HERTFORDSHIRE COUNTY COUNCIL

RURAL AFFAIRS CABINET PANEL

TUESDAY 16 SEPTEMBER 2008 AT 2.00 P.M.

THE COMMONS ACT 2006 AND HCC’S ROLE AS A PILOT AUTHORITY

Report of the Director of Environment

Author: Richard Cuthbert, Head of Rights of Way Unit Tel: 01992 555292

Executive Member: Stuart Pile (Highways, Transport and Rural Affairs)

1Purpose of report

To bring the Panel up to date with progress on the Commons Act 2006 and HCC’s role and responsibilities as a pilot authority.

2Background

2.1In July 2006 the Commons Act was passed by Parliament. The most significant elements of the Act are the creation of new powers to amend the Commons Register and theTowns & Village Greens Register, in an attempt to bring them up to date and make them more relevant to the present day use, management and enforcement of Commons & Greens. There are also mechanisms for the establishment of Commons Councils for the management of areas of land. The Act contains measures designed to streamline applications to Commons Registration Authorities in respect of amendments to the registers. Italso deals with applications to Defra for consent to works on common land and simplifies the consent procedures. The Act also repeals previous commons legislation dating back to 1285 and amends Acts dating back to 1899. See the Appendix for a list of the main parts of the Act. The implementation of the provisions of the Act is being phased in over a number of years.

3Recent developments

3.1During 2006 and 2007 Defraapproached many authorities to gauge their experience of commons management and to seek and select a representative spread of authorities to pilot the implementation of the new Act. HCC applied, was selected and has begun to work with Defra and the other pilot authorities to shape the guidance and regulations. The Rights of Way Service (“RoW”) is taking forward the pilot on behalf of HCC as the Commons Registration Authority (“CRA”).

3.2HCC and the other pilot authorities (Blackburn with Darwen, Cornwall, Devon, Herefordshire, Kent, and Lancashire) have been working together with Defra via monthly conference calls. Defra have now produced the regulations and guidance, setting out the details of how the new Act is to be implemented. As a pilot authority we were in the position of being able to see an early draft of some parts of these documents and comment on them as well as influence their development.

3.3RoW is also working with the Hertfordshire Archives & Local Studies Service (HALS) and the Land Charges Service to coordinate their roles of holding the original documents for public inspections and responding to searches respectively.

4Next steps

4.1The lead officers in RoW have attended a two day training event in Birmingham for all pilot authorities. RoW are also recruiting a replacement Definitive Map Team Assistant who, together with the Definitive Map Officers will be trained to receive applications, process them through the regulations and update the registers to produce a modern, accurate and dependable legal document, which may then be used with confidence by any HCC Service Units.

4.2Recruitment is in-hand for an assistant with short-listing and interview having taken place in August and, subsequently, the post should be filled by the official start of the pilot in October.

5Workload and Financial Implications

5.1The new workload which this pilot will bring, in the form of an unknown quantity of applications from interested parties, including landowners, rights holders and tenants, will be fully funded by a specific grant from Defra during the pilot period. This will also cover HCC’s own proposals for corrections and updates, as the guidance envisages HCC as a pilot authority taking the initiative for updating the registers and not just relying on applications by third parties.

5.2The grant for HCC has been assessed at £24,508. This figure is to cover the last six months of the 2008 / 2009 financial year and the first six months of the 2009 / 2010. Indications are that the grant will all be received this year. If this is the case, arrangements will need to be made to make some of the monies available in 2009/10.

5.3Future funding for ongoing additional work and burdens will be assessed as part of the pilots. When this is complete Defra will need to decide how authorities may be resourced. Clearly HCC (along with others) will ensure appropriate representations are made to secure sustained funding. In anticipation of the increased burdens following the Commons Act the RoW Service has already received a pressure for growths budget increase of £25,000. With the bid for pilot status succeeding this funding will not be required in the current year unless the workload is higher than anticipated. The situation will be closely monitored and in the event that it is not required an underspend will be declared.

5.4RoW has already received a pressure for growthof £20,000 in its budget, agreed by Members, to cover the posts which will be undertaking most of the additional work and burdens predicted at that time. Even if Defra identify finance for CRAs after the pilots, it is not expected to be enough to cover all the additional burdens brought by the Act.

6Recommendation

That the Panel note these recent developments and next steps for HCC as a Commons Act pilot authority and receive further updates in future.

Appendix

Main parts of the Commons Act 2006

Part 1 deals principally with:

  • applications to amend the register to effect a contemporary adjustment of information shown in the register (e.g. an application to extinguish rights of common);
  • applications and proposals to rectify certain mistakes and omissions made when the registers were opened in the 1960s (e.g. an application to deregister wrongly registered common land), and
  • applications and proposals to reflect subsequent events (between 1970 and the present) that ought to have been registered but were not (e.g. an application to delete from the register rights of common which were extinguished by deed in 1980) — these events should be registered during the initial ‘transitional period’.

Inspection of the register

Authorities will need to continue to make the registers publicly available for inspection.

Official copies of the register

Copies of the registers can be requested by the public. Registration authorities can charge a reasonable fee for providing standard copies.

Amending the format of the register

The format of the registers, including the maps, will generally remain unchanged. There will be a sixth column added to the rights section to enable owners and occupiers of dominant tenements which have rights of common attached to them, to voluntarily update the register to reflect their entitlement (for which a fee will be payable).

