Commons Bill [HL]

Clause 9 prohibits the severance of rights of common attached to land. Subsection (10) makes provision in relation to any disposition of rights of common attached to land by which the rights are purported to be severed. The effect is that the severance cannot occur and the rights will pass with the land, whatever the intention of the party. The noble Duke has been good enough to tell us that his amendment is probing in nature, but it would remove the clarity of effect secured by subsection (10) and leave in its place uncertainty. The noble Duke’s view is that there is a lack of clarity already, so I shall try to reply. In our view, subsection (10) exists for the avoidance of doubt. Subsection (2) provides that an attached right is not capable of being severed. Subsection (10) seeks to answer this question: what happens if, notwithstanding subsection (2), an instrument purports to sever the rights by conveying land to one party while the rights are either retained or conveyed to another party? A moment’s thought will uncover a number of possibilities here. For example, the effect might be that the conveyance is void in law and neither the land nor the rights are conveyed to anyone, or the conveyance may be effective and the rights transferred with the land but the vendor may be able to claim the additional value of the rights from the purchaser of the land. In our view, the fairest and safest outcome is that provided in subsection (10), that the rights travel with the land notwithstanding any provision to the contrary in the conveyance. Nor do we think it right in those circumstances that the vendor should be able to recover any additional value for the rights from the purchaser of the land, because it was the vendor’s responsibility to act within the law and the purchaser may have had no desire to acquire the rights. We think it best to put the matter beyond doubt, which is the purpose of subsection (10). I hope that is satisfactory to the noble Duke. I am advised that Amendment No. 27 has no bearing on subsection (10).