effect, one questions
whether the Commission had in mind claims which could not even be
made at the cut-off date for registration]. Lewison LJ concludes
that, "If Mr Le Poidevin is right then the [1965 Act] register
is virtually useless".
[Well, quite so. In my view, that is why further legislation was contemplated by the
Act itself, and passed in 2006. It's just that, in 1965, no-one
contemplated that it would take 40 years for new legislation to
polish off the work commissioned by the 1965 Act. Indeed, Ministers
said at the time that it would take Commons Commissioners five years
to sort out the disputes engendered by provisional registration under
the 1965 Act — but it was not until Mr Le Poidevin himself
determined the final case in 2010 that this work was done. If the
drafters of the legislation thought it would all be sorted out by
1975, and further legislation would follow, then it was of little
matter if interim legislation had only interim effects. The judge
asks: "why did Parliament prohibit registration of new rights of
common over common land registered under the 1965 Act, if it did not
intend that they should no longer be capable of acquisition?"
That would be a good question, if it were correct. But it isn't.
True it is that the 1965 Act did not confer powers to register such
rights. But it was only r.3(2) of the Commons Registration (New Land) Regulations 1969 which
prohibited registration. Attributing to Parliament an intention in secondary
legislation subject only to negative resolution goes too far.]
Tomlinson LJ agrees with Lewison LJ, briefly citing eight points which have proved
- ● the intention of the 1965 Act to establish a definitive register (albeit one not
conclusive of extent of common land);
- ● the natural meaning of s.1(2), that after 31 July 1970, unregistered rights of
common were not to be exercisable;
- ● the reference to 'any such land' in s.1(2)(b) over which such rights were no
longer to be exercisable was intended to mean registered common land;
- ● s.1(2)(a) referred to "no land capable of being registered under this Act" but
s.1(2)(b) referred only to "no rights of common shall be exercisable": it therefore did
not distinguish rights which were capable of being registered under the Act;
- ● s.13 was concerned with land which became common land after 31 July 1970;
- ● r.3(2) of the Commons Registration (New Land) Regulations 1969 properly gives
effect to the scheme of the parent Act;
- ● the 1965 Act did intend to effect the prospective abolition of prescription for
rights of common, in line with the intentions of the Royal Commission; and
- ● the alternative approach subscribed to by the Chancellor would involve an anomalous
treatment of rights acquired by lost modern grant.
In my view, the Chancellor, in his judgment, gets under the skin of the 1965 Act and
better understands the scheme of that Act — to the extent that it had a scheme.
Nevertheless, unless there is an improbable appeal, the matter has now been decided.
One can only wonder what will happen to the Littlejohns' grazing activity on Okehampton Common and the Forest of Dartmoor. The court has
decided that their grazing can have no lawful origin. Yet the landowner, the Duchy of
Cornwall, has taken no part in the proceedings. Will the landowner, or any commoner
(we cannot now rightly call the Littlejohns 'commoners'), take action to exclude the
Littlejohns from grazing on the commons — even though they, and their father, have
been grazing the commons for decades?
Okehampton Common: Copyright David Brown and licensed for reuse under this Creative Commons Licence.
The judgment can also be seen with brief comment from Landmark
Chambers: Stephen Whale of Landmark acted for the defendant authority.
Town and village greensPosted by Hugh Craddock Tue, March 22, 2016 11:15:11
There was a time, in
the first few years of the present century, when it seemed that town
and village greens were in favour. There was a steady flow of new
applications to register greens, the courts (including in several
high-profile cases before the House of Lords) had made rulings supportive of
such applications, and the Commons Act 2006 re-enacted, with modest concessions, legislation to
facilitate such applications.
The high tide mark was
the 2010 ruling of the Supreme Court (as it had then become) in R
(on the application of Lewis) v Redcar and Cleveland Borough Council
and another, which decided
that, where users of the land claimed as a green had politely
deferred to the landowner's members playing a round of golf, so as to
avoid disrupting the game, that was no more than the give-and-take
customary in the British way of doing things, and did not suggest
that the user was any less than 'as of right' — and that once the
claimed land (Coatham Common, the name 'common' in this case not
signifying that the land was already registered common land) had been
registered as a green, the rights of the local community to use the
green for lawful sports and pastimes would remain subject to the same
principles of give-and-take.
