Working draft RULES FOR BRENDON COMMON UNDER SCC 2014 3rdDraft
The 2nd draft was considered at the 2nd BCC Meeting on 15th July 2014 and is in blue,notes/points made at the meeting are in red, additional material added post 15th July is in black.
Background
The Commons Act 2006. Pt II Para 31 sets out the functions of a commons council at (1) at (3) the particular functions include (a) making rules relating to agricultural activities, the management of vegetation and the exercise of rights of common on the land for which the council is established and (b) making rules relating to the leasing or licensing of rights of common. In addition (4) explains that rules may have the effect of (a) limiting or imposing conditions on the exercise of rights of common or the exercise of rights to use the surplus of, the land for which the council is established.
Guidance in the Explanatory notes to the Commons Act states at Para 169 and 170
169. A council might be given the function of making rules relating to the leasing and licensing of rights of common. This would permit the council to control the use of rights of common by persons other than the commoner entitled to the rights. For example, controls imposed where holders of common rights wish to lease out their rights to others on the common, or if they are active graziers, to take on more rights for significant periods of time. Any local rules made by a council would take precedence over any regulations made under paragraph 2 of Schedule 1 to regulate the leasing or licensing of rights of common generally (see paragraph 70), but could apply to any arrangements made by the owner of the common to lease or licence any part of the surplus grazing to a third party, since the owner’s right to use the surplus grazing is not a right of common.
170. Subsection (4) enables a commons council to make rules which have the effect of) limiting or imposing conditions on the exercise of rights of common, or the exercise of the rights of an owner to use the surplus of a common, The intention is that all those exercising rights, whether through rights of common or to the surplus, should be subject to the same rules. For example, a commons council might enter into an agri-environmental agreement that might require a period where no grazing takes place on the common. In such case all those grazing animals on the common would be required to remove them for the specified period.
These powers of making rules are seen in the Establishment Order under the section on Functions of the council at (d) making rules relating to_
(i)Agricultural activities, the management of vegetation and the [exercise of] rights of common on the commons;
(ii)The leasing and licensing of rights of common.
Further under Rules: further provision
- Rules under article 5(a)(i) may in particular include provision—
(a)limiting periods when animals may be turned out onto the Common;
(b)limiting the number of animals which may be turned out onto the Common during a specified period (for example, by restricting each commoner with rights to graze animals from exercising more than a specified proportion of those rights during the specified period);
(c)restricting or prohibiting the turning out of entire animals;
(d)prohibiting the turning out of animals by anyone not having a legal right to do so;
(e)about measures to be taken to control disease among animals on the Common, including temporary prohibition of the grazing of animals on the Common;
(f)about the supplementary feeding of animals on the Common;
(g)about standards of husbandry to be followed by persons keeping animals on the Common; and
(h)requiring from any person to be entered in the register maintained in accordance with article 8, the information described in that article.
For the procedure for making, amending and revoking rules; see Article 7 of the Establishment Order.The Council is required at least one month before applying to the Secretary of State for confirmation of the rules to :-
(a) publish notice of its intention to apply for confirmation together with—
(i) details of the website on which publication is required under paragraph (ii), in one or
more local newspapers circulating in the area of the Common; and
(ii) a copy of the rules, on an appropriate website;
(b) give notice in writing of its intention to apply for confirmation, together with a copy of
the rules, to—
(i) every commoner whose name and address appears in the register maintained in
accordance with article 8; and
(ii) the owner of the Common; and
(c) give notice in writing of its intention to apply for confirmation to, and deposit a copy of
the rules with—
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(i) the proper officer of Devon County Council,
(ii) the proper officer of North Devon District Council,
(iii) the proper officer of the Exmoor National Park Authority, and
(iv) the chairman of each parish council and parish meeting within the area of the
Common.
(4) The Council must provide to any person who so requests a copy of the rules, before or after
confirmation, on payment of a reasonable charge.
(5) If any written representations are served on the Council before it applies for confirmation of
the rules, the Council must send a copy of the representations to the Secretary of State with the
application for confirmation, and the Secretary of State must take account of any such
representations in deciding whether to confirm the rules.
(6) The Secretary of State may confirm, or refuse to confirm, any rules submitted under this
article for confirmation, but reasons must be given to the Council if the Secretary of State refuses
to confirm them.
(7) When rules have been confirmed by the Secretary of State, they come into force either—
(i) one month after the date of their confirmation; or
(ii) upon such later date as the Secretary of State may determine.
