Until the Commons Act 2006 came into force, a commoner — a person entitled to exercise a right of common — could probably lease or let the right to a third party. Indeed, the commoner could sever the right (that is, sever it from the land to which it was attached) and sell it as a right of common ‘in gross’. The freedom to trade in rights of common was confirmed by the judicial committee of the House of Lords in Bettison and Others v. Langton and Others.
The freedom was not entirely welcome: the potential to separate rights of common from the farm holdings to which they were attached, and which were in turn proximate to the common, was one of the drivers behind the 2006 Act. And so the Act prohibited severance (see s.9) from the date on which the relevant clause was published in the Bill: 28 June 2005.
The Act enabled the Secretary of State, and in Wales, now the Welsh Ministers, to prescribe temporary exceptions to the prohibition on severance. In England, these exceptions are contained in the Commons (Severance of Rights) (England) Order 2006 (which also had retrospective effect on being made). The exceptions (art.2(1)) allow for a temporary let of a right to graze animals for up to two years, renewable, and a let of the land to which a right of common is attached (for any period), without the rights (so that the rights would be retained by the owner of the land to which the rights are attached). The order remains in force today.
Strictly speaking, the order only enables the temporary letting of a right of common to graze animals where the letting is otherwise prohibited by the ban on severance in the 2006 Act. If the right could not have been temporarily let even before the 2006 Act, neither the Act, nor the order, enables it to be let now. This is a fairly obscure class, but it includes appendant rights (which were not within the scope of the House of Lords judgment in Bettison). Classifying rights of common into appendant and appurtenant rights is a pretty obscure exercise in itself, and it’s unlikely that this distinction will remain of relevance for much longer, if indeed it remains relevant now. And the order explicitly does not authorise the letting of rights other than for grazing animals. Moreover, certain unquantified rights (such as a right to collect firewood for use in a domestic hearth) were incapable of being let even before the prohibition on severance.
In Wales, the National Assembly for Wales (which at that time had responsibility for making secondary legislation, during a brief period when, in Wales at least, the legislature carefully scrutinised all secondary legislation) made the Commons (Severance of Rights) (Wales) Order 2007, which was similar — very similar — to the 2006 order, but provided for temporary lets of up to three years, renewable.
Until, that is, Saturday just past, 1 March, when the Commons (Severance of Rights) (Wales) Order 2014 revoked the 2007 order, and prescribed (art.3(1)) for lets of up to five years, still renewable. The change will doubtless accommodate farmers who are active commoners, but who have no, or insufficient, rights of their own and lease in the rights from another commoner. While there was nothing to stop this happening under the 2007 order, the short term nature of the lets would have been an impediment to signing up to longer term agri-environment agreements on the common (which last at least five years), since a commoner with a two year let would not be able to show sufficient long-term interest in the common. The change will also facilitate claims for direct payments on commons in Wales, since a five year let will ensure that the commoner has sufficient security to justify an investment in entitlements.
One interesting aspect of the new Welsh order is that any agreement for a temporary let must contain provision requiring that the owner of the land to which the right is attached is to notify the commons registration authority, the common owner, the commoners’ association (if there is one) and Natural Resources Wales (if the common is a SSSI) of the terms of the agreement (art.4). Note the assumption seems to be that the agreement will be made with the owner of the land to which the right is attached, rather than the occupier (who may have the use of the rights under a tenancy). Quite what the commons registration authority does with the information notified to it is not stated: the authority has no power to modify the register, and is under no obligation to maintain the information notified in any other place. One might also speculate on the precise powers to prescribe for notification, since the 2006 Act only refers (para.2 of Sch.) to leasing and letting in accordance with provision made by order, which suggests only a power to regulate the terms of the lease or let. The Act does confer a specific power to provide for ‘form and content’ of the let or lease, but notification is neither a matter of form nor content. Still, it’s not hard to see merit in at least providing for the possibility of the information being held in a collected form, provided at least one of the bodies notified does actually maintain that collection.