Since then, the tide has predictably ebbed under pressure to promote
development and growth, and political and judicial support for
registering new greens has declined, with the provisions in the
and Infrastructure Act 2013 greatly restricting the scope for
registering greens in the teeth of development plans, and several
decisions of the courts imposing constraints on what land may be
Yesterday, 21 March 2016, the Administrative Court of the High Court handed down
a useful judgment in R
(Somerford Parish Council) v Cheshire East Borough Council and
Richborough Estates Ltd (I
have altered the listing to conform to the usual practice for
judicial reviews: if any reader can tell me why the parties in this
and some other cases alight on what appears to be a non-standard
form, please do add a comment below) which, while hardly suggesting that
the tidal ebb has cycled back to a flood tide, does clarify some
interesting points on the relationship between greens and highway
rights, and the obligation on commons registration authorities (which
determine most applications to register greens) to deal with
applications fairly to all parties.
The case was about an application by Nicholas Bell to register the verges
of two minor roads in Somerford, west of Congleton, as greens:
Chelford Road and Black Firs Lane, under s.15
of the 2006 Act. It seems that the application (as so often) had
something to do with a proposal to develop much of the land between
the roads. It is not suggested that the verges themselves would be
incorporated in the development (although parts fell within the
development site, and were excluded from the application under s.15C
of the 2006 Act, inserted by s.16
of the Growth and Infrastructure Act 2013), but their registration as
greens would have seriously constrained access to the development
site. You can see the two roads west and east of the arrow on
generously proportioned by the Ordnance Survey, and get an idea of
the character of the land from Google Street View here
and here. Those who
refer to Street View will see that both roads have a very broad verge
planted with trees, and those inclined (like me) to jump to
conclusions will assume that the roads were historically wide, and
perhaps inclosure awarded. Not so: a quick look at old-maps.co.uk
shows that the roads, while not ungenerously proportioned on the
Ordnance Survey 1909 County Series 1:2,500 map, had both acquired
substantial verges and apparently new outer hedges by the time of the
The challenge by way of judicial review was essentially one of procedural
flaws to the determination of the application by the commons registration authority,
Cheshire East Borough Council (a unitary authority), brought not by
the applicant for registration, Mr Bell, but by the parish council.
The registration authority had appointed James
Marwick, a barrister who specialises in village green cases, to
act as an inspector to consider and advise on the case. Frequently,
that role includes presiding over a 'non-statutory' public inquiry
('non-statutory' because there is no statutory requirement on the
authority to hold an inquiry) to hear and test evidence from all
parties. But in this case, Mr Marwick identified that there was a
key objection to the application: were the verges part of the
highways? And if he could conclude in the affirmative, he might not
need to proceed to an inquiry.
It seems to have been accepted by the court that, if the verges were
highway, then the application must fail, because the claimed
activities of lawful sports and pastimes carried out on the
application land were generally no more than people had a right to do
in exercising reasonable use of the highway, and could not amount to
use 'as of right' for the purposes of claiming a green. There have
been several cases in the courts over the years which have tried to
distinguish user of land which may establish public rights of way,
and user which may support a claim to register the land as a green,
but (to to the best of my knowledge) none has found that a green
cannot be claimed on existing highway land. (Although many registered greens do include highway land, not least because, whereas s.22(1) of the Commons Registration Act 1965 excluded highways from the definition of what could be registered as common land, it was not excluded from the definition of greens). The court's position is hardly surprising:
the House of Lords in Director
of Public Prosecutions v Jones and another
(a splendidly liberal decision led by the then Lord Chancellor, Derry
Irvine, when Lord Chancellors still participated in all three parts
of Government, viz the executive, legislative and judiciary) found
that a demonstration on the verge of a main road was not a trespass
exceeding the rights of the user, and greatly extended the prevailing historical interpretation of what amounted to reasonable user. It seems that the claimant had sought permission to challenge the decision in Jones all
the way up to the Supreme Court, but leave had been refused on this
ground (see para.6, though one wonders whether the Supreme Court
might have risen to the bait given the chance).
Mr Marwick received considerable evidence from the defendant authority
on the status of the verges, some of it after the deadlines he had
stipulated for submissions from parties. Mr Bell, the applicant, did
not specifically ask for an extension of time to comment, on the late
submission nor was one offered, while Mr Marwick, in his report to
the council, said the late submission was: "relatively
incontrovertible documentary evidence and having considered it in
detail, it does not significantly alter the Council's position or my
view of the issues in this matter." In the event, the court
disagreed, noting that much of the late-tendered evidence was new and
capable of being challenged, and Mr Bell ought to have been offered
an opportunity for that purpose. Given the critical question of
whether the verges were highway land, the authority's decision to
refuse the application without affording such an opportunity was
flawed, and was quashed.
