PannageMan

Defra announced yesterday a new methodology for calculating payments on common land under the Basic Payments Scheme (BPS, the direct payments subsidy for farmers under pillar 1 of the Common Agricultural Policy). The change means that, from 2015, the whole area of a common will generally be allocated among those who claim on it for the purposes of the BPS. That means a larger notional area for claimants on most commons, and subject to other factors, potentially larger payments.

Defra has also announced that, following a legal challenge to the existing methodology under the Single Payment Scheme (SPS), it has concluded that the methodology used since 2005 was unsound, and that certain commoners may be eligible for compensation.

As the announcement is closely connected with my role in Defra, please refer to the website for further information.

Ponies on Bodmin Moor: © Jonathan Billinger and licensed for reuse under this Creative Commons Licence

Defra is consulting on a draft commons council establishment order for the Bodmin Moor commons. The consultation closes on 13 April 2015, but, as the closing date occurs after dissolution of Parliament for the election, the order cannot be made until well after the election, even if the outcome of the consultation is supportive.

Commons councils are established under Part 2 of the Commons Act 2006. Part 2 was brought into force in 2010 (SI 2010/61, as amended by SI 2010/2356), along with a standard constitution for commons councils (SI 2010/1204). Three commons, or groups of commons, have been candidates for commons councils since then: Brendon Commons, Bodmin Moor, and the Cumbrian fells. The Brendon Commons Council was the first and so far only council to be established, in 2014 (SI 2013/2959). You can find out more about commons councils on the regrettably archived Natural England website.

A commons council for Bodmin Moor would therefore be only the second such to be established, and the consultation contains a draft order for that purpose. Under s.27(4) of the 2006 Act, the Secretary of State may not make the order unless she is satisfied that there is ‘substantial support’ for it. The consultation is therefore intended to gauge whether such support exists, and the Secretary of State must have particular regard to representations by landowners, commoners and others with an interest in the commons which would be regulated by the proposed council (s.27(5)).

The Bodmin Moor commons are extensive: the area to be regulated under the draft order is not stated, but a summation of the areas of the common land register units listed in Schedule 1 to the order suggests 7,056 hectares (just over 70 square kilometres). Proposals for better management of Bodmin Moor have history: a Bodmin Moor Commons Bill was introduced to Parliament in 1994, for much the same purpose as the present draft establishment order, and drafted along the lines of the previously enacted Dartmoor Commons Act 1985. This was several years before the enactment of the right of access to common land in Part I of the Countryside and Rights of Way Act 2000, and the Bill was blocked because the promoters refused to concede a public right of access to the commons. It now appears that the commons to be regulated by the proposed commons council will be those which would have been regulated under the Bill: indeed, the map of the commons in annexe A to the consultation paper is labelled ‘Bodmin Moor Commons Bill’.

The draft order is not dissimilar to that establishing the Brendon Commons Council. The numbering of provisions and footnotes has unfortunately gone awry, probably the consequence of merging two complex Word documents into one, but this does not have any serious impact on understanding the provisions. There are to be 24 members of the council, supplemented by up to two who may be co-opted (one of whom must be a vet) but who have no voting rights. The commons are divided into eight ‘sections’ (listed in Sch.1 to the draft order), and four ‘section-groups’ (identified in art.2): each section is empowered to elect two members from among the active commoners, and each section-group is able to elect one representative from among the inactive commoners. A further four members are appointed by the owners of the commons, and although this presumably reflects the owners’ preference, it is not clear what would happen if the owners were unable to agree among themselves. For example if just one owner refused to endorse the appointments, would that leave the owners unrepresented until they could resolve the deadlock, for it seems that the landowners must act as one? Powers are conferred on the council under art.5(d) to make rules relating to “agricultural activities, the management of vegetation and the exercise of rights of common on the Commons; [and] the leasing or licensing of rights of common”, subject to following the procedures set out in art.7, and obtaining a super-majority of two-thirds of the council (para.2(2)(a) of Sch.3). The council must maintain a live register (under art.8), and this is to include various information about the animals turned out on the common; however, the live register is not allowed to ‘bypass’ the statutory register maintained by Cornwall Council, as the proviso to art.8(1) requires that the live register may not contain “information as to any matter which is, or was, capable of being registered under Part 1 of the 2006 Act, but which has not been so registered” (but the exception for voluntary declarations of entitlement to exercise a right of common, which is present in what ought to be numbered para.8(b) of Sch.2, is omitted here).

