Commons Bill [HL]

moved Amendment No. 38:"Page 5, line 37, leave out subsection (12)." The noble Lord said: Amendments Nos. 38 and 115 are intended to deal with rights of common that have in the past been apportioned unequally, that is to say non-pro rata. There is some risk that, although the parties to the apportionment clearly intended the rights to remain attached to the land, a court might find that the rights had been severed. If, in fact, the apportionment had already been registered, Clause 18(3) will ensure that the rights remain attached to the land. If it has not been registered, the amendment to Schedule 2 provides that when the disposition comes to be registered during the review required by that schedule, regulations may specify what is and is not to be regarded as having given right to severance. In the case of a non-pro rata apportionment, we intend that regulations will provide that the apportionment is not to be treated as having severed the rights. Therefore, application cannot be made to update the register to show those rights as severed. The amendments will do no more than ensure that the registers give effect to the intention of the conveyance made by the parties to the apportionment at the time when it was executed. In other words, they will stop one or more of the parties seeking to show, perhaps long after the event, that the rights were in fact severed by virtue of the conveyance purporting to affect non-pro rata apportionment, even though the conveyance clearly shows that severance was not contemplated at that time. We have no intention of making regulations that will seek to disregard an explicit act of severance. By way of example, if at any time in the past one or more of the parties to a non-pro rata apportionment had actually treated the rights as severed—for example, by selling them in gross to a third party—those rights would be unaffected by regulations under subsection (4)(a). The amendments therefore say, in effect, that on a sale of land with rights, however they had been apportioned, those rights would be treated as attached to the land with which they were sold or continue to be attached to the land retained. That is the right approach. I beg to move. On Question, amendment agreed to. On Question, Whether Clause 9, as amended, shall stand part of the Bill?