As a procedural failing, the case might not be thought to offer much of interest. But it does.
First, one of the grounds of challenge was that the registration authority
"act[ed] as Judge in its own cause and thereby in breach of
natural justice". The authority was said to have an interest in
promoting the development on the adjacent land and releasing the
funds committed through a s.106
agreement. The claimant said that authority should have asked
another (presumably neighbouring) authority to determine the
application under s.101(1)(b)
of the Local Government Act 1972. The court found against the
claimant on this ground, with some inconclusive consideration of
previous caselaw (including the rather odd case of R
(Whitmey) v the Commons Commissioners),
but concluding (para.31) that, "appointing an independent legal
expert to conduct a non statutory enquiry and make findings is an
appropriate mechanism." And indeed, the court went on to find
(para.74) that there were sufficient disputes of factual issues
raised to require the inspector to hold a public inquiry.
Second, having decided that there was a procedural failing, the court was
bound to consider, under s.31 of the Senior Courts Act 1981 (as
amended by s.84(1)
of the Criminal Justice and Courts Act 2015), whether: "it
appears to the Court to be highly likely that the outcome for the
applicant would not have been substantially different if the conduct
complained of had not occurred." This required the court to
appraise the potency of the claimant's arguments that, had Mr Bell
been afforded an opportunity to challenge the late evidence, it might
have undermined Mr Marwick's conclusion that the verges were highway
The court's analysis demonstrates that the origin of the wide verges was
somewhat uncertain, but at least partly attributable to an inter-war
initiative by a predecessor highway authority to widen the roads,
perhaps in anticipation of road improvements. The documentation was
incomplete and, at least in the claimant's view, inconclusive. It
was not entirely clear under what powers the land had been acquired,
whether all the land had been acquired (or the landowner had
voluntarily resiled from its use), whether, insofar as it had been
acquired, it had immediately become dedicated as highway land by
virtue of statute, and whether the authority had maintained all the
verges itself (or frontagers had maintained some of them).
A point was taken on documentation which showed, in any event, that the
roads, including the verges, were included in the authority's 'list
of streets', a list of publicly maintainable highways which every
highway authority is required to keep under s.36(6)
of the Highways Act 1980 (it was apparent that the 'list' was in fact a map). Mr Marwick had advised the authority that
the inclusion of the verges in the list had "not been
challenged. This is strong evidence in itself that the land is
highway land." Mr Bell had argued that inclusion in the list of
streets was not conclusive evidence of public highway status, and was
"no greater than the evidence upon which it is based." The
court accepted, "that the plan showing the list of streets is
strong evidence that the land is highway land, though not
determinative." There was a presumption of regularity about the
list. But as the list was not the only evidence, and serious
questions had been raised about its accuracy, the claimant was
"entitled to explore the question of what, if any, evidence
Mr Bell, and Somerford parish council, will now get a new opportunity to
pursue the application, presumably through a 'non-statutory' public
inquiry. If they succeed in contesting the evidence of highway
status, they will still need to show that there was sufficient use of
the land as of right for lawful sports and pastimes during 20 years
preceding the application to justify registration. But if the application is granted, any plans which the highway authority formerly or now, or
indeed the developer, had to use some of the land for road
improvement or access to the development site, will have to be
reviewed, with the possibility of further delay and costly provision
of exchange land in order to release it from designation. Somerford
parish council is not destined to be remembered in quite the same way
parish council, but for a relatively rural and sparsely populated parish outside the built-up area of Congleton itself, this was quite an achievement just the same.
Postcript: On reflection, even if the application land were found not to be highway land, the question arises — for what purpose was the land acquired by the council, and was use of the land by local people 'by right' or 'as of right'? In R (Barkas) v North Yorkshire County Council and another, Lord Neuberger said (para.24), "where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use (whether for a limited period or an indefinite period), it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land 'as of right', simply because the authority has not objected to their using the land." It is by no means inevitable that success on the narrow highway status point will secure the outcome that Somerford Parish Council seeks.
Common landPosted by Hugh Craddock Tue, December 29, 2015 22:10:07
Some 20 or 30 years ago (the details are now a little hazy), the then Department of the Environment commissioned a huge study of the common land in England. The contract was let to the Rural Surveys Research Unit (RSRU) at the University of Wales, Aberystwyth, and was done by a team led by Prof. John Aitchison. Although the start date is uncertain, the final report was not presented until summer 2000 — by which time digitisation of large datasets had begun to catch up with the project, although it didn't start out like that. The report is generally referred to today as the 'biological survey of common land', although that appellation does not do justice to the breadth of the data gathered.