Schedule 1 to the draft order contains a list of the common land register units which will be regulated by the council, and an assignment of the commons to the ‘sections’ for the purposes of elections. Hamatethy Common is oddly listed as register unit CL763, which does not appear in the ‘biological survey’ catalogue but appears to be a ‘late arrival’ in the registers, and CL247 appears twice (in the same section). One only has to take a brief look at the complexity of the register maps, and the numerous additions and deletions, to realise the complexity of the extent of registered common land: one can only hope that these have been fully resolved by the parties behind the order, because an amendment to the order, once made, would be unlikely.

Schedule 2 contains the arrangements for the election and appointment of council members, and makes clear that a commoner with rights over commons contained in more than one section may (by notice to the returning officer) vote in the election for each such section, but may not be elected as a member for more than one section (but nothing stops a commoner standing for election in more than one section). Where there is an equality of votes in an election, the votes are to be weighted according to the extent of the rights held by each elector, which suggests that the ballot cannot be secret (or at least, that the returning officer must be able to identify the elector who has completed a ballot paper).

Although s.36 of the 2006 Act enables an order to vary or abolish any regulations made under the Commons Act 1908, no such provision has been made in the draft. These regulations enable committees of commoners to regulate the turning out of entire animals (i.e. stallions, bulls, rams and boars). This is surprising, since regulations have been made under the 1908 Act in relation to some Bodmin Moor commons, and it is hard to see how the commons council could make rules under art.6(1)(c) for that purpose which overlap the jurisdiction of regulations made under the 1908 Act.

It now remains for the commoners, landowners and other interests in the draft order to respond to the consultation in sufficient numbers to show ‘substantial support’. Silence cannot be taken as assent, so the parties behind the order will need to ‘get out the vote’ in order to make a success of the consultation, and enable the Secretary of State to proceed to make the order. Twenty years after the Bodmin Moor Commons Bill fell in Parliament, it is possible that much the same provision will now be made under secondary legislation, and with far less fuss. That is thanks to the 2000 Act, which rendered a right of access to the commons, at least on foot, as beyond debate.

In a blog late last year, I wrote about the Ministry of Defence’s application to deregister Warcop common in Cumbria, part of the army training estate. I observed then that Departmental views differed on the lawfulness of the application. I now understand that the application has been withdrawn. If so, the repeal in Cumbria of the Commons Registration Act 1965 means that the Ministry cannot at any time renew its application for deregistration under that Act: the opportunity has passed for good.

The Ministry may explore alternative options available to it, but none seems very promising: after all, the Commons Act 2006 was precisely intended to safeguard registered common land from deregistration.

Schedule 3 to the 2006 Act provides an opportunity to register historic events preceding the date of commencement, but it would be necessary to show that the compulsory acquisition of the rights of the commoners some years ago is a ‘disposition’ not only which caused Warcop common to cease to be common land, but the effect of which was not fully satisfied at the time by registering the extinguishment of the rights.

From tomorrow, 15 December 2014, anyone in England can apply to deregister wrongly registered common land. Remarkably, for many landowners and householders, this will be the first opportunity to deregister wrongly registered land since the registers were drawn up in the late 1960s.

In a recent blog, I explained that Part 1 of the Commons Act 2006 will be brought into force throughout England from 15 December 2014, but only for the limited purpose of applying to deregister land under section 19 of, and paragraphs 6 to 9 of Schedule 2 to, the 2006 Act (section 15 of the 2006 Act, which enables the registration of town or village greens, has been in force in England since 2007). Meanwhile, two new county councils will be enrolled among the existing seven commons registration authorities in whose areas Part 1 is fully implemented (North Yorkshire and Cumbria join Lancashire, Blackburn with Darwen, Herefordshire, Hertfordshire, Kent, Devon and Cornwall): we’ll call these the ‘Part 1 authorities’. In the rest of this blog, comments which relate only to the Part 1 authorities, and which do not yet apply outside these authorities’ areas, are marked with a ‘§’

New rules regulating Part 1 come into force on the same day: these are the Commons Registration (England) Regulations 2014, which revoke the predecessor Commons Registration (England) Regulations 2008 and 2009 amending regulations. How do the new regulations differ?

For a start, they’re slightly longer, at 83 pages incorporating 54 regulations, 8 schedules and, as before, copious model entries for amendments to the registers of common land and greens. There are now two new schedules, including new Schedule 8 (applied by r.1(3)) to explain how the new regulations apply to the majority of commons registration authorities where Part 1 is not yet fully in force. R.2(1) (interpretation) now contains a new definition of ‘register unit’, perhaps unnecessarily since the composition of a register unit is already addressed in r.6§ (register units). R.7(7) (method of registration) now confers a wide discretion on the Part 1 authority to “supplement an existing entry with information that it considers necessary or desirable for the accurate interpretation of that entry”. It’s not yet clear what Defra has in mind for this provision: it could perhaps include comments that a particular entry is outdated in some respect, but as the intention of the 2006 Act is to encourage such entries to be updated, a comment might be seen as a quick fix which would discourage a more formal application to update.