(8) When rules have been confirmed by the Secretary of State, the Council must, at least 14 days
before the rules come into force—
(a) publish notice of their confirmation, together with a copy of the rules and notification of
the date on which they are to come into force, on an appropriate website;
(b) give notice in writing of their confirmation and the date on which they are to come into
force to, and deposit a copy of the rules with—
(i) the proper officer of Devon County Council;
(ii) the proper officer of North Devon District Council;
(iii) the proper officer of the Exmoor National Park Authority; and
(iv) the chairman of each parish council and parish meeting within the area of the
Common; and
(c) give notice in writing of their confirmation and the date on which they are to come into
force, together with a copy of the rules, to—
(i) such persons (if any) as it considers represent the interests of commoners not
included in paragraph (ii);
(ii) every commoner whose name and address appears in the register maintained in
accordance with article 8;
(iii) the owner of the Common; and
(iv) the chief constable of Devon and Cornwall Police.
Preamble should set out the ‘command structure of rules in relation to ES and ES IMA
‘Command structure’
The rules are prepared under article 5(d) (i) of the Establishment Order and these rules are the means whereby the Council carries out its functions. Prior to the Establishment Order the the Common was subject to the ‘rules’ set out in the Internal Management Agreement (IMA) being part of the ES Agreement. The rules are the underlying form of regulation but during the term of the ES agreement the IMA and any agreed amendment to that IMA take precedence over the rules.
BRENDON COMMONERS' COUNCIL
DRAFT RULES AS PREPARED UNDER
SECTIONs 26, 31 &34 of the Commons Act 2006
1. Rules Relating to Funding the Council.
1.1.The Council may raise money to meet its operating costs through Environment Stewardship funding or other support and through levies (fees) on the exercise of rights of common or annual subscriptions. Such fees may take the form of a flat or variable rate. For example, for commoners, a variable rate may be calculated according to the number of common rights, the extent to which they are exercised and types of right in common held.
1.2. Any such levy / fee agreed from time to time by the Council will be reviewed annually and published on the website and is payable immediately on demand or may be deducted from distributions of Environmental Stewardship or any other distribution made by the Council to commoners. Failure to pay any levy / fee may lead to suspension of rights held and suspension from the Council.
- Rules relating to Commons Register
2.1. The Council will maintain a ‘live register’ relating to common rights however all persons having rights must ensure that the Commons Register (currently held at Devon County Hall) is correct in respect of their entry and must upon sale, transfer and /or receipt of units contact Devon County Council in accordance with Regulation 44 of the Act and the Secretary of the Council/ Keeper of the Register, in accordance with article 8 of the Establishment Order and incorporating the information set out in that article.
2.2. Any person entered in the live register will be required to provide the information required within 14 days(see article 8 of the Establishment Order) upon demand by the Secretary / Keeper of the Register. Any person entered on the Live register must notify the Secretary of the Council / Keeper of the register of any changes of information (see article 8(3)) without delay (no later than 14days of any change) whether demanded or not. Insert timescale
2.3. In the event of a change of ownership or status requiring an apportion of rights the apportionment must be carried out by or agreed by the Secretaryof the Council / Keeper of the Register any person making such changes will be required to pay reasonable cost of that apportionment or interpretation of rights etc carried out by the Secretary / Keeper of the Register.
2.4.Any person entered in the live register or member of the public may upon application to the Secretary of the Council;-
a). Make an appointment to inspect the register without charge (Article 8 (4)) and make copies or take extracts, or
b) On payment of a reasonable charge, be provided by copies by the Council
3. Council entry into ES Agreement
3.1 The Council may as part of the exercise of its functions enter into Environmental Stewardship or other agri-environment agreementand will assume responsibility for delivering its terms and for receiving and distributing payments
3.2. No person shall graze in contravention of any agreement for the management of the common made between the council and Natural England (or any successor body) under the auspices of an Environmental Stewardship agreement or similar. No person shall breach the terms of an Internal Management Agreement or other deed made by the council for the regulation of an Environmental Stewardship agreement or similar.
3.3. The Council shall for the period that the Common is entered into an Environmental Stewardship Scheme and for any period thereafter as agreed with the Landowner(s) assume the landowners responsibilities in respect of management of the vegetation of the Common.
4.Rules relating to Limiting Periods when animals may be turned out on the common
4.1. The Council may from time to time regulate the periods that animals may be turned out on the Common and the types of animals that may be grazed. (for example equines limited to (delete- registeredinsert -recognised) Exmoor Ponies onlysee note below). This maybe in accordance with an Environmental Stewardship Agreement, Directive from Natural England or successor body or disease control measure, (see rule 8), or such other reason requiring Council action. Designated periods will be known as restricted or prohibited periods
Because of the current difficulties with Exmoor pony registration it is suggested that the term recognised be placed instead of registered.