The outputs were colossal, and comprised:
- • a database of every registered common in England, with details of size, location, registered ownership, rights of common, natural context and other aspects;
- • a series of county reports focused on the nature conservation character of common land in that administrative area (those which were prepared by the RSRU in electronic format, about half, are available via the National Archives web archive of the Defra website);
- • a series of county volumes containing datasheets for each of the commons in the administrative area;
- • a national overview report of the project.
The database was exported into an Excel spreadsheet, and this is still available, now on gov.uk; however, the export truncated all long text fields in the database, so that the spreadsheet is valuable for the numeric data, but frustratingly incomplete for verbal analysis. This last defect has now been rectified, as the data, including the original Microsoft Access database, are now available for download on data.gov.uk. The publication of the data is part of the Government's drive to make more public data available online, and one expectation is that people will be able to make innovative use of the data. One early example of that is the common-land.com, which converted the Excel spreadsheet into html form for presentation on a dedicated website. Now that the dataset is available in its original unabridged form, perhaps others will find new uses for the data?
Incidentally, the RSRU performed a similar, independent survey of town and village greens, with the support of the Women's Institute whose members conducted local surveys of individual greens. One of the outputs of this survey is the database of town or village greens (in pdf on gov.uk and in Excel on the National Archives web archive), although this too suffers from truncation.
GeneralPosted by Hugh Craddock Sun, December 06, 2015 11:05:45
Government guidance on commons and greens, most notably on applying to update the registers of common land and town or village greens held by certain local authorities (i.e. 'commons registration authorities'), has undergone the transformation to 'smarter guidance', part of a Government-wide project to reduce the volume of all public sector guidance, and to improve its quality, consistency and accessibility.
The key to the new guidance is the launch page, Common land: guidance for commons registration authorities and applicants, which contains links to specific pages of guidance in two groups, targeted at commons registration authorities, and at the public who may have an interest in the registers.
The original guidance was published in two volumes targeted at the same two interests. Each volume was pretty lengthy: the guidance to authorities (ver. 2.0 is currently still available on gov.uk, and in any case, via the National Archives) tallied at around 180 pages. The new guidance, which is advertised as at 'beta' stage, is divided into several now much briefer themes. Guidance to authorities is available on:
And the same themes are available to anyone looking to make such applications (there is, understandably, no parallel theme for maintaining the register):
Much has changed. Indeed, the switch to 'smarter guidance' is not the first occasion on which the guidance has been pared down: version 2.0 replaced version 1.43 in December 2014, and at that time excluded guidance about commons councils, the protection of common land, local authority schemes of regulation and management, 'intervention' (enforcement), vehicular access over common land and greens, deregistration and exchange, and public access rights over common land, all contained in chapter 3, which is as close as Defra has got to fulfilling the Parliamentary commitment to publishing a circular on common land (Lords Hansard, 30 Nov 2005, Col.281) — albeit the guidance has never formally applied outside the commons registration authority areas pioneering Part 1 of the Commons Act 2006.
The new guidance is concise, even terse, and lacks an explanation or context: the commons registration officer is informed, for example, that two authorities may enter into a straddling agreement as regards land straddling the authorities' common boundary (so that "only 1 [sic] of you’ll [sic] be responsible for the registration of that land"), and even that agreements made before 1 April 1974 expired on that date — but not the legislative authority for such agreements, nor the legislative cause of the demise of pre-1974 agreements. This isolation from the legal context is found throughout the guidance (indeed, it's common to smarter guidance generally) and may make it less daunting and therefore helpful to the casual reader, but it may also impair its utility to a local government officer who wishes to understand, and justify, why the guidance is framed as it is. Nor does the new guidance offer the local government officer any interpretation or explanation of the legislation beyond the bare recital of its requirements. So, for example, the guidance to authorities on dealing with applications to register a statutory disposition (such as a compulsory purchase order affecting common land) states that: "Statutory dispositions normally come into effect after the date on which they’re confirmed. You’ll need to check its [sic] terms to find the date on which it has or will come into effect, as you can only register land or rights after that date." But there is no illustration of what this might mean in a particular case, or what to look for in the statutory disposition, as there was previously, to ensure that the instrument is effective and capable of being registered. Exceptionally, the guidance to authorities on registering a new town or village green does include some references to case law, albeit the citation of cases is inconsistent and truncated, and there are no hyperlinks to Bailii.org or elsewhere.