R.16(1)(a) (making an application) now requires applications under Part 1 (including applications throughout England for deregistration of land) to be made on a form provided by the Secretary of State: previously, the forms were made available by individual registration authorities. The forms have now been made available on the gov.uk website.

R.17 (application fees) now merely provides that registration authorities may specify a ‘reasonable fee’ for an application (including deregistration applications). Previously, a table of fees was specified in the regulations, but an authority could adopt its own fee, not exceeding a maximum of £1,000, having regard to its costs in dealing with such applications. There is now no maximum, and no default fees specified in the regulations, so each authority will have to appoint its own fees (deregistration-only authorities will have just a handful to appoint). The fees must be advertised on the authority’s website. If an application is to be referred to the Planning Inspectorate, a new supplementary fee will be charged by the Inspectorate in addition to the fee paid to the registration authority: this rises as high as £3,400 for an application to deregister land under paragraph 9 of Schedule 2 (other land wrongly registered as town or village green), so it wouldn’t be surprising if the total fees exceed £5,000 where the application is referred to the Inspectorate. But there is no change to the principle that no fee is payable on an application which is primarily for public rather than personal benefit, such as to register new land (whether as common land or as a town or village green).

Regulation r.19(5)§ simplifies an application to register land as common land which was provisionally registered under the Commons Registration Act 1965, but the registration was subsequently cancelled — such applications are most likely under paragraph 4 (waste land of a manor not registered as common land) of Schedule 2 to the 2006 Act (so can, as yet, be made only in the Part 1 authority areas). An application now need not be accompanied by a map, but may merely cite the register unit number of the provisional registration (however, if the application land differs from the original register unit in any way, a map will still be needed).

There is no longer a requirement on the applicant to serve notice of the application on third parties, nor a discretion on the part of the registration authority to require additional notices to be served: these burdens now fall on the registration authority (r.21, registration authority’s duty to publicise application), and presumably the additional cost will be recovered through higher fees. It will be easier for the authority to ensure compliance with notice requirements by doing the job itself than by validating what has been done by the applicant. However, the former requirement to advertise applications to register, or deregister, land in a local newspaper has been discontinued.

Formerly, any application to deregister land, and most applications to register new land, were required to be referred to the Planning Inspectorate for determination, regardless of circumstances: this reflected the potential seriousness of such an application in terms of the public interest in land remaining registered, and the impact on a landowner of land becoming registered. The new regulations (r.26(3), responsibility for determining applications and proposals) require such applications to be referred only where a person with a legal interest in the land objects. Any application must also be referred where the authority has an interest in the outcome “such that there is unlikely to be confidence in the authority’s ability impartially to determine it” (there is an ambiguity in the drafting which raises the possibility that a referral could be made in the latter case only if the application is to deregister or register land, but the context suggests that is the less likely meaning).

An inspector appointed by the Planning Inspectorate on a referral may now (r.29(3), public inquiries: general provisions) give directions to the parties involved in a public inquiry regardless of whether there is a pre-inquiry meeting — for example, to prepare and circulate statements of case. And an award of costs against a party participating in a public inquiry into an application which is referred to the Inspectorate, and which is for the deregistration or registration of land under Schedule 2 to the 2006 Act, can now be made only for unreasonable behaviour (r.37(2), award of costs in relation to certain applications), although that was in any case previously the Government’s policy set out in circulars.

Declarations of entitlement to a right of common were introduced by the 2008 Regulations in the Part 1 authority areas: they enable a person entitled to a right to identify themselves by name in the register. This is because, as a rule, the register shows the land to which a right of common is attached rather than the owner of that land. It also shows the person who applied for registration of the right, but as that application would have been made nearly fifty years ago, and as the applicant was not even then necessarily the owner of the land to which the right was attached, it is and always was mistaken to deduce entitlement from the name shown in the register. The declaration enables the addition of the relevant information: before granting the application for a declaration, the registration authority must satisfy itself that the declarant does indeed own, or occupy, the land to which the right is shown as attached. However, declarations (r.43§) are now formally to be known as ‘declaration of entitlement to exercise a right of common’, while a tenant may now seek to enter a declaration with a tenancy of only six months or more (formerly three years). A tenant wth a term of just six months may find it hard to justify the fee for such an ephemeral declaration. The registration authority may cancel a declaration which it knows is no longer subsisting (r.43(6)§).

