I will let the Minister catch up with himself. Hewas making excellentprogress.
The issuethat I wanted to address during the debate on clause 8—it alsoimpinges on clause 9, but I shall not raise it again—is what hassometimes been called local severance, which is linked to the questionof apportionment in clause 8. Paragraph 50 of the explanatory notescontains an example of a common that is subject to rights to graze 100 sheep and that is divided equallybetween two farms A and B. The notessuggest:
“Theowner of Farm A dies and the farm is divided equally between thatowner’s two children. Two new dominant tenements A1 andA2” will each have theright to graze 25 sheep. It goes on tosay:
“Farm B issold to a developer who in turn sells it off in 50 plots, each with ahouse built on it.”
Underthe rules and regulations, the owners of each of those houses
“will be able to show that theyoccupy 1/50th part of the area of the historic dominanttenement B, and (applying the rules of pro rata apportionment)therefore each has attached to it 1/50th of the rightsrecorded as attached to historic dominant tenementB”— namely, onesheep.
That sort ofthing undermines the integrity of the commons and the credibility ofthe system. As I understand it, that is what must happen under the Billas it is drafted. There is no alternative, as somebody once said. Theexample prompts some detailed questions. Obviously, not all thosehouses will occupy exactly one fiftieth of the original area. We mightget into serious fractions of sheep, because some houses occupyslightly more square metres than others, but I set that pointaside.
Although such asituation could happen in many different scenarios, I raise an ideasimply to get the Minister’s response: there should be a systemwhereby the developer who bought plot B ought to be able under certaincircumstances to sever the rights from all the modern houses and giveor sell them back to the association, or make them available for otherrights owners to acquire. That would keep those rights in the hands ofpeople who seriously want them rather than in the hands of those peoplewho buy houses and end up with the right to one sheep.
I accept that, in somecircumstances, development might mean that house owners would end upwith a number of rights that would have a value. I am not suggestingthat anything should be compulsory, but the developer should have anopportunity to sever the rights. As long as the rights remain on thecommon and must go to a rights holder with a dominant tenement of thecommon, all the principles that the Bill is trying toespouse—principles with cross-Committee and cross-Housesupport—will be retained without leading to the somewhatludicrous and extreme outlined in the explanatory notes, whichnevertheless can and, indeed, does happen. I raise this matter to get aresponse from the Minister at this stage, because it requires furtherinvestigation.
I share some of the hon. Gentleman’sfeelings, but I take some comfort in DEFRA’s advice onidentifying the ownership of rights of common, which states:
“In theDepartment’s view, an apportionment giving rise to a fractionalgrazing right of less than one animal will beunexercisable.”
I am surethat the animal, at least, will be grateful for thatadvice.
I am grateful to the hon. Member for South-EastCambridgeshire for allowing me to catch up. I think that it would behelpful if I explained a little bit about how the clause works; itdeals with the apportionment of rights of common and enablesregulations to be made to deal with the circumstances and the way inwhich the apportionment may beregistered.
Apportionment,for those who are not familiar with the term, is used to describe whathappens to land to which rights of common are attached—a dominant tenement—when it is divided into two or more parcels in separateownership. For example, that may occur when the owner sells only partof his farm holding and retains the remainder. Traditionally, where aland holding is divided between separate new owners, the rights ofcommon attached to that land must be divided between the new owners inproportion to their share of the land, as we have heard in relation tosheep.
I say to thehon. Member for South-East Cambridgeshire that there is an alternative.It is set out in clause 11, which, as we will perhaps discuss, enablesa right of common attached to a dominant tenement to be concentrated onpart of the dominant tenement, where another part is to be developedfor non-agricultural use. I hope that that satisfieshim.
Clause 8 providesthat regulations may enable the registration of apportionment, butsubsection (2) implies, as is our intention, that regulations will notrequire apportionment to be registered, as we discussed in respect ofan earlierclause.
Somestakeholders have asked why we do not ensure the mandatory registrationof apportionment. The answer is a little complex, but to summarise:first, we do not think it possible to require apportionment to beregistered, because there is no sensible sanction that could be appliedin default, nor any likelihood of its enforcement; and secondly, thecommons registers will not show who owns and occupies the land to whicha right is attached. There is little point seeking to registerapportionment, because there will be nothing to change in the registerin consequence of it. The reality is as the hon. Member for Brecon andRadnorshire described it during the debate on clause 3 in respect ofthe Land Registry. We have undertaken to explore whether regulationsunder clause 4 can enable commoners to make a declaration ofentitlement to exercise rights of commonÂ that would be includedin the register as additionalinformation.
I am grateful to the Minister for giving way, but Iam going to challenge him, because I am not entirely convinced thatclause 11, to which he has drawn my attention, addresses the issue thatI raised and that is raised in paragraph 50 of the explanatory notesthat describes the scenario of the whole dominant tenement beingdeveloped. Although I am happy to be proved wrong—I am notconvinced that I am—clause 11 refers to the “relevantpart” being developed. If there is no remaining part, I cannotsee how the rights can be concentrated upon it if the whole site isdeveloped. Perhaps the Minister could comment or reflect onthat.
I am happy to reflect on that. My reading ofclause 11 concurs with the hon. Gentleman’s: it refers to a part, not the whole, of the dominanttenement. I confirm my initial thinking that if the whole dominanttenement is developed, clause 11 does not apply. I shall reflect onwhether the loss of the dominant tenement in its entirety means thatthe owner should be entitled to hang on to the rights if he sold up andmoved away. We are trying to ensure that commons have that localassociation. If the owner has gone, that association may belost.
I certainly want to reassure the Minister that I donot want the owner to run off and keep the rights.[Interruption.] As I was saying, Miss Begg, I assure theMinister that I do not want the owner to run off and keep the rights.When the whole of the land is to be developed, there should be amechanism for reallocating to other rights holders who have dominanttenements for thatcommon.
I shall reflect on that, as I will on howunder-grazing, which I think is the concern of the hon. Gentleman,would be best dealt with. If I decide not to come back to such matterson Report, I shall drop a line to him and other members of theCommittee to let them know the outcome of mydecision.