Inevitably in such a large rewrite, a number of questionable aspects have found their way into the text. For example, in advice to authorities on dealing with applications and proposals:
- • under amend your register, the advice is that, "If you make an amendment that isn’t a deletion, you must transfer the information on the whole sheet to a new form" — this advice is based on r.8(1) of (The Commons Registration (England) Regulations 2014), but this requirement applies only if the register sheet is non-compliant with the 2014 Regulations;
- • under site visits authorities are informed that: "You can visit unclaimed land without permission", but the definition given of what is unclaimed land makes the advice questionable even if one assumes that it is proper for an officer without a power of entry to enter onto land because the owner cannot be identified;
- • under land or rights that belong to the Church of England, authorities are advised on how to deal with "land or rights that belong to the church", but the advice is relevant only to land or rights that belong to a benefice (and which are held by the incumbent where one has been appointed), and not where the land or rights belong to the Church otherwise.
I submitted these observations to 'Is there anything wrong with this page?' today, so we'll see what happens.
Perhaps the most remarkable diminution in guidance is that specifically directed at applicants to register a town or village green, which is now contained in Commons registers: apply to record new events, under Apply to register a town or village green. This now comprises 43 lines: indeed, one will find more (82 lines) in the preceding section on Apply to register a statutory disposition (there is more about the mechanics of making an application in the separate guidance on Commons registers: how to apply to make changes). The potential applicant would be well advised (but is not advised) to refer to the somewhat more detailed guidance provided to the commons registration authority — or better still, to refer to the guidance published by the Open Spaces Society, Getting Greens Registered. Section 7.11 of version 1.3 of the guidance to applicants in the pioneer areas (not found online) published in 2013 provided over six pages on registering town or village greens, while version 1.3 of the guidance (available via the National Archives webarchive) to applicants elsewhere in England specifically on registering greens extended to 20 pages. For those who yearned for further detail, section 8.10 of version 1.43 of the guidance to commons registration authorities (available via the National Archives webarchive) published in 2011 filled 26 pages, much of it drafted by a well known barrister specialising in town or village greens cases.
Yet while it remains possible to access some earlier versions of the guidance, it is not kept up-to-date, and the lay reader will have no likelihood of locating it, let alone any means of knowing whether any particular aspect of it remains valid. The majority must therefore rely on what appears on gov.uk. It is not hard to understand why the new guidance lacks much of the content of the old — content requires revision, and revision requires resources. The law on registering town or village greens in particular continues to evolve through challenges in the courts, and what was written several years ago — even by a barrister — may be misleading today. Still, it is a pity that no signposts have been included to direct the lay reader to more fertile sources of guidance.
Common landPosted by Hugh Craddock Tue, October 13, 2015 19:22:25
It is often said that the registers of common land (and town or village greens) drawn up under the Commons Registration Act 1965 (the 1965 Act) are out-of-date. And so they are: they were, after all, initiated by applications for registration made between 1967 and 1969. While it has remained possible to apply to modify the registers for certain purposes (and there is no charge for doing so), there has been no compulsion to do so, and many changes affecting what is shown in the registers have gone unregistered, leaving the registers an ever less comprehensive record of commons and the rights which are exercisable over them. (What follows refers to the registers of common land, but similar issues can apply to the registers of greens, albeit less frequently a cause for concern.)
Legally, this does not strictly matter. There are nine commons registration authorities pioneering the implementation of Part 1 of the Commons Act 2006 (Part 1), and where steps are being taken to update the registers. Outside these areas, the registers are "conclusive evidence of the matters registered, as at the date of registration (1965 Act, s.10, my italicisation). So, to the extent that the registers are now incomplete or inaccurate, the registers must be read alongside any other evidence of events subsequent to 1969 which affects the veracity of what is shown in them. For example, a commoner (the owner of a right of common) may have entered into a deed with the owner of the common, surrendering the right to the landowner, which has the effect of extinguishing the right for all time. The extinguishment of the right may (and should) be registered (under s.13(a) of the 1965 Act), so as to cancel the registration of the right in the register. But there is no obligation on anyone to do so: indeed, an application for such and similar purposes may be made only by a person having an 'interest' in the matter — see r.29 of the Commons General Regulations 1966 (SI 1966/1471) as amended by SI 1968/658 here. To any assertion that the register shows that the right exists, and were conclusively in existence 'as at the date of registration', the former commoner, or more likely the common owner, need only produce the deed, to show that the register is out-of-date and, on that matter, what is shown in the register can be left out of the reckoning. That may be the correct position, but it can be very frustrating for those who use the registers and expect them to present a comprehensive picture.
