Clause 48
Commons Bill [Lords]
2:30 pm
Jim Knight (Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs; South Dorset, Labour)
Section 31 of the Commons Act 1876, with certain exceptions, requires anyone intending to inclose or approve part of a common to publish notice of that intention in a prescribed way at least three months beforehand.
Inclosure and approvement relate solely to land that is still subject to commoners’ rights—the traditional common, rather than waste land of a manor that has no common rights over it. Inclosure—with an ‘i’, not an ‘e’—is the term that describes the owner taking actions on the ground that have the effect of completely stripping the common of the commoners’ rights. Approvement is a lesser form of that, whereby the owner takes into his exclusive use part of the common that is not required to satisfy the commoners’ rights, while leaving the remainder subject to those rights.
Section 31 provided an opportunity for commoners or others to object to either type of change before it happened, so it was a very important provision in its time. However, it was, in effect, superseded by the protection offered by section 194 of the Law of Property Act 1925. Any action on the ground that would be sufficient to constitute an inclosure or approvement would certainly impede the commoners’ access over the land in question, and therefore require consent from the Secretary of State under section 194. That would explain why we know of no case in which the action required by section 31 of the 1876 Act has actually been taken. When part 3 replaces section 194, it will similarly require consent for works that impede the commoners’—or anyone else’s—access to or over the land.
We could simply leave section 31 extant, but there is a slight possibility that it could cause confusion with the procedure that we will prescribe for proposed works on a common. Our objective for part 3 is that the procedures and criteria for proposed works be as consistent and clear as possible. On balance, therefore, it is right to repeal section 31 as a provision that has become redundant.
Subsection (2) of new clause 1 is a consequential amendment to section 3 of the Metropolitan Commons Act 1878, which refers to section 31 of the 1876 Act.