Commons Bill [HL]

I am grateful to the noble Baroness for moving the amendment. It would require that any transfer of a right of common should be registered in order to be effective in law. It raises a subject that I know is of great concern to the noble Lord, Lord Inglewood, and, I am sure, to others. I am glad to be able to respond and to try to explain how the Bill is intended to work in this context. The matter is of considerable general interest, so I hope that Members of the Committee will forgive me if I give a slightly longer explanation than might be anticipated. Our starting point is that the Bill builds on the existing and ancient common law rule that the owner of land to which rights are attached, known as a dominant tenement, is the person entitled to exercise the rights—just so long as he continues to own the land. As I said, we perceive a consensus among interested parties that this is a worthwhile rule of law that ensures that those entitled to exercise rights of common are those who live close to the common itself. Indeed, that basis underlies the justification for the prohibition on severance of rights contained in Clause 9, which we debated at length earlier. The Bill reinforces that principle. Clause 17(3) provides that the registers are to be conclusive of the attachment of rights to land. The amendment would require the transfer of a right of common to be registered. It follows from what I have just said that such a transfer generally happens when the dominant tenement is itself transferred: perhaps it is bought and sold in the usual way, or perhaps it is divided up and sold in several separate parcels. In either case, the rights attached to the dominant tenement now belong to the new owner or owners. We have already in place in this country a system to record the ownership of land: it is the register of title, as I argued earlier, maintained by Her Majesty’s Land Registry. Generally, an entry in the register of title—I must stress the distinction now between the register of title and the commons register—as to ownership is guaranteed by the state. So there is a requirement in law that when land changes hands, the transfer must be registered with the Land Registry, otherwise the conveyance is ineffective. The noble Lord’s amendment, moved by the noble Baroness, would require the transfer of the rights to be entered in the commons registers at the same time. But, in fact, there is no transfer of rights. The rights remain attached to the dominant tenement as they always have done. All that has changed is that there is a new person in occupation entitled to exercise those rights. I am sure that what the noble Lord seeks in his amendment is greater clarity. He would like the commons register to show who is entitled to exercise the rights. At first blush, that sounds sensible, and we sympathise with that aspiration. It is one shared by many people who have to work with the commons registers on a day-to-day basis. The difficulty is that it is simply not possible for the commons registers to be conclusive both of the attachment of rights to land, and of the entitlement to exercise those rights. If we are to retain the principle of attachment of rights to land, we cannot have registers that are conclusive both of attachment, on the one hand, and entitlement, on the other. The registers will assist in demonstrating entitlement to rights. But proof of entitlement entails two steps—to identify the dominant tenement to which the rights are attached from the commons register, and to confirm entitlement to exercise the rights by identifying ownership of that dominant tenement in the register of title. Having said that, I accept that we should try to make the commons registers as helpful as possible to those who do not need conclusive proof of the matters but who wish to have some idea of entitlement. We therefore intend to explore, in consultation on implementation of Part 1, whether regulations should provide that a declaration of entitlement to exercise rights can be included in the registers. I must stress that such a declaration could not and would not be conclusive or binding on any person, but it may be helpful that such information can be entered on the register, with an appropriate caveat. We will also consult on whether other information could be noted on the registers at the discretion of the registration authority, such as Land Registry title numbers and the identity of the owner of the dominant tenement when the authority last sought that information from the register of title. I know that the noble Baroness is also concerned to see that there should be a duty on people to notify ““apportionment””. Apportionment occurs when the dominant tenement is divided into two or more parcels in separate ownership. On such a division, the rights attached to the dominant tenement are divvied up between the parcels in strict proportion to area. As such, the registration of apportionment is one aspect of the noble Baroness’s desire to see the registration of all rights. Clause 8 provides for regulations to enable the registration of apportionment, but does not require it. We do not expect to require routine apportionment. Why? The reason is simple—the registers will be conclusive of the attachment of rights to land, and the rights which flow from attachment do so in proportion to the area of that land owned by any person. If I own a quarter of a dominant tenement, I will be entitled to exercise a quarter of the rights attached to it. It therefore does not matter whether that dominant tenement belongs to one or more persons and there is nothing to register on an apportionment. It follows from what I said earlier that we will certainly consider, again in consultation, whether we should allow apportionment to be voluntarily registered in order to secure the registration of the additional information to which I referred. Clause  8 needs no amendment to enable that to happen. However, we do not think that it would be sensible to require apportionment to be registered, as we believe that that would be impracticable, and actually create more rather than less uncertainty about the entitlement to rights. That is because, with the best will in the world, many small cases of apportionment would go unnotified, and it would not be possible to ascertain whether a notification of apportionment remained outstanding without cross-referral to the register of title at the Land Registry. I have taken a long time, but I hope that I may have given some reassurance to the Committee that we recognise the concerns of stakeholders that the Bill does not go far enough to address their legitimate desire to see registers which are clear about both the extent of rights and the entitlement to exercise those rights. I hope that that full answer will give some relief to the noble Baroness.