Part 1 seeks to ensure that the 1965 Act registers are brought up-to-date, to rectify the omitted amendments of the last 45 years, and kept that way. It does this, not generally by compelling applications to amend the register, but by inducing them. Where it has been brought into force, in the nine pioneer areas, it does this in several ways:
- • by providing that rights of common which are capable of registration, but are not registered, are extinguished (at the end of an initial transitional period) (para.3 of Sch.3);
- • by providing that various other things affecting what is shown in the registers (such as the creation or extinguishment of rights of common) can have effect only if done, in a prescribed form, by application for registration (ss.6–13) — in effect, by ensuring that these things can no longer be done 'off register';
- • by abolishing certain mechanisms by which common law events can affect what is shown in the registers (i.e. the creation of rights of common by prescription, and the extinguishment of rights of common, ss.6 and 13);
- • by re-enacting provision for the conclusiveness of a right of common entered in the register, upon its registration (s.18;
- • by providing that statutory dispositions affecting what is shown in the registers (such as an exchange of land required to facilitate a road scheme across common land) do not operate at law so as to affect the status of the land, nor any rights exercisable over it, until the disposition is registered (r.44(2) of the Commons Registration (England) Regulations 2014, the 2014 Regulations, SI 2014/3038);
- • an exception to the generality of the absence of compulsion, by placing a duty (generally on public authorities) to register the effect of a statutory disposition (s.14 given effect by para.8(2) of Sch.4 to the 2014 Regulations);
- • by providing that other legislation which refers to common land or town or village greens, may be amended by secondary legislation (s.54), so that those references apply only to common land, or greens, which are registered under Part 1 of the 2006 Act — this last power is likely to be exercised only when Part 1 has been applied to the whole of England, the transitional period has expired, and reasonable opportunity has been afforded to apply to amend the register to deregister wrongly registered land under Schedule 2 or section 19.
- • by ensuring that notice of applications or proposals under Part 1 affecting rights exercisable over registered land must be served on those parties who have declared their entitlement to exercise rights of common, and so updated the register to provide a direct connection between the registered right and the commoner entitled to it (para.1(a) of Sch.7 to the 2014 Regulations).
In the last case, such declarations have been facilitated by r.43 of the 2014 Regulations, and may be made so as to address the obvious drawback that the register does not directly identify the owner of a right of common attached to land, but only the land to which the right is attached. The owner or occupier of that land may declare to the registration authority his or her entitlement to exercise the right by virtue of that ownership or occupation, and if the authority is satisfied with the evidence provided, it will modify the registration to show details of the declaration. A declarant is guaranteed to be notified of applications and proposals affecting the land, whereas the difficulty in identifying other commoners from the register, and particular those entitled to dormant rights, means that no such obligation is owed to them.
By these means, the intention is that, subject to full implementation (yet to occur outside the nine pioneer local authority areas) and an initial transitional period, the registers should become, and subsequently remain, up-to-date. It is inevitable that, even then, mistakes will be made, and amendments for which applications should be made to amend the registers will not be made. But, generally, the law will assume, for the first time, that the register is correct, and that the consequences of an oversight will fall on the parties who made the mistake, rather than the world at large which, unsurprisingly, expects the register to be correct.
But I have already alluded to one significant respect in which the registers are bound to disappoint. By and large, the registers will not directly identify those who 'own' (technically, those who are entitled to exercise) rights of common, even though the registers will be conclusive about what rights exist. As we have seen, provision for declarations of entitlement to rights of common will help to address that omission. But the omission is itself often a matter for surprise and criticism, and merits some explanation. That will be the subject of a future blog.
Common landPosted by Hugh Craddock Fri, September 18, 2015 19:20:24
Defra published today arrangements for claims arising from the mistaken methodology adopted for the payment of the Single Payment Scheme on common land, referred to in a previous blog and explained in the Defra policy announcement.
As the announcement is closely connected with my role in Defra, please refer to the gov.uk website for further information.
Common landPosted by Hugh Craddock Thu, September 10, 2015 11:02:08
A fascinating insight into landowners' concern with the workings of the Commons Act 2006 in the pioneer areas, is revealed today in an EIR (Environmental Information Regulations 2004) disclosure.