4.2. The Council may from time to time limit the number of animals which may be turned out upon the common during a specified period (for example, by restricting each commoner with rights during the specified period): This maybe in accordance with an Environmental Stewardship Agreement, Directive from Natural England or successor body or disease control measure or such other reason requiring Council action.
4.3 The Councils directions upon limiting stocking (unless part of an Environmental Stewardship Agreement or similar) shall be published as Notice of Limitation and will be published on the website.
5. Rules relating to Grazing / Livestock Husbandry
Prohibition of grazing the common by those not having rights or being a rights holder having not registered those rights
5.1. No person shall let graze (de pasture) on the commons any animal in respect of which he does not have an entitlement orif entitlement is held for which he has not registered the intention to graze with the Council.
Rules relating to assigning and letting of rights
5.2. No person having the right to license another person or arrange for any other person to grazeanimals on the commons shall enter into any such licence or arrangement without giving to theSecretary of the Council notice of the numbers of such animals involved in any such licence orarrangement and the duration of the agreement.Note that the IMA does allow this. Suggest time limits (See also Para 7 below)
5.3.. No person shall allow any animal to be grazed on the commons without taking all reasonablesteps to make sure that from the date of that animal's introduction it is hefted or leared or flocked inaccordance with the custom and practice of Brendon Common as approved from time to time by the Council.
5.4. This section requires revision due to changed statutory requirements. No person shall allow to be grazed on the commons any cattle or ponies exceeding the age of 12months or sheep exceeding the age of 6 months which are not permanently marked in a form that isreadily visible for the purpose of identifying their ownership. Sheep should have a permanent incisedearmark readily discernible together with a paint mark. All animals grazing the commonmust be marked in accordance with the appropriate identification, registration requirements. (Delete-The Council may waive the requirement ofsuch permanent marking on application of the person grazing prior to the commencement of such grazing where the duration of the grazing is to be a single period of less than 3 months.
For the purpose of this Regulation the application either of paint or of an ear-tag to a sheep shall notbe regarded as forms of permanent marking.-deletion ends)
Every person so grazing an animal shall one month prior to first grazing any such animalsend to the Secretary of the Council a diagram and a description of the mark adopted for this purpose (to include the colour and position of any paint marking).
The Council may require a person to alter or vary any mark which it considers cannot adequately bedistinguished from that employed by another person grazing animals on the commons, and thereaftersuch person shall ensure that all animals grazed by him are marked in accordance with suchrequirement.
5.5. No person shall graze on Brendon Common any animal which he knows or has reasonable cause tobelieve is suffering from any disease which is a notifiable disease for the purpose of the AnimalHealth Act 1981 or any re-enactment or amendment thereof and a person who grazes on thecommons an animal which is or which appears to be in a healthy condition and who subsequentlydiscovers or is informed that the animal is suffering from such a disease shall so soon as is reasonablypracticable and in any case within 48 hours arrange for the removal of that animal from the commonsand for that animal to be tested. If the results of such a test confirm that that animal is suffering fromsuch a disease that person shall undertake an inspection to ensure that other stock belonging to himand similarly grazed is not affected by such a disease.Further, if any animal is discovered to be suffering from a notifiable disease the person by whom itwas grazed shall within 48 hours of such discovery notify the Secretary of the Council thereof.
5.6. No person shall graze on the commons any animal which has ceased to be thrifty and the Councilmay by written notice require such person to remove from the commons a grazed animal whichthe Council considers to have ceased to be thrifty or which would suffer unduly if allowed to remain grazing. That person shall remove such an animal within forty-eight hours of receipt of such anotice in default of which the Council may take steps to remove it.
Grazing and Prohibited periods
5.7. No person shall graze a prohibited animal on the commons or a designated unit thereof during aprohibited period. A prohibited period shall be a period designated by the Council in accordance withadvice concerning animal health or other matter or because of any outbreak of infection or ofnotifiable disease or in response to such locally prevailing circumstances as cause the Council toconsider that the commons should not be stocked during that period and may apply either to all thecommons or to such unit or units thereof as the Council decides. A prohibited animal may be ananimal of any description as the Council may decide.When the Council has determined that a prohibited period is necessary and the appropriate extentthereof the Secretary of the Council shall inform all active graziers whose grazing is affected by the prohibition notice of the prohibited period and the prohibitedanimal or animals together with the reason for the prohibition.