Commons Bill [HL]

As the noble Lord, Lord Greaves, said, his amendment would ensure that rights of common could continue to be acquired by prescription. The effects of Clause 6 are that rights of common can no longer be acquired except by express grant or as a result of some statutory provision. Therefore, it abolishes the common law position that rights of common can be acquired over land by long, uninterrupted use, whether by custom, prescription or the doctrine of lost modern grant. Why does the Bill say that? It does so in order to promote greater clarity about the status of any land. We intend that the registers will become effectively conclusive about whether the land is or is not subject to rights of common. Where a right is registered over land, the register will be conclusive that the right is at least exercisable. Equally, if no rights are registered over land, the register will be effectively conclusive that no such rights exist. Were we to retain the principle of prescription, there would always remain some doubt about whether some latent right existed which had not been registered. That could cause real difficulties for managing the land if, for example, it is possible for someone to come along and say, ““I have been grazing this land for 20 years and although my rights do not appear in the register, you must treat me as a commoner””. Members of the Committee may ask whether the abolition of prescription will not adversely affect the interests of farmers who might otherwise benefit. We do not believe so. To the best of our knowledge, only one new area of common land has been created by the creation of a new right of common since the 1965 Act. In that case, the new right came into being by express grant, not by prescription. It is not possible to say whether any new rights of common have been acquired by prescription over existing registered common land, because the 1965 Act does not enable such rights to be registered, and some would say neither does the Act allow the rights to be exercised. Schedule 2 enables such rights, if they are capable of existing, to be registered during the transitional period. But we do not think it helpful to encourage the acquisition of new rights of grazing by prescription over existing commons, many of which may already be subject to excessive numbers of grazing rights. Indeed, they may be over-grazed. Instead, our amendments to Clauses 6 and 7 will enable the express grant of new rights of common where the registration authority is satisfied that the common can sustain both the new right and the existing registered rights. That is the right way to proceed, so that new rights come into existence only in reasonable and clearly defined circumstances. The noble Lord pressed me on what an express grant was in the context of his amendment. The answer to his question about a landowner is that a landowner can dedicate his land as common by granting one or more rights of common over his land. However, that would require an express grant—a right expressly created by a deed or other instrument—under Clause 6. The time has come when rights gained by prescription in this context should no longer be the case. That is why I invite the noble Lord to consider what I have said on the matter.