Clause 13 — Surrender and extinguishment

Orders of the Day – in the House of Commons at 1:30 pm on 29 June 2006.

Alert me about debates like this

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 1:30, 29 June 2006

I beg to move amendment No. 112, in page 6, line 41, after 'greens', insert 'as attached to land'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss amendment No. 113, in page 6, line 41, at end insert—

'in consequence only of a disposition purportedly affecting a severance of that right in contravention of section 9(2).'.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

These amendments deal with commons that have been partially developed, and I tabled them for two reasons. First, we were concerned that there was a drafting error, but people who know far more about legal jargon than I do agree that there is no such error. Secondly, there is a point of principle. In Committee, in a debate on the apportionment of rights, we discussed carefully what happens when a dominant tenement is sold or split and is partially developed. Indeed, we discussed an example in which one piece of land is developed and lots of individual houses are built on it. The legislation, as drafted, would give all those houses an apportionment of the rights.

On reflection, I question whether that is right, so the principal purpose of the amendments is to challenge the Government to explain why the right of common should endure if part of the dominant tenement is no longer used for an agricultural purpose. Commons rights were originally attached to agricultural land, as we discussed in Committee—I shall not repeat all those debates today. Former agricultural land could be completely developed and the rights apportioned so that, for example, there is one sheep per house in a new housing estate. Is that logical?

The Minister may well respond that those people will clearly not exercise their right to own a single sheep, and I accept that that may be so, given all the bureaucracy that the Government have imposed on sheep owners. Rights can be transferred under schedule 1—we will come on to that later—but if the owner develops the dominant tenement and decides not to transfer the rights but to apportion them among the properties, difficulties could arise. As the Minister said, we will come on to discuss the establishment of statutory associations—I agree that they should become councils—which brings the issue of rights into play. The logic of the Bill is that all those individual owners, with perhaps one or two rights each, will all have a voice even though, in reality, they do not have any agricultural interest.

We have discussed many times in the House—indeed, the Minister referred to it himself a few minutes ago—the issue of people who move into a rural area without understanding anything about it. In the example that I gave, however, they could have a significant voice, as they would have to be consulted on the establishment of an association and, indeed, they would become part of it. A welcome later amendment would give preferential treatment to people who utilise their rights but, nevertheless, the occupants of all those houses in the example that I gave would have a say in the establishment of the association, its running and, of course, the management of the commons. I question whether that is right, which is why, despite clarification of the drafting, I tabled the amendments. It is a little late to ask the Minister to go away and think about the issue again, but I urge him at least to reflect on it, and tell the House how he will address the problem that I have identified. When rights are fragmented and many rights owners involved, how can that be dealt with by the management systems and the associations established by the latter part of the Bill? It would have been far better to use a de minimis arrangement to extinguish rights of common in those circumstances.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham 1:45, 29 June 2006

I was baffled when we first debated the issue, because those 50 houses might not simply have the right of grazing but other rights, such as rights of turbary. Instead of one commoner having access to peat on the land, 50 of them would have access, which would substantially change the physical appearance of the common.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

My hon. Friend is right. Our debates in Committee and on Report have inevitably dwelt on grazing rights on commons, but there are many other rights. If, for example, everybody had rights of turbary to cut peat, a whole common could be destroyed by householders digging.

The situation is unfair for graziers, because in theory they must individually approach all the house owners to lease back their unused grazing rights that would otherwise revert to them automatically by the operation of the common law extinguishment. That is not in the interests of the commons or of the normal users of the rights of common.

The Minister needs to reflect on the matter. I hope that he will accept the amendment, but if he is not minded to do so, will he think through what can be done by regulation to deal with the situation that I have described?

Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs)

The amendments relate to clause 13, which abolishes the principle by which rights of common may be extinguished at common law, except where rights of common are surrendered in accordance with the prescribed procedure. They are intended to ensure that the abolition of that principle is confined only to an unlawful attempt to sever rights of common attached to land.

Mr. Paice has raised the question how rights of common could be apportioned between numerous houses developed on a dominant tenement. It is certainly conceivable that a right of common may be apportioned between numerous dwellings. For example, the commons register may show that farm A has the right to graze 50 sheep. If farm A were sold to a developer, who in turn sold off 50 plots, each of which had a house built on it, each of those house owners would have the right to graze one sheep. We see nothing improper about that outcome. Certainly the owners of those houses are unlikely to exercise those rights, and the constitution of any statutory commons council established under part 2—this important point goes some way to answering the concern raised by the hon. Member for South-East Cambridgeshire—may well give preference to active commoners against inactive householders. So long as the householders are entitled to the right to graze to one or more animals, they will be entitled to exercise it.

The hon. Member for South-East Cambridgeshire has also raised the issue of ensuring that rights of common cease to apply where the dominant tenement is developed. In our view, it is correct to say that the development of the dominant tenement so that it can no longer be used for agriculture would at common law extinguish the rights attached to the land.

Clause 13(3) abolishes that principle, and we believe that that approach is both fair and consistent with present practice. The approach is fair, because it would be invidious for registration authorities to decide whether a dominant tenement had ceased to have an agricultural use. Would a house with a grazing paddock qualify to retain the rights? And what if a large garden could be converted back to grazing? The approach is consistent, because the effect of registration under the Commons Registration Act 1965 was inadvertently to break the link between the number of animals which could be grazed on the common and the capacity of the dominant tenement to over-winter the same animals—the principles of levancy and couchancy. It would be absurd to provide that a 1 hectare smallholding could have any number of rights attached to it, but that the same dwelling with only a small garden could have none.

I do not accept that that change disadvantages the owner of the common. The common will remain subject to registered rights of common, irrespective of changes affecting the dominant tenements to which rights are attached, which is a perfectly reasonable outcome. Of course, if the dominant tenement is developed for housing, it is most unlikely that the rights will continue to be exercised, which will often be to the common owner's profit. With many lowland commons now under-grazed, the preservation of such rights will also help to ensure the retention of mechanisms through which grazing could be introduced if required.

One of the merits of the registration of rights of common under the Bill is to deliver certainty on the existence of those rights. In our view, it is not helpful if a registered right can be challenged on the grounds of some event happening off register, which means that the right has ceased to exist, although it may remain on the register. I hope that that explanation encourages the hon. Member for South-East Cambridgeshire not to press the amendment to the vote.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister for his explanation. I am sure that he has read all the papers and knows that Conservative Members support the Bill's objectives and its approach to apportionment. I was merely trying to identify a particular problem. I am not entirely persuaded that it is perfectly reasonable for all those individual houses to have the right to graze one sheep. Although I readily accept that it is unlikely that people will want to exercise those rights, they may resist going through the paperwork to lease them to somebody who wants to exercise them. On the Minister's point about over-grazing and under-grazing, if the rights are to be used, the owner must lease the rights to somebody else in order to lose them, which would be a lot of paperwork for one sheep.

I accept the general point, to which we shall return on the next group of amendments. The Minister has rightly identified the issue of the creation of the association, and we may press him further when we reach the amendment on the balance between those who exercise their rights and the dozens, if not hundreds, of people who do not.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.