Registration authorities have always been able to enter notes in the land section of the registers about matters affecting the public: for example, a note about a scheme of regulation and management for the common made under Part I of the Commons Act 1899, and to cancel such a note if the matter was no longer subsisting (e.g. if the scheme were revoked). A new provision (r.46(5)§, matters affecting the public) now enables the authority to cancel any note made in the registers, on the same grounds, although the implication appears to be that it is intended to relate to notes made only in the land section under r.46 or its predecessor provisions.

Applications made to the majority of registration authorities in England which are not yet Part 1 authorities, to deregister land, are made under the 2014 Regulations, subject to the modifications made by Sch.8. This brings a certain amount of complexity to the handling of applications affecting the commons and greens registers in these non-Part 1 authority areas:

• applications under s.13 of the Commons Registration Act 1965 (so far as it is still in force) are made under that section, and under the Commons Registration (General) Regulations 1966 and the Commons Registration (New Land) Regulations 1969;
• applications under s.15 of the 2006 Act to register new town or village greens are made under that section, and under the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007;
• orders to deregister land made by the Secretary of State under s.17 of the 2006 Act, consequent on an application under s.16, are dealt with under that section, and under the Deregistration and Exchange of Common Land and Greens (Procedure) (England) Regulations 2007;
• applications under s.19 of, or paragraphs 6 to 9 of Sch.2 to, the 2006 Act, are made under those provisions, and under the 2014 Regulations as modified by Sch.8.

And in the last three cases, commencement orders make further provision to ensure that, where the register is referred to or modified, it is the register held under the 1965 Act which is affected, and not one held under the 2006 Act (which in these areas, does not yet exist).

Finally, note that the transitional application period, which is the initial period in the new Part 1 authority areas during which free applications may be made to update the registers reflecting historic events which took place between 1970 (the exact opening date will vary according to circumstances) and 2014, such as an agreement to extinguish rights of common, lasts three years, and expires on 14 December 2017 (r.38§, the transitional period and transitional application period). Beyond that date, applications may still be possible, but will attract a fee commensurate with the cost imposed on the registration authority.

Defra announced this week that new registration arrangements for common land will come into force on 15 December 2014 — a couple of months later than the October commencement originally announced earlier this year, but the first significant advance since 2008.

The Commons Act 2006 (Commencement No. 7, Transitional and Savings Provisions) (England) Order 2014 brings into force Part 1 of the Commons Act 2006 in two new local authority areas, Cumbria and North Yorkshire, adding to the seven authorities which have been solitarily pioneering the legislation since 2008. That brings Part 1 into full effect in just nine authorities — but together, they represent some of the largest and most important areas of the country for agricultural reliance on commoning. In Cumbria and North Yorkshire, commoners, landowners and others will be able to apply initially free of charge to update the commons registers to reflect events which have taken place since registration in the late 1960s, but which have not yet been registered — such as the variation, surrender or severance of rights of common, or an exchange of land following a new road across common land.

But the order also brings into force certain provisions in Part 1 throughout the rest of England (i.e. where Part 1 is not yet in force as a whole), to enable anyone to apply to their local authority to deregister common land in limited circumstances. This is a controversial move: it comes eight and a half years after Royal Assent to the 2006 Act, and there had been criticism that owners of wrongly registered common land (and occasionally, town or village greens) were still not able to apply outside the pioneer areas to correct the errors. The order ends the delay: but only for the purposes of deregistration. Those who seek to register new common land, and indeed, those who are waiting for the commencement of Part 1 to introduce a system for keeping the commons registers up-to-date, must continue to wait. There is a risk that, by commencing selected provisions now, the pressure to roll out Part 1 as a whole will diminish.

New regulations have been made, the Commons Registration (England) Regulations 2014, to replace those made in 2008 and 2009. These are broadly consistent with the 2008 regulations: a future blog will report on what has changed. New guidance will replace the existing guidance (although there are few changes to the legislation), but this has not yet been published, nor have the new forms for applications under Part 1 (whether in the new pioneer areas, or for deregistration of land elsewhere).

Under regulation 17 of the 2014 Regulations, each local authority must appoint fees for applications under Part 1, and publish those fees on its website. It appears (although regulation is not explicit on the point) that if an authority has not published the fee on its website by the time an application is made, it cannot levy any fee at all (note that certain applications, specified in Schedule 5 to the 2014 Regulations, are in any case free of charge). It will be interesting to see whether around 145 local authorities which undertake commons registration functions (but are not among the pioneers) will all have published their tariffs by the time the first applications start to arrive. Some of the existing pioneer authorities are charging around £1,000 to deregister land, so presumably the arrival of an application with an authority which has no tariff on its website, and which must be processed gratis, will be a powerful incentive to rectify the omission.