The correspondence records the dissatisfaction of local landowners and farmers in the Penwith peninsula of Cornwall whose land is subject to applications for the registration of the land as common land under paragraph 4 of Schedule 2 to the 2006 Act. Paragraph 4 was enacted to revisit some of the more egregious mistakes of the registration process under the Commons Registration Act 1965 — most often, where applications to register common land were rejected by a Commons Commissioner on a false understanding of the law relating to waste land of a manor, which was corrected by a judgement of the House of Lords too late to influence the outcome in most cases. Only land which was the subject of a provisional application for registration under the 1965 Act can be the subject of an application today under paragraph 4.
The disclosures are quite frank, and show how local landowners' concerns have been raised at Ministerial meetings with the Country Land and Business Association. PannageMan will not be quoting selectively from the disclosures, but a careful perusal will reveal some interesting and surprising comments about the application process, the landowners' interest in the application land, the effect of a successful application on the management of the land and the mangement of sites of special scientific interest, and the National Trust's position in relation to such applications affecting its land. Read on… .
Common landPosted by Hugh Craddock Sun, August 02, 2015 18:52:39
A recent application (see the
notice for Church Hill Common, Ringland) in Norfolk under Part 1 of the Commons Act
2006 has highlighted the new opportunity to get land registered as common land, or as a town
or village green, even in the majority areas of England which are not pioneering the full
implementation of Part 1.
Part 1 of the 2006 Act provides for new arrangements for keeping and maintaining the registers of
common land and town and village greens in England and Wales, but in England, Part 1 has been
fully brought into force only in nine pioneer commons registration (i.e. local)
authority areas (see the list in
Sch.1 to the
Commons Registration (England) Regulations 2014), and in Wales, not at all. Elsewhere,
Part 1 has been commenced for particular purposes only: primarily, to register new town or
village greens under
s.15, and, with effect from 15 December 2014, to deregister certain wrongly
registered land — a fuller explanation can be found in my November 2014 blog.
At the time, in my blogs of November 2014 and December 2014, I mistakenly assumed that the commencement order for these
provisions (the Commons Act 2006
(Commencement No. 7, Transitional and Savings Provisions) (England) Order 2014)
brought s.19 into force (apart from the pioneer areas) solely for the purposes
of correcting mistakes in the register made by a commons registration authority so as to
deregister wrongly registered common land. Such a mistake might have been made where at the
time (between 1967 and 1969) of provisional registration of land as
common land, the map of the common supplied by the applicant for registration was
incorrectly transposed by the authority into the register to include land not in fact
shown on the application map (this occasionally happened where the application map excluded
island cottages within the common, but the authority failed to pick these up). There
is no doubt that such land may now be the subject
of an application for amendment of the register under s.19 — and not before time, since
at least 45 years will have elapsed since the mistake was made.
The commencement order does indeed bring s.19 into force for the limited purpose of
para.(a) of subs.(2): "correcting a mistake made by the commons registration authority
in making or amending an entry in the register" (see art.3(2)(b) of the commencement order), and then only on an
application made by any person (so that the authority cannot make a proposal to amend the
register on its own initiative — see the exclusion from commencement of s.19(4)(a) in art.3(2)(b)). But there is no restriction on the scope of an
application for the purpose of s.19(2)(a): so an application could be made equally if
the authority's error in transposing the original application map was to omit land shown
on that map. Or if the authority, in registering a provisional right to graze 100 cattle,
actually registered a right for 10 cattle.
The result is a little surprising, because the only other substantive provisions in
Part 1 which have been brought into force (again, outside the pioneer areas) are paras.6
to 9 of Sch.2 which enable the deregistration of land (see art.3(2)(d) and (3)(b) of the
commencement order). Indeed, art.3(3)(a) of the commencement order, which states that s.19
is brought into force "for the purpose given in section 19(2)(a) (correcting a mistake
made by the registration authority in making or amending an entry in the register)",
appears to be largely redundant, because that constraint has already been achieved by
art.3(2)(b). And note that applications for the purpose of s.19(2)(a) are free: see the
entry for s.19 in Sch.5 to the the 2014 Regulations.
Thus it is that the application for Church Hill Common, Ringland is to add land to the
register which was excluded from the original provisional registration which has long
since become final. If, indeed, the omitted land was contained within the original
application map, and if the commons registration authority (Norfolk County Council) is
satisfied that the exception in s.19(5) does not apply, then the outcome will be the addition of new
common land to the Norfolk registers, even though Norfolk is not one of the pioneer
authorities. Similar applications seem likely elsewhere.