Applications

There are a number of applications that can be made under Part 1, comprising:

  • Creating new rights (section 6)
  • Varying rights (section 7)
  • Registration of severed rights (section 9 and paragraphs 1 and 3 of Schedule 1)
  • Attaching rights held in gross to land (section 10)
  • Re-allocating rights attached to land (section 11)
  • Transferring rights held in gross (section 13)
  • Statutory dispositions (section 14)
  • New town or village greens (section 15)
  • Correcting the register (section 19)
  • Rectifying mistakes made under the 1965 Act (section 22 & Schedule 2)
  • Transitional Period – Updating the register (Schedule 3)

Creating new rights

It is possible to register new rights of common over unregistered or registered land provided the right is created by express grant and is attached to land. A right cannot be created by prescription (but it is possible that rights acquired by prescription before the commencement of the transitional period may be eligible for registration.

Varying rights

Existing rights of common may be varied in accordance with the regulations. A right may be varied if:

  • new land replaces some or all of the existing land over which the right was exercisable,
  • new land is added to the existing land over which the right is exercisable,
  • there is some other alteration to the right (e.g. if a right to graze 10 cattle is amended to become a right to graze 60 sheep).

Severing rights

There are three ways a right may be severed from land to which it is attached:
- transferred permanently to Natural England, or a commons council.

- temporarily severed or leased in accordance with requirements specified by order made by the Secretary of State.

- transferred permanently to a third party where severance in relation to that common is authorised by order made by the Secretary of State.

Attaching rights held in gross to land

The owner of a right held in gross can apply to attach the right to land. The owner or person entitled to occupy the land must consent to the application. The result will be a right of common which is attached to the land specified in the application.

Re-allocating rights attached to land

Application may be made to ‘concentrate’ a right of common attached to a dominant tenement onto a part of that tenement where another part of the same tenement is to be developed for non-agricultural use.

Transferring rights held in gross

Application may be made (as now) to register the transfer of a right held in gross.

Statutory disposition

Application may be made or notice given to amend the register in consequence of a statutory disposition, such as an exchange of land under a compulsory purchase order.

Registering town and village greens

Application may be made to register land as a town or village green under section 15. The applicant must show, as now, that the land in question was used ‘as of right’ by a significant number of local inhabitants for lawful sports and pastimes for at least 20 years.

Correcting the register

Application may be made, or the authority itself can bring forward a proposal, to correct mistakes in the register for the following purposes:

  • the registration authority made a mistake when making or amending an entry in the register
  • correcting certain other mistakes
  • removing a duplicate entry
  • updating the name and address in an entry
  • an entry needs to be updated due to accretion or diluvion

Rectifying mistakes made under the 1965 Act

Application can be made, or the authority itself can bring forward a proposal, to rectify mistakes that were made during the registration of land under the 1965 Act. Such mistakes include:

  • land that was statutorily designated as common land (or a green) but was not registered;
  • waste land of the manor that was registered as common land under the 1965 Act but the registration was cancelled or voided in certain circumstances;
  • certain wrongly registered common land or greens; and
  • buildings wrongly registered as common land or greens.

Updating the register

Under Schedule 3 the registration authority can update the register to show certain qualifying events that have occurred since the registers were first prepared under the 1965 Act, but which have not been registered. These qualifying events include:

  • the creation of rights of common between 2 January 1970 and 1 October 2008
  • any disposition of a right of common which occurred between the date of the registration and 1 October 2008
  • any extinguishment of right which occurred between the date of the registration and 1 October 2008
  • the deregistration of registered land (under a relevant instrument) and the giving of other land in exchange before 1 October 2008

Raising awareness

The transitional period will need to be publicised to all those in the authority’s area who have an interest in the commons registers. In advance of the pilot, the authority should seek to ensure that lines of communication have been established and opened. Bodies which may have an interest include:

  • district councils (particularly officers and members with responsibility for managing open spaces),
  • Conservation Boards or staff for Areas of Outstanding Natural Beauty,
  • town and parish councils (many councils own or manage local greens or common land, or are likely to see the protection of such lands as part of their functions),
  • local branches of farming and landowning bodies (such as the National Farmers’ Union, the CountryLand and Business Association, the Tenant Farmers’ Association)
  • local branches or groups of outdoor recreational bodies (such as the Ramblers’ Association, the British Mountaineering Council, the British Horse Society),
  • local, or local branches of, amenity or environmental protection societies (such as local civic protection societies, Campaign to Protect Rural England, Open Spaces Society, Council for National Parks),
  • commons management bodies (such as boards of conservators or other statutory bodies established under local Acts of Parliament),
  • commoners’ associations,
  • local major landowning bodies (such as estates, trusts, the National Trust, or others known to own large areas of common land).

Setting fees

The regulations will provide a power to charge a fee based on time and labour effectively allowing recovery ofthe costs for each type of application under Part 1. The regulations prescribe a default fee for each type of application under Part 1, and the default will apply where the authority has not set its own fee.

Researching defects in the registers

The transitional period will provide the first opportunity for correction or rectification of mistakes in the registers. It is not usually necessary for all such changes to be completed during the transitional period,but authorities should improve its understanding of what changes will be needed.

Authorities should seek to build up a record of changes which should be made to the registers in the public interest. Such changes will often already be known to officers, and might include:

  • significant errors in the boundary of registered land, particularly where arising from an error on the part of the registration authority at the time of registration;
  • other significant errors arising from an error on the part of the registration authority at the time of registration;
  • exempted areas of land which may be registered under paragraph 2 or 3 of Schedule 2;
  • other unregistered lands statutorily recognised as common land or green (e.g.where it is part of a scheme), which may be registered under paragraphs 2 or 3;
  • shortcomings in identification of dominant tenements (e.g. where rights are attached to a farm holding, but the extent of the holding is unidentified);
  • compulsory purchase orders (since 1970) which have an impact in relation to common land or rights [the effect of such orders must be registered during the transitional period].

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080916 Info report Commons Pilot