And the s.19(5) exception? This easily overlooked gloss on s.19 says that: "A mistake
in a register may not be corrected under [section 19] if the authority considers that, by
reason of reliance reasonably placed on the register by any person or for any other
reason, it would in all the circumstances be unfair to do so." This exception might apply
if, for example, someone had bought land having confirmed that it was not registered
common land nor town or village green, had no reason to suppose that a mistake had been
made in giving effect to the original provisional registration, and now would suffer
significant detriment if the omitted land were registered. There may be some precedent
for the measure of 'unfair'ness in s.19(5), to be found in
of the Commons Registration Act 1965, which enables rectification
of a registration made under that Act if the court considers it 'just'. Those who wish to
explore the test of justness, and by analogy, the exception of unfairness, would do well
to look at the judgment of the Supreme Court in Taylor v Betterment Properties (Weymouth) Ltd and Adamson and
others v Paddico (267) Ltd, which explored this issue in detail, in relation
to applications from two landowners to deregister two different town greens under s.14(b)
of the 1965 Act.
Common landPosted by Hugh Craddock Fri, July 17, 2015 21:46:47
Defra has made an order to establish the Bodmin Moor Commons Council (The Bodmin Moor Commons Council Establishment Order 2015). The order follows consultation, launched in February 2015, on a draft order. You can see the consultation paper, the draft order, and the outcome of the consultation, on gov.uk. For more about the order and the background, see my earlier blog on the draft order, and the explanatory memorandum.
In deciding to make the order following the consultation, the Secretary of State must be satisfied that there is substantial support for it, having particular regard to responses from those (such as commoners and landowners) with a legal interest in the land. It seems that there is little doubt about that, for 202 responses were received, of which 96% were in favour; of those 166 respondents who demonstrated a legal interest, again 96% were in favour. This is a remarkable response rate for a highly focused consultation, although we are not told, and perhaps no-one yet quite knows, how many persons are entitled to exercise rights of common on the Bodmin Moor commons, and therefore what proportion expressed support.
The Bodmin Moor Commons Council will be the second council to be set up under Part 2 of the Commons Act 2006, although the third council in England (the Dartmoor Commoners' Council was established under a local Act, the Dartmoor Commons Act 1985). The council comprises 24 to 26 members, most of whom are elected by the active or inactive commoners with rights of common exercisable over the Bodmin Moor commons. Further council members are appointed by the landowners, and there is a power to co-opt up to two further members. There is an initial electoral process between the coming into force date of 1 September 2015, and the date of 1 March 2016 on which the council is established, so that the council's membership is fully constituted by the latter date. The council will have powers to manage the grazing, vegetation and rights of common on the Bodmin Moor commons, and its most potent tool for this purpose is a power to make rules, or byelaws: for example, a rule may prohibit the turning out of animals by a person without a right to do so, and therefore attempt to tackle grazing by farmers with no rights of common (or those who are exceeding their rights) — although the grazier will first have to be identified. Breach of a rule may be made a criminal offence: for this reason, such rules must first be approved by the Secretary of State.
The order as made has been slightly amended from the version on which consultation took place (whereas an affirmative resolution order laid in draft before Parliament cannot be amended after approval by Parliament,
it seems there must be some flexibility to amend the consultation draft, and it would be odd if the Secretary of State could not respond to any comments made during the consultation, other than to withdraw the order and begin again). Some minor errors relating to the provision numbering and duplicate register units have been addressed. More significantly, whereas
the draft contained no provision about regulations under the Commons Act 1908, art.11 now abolishes any such regulations. The 1908 Act enabled committees of commoners to be elected to make such regulations to control the turning out of entire animals, and there is some evidence that regulations were indeed made in relation to some of the Bodmin Moor commons. However, PannageMan understands that evidence for the precise form of any regulations still in force was elusive, despite a search of National Archives files (see for example MAF 235/201), and art.11 therefore has general effect in revoking any extant regulations, rather than, as would be usual, revoking specific regulations.
No modification has been made to the order in respect of para.13 of Sch.2, by which the owners of the Bodmin Moor commons are still required to act in unison in appointing their four representatives, So there remains no provision for a situation in which the owners cannot agree on a slate of four appointees.
The council will come into existence on 1 March 2016, after the initial electoral process has been concluded, and will then be free to embark on bringing new management to the Bodmin Moor commons, for the first time since manorial management structures faded away over a century ago, and 20 years after the Bodmin Moor Commons Bill was presented to Parliament seeking similar powers through primary legislation.